R v Oblach

[2005] NSWCCA 440

Reported Decision: 158 A Crim R 586
65 NSWLR 75

New South Wales

Court of Criminal Appeal

CITATION:	OBLACH v REGINA [2005] NSWCCA 440 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 November 2005
JUDGMENT DATE:	15 December 2005
JUDGMENT OF:	Spigelman CJ at 1; Sully J at 72; Hulme J at 84.
DECISION:	1 Appeal against conviction dismissed; 2 Appeal against sentence allowed; 3 Sentence imposed by Ainsley-Wallace DCJ on 17 December 2004 quashed; 4 Remit the proceedings to the District Court for further consideration on sentence.

CATCHWORDS:	CRIMINAL LAW – Appeal – Conviction – Duress – Proper interpretation of s10.2 Commonwealth Criminal Code – meaning of “reasonably believes” – Whether trial judge erred by directing jury to have regard to objective belief of the accused – Whether proper to have regard to the circumstances as perceived by the accused - CRIMINAL LAW – Appeal – Sentence – Whether sentencing judge erred by not having regard to evidence of threats - WORDS & PHRASES – “reasonably believes”
LEGISLATION CITED:	Commonwealth Criminal Code: Ch 2; ss 10.2, 10.3, 10.4 Crimes Act 1900: s418 Criminal Appeal Rules: r 4 Queensland Criminal Code: s31 Western Australian Criminal Code: s31
CASES CITED:	Fingleton v The Queen (2005) 79 ALJR 1250 Masciantonio v The Queen (1995) 183 CLR 58 R v Acton [2001] QCA 155 R v Campbell [1997] QCA 127 R v Conlon (1993) 69 A Crim R 92 R v Hawes (1994) 35 NSWLR 294 R v Katarzynski [2002] NSWSC 613 R v McCullough (1982) 6 A Crim R 274 R v Smith [2005] QCA 1 Stingel v The Queen (1990) 171 CLR 312 Taikato v The Queen (1996) 186 CLR 454 Viro v The Queen (1978) 141 CLR 88 Zecevic v DPP (1987) 162 CLR 645
PARTIES:	Renato Oblach (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2005/1291
COUNSEL:	SJ Odgers SC (Appellant) W Abraham QC (Respondent)
SOLICITORS:	Legal Aid Commissioner (Appellant) Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0356
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace DCJ

- 18 -

2005/1291

SPIGELMAN CJ
SULLY J
HULME J

Thursday 15 December 2005

Renato OBLACH v REGINA

The Appellant was charged with importing a trafficable quantity of cocaine into Australia and was found guilty. At trial, the Appellant had relied upon the duress provisions contained in s10.2 of the Commonwealth Criminal Code as removing his criminal responsibility.

Section 10.2 provides:

“10.2(2) A person carries out conduct under duress if and only if he or she reasonably believes that:
(a) a threat has been made that will be carried out unless and offence is committed; and
(b) there is no reasonable way that the threat can be rendered ineffective; and
(c) the conduct is a reasonable response to the threat.”


The sole ground of appeal against conviction related to the correctness of the trial judge’s directions to the jury in respect of s10.2. In particular, the Appellant focussed on the formulation “reasonably believes” contained therein. The Appellant submitted that the trial judge erred by directing the jury to determine reasonable belief by reference to a ‘reasonable person’ standard, whereas s10.2 required the jury to consider what the accused might reasonably have believed in all the circumstances in which he found himself.

In respect of the sentence imposed, the Appellant submitted that the sentencing judge erred by refusing to take into account the evidence of threats when determining the appropriate sentence.

Held
1 (Per Spigelman CJ and Hulme J) The words “reasonably believes” in s10.2 require that the actual belief held by the accused must be objectively justifiable, taking into account the objective circumstances of the Accused, but not the personal circumstances of the accused, or the circumstances as the accused perceived them to be. [55]–[60], [88]–[93]

Viro v The Queen (1978) 141 CLR 88; Zecevic v DPP (1987) 162 CLR 645; R v Conlon (1993) 69 A Crim R 92; R v Hawes (1994) 35 NSWLR 294; R v Katarzynski [2002] NSWSC 613 distinguished.
R v Smith [2005] QCA 1; R v Acton [2001] QCA 155 considered.
R v McCullough (1982) 6 A Crim R 274; Stingel v The Queen (1990) 171 CLR 312; Masciantonio v The Queen (1995) 183 CLR 58 referred to.


2 (Per Sully J) The words “reasonably believes” entail an enquiry by the jury into the question whether each such requisite belief held in fact by the accused would have been held by any ordinary person in the then position of the accused. [75]-[80]

3 (Per Spigelman CJ, Sully and Hulme JJ) There was no danger that the trial judge’s directions would have caused the jury to apply a ‘reasonable person’ test. [65], [82], [94]

4 The failure of the trial judge to take into account the evidence of threats lead to error in sentencing. [70], [83], [95]

Orders

1 Appeal against conviction dismissed.

2 Appeal against sentence allowed.

3 Sentence imposed by Ainsley-Wallace DCJ on 17 December 2004 quashed.

4 Remit the proceedings to the District Court for further consideration on sentence.

2005/1291

SPIGELMAN CJ
SULLY J
HULME J

Thursday 15 December 2005

Renato OBLACH v REGINA

Judgment

1 SPIGELMAN CJ: The Appellant was charged with importing a trafficable quantity of cocaine into Australia. At his trial there was no dispute that he had entered Australia at Sydney Airport on 11 December 2003 carrying 728.2 grams of cocaine hidden in his clothing. An issue at the trial was the defence of duress. The Appellant did not testify but relied upon answers he gave to police in a recorded interview. During that interview he indicated that threats of violence were made against him and his ex-wife, if he did not do as he was told.

2 After trial the Appellant was found guilty. The sole ground of the appeal against conviction is that the trial judge erred in her directions to the jury on duress.

3 The Appellant contends that her Honour failed to adequately direct the jury on the test of duress in s10.2 of the Commonwealth Criminal Code.

4 That section provides:

“10.2(1) A person is not criminally responsible for an offence if he or she carried out the conduct constituting the offence under duress.
(2) A person carries out conduct under duress if and only if he or she reasonably believes that:
(a) a threat has been made that will be carried out unless an offence is committed; and
(b) there is no reasonable way that the threat can be rendered ineffective; and
(c) the conduct is a reasonable response to the threat.
(3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.”

5 The trial judge ruled that there was an insufficient basis to leave s10.2(3) to the jury and did not do so. She did direct the jury with respect to the balance of s10.2. The Appellant submits that her Honour failed to give adequate directions to the jury regarding the “reasonableness” aspect of the “reasonably believes” requirement, which applies to each of the three matters identified in (a), (b) and (c) of s10.2(2) as set out above.

6 No such point was argued before the trial judge. Rule 4 of the Criminal Appeal Rules applies and the Appellant requires leave to raise this ground. It is submitted that leave should be given because of the absence of any relevant authority on s10.2 and that the Appellant should not be disadvantaged where trial counsel failed to advance a novel submission.

The Direction on Duress

7 The trial judge provided the jury with a written direction on duress as follows:

“The crown must prove beyond reasonable doubt that the accused did not import the drugs into Australia under duress.
An act is carried out under duress if the accused reasonably believes each of the following matters:
1. that a threat has been made that will be carried out unless an offence is committed
2. that there is no reasonable way that the threat can be made ineffective
3. that the conduct is a reasonable response to the threat
The crown must eliminate the reasonable possibility of each of these aspects of duress before it can prove beyond reasonable doubt that the actions of the accused were not committed under duress.” [Her Honour’s emphasis]

8 Her Honour elaborated orally upon this written direction. She emphasised that the Crown had to prove beyond reasonable doubt that an accused was not acting under duress. She added:

“So what is meant by duress? The law is that a person acts under duress if, and only if, he reasonably believes each of the following three things:
(1) That a threat has been made that will be carried out unless he commits the crime;
(2) That there is no reasonable way that the threat can be made ineffective;
(3) That the conduct of committing the crime is a reasonable response to the threat.”

These three matters corresponded, respectively, to s10.2(2)(a), (b) and (c).

9 Her Honour directed the jury’s attention to some evidence that was relevant to the factual question of whether the threats were made.

10 Her Honour further directed the jury with respect to the first element in s10.2(2)(a) in the following terms:

“In considering … duress you need to determine whether the accused reasonably believed that what was said to him by the Nigerians was a threat which would be carried out unless he committed the offence of bringing drugs into Australia. There are two matters involved in this. The first is what the accused actually believed, and secondly, whether that belief was reasonably held by him.
You must determine whether the accused believed that the threat would be carried out if he did not bring the drugs into Australia, and, if it was his belief, that it was reasonable for him to have that belief. In determining this you look at all of the circumstances in which the accused found himself.”

11 Her Honour then outlined certain evidence that was relevant to determining this question. Her Honour concluded:

“If you were satisfied that the Crown had proved beyond reasonable doubt that the accused had no such belief, or that if he did hold that belief it was not reasonable for him to have it, then you would be entitled to reject the issue of duress and find him guilty of the charge.”

12 Her Honour then turned to the next element in s10.2(2)(b) and said:

“The next matter which you need to consider is whether the accused reasonably believed that there was no reasonable way that the threat could have been made ineffective.
What may have been reasonable in the mind of the accused to make the threat ineffective is a matter for you to determine from the evidence. However, what you are concerned with is the state of mind of this accused, not what some other persons or even yourself, in the position of the accused, might have regarded as being reasonable.
You must consider this accused in the light of the circumstances in which he found himself, and whether, in the light of those circumstances, he reasonably believed that there was no reasonable way to make the threat ineffective.
As you did in relation to the first aspect of duress, you must determine what the accused actually believed and whether this belief was reasonably held by him.”

Again her Honour outlined certain evidence which was relevant to this issue.

13 Her Honour then turned to the third element in s10.2(2)(c) and said:

“You must consider the evidence and whether in the mind of the accused to commit the crime of bringing the drugs into Australia was a reasonable response to the threat. Once again, you are considering the state of mind of the accused and whether in his mind he believed that his conduct in bringing the drugs in was a reasonable response to the threat made to him. You are not considering the response of some other person or yourself in the same circumstances of the accused. You are considering what this accused believed was a reasonable response to the threat.
You must also understand that you are not being asked to consider whether the accused believed that to bring the drugs into Australia was the only reasonable response to the threat, but whether it was a reasonable response to the threat.
Again, this requires you to consider what the accused actually believed and whether it was reasonable for him to hold that belief.”

Issues on the Appeal

14 The Appellant’s submission notes that there is no authority on the meaning of the words “reasonably believes” in s10.2. The Appellant referred to some other areas of the law in which the formulation “reasonably believes” has fallen to be applied or construed. Particular attention was directed to the case law with respect to self-defence at common law and under the statutory provisions found in s418 of the Crimes Act 1900. Reference was made to Viro v The Queen (1978) 141 CLR 88 at 146-7; Zecevic v DPP (1987) 162 CLR 645 at 656 and 661; R v Conlon (1993) 69 A Crim R 92 at 98, 99 and 101; R v Hawes (1994) 35 NSWLR 294 at 305; R v Katarzynski [2002] NSWSC 613 esp at [21]-[24].

15 Mr S Odgers SC, who appeared for the Appellant, submitted that s10.2(2) should be interpreted as follows:

“(1) By the expression ‘reasonably believes’ is meant, not what a reasonable person would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself.
(2) It is necessary to consider whether the grounds advanced by the accused for his belief are reasonable or rational grounds, as distinct from unreasonable or irrational grounds.
(3) In considering what the accused himself might have reasonably believed in all the circumstances in which he found himself, account must be taken of all those personal characteristics of the accused which might have affected his appreciation of those circumstances.
(4) Accordingly, it is necessary to look at all the circumstances from the accused’s point of view, as he perceived them to be. The jury must endeavour so far as they can to put themselves in the position of the accused as he saw the situation at that time.”

16 Propositions (1) and (2) are interrelated, as are propositions (3) and (4).

17 Mr Odgers SC submitted that the summing up was defective in that there was a real risk that the jury may not have approached its task consistently with these principles. He submitted that it may have adopted something like a reasonable person test, by asking whether an “ordinary person” would have had the belief. Furthermore, he submitted, it may not have assessed the circumstances from the Appellant’s point of view, i.e. as he perceived them to be.

18 Mr S Odgers SC drew on the common law of self-defence for the purpose of construing the reference to “reasonably believes” in s10.2(2) of the Code. He submitted that Parliament used the language in the same sense that Mason J had used those same words in the context of the law of self-defence at common law.

19 In Viro v The Queen (1978) 141 CLR 88 at 146 Mason J said:

“1. (a) It is for the jury first to consider whether when the accused killed the deceased the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him.
(b) By the expression ‘reasonably believed’ is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself.”

20 The terminology adopted by Mason J was subsequently elaborated by Hunt CJ at CL. In R v Conlon (1993) 69 A Crim R 92 at 98 his Honour referred to this test as:

“… a mixture of the objective and the subjective; it was not completely objective, in the sense of what a reasonable person would have believed, but rather it was what the accused himself might reasonably have believed in all the circumstances in which he found himself.”

21 His Honour went on to say at 99:

“… the mixed objective and subjective nature of the assessment as to whether the accused’s belief was based on reasonable grounds means that account must be taken of those personal characteristics of this particular accused which might affect his appreciation of the gravity of the threat which he faced and as to the reasonableness of his response to that danger …”

22 Subsequently in Hawes supra at 305 his Honour said, after referring to Conlon:

“It is the belief of the accused, based upon the circumstances as the accused perceived them to be, which has to be reasonable, and not that of the hypothetical reasonable person in the position of the accused.”

23 The issue before this Court is what Parliament intended by the words it chose in s10.2(2) of the Criminal Code. The use of similar terminology in the development of a common law principle can be of no direct assistance in determining that issue. Mr Odgers SC put it forward by way of analogy. Nevertheless, such an analogy cannot be taken too far.

24 The reasoning in Viro, Zecevic, Conlon and Hawes, is significantly affected by common law concepts of the requirements of a guilty mind.

25 Furthermore, in Conlon itself Hunt CJ at CL at 100-101 distinguished reasoning to the contrary in a case on the Tasmanian Criminal Code (R v McCullough (1982) 6 A Crim R 274).

26 Finally, his Honour also expressly distinguished the test for self-defence which, he had described at 99 as of “mixed objective and subjective nature”, from the common law test for duress, with respect to which he said at 101:

“… the law has imposed an objective test of reasonableness in order to ensure that accused persons with sensitivities falling outside the ordinary or common range of human temperaments are not permitted to escape responsibilities for their actions.”

The Context of s10.2(2)

27 Section 10.2 is found in Div 10 of Pt 2.3 of Ch 2 of the Commonwealth Criminal Code. Chapter 2 is headed “General Principles of Criminal Responsibility”. Part 2.2 is entitled “The Elements of an Offence”, Div 4 is concerned with “Physical Elements” and Div 5 “Fault Elements”. Part 2.3 is entitled “Circumstances in which there is no Criminal Responsibility”. In that Part, Div 7 is concerned with “Lack of Capacity”, Div 8 with “Intoxication”, Div 9 with “Mistake or Ignorance”. Division 10, in addition to s10.2 with respect to “Duress”, also makes provision in s10.3 for “Sudden or Extraordinary Emergency”, in s10.4 for “Self-Defence” and in s10.5 for “Lawful Authority”.

28 Criminal responsibility under the Code arises from the combined effect of the presence of the elements in Pt 2.2 and the absence or failure of the elements in Pt 2.3. This structure differs from the position at common law in which it is appropriate to treat certain matters as “defences”, e.g. self-defence is “exculpatory”. (Zecevic supra at 658-659.) The inappropriateness of such terminology to the Code emphasises the different focus of the analogous inquiry at common law.

29 Chapter 2 provides the textual context in which the reference to “reasonably believes” in s10.2(2) must be construed. The submissions for the Appellant focused on the words “reasonably believes” without reference to this context.

30 Of particular significance for the purpose of construing s10.2 is the structure and content of s10.3 and s10.4 dealing with sudden or extraordinary emergency and self-defence, respectively. Those sections provide:

“10.3(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.

(2) This section applies if and only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.
10.4(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if he or she believes the conduct is necessary:
(a) to defend himself or herself or another person; or
(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or
(c) to protect property from unlawful appropriation, destruction, damage or interference; or
(d) to prevent criminal trespass to any land or premises; or
(e) to remove from any land or premises a person who is committing criminal trespass;
and the conduct is a reasonable response in the circumstances as he or she perceives them.
…”

31 As can be seen ss10.3 and 10.4 have the same structure as s10.2. In particular s10.3(1) and (2) are precisely equivalent, including in terminology, to s10.2(1) and (2). In both s10.2(2) and s10.3(2) the operative formulation is “reasonably believes”. That contrasts with the operative formulation in s10.4(2), which uses the word “believes” without the qualification of the word “reasonably”. This differentiation is deliberate and significant.

32 Chapter 2 of the Commonwealth Criminal Code finds its origin in the report of the Criminal Law Officers’ Committee of the Standing Committee of Attorneys-General entitled Model Criminal Code Chapter 2: General Principles of Criminal Responsibility Final Report December 1992, Commonwealth of Australia, 1993. Each of ss10.2, 10.3 and 10.4 are enacted in the form recommended by the Committee.

33 The commentary on the draft section which became s10.2 stated at p65:

“The Code provides that the defence of duress should contain an objective element both as to necessity for the conduct and for the response to the threat.”

34 This passage is concerned with the objective nature of the test of necessity found in s10.2(2)(b) and of the response found in s10.2(2)(c). There is no reference in the commentary on this section to the formulation “reasonably believes” in the chapeau to s10.2(2).

35 Similarly, the commentary on what became s10.3, with respect to sudden or extraordinary emergency, said at p67:

“This section recognises that an accused person is excused from committing what would otherwise be a criminal act in very limited circumstances. Like duress, the necessity of the occasion and the response to it are both subject to an objective test. The committee’s proposal is an amalgam of the principles underlying the common law of necessity and the Griffith Code equivalent.”

Again there is no express reference to the formulation “reasonably believes” in s10.3(2).

36 Of some relevance is the express reference to the Griffith Code which, the Report stated, was not being adopted. The relevant provision of that Code was s25 which provides:

“25 Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.”

37 It is pertinent to note that the authors of the Code had before them an “ordinary person” test for s10.3, but rejected it.

38 The Criminal Law Officers’ Committee Report made relevant observations with respect to s10.4 concerning self-defence. As noted the word “reasonably” does not appear before the word “believes”. Furthermore, s10.4(2) expressly adopts a test with respect to the element of reasonableness of response that adopts the formulation urged upon the Court by the Appellant in this case in the words: “the conduct is a reasonable response in the circumstances as he or she perceives them”.

39 The Criminal Law Officers’ Committee Report said at p69:

“The test as to necessity is subjective but the test as to proportion is objective. It requires the response of the accused to be objectively proportioned to the situation which the accused subjectively believed he or she faced. (The words ‘as perceived by him or her’ were added to make this clear).”

40 At the time that the Criminal Law Officers’ Committee reported in December 1992, the Criminal Codes of Western Australia and Queensland, to which the Committee had reference, made provision for duress in the manner relevant to the issue presently before this Court in s31(4), which then provided, relevantly:

“31 A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances:
…
(4) when he does or omits to do the act in order to save himself from immediate death or grievous bodily harm threatened to be inflicted upon him by some person actually present and in a position to execute the threats and believing himself to be unable otherwise to escape the carrying off of the threats into execution.”

41 It is noticeable that the word “reasonable” does not appear before the word “believing” with respect to the element of necessity. However, for present purposes the relevant phrase equivalent to “reasonably believes” in the chapeau of s10.2(2), appears to be the words “in order to save himself”. I am unaware of any relevant authority on s31 in this form.

Relevant Case Law

42 With effect from 1 July 1997, s31 of the Queensland Code was amended, relevantly, to provide:

“31(1) A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances …
(d) Where he … does or omits to do the act in order to save himself from immediate death or grievous bodily harm threatened to be inflicted on him … by some person in a position to execute the threats and believing himself … to be unable otherwise to escape the carrying of the threats to the execution.”

43 In R v Acton [2001] QCA 155, McPherson JA, with whom the other members of the Court agreed, said:

“[16] … The operation of s31(1)(d) depends, in some measure, on the existence of a belief on the part of the accused of his inability to escape death or grievous bodily harm to himself except by committing a criminal act. The belief in question is subjective and is not dependent on its reasonableness. On the other hand, the fact that there were reasonable grounds for believing that there was no escape from the threat must ordinarily go some way to establishing, or at least supporting, an impression that the accused might sincerely have held the belief required by s31(1)(d).”

44 In 2000, s31 of the Queensland Criminal Code was amended, to read:

“31(1) A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances:
…
(d) when -
(i) the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and
(ii) the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and
(iii) doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.”

45 With respect to the element of necessity, this amendment introduced the word “reasonably” as qualifying the relevant state of belief. This form of the Code fell to be construed by the Queensland Court of Appeal in R v Smith [2005] QCA 1.

46 In that case the trial judge had directed the jury with respect to s31(1)(d) and stated the test to be objective. It was not what the person himself thought. His Honour had said:

“… Where it talks about the person doing the act reasonably believes he is unable otherwise to escape the carrying out of the threat it is not what the person actually subjectively believes, but what is objectively reasonable as a means of escaping a threat.”

47 Davies JA, who delivered the judgment of the Court of Appeal, said:

“[32] The element in s31(1)(d)(ii) requires:
1. a belief; and
2. that the belief is reasonably held.
Put more accurately in terms of the burden of proof the prosecution had to prove either that the Appellant did not believe that he was unable otherwise to escape the carrying out of the threat or that such a belief was not a reasonable one.
[33] It was not argued, or at least not seriously argued, either at trial or in this Court that the Appellant did not have that belief. The question, or at least the main question, was whether that belief was reasonable. It was in that context that his Honour made the comment contained in the third quoted paragraph.
[34] Nevertheless it is correct, in my opinion, as the Appellant contends, that the direction was wrong. The question was not what was objectively reasonable as a means of escaping the threat but whether the Appellant reasonably believed that he was unable otherwise to escape the carrying out of the threat. His Honour would have stated this correctly if, instead of saying ‘what is objectively reasonable as a means of escaping the threat’ he had said ‘what is an objectively reasonable belief as to inability otherwise to escape the carrying out of the threat’.
…
[36] An explanation to a jury of the operation of s31(1)(d) is complex for, leaving aside the existence of a belief within the meaning of s31(1)(d)(ii), the principal questions are of objective fact in paragraph (i), of an objectively reasonable belief as to a negative in paragraph (ii) and of reasonable proportionality in paragraph (iii).”

48 These authorities establish that the introduction of the word “reasonable”, in relevantly analogous provisions, was intended to adopt an objective test. However, both Acton and Smith were concerned with the element of necessity, now found in s10.2(2)(b).

49 The Commonwealth Criminal Code section on self-defence has been adopted in New South Wales by way of statutory amendment of the common law in s418 of the Crimes Act 1900. That section relevantly states:

“418(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person
…
and the conduct is a reasonable response in the circumstances as he or she perceives them.”

50 Section 418 arose in Katarzynski supra. Howie J considered whether or not the approach adopted by Hunt CJ at CL in Conlon supra was applicable to the new statutory statement of self-defence in s418. His Honour held that that approach was not applicable.

51 Howie J concluded in Katarzynski at [22]-[23] that the test of whether or not the accused believed that his or her conduct was necessary was a completely subjective test. However, the element of reasonable response involved an entirely objective assessment of the proportionality of the accused’s response to the situation which the accused subjectively believed he or she faced.

52 The distinction his Honour drew between the two aspects of the test under s418 turns on the absence of the word “reasonable” before “believes” in the introductory words of s418(2) and the presence of that word before the word “response” in the last part of that subsection.

53 In reaching this conclusion his Honour referred to s10.4(2) of the Commonwealth Criminal Code and to the origins of this provision in the Model Criminal Code Report set out above. His Honour gave particular weight to the sentence at p69, quoted at [39] above, to repeat:

“The test as to necessity is subjective but the test as to proportion is objective.”

54 Howie J adopted this analysis. However, as I have noted, by express provision this objective test must be applied to the situations subjectively perceived by the accused.

The Meaning of “Reasonably Believes”

55 The following propositions appear from the text of s10.2:

1 Section 10.2 applies to negative criminal responsibility where a person ‘carries out conduct’ with a particular state of mind.

2 That state of mind must constitute a belief in the mind of that person and, in that sense, is subjective.

3 The qualification introduced by the word “reasonably” introduces a determinative objective element that qualifies each of the succeeding paragraphs.

4 Paragraph 10.2(2)(a) contains no internal objective element. Pursuant to it the ‘reasonable belief’ must attend both the fact that “a threat has been made” and the fact that it “will be carried out”.

5 Paragraphs 10.2(2)(b) and (c) each adopt the word “reasonable” to apply an objective test to the elements of necessity and proportionality of response, respectively.

56 The focus of the section on the conduct and the state of mind of the specific person alleged to be criminally responsible is not consistent with a “reasonable person” test. A formulation such as “a reasonable person would believe” was not adopted. The authors of the Code rejected an “ordinary person” test in s25 of the Griffith Code for s10.3, which in every relevant respect is identical to s10.2.

57 The formulation of Mason J in Viro supra, i.e. “what the accused himself might reasonably believe in all the circumstances in which he found himself” is helpful. However, in my opinion, at least for purposes of s10.2(2) this formulation must be applied to the accused’s objective circumstances. To introduce a focus on the “personal characteristics of (the) particular accused” (Conlon) or “the circumstances as the accused perceived them to be” (Hawes) is to reintroduce a subjective element which is inconsistent with the text of s10.2

58 Assistance can also be obtained from the formulation in Zecevic supra at 661:

“[W]hether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did.”

The two formulations from Conlon and Hawes divert attention from the objective reasonableness of the grounds into an inquiry about the mind of the accused, encompassing both his or her knowledge and perceptions.

59 The Code requires that the relevant belief should be objectively justifiable. What is objectively reasonable must remain the primary focus. This focus is, at the least, blurred and perhaps overwhelmed if idiosyncrasy or even perversity in the knowledge or perception of an individual accused is a permissible subject of inquiry. Whatever the authority of Conlon or Hawes at common law, the approach should not be adopted when interpreting the Code.

60 I am reinforced in this conclusion by the fact that in s10.4(2) the words of the authors of the Code were adopted by Hunt CJ at CL in Hawes , i.e. “as he or she perceived them to be”. It is not appropriate to interpret the words “reasonably believes” in either s10.2 or s10.3 to encompass a formulation which the very next section of the Code expressly deploys.

The Reasonable Person Test Submission

61 In my opinion, there is nothing in her Honour’s summing-up which would have left the jury in any doubt that a “reasonable person” test could not be applied. The Appellant’s submission that there was a risk that that could have been so should be rejected.

62 With respect to s10.2(2)(a) her Honour expressly directed the jury’s attention to “what the accused actually believed and whether that belief was reasonably held by him”. She reiterated that, if he did hold the relevant belief, the question was whether “it was reasonable for him to have that belief” and, in determining that matter, the jury had to look at “all of the circumstances in which the accused found himself”. There can be no doubt that this directs attention, and directs attention only, to the state of mind of the Appellant in the circumstances in which this Appellant found himself. There is no room for a “reasonable person” test.

63 Similarly, in the case of the second element in s10.2(2)(b), her Honour directed the jury’s attention to what “may have been reasonable in the mind of the accused …”. She reiterated: “What you are concerned with is the state of mind of this accused, not what some other person or even yourself, in the position of the accused might have regarded as being reasonable”. Her Honour repeated that it was necessary to look at “the circumstances in which he found himself” and decide, whether “in light of those circumstances, he reasonably believed” that there was “no reasonable way”. She emphasised that what the jury had to determine was “what the accused actually believed and whether this belief was reasonably held by him”. Again all of the attention is directed to the mind of the accused and there is no room for a reasonable person test.

64 Similarly, with respect to the third element in s10.2(2)(c), her Honour began her reference to the reasonableness of a response by directing attention to “in the mind of the accused”. She went on to say that when “considering the state of mind of the accused and whether in his mind he believed that his conduct … was a reasonable response to the threat made to him”. Her Honour reiterated the proposition: “you are not considering the response of some other person or yourself in the same circumstances of the accused you are considering what this accused believes was a reasonable response to the threat”. Again she reiterated that the focus was on what the “accused actually believed”.

65 I do not accept that the jury might have adopted a reasonable person test.

The Personal Characteristics Submission

66 For the reasons I have set out above, it was not necessary for her Honour to direct the jury that it was required to have regard to the personal characteristics of the accused and to assess the circumstances as he perceived them to be.

67 If, contrary to the view I have expressed, it is necessary to have regard to the personal circumstances of an accused, her Honour did not direct the jury to that effect. On that basis, I would have granted leave under Rule 4.

68 There are occasions when what is “reasonable” in a statutory formulation such as “reasonably believes” requires elaboration. See Fingleton v The Queen (2005) 79 ALJR 1250 at [108]-[115] per McHugh J (“reasonable cause”); Taikato v The Queen (1996) 186 CLR 454 at 464-6 (“reasonable excuse”); R v Campbell [1997] QCA 127 at p3 (“reasonable and probable cause”). If s10.2(2) required the jury to have regard to personal characteristics of the accused in terms of his knowledge and perceptions, the jury should have been directed to do so. This failure would have been sufficiently significant to justify the grant of leave and to allow the appeal.

Sentence Appeal

69 The Appellant also appeals against the sentence imposed. The sentencing judge came to the conclusion that the evidence of threats had been rejected by the jury and, accordingly, that the evidence was not material that could be taken into account on sentencing. She suggested that to do so would be inconsistent with the jury verdict.

70 The Crown correctly concedes that evidence of threats falling short of duress could be a relevant consideration in determining the appropriate sentence. There would be no necessary inconsistency with the jury verdict if the sentencing judge were to determine that the threats were in fact made. The Crown concedes that, in the absence of any relevant factual finding, this Court is not in a position to make a factual finding of that character. Accordingly, it is appropriate for the matter to be remitted to the trial judge.

71 The orders I propose are:

1 Appeal against conviction dismissed.

2 Appeal against sentence allowed.

3 Sentence imposed by Ainsley-Wallace DCJ on 17 December 2004 quashed.

4 Remit the proceedings to the District Court for further consideration on sentence.

72 SULLY J: I have had the benefit of reading in draft the judgment of the Chief Justice.

73 It seems to me that in construing the reference in section 10.2 of the Commonwealth Criminal Code to reasonable belief, the correct starting point is to look at the grammatical meaning of the words “reasonably believes” in the context of the section as a whole.

74 Clearly enough the two words convey an imperative requirement that the accused person must have in fact a belief in the existence in fact of each of the three factors that are stipulated in sub-section (2)(a), (b) and (c). It is equally clear that each such actual belief is required to be, as well, a reasonable belief on the part of the accused. It seems to me that what this statutory imperative actually entails can be conceptualised in two quite different ways, namely:

[1] as entailing an enquiry by the jury into the question whether each such requisite belief held in fact by the accused was held reasonably by him in the sense that each belief would have been held by any ordinary person in the then position of the accused; or

[2] as entailing an enquiry by the jury into the question whether each such requisite belief held in fact by the accused was held reasonably by him in the sense that each belief would have been held by any person in the then position of the accused and having all of the relevant personal characteristics of the accused.

75 Given those quite different possible approaches, it seems to me to be legitimate to consult, as the Chief Justice has done, the relevant portions of the Final Report of the Criminal Law Officers’ Committee of the Standing Committee of Attorneys-General. I need not re-quote the excerpts that are quoted by the Chief Justice.

76 Two things are, I think, clear from the relevant portion of that Final Report.

77 First, it is crystal clear that the Committee saw its recommended wording as entailing an “objective element” or an “objective test”. The normal jurisprudential concept of an objective test seems to me to militate in favour of the first of the two alternative possibilities to which I have referred in paragraph 3.

78 Secondly, it is clear that the Committee had read and considered the relevant portions of what the Final Report calls “the Gibbs recommendations”. That reference is to an Interim Report published in July 1990 by a Committee over which Sir Harry Gibbs, a former Chief Justice of the High Court of Australia, presided. That Committee had been established by the then Commonwealth Attorney-General with a remit to conduct a review of Commonwealth Criminal Law. It recommended, so far as is now relevant, that:

“(a) the proposed consolidating law should make provision for a defence of duress (which might be called duress by threats) which would have the following elements:
(i) The accused acted because he or she knew or believed (honestly but not necessarily reasonably) that -

· A threat had been made of death or serious injury (which would include serious sexual assault) to the accused or to any other person;

· The threat was one that, if the demands made by the person making the threat were not complied with, would be carried out before official protection could be obtained; and

· There was no other way of preventing the threat from being carried out;

(ii) A person of reasonable firmness otherwise sharing the characteristics of the accused could not reasonably have been expected to resist the threat; …………….”

79 The recommendation (a)(ii) reflected an approach which had been derived from a body of antecedent Common Law that the Committee summarised thus:

“The common law requires an objective test to be applied. The test stated in Reg v Howe was whether the threat was of such gravity that it might well have caused a reasonable man placed in the same situation to act in the same way as the accused had acted and whether a sober person of reasonable firmness sharing the characteristics of the accused would have responded to the threat by taking part in the crime. The Australian authorities agree that the test is objective. The courts in South Australia in R v Brown and R v Palazoff have said that in directing the jury the question to be put should be whether ‘a person of ordinary firmness of mind and will might have yielded to the threat in the way the accused did’. It was added in R v Palazoff that it would be preferable if the jury were told that the person of ordinary firmness of mind, faced with the same threat, against whom the accused was to be judged, is a person of the same age, sex, background and other personal characteristics (except perhaps strength of mind) as the accused. This reflects the test laid down by the English Court of Appeal in Reg v Graham , which was approved in Reg v Howe .” [see paragraph 12.7]

80 It is, in my opinion, clear that a formulation which accorded with recommendation (a)(ii) would entail a concept of reasonableness along the lines suggested in the second of the two alternative possibilities to which I have referred in paragraph 3. This consideration, also, militates in my opinion in favour of the first of the two possible constructions as being the correct one.

81 Approaching the present appeal point upon the basis of that construction, it seems to me that the relevant directions on section 10.2(2) were not strictly correct in that they tended, in my opinion, to move the focus of the jury’s consideration away from what I would call an objective test in the strict sense, i.e. the first of my two suggested alternative constructions; and towards what I would call a subjective test, or, perhaps, some hybrid, partly subjective and partly objective, i.e. the second of my two suggested alternative constructions.

82 If that is a fair comment upon and a fair criticism of the directions at trial, as I believe to be the case, then I can see no substantial miscarriage of justice, because I would see the directions as having been, by their subjective tendencies, more favourable to the appellant than was strictly correct.

83 I, too, would dismiss the appeal against conviction. I agree for the reasons given by the Chief Justice with the other orders proposed by his Honour in paragraph 70 of his Honour’s judgment.

84 HULME J: This issues in this appeal revolve around the interpretation of Section 10.2(2) of the Commonwealth Criminal Code and whether the summing-up was adequate to reflect the proper interpretation of that section. So far as presently relevant, the statutory provision and others which bear proximally on its interpretation are in the following terms:-

10.2 Duress
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.
(2) A person carries out conduct under duress if and only if he or she reasonably believes that:
(a) a threat has been made that will be carried out unless an offence is committed; and

(b) there is no reasonable way that the threat can be rendered ineffective; and

(c) the conduct is a reasonable response to the threat.
(3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.
10.3 Sudden or extraordinary emergency
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.
10.4 Self-defence
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if he or she believes the conduct is necessary:
(a) to defend himself or herself or another person; or
(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or
(c) to protect property from unlawful appropriation, destruction, damage or interference; or
(d) to prevent criminal trespass to any land or premises; or
(e) to remove from any land or premises a person who is committing criminal trespass.
And the conduct is a reasonable response in the circumstances as he or she perceives them.
(3) ….

85 In any consideration of these provisions, a number of features stand out. Firstly, there is a deal of similarity or repetition in form and phraseology. Secondly there are clear differences between some of the provisions even when similar topics are being dealt with. Normal canons of construction lead prima facie to similar expressions being given similar meaning and different expressions being given correspondingly different operation.

86 Secondly, the topics being dealt with in the statutory provisions have been the subject of a deal of consideration by the courts for centuries. Those responsible for the drafting and passing of the provisions can be expected to have been aware of the issues with which the courts dealt. As the decisions to which the Chief Justice refers make clear, those issues include whether belief or conduct is to judged by objective or subjective tests and, if the latter, whether the characteristics and perceptions of a particular accused should be taken into account. Although in the area of provocation, rather than duress, emergency or self-defence, Stingel v R (1990) 171 CLR 312 and Masciantonio v R (1994-95) 183 CLR 58, are other cases where such distinctions have been the subject of significant consideration.

87 Thirdly, the references in s10.2(2), “he or she reasonably believes”, in s10.3(2) “the person carrying out the conduct reasonably believes” and in s10.4(2) “he or she believes” make it clear that at least in the paragraphs wherein those words appear the actual belief of the person mentioned is what is being referred to, not the belief of some other actual or notional e.g. reasonable, person.

88 Fourthly, the presence of the word “reasonably” before “believes” in s10.2(2) and s10.3(2), particularly when contrasted with the absence of that word in s10.4, impose an additional requirement of, or qualification to, the belief of which ss10.2 and 10.3 speak. The person concerned must not only believe but must reasonably believe. The term “reasonably” introduces an element of the objective into the belief. It is not sufficient for the purposes of those provisions that the person unreasonably believes.

89 Fifthly, there is a clear difference in wording between s10.2 and s10.3 on the one hand and s10.4 on the other in that the latter section expressly refers to circumstances “as he or she perceives them to be” whereas there are no such words in the earlier provisions.

90 Sixthly, it would have been very simple for either s10.2 or s10.4 to have been drafted so as to echo the form of the other. One cannot avoid the conclusion that the differences were deliberate.

91 Given these factors, as a simple matter of statutory construction, it is impossible to conclude that when s10.2. and s10.3 refer to “reasonably believes”, they contemplate that a judgment as to the reasonableness of belief will take into account an accused’s perception of the circumstances, as distinct from those that objectively exist. To hold to the contrary would involve reading into s10.2 and s10.3 words similar to those at the end of the passage I have quoted from s10.4 and obviously deliberately omitted from the earlier sections.

92 In so concluding, I do not ignore the fact that the personal characteristics of a person, whether congenital or resulting from life’s experiences, are calculated to influence the formation of any beliefs as to the matters referred to in paragraphs (a) to (c) of s10.2 nor the argument that, once account is taken of the influence of those personal characteristics in the formation of any belief, one may reach a conclusion that the person “reasonably believes”.

93 However, given the nature of the matters referred to in the paragraphs mentioned, it does not seem to me possible to differentiate in any satisfactory way, and certainly not in a way susceptible of definition for a jury, between an accused’s perception of those matters on the one hand and the process of the formation of belief on the other. Taking the view that, as a matter of construction, an accused’s perception of the circumstances, as distinct from those that objectively exist are not to be taken into account, it must follow that such personal characteristics as may influence the formation of beliefs are also irrelevant. The test of the reasonableness of belief under s10.2(2) and 10.3(2) is thus entirely objective.

94 I turn to the issue of whether the summing-up of Judge Ainslie-Wallace, before whom the proceedings which led to this appeal were conducted, adequately reflected the terms of s10(2). The Chief Justice has quoted the relevant parts of that summing-up and I agree with his Honour that the directions given left no avenue for risk that the jury might have adopted a test of what a reasonable person, rather than the Appellant, believed. I agree also with his Honour that it was not necessary for her Honour to direct the jury that it was required to have regard to the personal characteristics of the Appellant and to assess the circumstances as he perceived them to be.

95 I agree with the Chief Justice that the appeal against conviction should be dismissed. For the reasons his Honour gives I agree also with the orders he proposes for the disposition of the appeal against sentence.

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