R v Tan Phuong Le (No 3)

[2010] NSWDC 37

Reported Decision: 10 DCLR (NSW) 184

District Court

CITATION:	R v Tan Phuong LE (No 3) [2010] NSWDC 37
HEARING DATE(S):	19 March 2010
JUDGMENT DATE:	19 March 2010
JURISDICTION:	District Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Defence of duress not be left to the jury
CATCHWORDS:	CRIMINAL LAW - Judgment - Duress - Compulsion - Necessity - Failure to inform the authorities
LEGISLATION CITED:	Commonwealth Criminal Code Criminal Code Act Queensland Criminal Code
CASES CITED:	R v Hudson (1971) 2 QB 202 DPP for Northern Ireland v Lynch (1975) AC 653 Oblach v R 65 NSWLR 75 Perka v The Queen (1985) 14 CCC 385 R v Abusafiah (1991) 24 NSWLR 531 Rogers v The Queen (1996) 86 A Crim R 542 Taiapa v The Queen [2009] HCA 53
TEXTS CITED:	Voluntariness, Freewill and Duress (1996) 70 ALJR 304 Stanley Yeo Textbook of Criminal Law 1st Edition 1978 Professor Glanville Williams
PARTIES:	The Crown Tan Phuong Le
FILE NUMBER(S):	DC 2008/00018555001
COUNSEL:	Mr M Johnston - Crown Mr F Santisi - Defendant
SOLICITORS:	Director of Public Prosecutions (Cth) Tsambas & Co Solicitors

JUDGMENT

1 HIS HONOUR: This judgment concerns the question of whether the accused is entitled to have a defence of duress left for the jury’s consideration.

2 At the outset it is important to bear firmly in mind that the onus of proving that an accused was not acting under duress is on the Crown. And of course it must be proven beyond reasonable doubt. But, as Mr Santisi accepts, an accused has an evidentiary onus before the issue will be left for the jury’s consideration. Unless it is reasonably possible that an accused was acting under duress the judge should not allow the defence to be put to a jury.

3 Another way of expressing the same test is that if it is not reasonably possible that a jury will accept that there is a reasonable possibility that an accused was acting under duress, then the issue of duress should not be left for the jury’s consideration.

4 I am delivering this judgment before the accused’s case is closed. However, he has given evidence in-chief for more than a week and been cross-examined for two days, and it is accepted by Mr Santisi that the accused has said all he could say on, at least, the objective aspects of the duress defence. It is necessary to decide at this stage - I repeat, before the defence case is closed - whether duress will be left to the jury so that decisions can be made about the extent of admissibility of other evidence which the accused proposes to call from a psychiatrist and a psychologist.

5 For the purposes of this judgment only I will take the evidence of the accused at its highest and accept all that the accused said in evidence in-chief about the threats made to him.

6 The defence of duress is to be found, as far as Commonwealth matters are concerned, in the Commonwealth Criminal Code, (“The Code”) s10.2. That provision had its genesis in the work done by what was then called the Criminal Law Officers Committee of, The Standing Committee of Attorneys-General. ( It later changed its name to the Model Criminal Code Committee.)

7 In July 1992 it published a discussion draft entitled General Principles of Criminal Responsibility as part of its work in developing a Model Criminal Code for all of Australia. That discussion draft was the subject of papers and comment at the Fourth International Criminal Law Congress held in Auckland in September 1992. The final report was issued after further comments had been received in December 1992. There was one, for present purposes important relevant change to the draft of the defence in the final report.

8 The Commonwealth Parliament then adopted the recommendations of the Criminal Law Officers Committee. (If it had done the same with other areas of criminal responsibility the law would be in a happier state). It enacted without change the draft legislation contained in the final reports since that time, other jurisdictions (in particular Queensland) have changed their equivalent defences but there remain significant differences between common law duress, duress under the Criminal Code Act and what is called “compulsion” in the Queensland Criminal Code. (I have referred to Queensland in particular because of the very recent decision of the High Court in Taiapa v The Queen [2009] HCA 53.

9 It is important to note the significance of an objective component in not only Commonwealth duress but all other duress defences. The objective component in Commonwealth code duress is perhaps even more important because it was the retention of the objective test which allowed the Criminal Law Officers Committee to recommend, and the Commonwealth Parliament to accept, the widening of the circumstances in which duress will be available by the elimination of what the Criminal Law Officers Committee found were artificial restrictions in common law duress. (It was those somewhat artificial restrictions which were later removed from Queensland compulsion.)

10 The objective component is also to be found in duress’s closely related cousin, necessity, or as Commonwealth Criminal Code describes it, “sudden or extraordinary emergency”, and also that species of necessity known as self defence.

11 The universal place of an objective test in defences of duress is a recognition of the circumstance that the defence operates to excuse misconduct. Duress does not operate because an accused’s conduct was involuntary but is a concession to human frailty.

12 I should at this stage perhaps interpose a consideration of some different approaches which have been taken to the defence of duress insofar as it affects the voluntariness of an accused’s conduct.

13 We can see two different approaches in the authorities. In R v Abusafiah (1991) 24 NSWLR 531 at 544 to 545, Hunt CJ at CL suggested that an act done under duress was not done voluntarily. A similar approach was taken to the defence of necessity in Canada in Perka v the Queen (1985) 14 CCC 385 at 405. Dickson J spoke of moral involuntariness which of course may be a different concept to voluntariness. Turning to England in R v Hudson (1971) 2QB 202 at 206 Lord Parker spoke of the commission of the alleged offence being no longer the voluntary act of the accused. Those decisions represent one approach but not the approach which is now, as I understand it, accepted.

14 The other approach is, as I have mentioned, that duress is an excuse and does not negate voluntariness at all. That approach is to be found in Stanley Yeo, Voluntariness, Freewill and Duress (1996) 70 ALJR 304 and the DPP forNorthern Ireland v Lynch (1975) AC 653 where the House of Lords rejected Lord Parker’s dictum to which I have earlier referred. Professor Glanville Williams even refers to Aristotle in support of his view that duress does not negate voluntariness, (see his Textbook of Criminal Law 1st Edition 1978 at p 578.)

15 So the prevailing view, as I understand it, is that duress an excuse operating as a concession to human frailty. That is perhaps best expressed in DPP v Lynch where Lord Morris of Borth-y-Gest said at 670:

“In the calm of the courtroom measures of fortitude or of heroic behaviour are surely not to be demanded when they could not in moments for decision reasonably have been expected even of the resolute and the well disposed.”

16 The idea, however, that duress is a concession to human rather than individual frailty is made clear in Oblach v R 65 NSWLR 75 where Spigelman CJ said at para 57:

'To introduce a focus on the “personal characteristics of (the) particular accused” (R v Conlon (1993) 69 A Crim R 92) or “the circumstances as the accused perceived them to be” (R v Hawes (1994) 35 NSWLR 294) is to reintroduce a subjective element which is inconsistent with the text of s 10.2.'

17 Oblach

is, of course, important in determining the precise scope of the objective elements in the duress test. What is not the subject of inquiry is what a reasonable person would have done. What is the subject of inquiry is whether the actual belief held by an accused is objectively justifiable, taking into account the objective circumstances of the accused, but, as the extract from the Chief Justice’s judgment makes clear, not the personal circumstances of the accused or the circumstances as the accused perceived them to be.

18 Before I turn to look more closely at the present case and s 10.2 of the Criminal Code I will note that defences which include a component concerning the reasonableness of an accused’s reaction to external circumstances have often been removed from a jury’s consideration. No doubt this is because, as Gleeson CJ said in Rogers v The Queen (1996) 86 A Crim R 542 said:

“The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some higher value than that implicit in the law which is disobeyed.”

19 Section 10.2 of the Code reads as follows 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.

20 In this case the Crown submits that the defence should not be left to the jury because no reasonable jury could find, even taking into account the onus and standard of proof being: that the accused reasonably believed that a threat had been made that would be carried out unless an offence is committed; that the accused could not have reasonably believed that there is no reasonable way that the threat could be rendered ineffective; and that the accused could not have reasonable believed that his conduct was a reasonable response to the threat.

21 After considering the evidence, and hearing submissions from Mr Santisi and the Crown, I do not need to decide anything in relation to subs 2(a) because even taking the accused as he was at the time, and assuming the truth of his evidence in-chief, I am satisfied that there is no reasonable possibility that a jury would find that there were reasonable grounds for the accused’s beliefs that there was no reasonable way that the threat could be rendered ineffective and that his conduct was a reasonable response to the threat.

22 It is important to understand, that when looking at s 10(2)(b), the focus is on whether the threat could be rendered ineffective and in particular whether the accused reasonably believed that there was no reasonable way that the threat could be rendered ineffective. Thus considerations as to the nature of the accused’s conduct, how serious it was, how illegal it was and perhaps even whether it was illegal in the first place, do not come into play. (Those considerations do come into play very much so as regards subs (c).)

23 I should perhaps at this stage briefly deal with the factual circumstances of this case. The accused is charged with attempting to possess prohibited imports, namely drugs. The accused’s evidence is that he attempted to possess suitcases and, although at one stage he believed that the suitcases might have contained drugs, after the suitcases cleared Customs he thought that it was more likely that the suitcases contained something in the nature of antiques. Thus his case is that he did not perform any illegal conduct. He says that he did what he did because of threats made to him by, what he described as, cruel Chinese gangs.

24 The accused, although born in Vietnam, lived for many years in Canada. He has four sons. They, too, live in Canada. The accused’s case is that he came to Australia for an innocent purpose but was soon under the influence of cruel Chinese gangs who threatened to kill him and his four sons unless he did what they required of him. The accused’s evidence is that he believed that these were cruel Chinese gangs of antique dealers. Although at one stage, as I mentioned, he did think the suitcases might contain drugs due to the serious nature of the threats which were made to him, once the goods cleared Customs he believed there was nothing illegal in them.

25 It is a matter of historical record that despite the failure of what the accused now says is the Chinese gangs’ attempt to import drugs into Australia the accused is still alive and so are his children. However that is a matter of historical record only.

26 The circumstance that the accused’s case is that he thought that he was not doing anything illegal gave rise to some submissions as to how subs (c) is to be applied in the present case. What is “the conduct” referred to? Is it the conduct that the accused thought he was carrying out or the conduct that he was actually carrying out? Although at one stage I was puzzled as to how this matter could be resolved, the Crown explained the answer to me in a way which I accept is the proper approach. It is important to bear in mind that duress is a matter which would be considered by the jury, only if the jury found that the accused was otherwise guilty of the offence. That is, that the Crown had satisfied them beyond reasonable doubt that a quantity of methamphetamine was imported into Australia, that the quantity was 750 grams or more, and that the accused to attempted to possess the methamphetamine. As part of this last element the Crown would have to prove that the accused believed the suitcases contained a narcotic drug and that he intended to possess a narcotic drug.

27 All of those matters have to be resolved adversely to the accused before the defence of duress is considered. Thus what I first thought was a conundrum is not really a conundrum at all because one only gets to duress once the accused’s other defences are rejected. The “conduct” referred to in subs 2(c) must be conduct of the accused knowing that he intended to possess a narcotic drug. That is why I have for the purposes of this judgment looked at whether the accused has overcome the evidentiary burden both subs 2(b) and 2(c).

28 A major focus of the Crown’s submissions concerned a failure of the accused to take any steps at all to protect himself or his children apart from merely complying with the demands of the Chinese gang. In particular the Crown says and the accused accepts, that he did not report the matter to anybody who could be described as “the authorities”. Amongst others, he did not contact police in New South Wales, he did not contact Canadian police, he did not contact the Canadian consulate.

29 It is clear that the proposition that the failure of the accused to take advantage of an opportunity to report a threat to police does not necessarily defeat the defence of duress, has been accepted. In Taiapa v The Queen, the recent decision of the High Court to which I earlier referred, the High Court accepted the decision of the English Court of Appeal in Hudson saying at [35]:

“In Hudson the failure of teenage girls to seek police protection in circumstances in which their potential assailant was present in court at the time they gave their perjured evidence was held not to negate an arguable case that their conduct was excused by duress.”

30 However, the High Court continued:

“In other circumstances, in the absence of an explanation, or reasons apparent in the circumstances, for the failure to seek the protection of the law enforcement authorities there will be no basis on which to lead consideration of duress to the jury . “

31 This proposition is illustrated by the decision of the High Court in Taiapa itself with the Court holding that the appellant there could not avail himself of the duress defence in the circumstances which confronted him saying at [40]:

“an unparticularised concern that police protection may not be a guarantee of safety cannot without more supply reasonable grounds for a belief that there is no option other than to break the law in order to escape the execution of a threat.”

32 It is to be noted there that the High Court, because it was considering Queensland compulsion rather than Commonwealth duress has combined consideration of both aspects of Code duress that are the subject of this judgment, that is those appearing in both subs 2(b) and 2(c). As I think I explained earlier in this judgment, when looking at 2(b) one ignores the nature of the accused’s conduct and focuses on whether the threat can be rendered ineffective. I am satisfied that no reasonable jury could fail to find that the accused would fail on the aspect of duress to be found in 2(b) because the only conclusion that can be reached is that the accused did not reasonably believe that there was no reasonable way that the threats that had been made to him and his children could be rendered ineffective.

33 I repeat that I am looking here at the objective aspect of that test taking into account the accused as he was and the position that he was in, ignoring of course any unusual cowardice or timidity as I am required to do.

34 In this case the evidence establishes that the accused was alone at various times, where he had access to mobile telephones with local and international access. He was able to use those telephones to call locally and internationally. There are many telephone calls which were recorded by police demonstrating that. Not only that, the accused had access to the Internet. Indeed he explained that the perhaps curious circumstance that nowhere in the recorded calls is there any discussion at all of the threats by the fact that he spoke to his son in Canada, his older son also having received threats and knowing of the threats to his father, over the Internet using what I understand is called Voice Over Internet Protocol (VOIP). So the accused certainly had access to the Internet and could have made inquiries about all manner of things regarding policing, telephone numbers, interpreters.

35 The accused, despite living in an English-speaking province of Canada for many years does not speak English well at all. I would not say his English is non-existent, but I accept that it is very poor. I do not mean that as a criticism of him at all. I merely note it because of its relevance to the ability of the accused to contact English-speaking police. Despite that the accused knew that there were many Vietnamese speakers nearby. He was allowed to travel independently by those who he said were threatening him. He knew the way to, for example, the Bankstown shops. He knew that organisations in New South Wales might have Vietnamese speakers, indeed he opened a bank account by speaking to a Vietnamese-speaking bank manager. Yet despite all this, he made no attempt at all to contact police anywhere.

36 In evidence in court, he explained that his failure to complain to police who arrested him was because he did not believe that police in Australia could protect his children in Canada. There is some difficulty with that being a reasonable approach but I refer to it for the perhaps more important reason, that the accused gave evidence that at the stage of his arrest, he thought that Canadian police might be able to protect his children. There was no change of circumstances that I can identify, sufficient to explain why the accused, if he believed that at the time of his arrest, would not have believed it also well before he attempted to obtain possession of the drugs.

37 At one stage Mr Santisi asked his client, whether he knew what a New South Wales police station looked like. The accused said he did not. However I repeat, the accused has spent many years in Canada, and it would be remarkable if in that time he did not learn that the letters P-O-L-I-C-E spelled out “police.” The accused knows about the idea that police could become involved too. In fact he threatens to himself kill, one of the people involved in the scheme, if that person went to police after he backed out of the scheme.

38 Part of what Mr Santisi relies on in suggesting that there is no reasonable way that the threat of the Chinese gang could be rendered ineffective is that the accused did not know the names and addresses of those who were threatening him. At no stage however, did he ask his son who had many meetings with the Chinese people over in Canada. Nor did the accused apparently take much note of the names of those who were threatening him in Australia. Nor did he ask anyone else involved in the scheme. Those matters have to be looked at when considering whether the accused’s belief that there was no reasonable way that the threat could be rendered ineffective is a reasonable one.

39 Also of course, the accused knew where his children lived in Canada and could have provided accurate information to police to ensure their protection.

40 In assessing the reasonableness of accused’s belief that the threats could not reasonably be rendered ineffective, one has to take account of these circumstances too: Before the drugs came into his possession, the accused’s son, who had been threatened by Chinese gangs, was able to leave Canada where the Chinese gangs were threatening him and go to Vietnam; The accused himself made preparations to leave Australia too, intending to leave after the drugs were delivered; When at one stage it looked as though the operation would fail, the accused expressed an intention to leave Australia and go to Vietnam with apparently no concern that he would be killed if he did so. The possibility of escape therefore, is something which has to be considered in assessing whether the accused reasonably believed that the threats could not reasonably be rendered ineffective.

41 Of course the accused was living in a foreign country where he did not speak the language and was separated from his children by some distance, a matter that Mr Santisi of course relies on. On the other hand, as I mentioned, he arrived in Canada and settled in an English speaking province in 1987 or 1988 and thereafter he worked in restaurants, opened a second-hand shop and acquired his own restaurant. He acquired Canadian citizenship. So before coming to Australia he lived in an English speaking province for some time. Whilst in New South Wales, under threat from the Chinese gang, he could easily have asked for assistance in identifying what a police station looked like even if he did not know what the letters P-O-L-I-C-E spelt. He was not some unwary innocent lost in a foreign sea unable to chart his course. He was, and I summarise my findings in this way, able to go to the shops by himself, make telephone calls by himself, use the internet by himself, speak to other Vietnamese speakers himself and could have, had he desired to, easily made contact with New South Wales police, the Vietnamese embassy, the Canadian consulate or even the Canadian police.

42 Why he did none of these things is, in light of my findings that he could easily have done them if he wanted to, inexplicable. Even if he himself did believe that he could not have contacted any of these bodies, there is no reasonable possibility that a jury would find that that belief was reasonable. It is certainly far from reasonable for him to believe that such contact would not have rendered the threats ineffective. Here the accused’s evidence was that because there were a lot of Chinese people in Canada, it would not help his children if they were to move to another province. No other reason was given why moving his children would not make it highly unlikely that the Chinese gang would find them and kill them. No jury could find that it was objectively reasonable for the accused to take into account that there were many people of Chinese background in all provinces of Canada as a circumstance affecting the safety of his children.

43 What we are left with really is, as the High Court said, an unparticularised concern that police protection may not be a guarantee of safety.

44 That of course is enough to decide this issue, but there is more, because I have also decided that duress should not be left to the jury on the basis of the failure of the accused to meet the evidentiary burden relating to subs 2(c), that is that his conduct is a reasonable response to the threat.

45 I have already described why it is that in looking at the “conduct”, one looks at conduct of the accused consisting of knowing attempts to obtain possession of drugs. That is illegal conduct and seriously so. It is clear that an important consideration in applying the objective test as regards to 2(c) is that the alternative to resisting the threat is sometimes, as in this case, a serious breach of the law.

46 It is not simply a case of choosing between two equally weighted alternatives at all. Gleeson CJ in Rogers expressed that concept this way:

“If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined.”

47 The structure of s 10.2, that is Code duress, is such that an accused could fail to meet the test in s 2(c) even if a threat cannot be rendered ineffective. Thus, even if the accused reasonably believed that there was no reasonable way that the threat could be rendered ineffective and that there was thus still a risk that his children and he would be killed, in appropriate circumstances the defence of duress could fail because of the test in subs 2(c). In other words, a person may fail on a duress defence even if it is accepted that the threat might still be operative. Of course, this is because a threat might be minor and the conduct grave or perhaps, and this is the relevant consideration in this case, the risk that the threat would be carried out is very low especially if the person threatened, that is the accused, had reported matters to the authorities.

48 I have already dealt with the objective reasonableness of the accused’s belief that he would have difficulty reporting the matter and that, even if he did, then that would be ineffective. Because, in those circumstances, the accused continued his involvement in an enterprise where, as I have explained, it must be accepted that he believed involved the importation of valuable drugs into Australia, in assessing the objective reasonableness that the accused’s belief that his conduct was a reasonable response to the threats, weight must be given to the fact that one of the choices confronting the accused involved a very serious breach of the criminal law, something he must have been well aware of.

49 Returning to the decision of Rogers it is instructive to use the matters of factual relevance in that case as an aid to identifying the matters of factual relevance in this case. First in Rogers consideration was given to the nature of the escape in contemplation, (of course, Rogers a necessity case, what the Court of Criminal Appeal was considering was the decision of Mr Rogers to escape gaol because of threats which he said had been made to him.) In the present case that consideration translates to a consideration of the nature of the illegal act which the accused decided to commit. That is, active participation in the process by which illegal and dangerous drugs were distributed to the Australian community.

50 Secondly, in Rogers it is said that the imminence of the threat is also a matter of evidentiary significance. In this case it could not suggested that the threat was to be carried out imminently. There have even been suggestions in Common Law duress from time to time that a lack of imminence would of itself rule out duress but I note that in Rogers that proposition was rejected as regards necessity and so it should also be for duress. Whether Code duress, Common Law duress or Queensland compulsion.

51 Whether there were any possible alternative courses of action available having regard to the nature and imminence of the threat is of central factual importance according to Rogers. As I have explained when dealing with the matter under 2(b) there were many alternative courses of action available to the accused. Those matters do not cease to be relevant and, in fact, are very relevant to the issue to be considered under subs 2(c).

52 I have already decided that if the accused contacted the police, that would have been a reasonable way that the threat could have been rendered ineffective but even if I am wrong about that it cannot be seriously suggested that if the accused had contacted the authorities the risk that the threat would be carried out would not have been significantly reduced. That is a significant matter in deciding whether the accused reasonably believed that his decision to involve himself in the importation of illegal and dangerous drugs was a reasonable response to the threat. It is not reasonably possible that a properly instructed jury would fail to reject the defence of duress for this reason also.

53 It is for those reasons that I have decided that the defence of duress should not be left to the jury.

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