Smith v The State of Western Australia - [2010] WASCA 205

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SMITH -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 205

CORAM: McLURE P
OWEN JA
MAZZA J

HEARD: 10 JUNE 2010

DELIVERED : 22 OCTOBER 2010

FILE NO/S: CACR 42 of 2010

BETWEEN: BRODIE NOEL SMITH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STAVRIANOU DCJ
File No  :IND 817 of 2008

Catchwords:

Criminal law - Appeal against conviction - Whether trial judge misdirected the jury as to duress and extraordinary emergency - Whether defences should have been left to the jury - Proper construction of s 25, s 31(3) and s 31(4) of the Criminal Code (WA)

Criminal law - Application for extension of time - Gross unexplained delay

Legislation:

Criminal Code (Qld), s 31(1)(d)
Criminal Code (WA), s 7(c), s 24, s 25, s 31(3), s 31 (4), s 333, s 401(2), sch 1
Criminal Code Bill of 1880 (UK), s 56
Criminal Law Amendment (Homicide) Act 2008 (WA)
German Civil Code of 1896, s 227
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)

Result:

Application for extension of time refused
Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr S B Watters
Respondent: Mr B Fiannaca SC

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Abbott v The Queen (Unreported, CCA SCt of WA, Library No 7814, 1 September 1989)
Heijne v The State of Western Australia [2010] WASCA 86
Johnson v The State of Western Australia [2009] WASCA 71; (2009) 194 A Crim R 470
Morris v The Queen [2006] WASCA 142; (2006) 201 FLR 325
Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193
Quartermaine v Western Australia (2008) 36 WAR 384
R v Brown (1986) 43 SASR 33
R v Fietkau [1995] 1 Qd R 667
R v Silk [1973] Qd R 298
R v Smith [2005] 2 Qd R 69
R v Taiapa [2008] QCA 204; (2008) 186 A Crim R 252
Rogers v The Queen (1996) 86 A Crim R 542
Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95

McLURE P: I agree with Mazza J that the application for an extension of time to appeal should be dismissed and the appeal dismissed. These are my reasons for that conclusion.
All the necessary background material is contained in the reasons of Mazza J and not repeated here. It is sufficient for present purposes to note the following. The appellant and the male complainant, Mr S Poduti, were drug dealers. The appellant on behalf of himself and Mr Poduti, purchased $100,000 worth of drugs on credit; each assumed responsibility to pay half the debt owing to the drug supplier. The appellant paid his share of the debt. Mr Poduti failed to pay. The appellant and later Mr Poduti became the focus of attention of a number of men who assumed the role of securing satisfaction of the drug debt by unlawful means (the co‑offenders).
The appellant was convicted of the aggravated burglary of Mr Poduti's home and an associated offence of deprivation of liberty of Mr Poduti's partner, Amanda Marshall. Prior to the commission of the offences, the appellant went to the Hideaway Tavern where he was assaulted by some of the co‑offenders. He was then taken to a house where he was questioned and assaulted again following which the appellant was taken to his home. On the arrival of the appellant and the co‑offenders, the appellant's girlfriend Lara Cameron went and remained upstairs. When the appellant and the co‑offenders left to visit Mr Poduti, one of the co‑offenders remained at the appellant's home.
The appellant claims the trial judge erred in failing to adequately direct the jury concerning the defence of duress under s 31(3) of the Criminal Code (WA) (the Code) and the defence of emergency under s 25 of the Code.

Duress

I agree with Mazza J for the reasons he gives that the trial judge misdirected the jury on the issue of duress. However, I have concluded that the misdirection does not give rise to a miscarriage of justice.
The appeal raises questions as to the proper construction of s 31(3) of the Code as it was prior to its repeal by the Criminal Law Amendment (Homicide) Act 2008 (WA). However, the parties to the appeal made their submissions without reference to, or it seems consideration of, the text or purpose of s 31(3). The provision needs to be construed with s 31(4). Section 31(3) and (4) provided:
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, that is to say ‑
(3)When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence;
(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 of the threats into execution;
But this protection does not extend to an act or omission which constitutes an offence punishable with strict security life imprisonment, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has, by entering into an unlawful association or conspiracy, rendered himself liable to have such threats made to him.
Section 31(4) was commonly accepted as the duress (or compulsion) 'defence' in the Code. It is very narrow. It only applies if a threat of immediate death or grievous bodily harm is made by someone present at the scene of the crime who is in a position to carry out the threat and the accused believes himself to be unable to otherwise escape the carrying out of the threat. It is clear that s 31(4) had no application to the facts of this case.
The scope of s 31(3) has been the subject of much speculation but little judicial analysis. It has been suggested that it is complementary to the provisions of the Code dealing with self‑defence: Murray MJ, QC, The Criminal Code: A General Review (Perth, 1983); Colvin E and McKechnie J, Criminal Law in Queensland and Western Australia: Cases and Materials (5th ed, 2008 [14.2]). This view is supported by the history of the provision.
A marginal note against the corresponding subsection in Sir Samuel Griffiths' Draft Criminal Code reads:
That mode of defence which is necessary for the purpose of averting an immediate unlawful attack upon the person using such defence is not unlawful under any circumstances.
Sir Samuel Griffiths' marginal note expressly invites comparison with s 56 of the Criminal Code Bill of 1880 (UK) and the German Civil Code of 1896, s 221 [sic 227]. Both the English and German provisions to which he refers deal with self‑defence.
Against that background, I turn to the text of s 31(3). The following propositions would appear to be uncontroversial. There must be actual and unlawful violence threatened to the person who did or omitted to do the relevant act (the accused) or another person; the threat of violence, whether it be to the accused or another person (or both), must be made in the presence of the accused; actual unlawful violence means the application of physical violence to the person, directly or indirectly (which would include a sexual assault); and the act or omission must be reasonably necessary in order to resist the threat.
The test of what is reasonably necessary is objective. However, what is reasonably necessary must be determined by reference to the circumstances in which the accused found himself at the relevant time, including what he knew or ought reasonably to have known.
The expression 'in order to' requires that there be a causal connection between the threat and the accused's (prima facie) criminal act or omission. As a matter of fact, it is unlikely that the objective test could be satisfied in the absence of evidence from the accused as to what caused him to engage in the conduct in question. Indeed, the court in Abbott v The Queen (Unreported, CCA SCt of WA, Library No 7814, 1 September 1989) concluded that the defence in s 31(3) is only available if the accused concedes the existence of the relevant act(s) or omission (111). It is unnecessary to determine the correctness of that proposition.
The next issue is the meaning of the word 'resist' in the phrase 'act … in order to resist … violence threatened to him, or to another'. In its context it must be a reference to resisting the threat of unlawful violence made by the maker of the threat. To resist is to 'oppose' or 'strive against' the maker of the threat carrying it out. That is consistent with the requirement that the accused must be in the presence of the person making the threat at the time it was made. If 'resist' has the restricted meaning of opposing or striving against the maker of the threat, the appellant's duress defence had to fail.
It is instructive to compare the use of the word 'resist' in s 31(3) with the language of s 31(4). The relevant act in s 31(4) must be in order to 'save himself from' a threat of death or grievous bodily harm. That expression is wider than 'resist' and would cover a contingent threat (eg 'I will cause you grievous bodily harm if you do not act as a drug courier').
It is unlikely to have been the legislative intention to have a duress defence in s 31(3) that was freed from the stringent limitations incorporated in s 31(4). My preliminary view is that the word 'resist' in s 31(3) is intended to have the restricted meaning. However, it is not appropriate to determine that issue in this appeal. I will proceed on the unstated assumption on which all parties proceeded at trial and in the appeal namely that 'resist' means save himself or another from the threat of violence. That is consistent with the broad approach of this court in Quartermaine v Western Australia (2008) 36 WAR 384 where the construction issue was not raised or considered.
On the wide view of 'resist', s 31(3) becomes an additional avenue for raising the defence of duress. In that event s 31(3) must be construed against the background of the strong policy considerations in that area of the law. They were identified by Gleeson CJ in Rogers v The Queen (1996) 86 A Crim R 542 and King CJ in R v Brown (1986) 43 SASR 33, both of which were approved by the High Court in Taiapa v The Queen [2009] HCA 53 [31] ‑ [32], [36]. King CJ said in R v Brown:
The ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police. That must be assumed, under ordinary circumstances, to be an effective means of neutralising intimidation. If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation (40).
What is reasonably necessary is a value judgment involving a question of law so there must be evidence that, in the view of the court, would justify the jury in finding that the conduct was reasonably necessary: Taiapa.
There are a number of reasons why, on a view of the evidence most favourable to the appellant, a jury acting reasonably could not fail to be satisfied that duress was excluded.

No evidence of connection between relevant acts and avoiding the threat

It is necessary at the outset to identify the relevant acts in question. The State case in relation to the count of aggravated burglary (count 1) was that the appellant aided or enabled his co‑offenders to commit the offence. The conduct relied on was as follows. The appellant (1) with knowledge of what was proposed assisted in gaining entry to the male complainant's premises; (2) directed the inspection of the premises by the co‑offenders in order to locate property to steal; and (3) himself found and stole property from the premises.
The State case in relation to the count of deprivation of liberty of the female complainant (count 2) was that the appellant was the principal offender or alternatively, the offence was committed in the prosecution of a common purpose.
The State case was dependent on the jury accepting the evidence of the complainants, Steven Poduti and Amanda Marshall.
The co‑offenders made no express threat to either the appellant or Ms Cameron. It was a matter of what could reasonably be implied from the conduct of the co‑offenders as to both the existence and the content of any threat. The content of the threat is central because it must be of such a nature as to be capable of compelling the appellant to participate in the particular offence(s) of which he was convicted, being aggravated burglary and deprivation of liberty. The essence of duress is that a person committed a particular offence because his or her will was overborne by a threat of actual and unlawful violence.
The appellant's evidence focussed on (1) his expectation that, as a result of the failure of Mr Poduti to pay his share of the drug debt, he (the appellant) would be subjected to physical violence by on or behalf of his drug supplier; (2) the actual physical violence he suffered at the Hideaway Tavern and at the house to which he was taken prior to the arrival of the group at the appellant's home in East Perth; and (3) his concern for Ms Cameron's safety. The appellant did not give evidence of any connection between the actual and unlawful violence threatened and how and why that compelled him to commit the offences of aggravated burglary and deprivation of liberty. Indeed, very little was said about when and why the group went to Mr Poduti's premises. The appellant's evidence is as follows:
Now, you went to your house with these people?--‑Yeah.
And when you got there can you tell me what happened‑‑‑?---They came inside with me. They wanted to know what was going on with ‑ they wanted to take ‑ wanted me to take them to this other guy that owed $50,000, because, you know, like, I was really saying, you know ‑ like, I was trying to buy more time … (ts 266 ‑ 267).
He then said:
[L]ike I said, they were demanding to meet this person that owed money.
All right. In respect of this attendance to your place, did you land up leaving your place‑‑‑Sorry?
Did you leave your place in ‑ ‑ ----Yeah.
Did everyone that came with you leave---No, someone - someone stayed there at my house, stayed there with Lara, which, like, you know, was pretty scary. I've heard stories about some of these guys, what they do to girls, and, like, that was pretty intense.
Had you anticipated all of this---Sorry, did I ‑ - ‑
Had you anticipated that that would happen---Well, I was very scared that would happen. Like I said, you know, you hear stories about it but you never really think it'll happen [sic] to you and, you know, like, Lara, she's not in that world, you know. It was more scared for her than anything …
From your place to where did you go‑‑‑We went ‑ they drove me around to Gibbs Street, to 37 Gibbs Street. Like, you know ‑ ‑ ‑
Did you want to go there‑‑‑No, I definitely didn't want to go there.
Did you have a choice?‑‑‑I definitely had no choice, or I didn't see I had a choice.
Please go on ‑ ‑ ‑I didn't see I had a choice. As far as I was concerned, you know, I didn't know what this guy was capable of with Lara. You know, he didn't look like your average Joe, you know what I mean? Like, he was a big guy and pretty scary, you know.
…
So you went to ‑ with these people to Steven Poduti's house in Gibbs Street. How did they come to go to that house‑‑‑Sorry?
How did they know where to go‑‑‑Well, like I said, they wanted to ‑ they more or less put it like they just wanted to talk and find out the whole story so, you know, like I ‑ like, I was under the impression they ‑ they were ‑ I was under the impression that they weren't going to hurt anyone, you know what I mean? And so I took them there in the end. Like I said ‑ ‑ -
Did you want to take them there‑‑‑No, I definitely didn't want to take them there.
Did you feel you had a choice whether or not take them there‑‑‑No, I don't ‑ didn't feel I had a choice. I felt like something would have been done to Lara if ‑ you know, if I didn't do what they say (ts 267 ‑ 268).
The appellant went on to give evidence to the effect that he did not participate in the events at Mr Poduti's house in any way that would give rise to a criminal offence. His evidence was in substance that the relevant threats gave him no choice but to accompany the co‑offenders to Mr Poduti's house but were not of such a nature as to compel him to commit the offences in question. The specific conduct relied on as conveying the relevant threats was the violence to which the appellant was subjected at the Hideaway Tavern and the fact that a man stayed behind at the appellant's premises when he and the co‑offenders left to visit Mr Poduti. There was no evidence of any contact or communication between the man (who watched TV in the lounge room) and Ms Cameron (who was upstairs). The threats alone are incapable of supplying a causal connection with the offences.
Thus, the evidence falls a long way short of providing a foundation for an implied threat that the appellant or Lara would be the subject of actual violence unless the appellant participated in the offences of aggravated burglary, deprivation of liberty or offences of that nature. That is a wide evidentiary gulf which cannot be filled by the obvious rejection by the jury of the appellant's evidence that he did not participate in the offences. Moreover, the complainants' evidence of the appellant's conduct and demeanour during the events at their home are positively inconsistent with the appellant participating in the offences under compulsion.
There being no evidence of any causal connection between the threats and the offences of which the appellant was convicted, a finding that the offences were reasonably necessary is not open. Even if there was evidence of a connection between the threats and the offences, there is a further basis for concluding that the offences were not capable of satisfying the requirement of being reasonably necessary.

Not reasonably necessary

This analysis proceeds on the assumption that the threats were capable of compelling the appellant to commit the offences. The events in question can be broken into three stages being (1) up to the appellant's arrival at the Hideaway Tavern; (2) from his arrival at the Hideaway Tavern until he left the house to which he was taken to go to his home in East Perth; (3) after leaving his home in East Perth.
The appellant knew by stage 1 that he, and potentially Ms Cameron if she was with the appellant, would be the victim of actual physical violence unless and until the drug debt was satisfied. The appellant's evidence was to that effect (ts 257, 260, 262, 263). It is confirmed by Ms Cameron. She said:
[T]he week before this happened he was actually quite nervous and scared; like, didn't want to sleep; didn't want to stay at home; like, always looking out the windows, like, at every little noise. I just thought he was being paranoid and ‑ yeah, but it was actually quite a serious thing so, yeah, he was quite shaken (ts 352 ‑ 353).
She described how the appellant was on the night before the day on which the offences were committed. She said:
Yeah, really shaking still; really nervous. I couldn't get him to calm down; like, he wouldn't even put the volume up on the TV because he was, like, frightened; like, every little sound outside, every car that went past he was looking out the windows, making sure everything was locked. He wasn't in a good way (ts 353).
Moreover, the appellant accommodated without dissent or demur all of the express requests made of him by the co‑offenders. In particular, he left the Hideaway Tavern and his home in East Perth without asking or being offered an explanation by the co‑offenders of what their intentions were or what they required of him. The overwhelming inference is that the appellant accommodated the requests to accompany the co‑offenders because he knew by stage 1 that the use of violence was integral to the modus operandi for the enforcement and satisfaction of illegal debts in the criminal subculture of which he was a part.

There were opportunities for the appellant to seek the protection of police before he went to the Hideaway Tavern. He elected not to do so. What followed in terms of the threats of actual and unlawful violence relied on as the basis of the duress defence were not different in kind or character from what the appellant knew was within the range of legitimate expectation as a result of the failure to pay the drug debt.
Thus, the appellant at all stages acted as he did because he regarded himself as entirely in the hands of the drug supplier's debt recovery agents when it came to the enforcement of the illegal drug debt which he had incurred. That may be understandable for a person in the appellant's position. However, the test of what is reasonably necessary is objective and incorporates general community standards not the standards prevailing in the criminal subculture.
The appellant could and should have sought the protection of police instead of going to the Hideaway Tavern on the night in question. The availability of this avenue to neutralise the threats meant it was not open to the jury to find, even as a reasonable possibility, that the appellant's conduct was reasonably necessary.
This conclusion is consistent with the proviso immediately following s 31(4) which excludes protection to a person who has, by entering into an unlawful association, rendered himself liable to have threats made to him. It is unnecessary to determine whether the proviso applies to s 31(3), a matter on which there are divergent views (see: R v Silk [1973] Qd R 298; R v Fietkau [1995] 1 Qd R 667; Abbott v The Queen).
I am satisfied that it was not open to the jury to find, even as a reasonable possibility, that the appellant acted under duress. Accordingly, the trial judge's misdirection does not give rise to a miscarriage of justice.

Emergency

Section 25 of the Code as it applied at the time the offences were committed was in the following terms:
Subject to the express provisions of this Code relating to acts done under compulsion or provocation or in self defence, a person is not criminally responsible for an act or omission done or made under such a circumstance of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self‑control could not reasonably be expected to act otherwise.
The opening words of s 25 exclude its operation where the act or omission and what is said to be the compulsion require the application of s 31(3) or s 31(4): Johnson v The State of Western Australia [2009] WASCA 71 [47]; R v Smith [2005] 2 Qd R 69 [20] ‑ [23].
I have concluded that the evidence at trial would not justify the jury in finding that the appellant's conduct was reasonably necessary to resist the threats on which he relied. In those circumstances, the operation of s 25 of the Code was not excluded.
The appellant's ground of appeal does not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) (r 32(4)) which requires concise and succinct particulars of the errors complained of. We are left to fossick through the submissions. The complaints appear to be that the trial judge failed to:
(i)tell the jury the words have their ordinary and everyday meaning;
(ii)draw a distinction between the word sudden and extraordinary;
(iii)give any examples of what may constitute a sudden or extraordinary emergency;

(iv)relate the defence to the facts.

The full direction is set out in the reasons of Mazza J. A trial judge is not obliged to direct the jury on the matters referred to in (i), (ii) or (iii). The words have their natural and ordinary meaning. Further, the trial judge sufficiently related the defence to the facts. He identified the factual matters on which the appellant relied for the defence of emergency. The suggestion that aspects of the direction were confusing is not sustained and is undermined by counsel's failure to seek any redirection on the issue. There is no merit in the ground.
In any event, the evidence was not capable of entitling the jury to find, even as a reasonable possibility, that an ordinary person possessing ordinary power of self control could not reasonably be expected to act otherwise than by committing the offences of which the appellant was convicted. The facts on which the appellant relied for duress are also relied on to prove the existence of a sudden or extraordinary emergency. However, as previously noted there was no evidence that linked the threats made by the co‑offenders with the appellant's decision to commit the offences. Moreover, by stage 1 the conduct of the co‑offenders was within the range of the appellant's legitimate expectation. Accordingly, it was not open to the jury to find, even as a reasonable possibility, that an ordinary person possessing ordinary power of self‑control could not reasonably be expected to do other than commit the offences of aggravated burglary and deprivation of liberty.
The appellant has not established any miscarriage of justice to justify the grant of an extension of time after the very lengthy and inadequately explained delay in the commencement of the appeal.
OWEN JA: I agree with McLure P.
MAZZA J:

Introduction

The appellant seeks to appeal on two grounds against his conviction for offences of aggravated burglary and deprivation of liberty. The appeal is grossly out of time. It was filed more than a year late. Consequently, an extension of time is required.

On 29 April 2010, Owen JA referred the application for an extension of time to the hearing of the appeal. His Honour granted leave to appeal on ground 1 and referred ground 2 to the hearing of the appeal.

Application for extension of time

The application for an extension of time is supported by an affidavit sworn by the appellant's solicitor on 30 March 2010. It is unnecessary to canvass in detail the contents of that affidavit. It is sufficient to say that the explanation given for the long delay is inadequate and unsatisfactory. I would only grant an extension of time if I was satisfied that the appeal had merit.

Background

The appellant was tried before Stavrianou DCJ and a jury in the District Court of Western Australia on one count of aggravated burglary, contrary to s 401(2) of the Criminal Code (WA) and one count of deprivation of liberty, contrary to s 333 of the Criminal Code. On 21 November 2008, after a five‑day trial, the appellant was convicted as charged. On 20 January 2009, the appellant was sentenced to a total term of 4 years' immediate imprisonment to commence on 8 January 2008. He was made eligible for parole.

Grounds of appeal

The grounds of appeal are as follows:
1.The learned trial Judge erred both in law and fact, and there was a miscarriage of justice, when he failed to adequately direct the jury concerning the defence of duress (Section 31(3) of the Criminal Code) (t‑s 403‑404);
Particulars:
a)there was evidence the Appellant committed the offences because of actual and/or implied threats made, in his presence, to his girlfriend [Lara Cameron] (t‑s 266‑268);
b)His Honour erred when he failed to adequately direct the jury the defence applied to the threats to [Lara Cameron];
c)His Honour effectively confined the defence of duress to threats made to the Appellant;
d)His Honour further erred when he failed to mention the continuing nature of the threats to the Appellant after he left the Hideaway Tavern (t‑s 403E).
2.The learned trial Judge erred both in law and fact, and there was a miscarriage of justice, when he failed to adequately deal with the defence of emergency (Section 25 of the Criminal Code) (t‑s 404‑405);
Particulars:
a)His Honour failed to adequately explain the defence to the jury;
b)His Honour failed to adequately relate the defence to the fact of the case;
c)His Honour failed to adequately direct the jury the State needed to establish the accused, when viewed objectively, did not act because of an emergency.

Prosecution case

At about 11.00 pm on 11 October 2007, the appellant, along with others, went to a house at 37 Gibbs Street, East Cannington. The house was occupied by the complainants, Steven Poduti and his partner, Amanda Marshall.
The appellant and the complainants were known to each other. All three were users of illicit drugs. The appellant and Mr Poduti were also dealers of illicit drugs.
The appellant knocked on the front door of the house and identified himself to Mr Poduti. Mr Poduti unlocked the door and the appellant entered the house. Behind the appellant was another man. The appellant said to Mr Poduti, '[t]he police are out the front'. Mr Poduti turned towards the appellant and, as he did so, the man behind the appellant punched him.
At this point, Ms Marshall tried to run out of the house, but the appellant stopped her and took her mobile telephone from her. By this time, others had entered the house.
Mr Poduti said, in his evidence, that the men who entered the house assaulted him and dragged him from the kitchen to the dining room.
Mr Poduti estimated that there were eight to 10 men in the house, apart from the appellant. These other men were wearing masks.
Mr Poduti said that he was beaten up by the men and that one of them threatened him with a kitchen knife.
He said that one of the men asked him for $50,000 and said, '[y]ou should pay your bills'.
Mr Poduti said that while he was being assaulted and threatened, the appellant was able to move around the house of his own free will and was rifling through Mr Poduti's property, looking for things.
Mr Poduti said that he was taken into a garage attached to the house, where he tried to escape, without success.
Eventually, one of the men who entered the house said, '[t]hat's enough'. Mr Poduti was then put into a chair at the kitchen table and made to sign documents transferring his car and a motorcycle. Once he had done this, the man said, '[i]f you paid your bills on time, you wouldn't have had to go through this'.
Mr Poduti said that while he was being beaten up, the men who had entered the house were taking things from the house outside. He said that his car, his motorcycle, his tools of trade, various electrical items and other objects were stolen from the house.
Mr Poduti described the appellant during his ordeal as being very calm.
About two weeks after the burglary, Mr Poduti said that he visited the appellant at his residence in East Perth. There, he noticed some of the property that had been stolen on the night of 11 October 2007.
On 21 January 2008, Mr Poduti identified, at the offices of the police motor squad in Perth, a brake calliper, a yellow wheel rim and a tyre, which were allegedly stolen on the night the offences were said to have been committed. These items had been discovered by police at the appellant's residence.
Ms Marshall gave evidence which, in essence, confirmed Mr Poduti's version of how the appellant and the other men entered the house.
She said that she saw Mr Poduti bashed and she was so frightened she wet her pants and had to go to the toilet. She said the appellant followed her there. After going to the toilet, she went and got her mobile telephone. She testified that the appellant took her phone and locked the back door to prevent her from leaving the house. She then went to the lounge room where she saw Mr Poduti being kicked and punched.
The appellant and another man took her into the main bedroom and had her open some drawers. She said that the two men went through the drawers, taking what they wanted, including some jewellery and $1,300 in US currency.
She said that she saw Mr Poduti sign some papers.
Ms Marshall said that for some of the time when Mr Poduti was being beaten, the appellant was watching her.
Ms Marshall said that during the incident, the appellant did not appear distressed. She did recall him saying, '[t]hey've got Lara' (ts 191).
Ms Marshall confirmed that amongst the property that was stolen was a car, a motorcycle, tools, electrical equipment and money.
With the permission of the defence, the prosecution read to the jury a number of statements from witnesses to the effect that the yellow wheel rim and tyre, which Mr Poduti said was stolen on the night of 11 October 2007, were found later at premises used by the appellant.
On 8 January 2008, the appellant was interviewed by two police officers. The interview was recorded on a DVD and admitted into evidence (exhibit 4).
I will refer to what was said by the appellant in this interview in more detail later in these reasons. For present purposes, it is sufficient to say that the appellant told the police that Mr Poduti owed 'the wrong people' money as a result of which he and Mr Poduti were placed in jeopardy. The appellant said that on the night in question, he was beaten up and he was driven to Mr Poduti's residence in East Cannington. He said that when he got there, he noticed that there was a police car at the house across the road. The appellant said that he entered the house with another man and later others followed. The appellant said that Mr Poduti was 'flogged' inside the house.
The appellant denied searching the house and depriving Ms Marshall of her liberty or receiving any stolen items. He denied committing an aggravated burglary and taking men to the house in order to rob the occupants.
The State's case was that in relation to the aggravated burglary, the appellant aided, within the meaning of s 7(c) of the Criminal Code, those who accompanied him to commit the offence. With respect to the charge of deprivation of liberty, the State's case was that the appellant was a principal offender.

Defence case

The defence case was that the appellant was neither an aider in count 1 nor a principal offender in count 2. Alternatively, he was not guilty of either offence because each was committed under duress or in response to a sudden or extraordinary emergency.
A good deal of the defence case was taken up with a direct attack on the credibility of both Mr Poduti and Ms Marshall. It was the defence case that both these witnesses were untruthful.
Both the appellant and his girlfriend, Ms Lara Cameron, gave evidence. The evidence that they gave about duress and emergency is important and must be examined in some detail.
The appellant testified that he and Mr Poduti purchased from a supplier $100,000 worth of illicit drugs. The drugs were divided equally and, according to the appellant, it was agreed between the two of them that they would each repay the supplier $50,000. The appellant paid his share, but Mr Poduti did not. The supplier was unaware of where Mr Poduti lived (ts 254). The appellant understood that he would be held responsible by the drug supplier for any outstanding part of the debt.
In the days leading up to 11 October 2007, pressure was exerted upon the appellant to repay the outstanding $50,000. The appellant testified that he spoke to Mr Poduti and told him 'I'm going to get hurt over this and you don't seem to be taking it seriously' (ts 257).
The appellant said that the money was supposed to have been repaid to the supplier three weeks before the date of the alleged offence. However, the final deadline for payment was the night before the offences were committed (ts 260). The appellant said that he and Mr Poduti had discussed the situation that night. The appellant said that he told Mr Poduti that he was going to get hurt over the debt. He said that Mr Poduti's response was that he would repay the debt by getting more drugs and selling them. The appellant said he could not believe that Mr Poduti would leave him in that position (ts 262). He left that meeting, he said, knowing that he was going to be hurt (ts 262). He left the meeting with the deadline having expired and the situation with Mr Poduti still unresolved.
On 11 October 2007, the appellant said that he received a message from the supplier to go to the Hideaway Tavern to discuss the outstanding debt (ts 263).
The appellant said that he did not want the supplier to come to his house, so he agreed to meet him at the Hideaway Tavern (ts 264). The appellant said that he went to the tavern so that he could show the supplier that he was not avoiding him.
The appellant said that he went to the Hideaway Tavern and while he was at the bar, someone slapped him on the back of his head with an open hand. The appellant said that two men he had never seen before asked him to 'come outside' for a talk. The appellant said that he went outside and stood in front of a four‑wheel drive vehicle. In the vehicle were two people. The appellant said that they wanted whatever money he had on him and that they wanted to see the person who owed the money. He said that he was bundled into the car (ts 265).
The appellant said that he was driven back to someone's house. He said that they wanted to know about the person who owed the money and why the bill had not been paid. The appellant said that he was given 'a slap around' (ts 266). He said that he was terrified and in shock.
The appellant said that he then drove them to his house. He said that he did this because he believed that '[i]t was either that or … just keep being belted, I suppose' (ts 266).
The appellant said that when they got to his house, Ms Cameron came out of her bedroom. He said that the men wanted him to take them to Mr Poduti (ts 266). He said that one of the men stayed at his house with his girlfriend. He said that he had heard stories about what could happen to girls in her situation. He said, 'It [sic] was more scared for her than anything' (ts 267). He added, 'I didn't definitely want Lara to get hurt. That was my biggest concern' (ts 268).
The appellant said that he was driven to the East Cannington address. He said, 'I didn't see I had a choice' (ts 268).
The appellant said that he was under the impression that the people who accompanied him just wanted to talk to Mr Poduti and that they were not going to hurt anyone (ts 268). He said that he did not want to take them to Mr Poduti's house, but 'felt' that if he did not, 'something would have been done to Lara' (ts 268).
The appellant said that from his own perspective, he 'felt vulnerable'.
The appellant testified that when he got to Mr Poduti's house, he saw a marked police car directly across the road from the house. He said that the presence of the police car made him feel 'a little bit safer' (ts 269).
He said he got out of the car and went to the house with a man whom he described as 'the least aggressive out of all of them' (ts 269).
The appellant said that he knocked on the front door and identified himself to Mr Poduti. He was allowed into the house and the other person walked in behind him.
The appellant agreed that he told Mr Poduti and Ms Marshall that the police were outside.
The appellant said that the man who had entered with him struck Mr Poduti to the face, which caused him to drop to the floor. The appellant said that the man 'just started laying into him'. At this point, the appellant said that he noticed other people walking into the house. The appellant noticed that Ms Marshall was in a state of panic. He testified that he tried to calm her down. He said that Ms Marshall went to the toilet, after which she and the appellant were directed to sit in the lounge room and be quiet.
The appellant said that he was concerned about his girlfriend. He said:
[I]n the back of my mind the whole time, all I could think of was Lara, you know like - poor Lara's got nothing to do with any of this scene. I mean, we were using drugs, we weren't - but like Lara's - you know, she was the - as far as I'm concerned she just got dragged into this and, like, you know, I was picturing the worst, I suppose you could say. I was picturing her being raped, I was picturing her being, you know, she's an attractive girl, you know, just wouldn't have been - from stories I've heard what these people do to girls, you know. I mean, like, all sorts of things going on inside my head (ts 274).

The appellant denied preventing Ms Marshall from leaving the house through a back door. He also denied taking her mobile telephone away from her.
The appellant said that he saw Mr Poduti 'copping … a pretty awful hiding' (ts 274).
The appellant said that he remembered one of the men who had entered the house produce some paperwork from a file for Mr Poduti. The appellant said that Mr Poduti denied the debt. The appellant said, 'that really took me back a bit. I was like, you know, he's going to get me killed' (ts 276). The appellant said that someone then reached over to punch him, but before doing so, Mr Poduti stopped him by saying, '[d]on't worry, I'll get you the money' (ts 277).
The appellant said that one of the intruders told him to take off his thick gold chain worth about $10,000. The appellant did this and threw the chain to the man.
The appellant said that he was terrified and that he could not stop thinking about Lara. He said that he believed Mr Poduti signed the papers that were given to him.
The appellant said that he saw Ms Marshall go into the master bedroom. After about 10 minutes, he said that he went to the bedroom and saw that the drawers in the room had been pulled out. The appellant said that Ms Marshall behaved flirtatiously towards one of the intruders.
The next thing the appellant said he recalled was hearing noises in the garage. He said that the intruders took Mr Poduti to the garage. He said that he saw Mr Poduti take off and shout, '[h]elp. Help. Ring the police' (ts 280). In response, one of the men hit Mr Poduti and marched him back inside the house. The appellant was asked by his counsel, '[d]id you have a choice in your mind to leave the place?' The appellant's reply was:
I definitely didn't have a choice and even if I had seen an opening where I could have ran and got away, all I could think of was Lara, you know. Like, you know, like, I was probably just picturing the worst, but I was really, like, you know, picturing this guy raping her, and I was picturing this guy, like, beating her up. I didn't really know what to think, and the last thing that - you know, as far as I was concerned if I had of at any time, you know, tried to escape from there, even if Steve or his girlfriend had of, it would have only taken one phone call to this guy and I wouldn't have known what would have happened, you know? (ts 281)
The appellant said that he saw the intruders taking things from the house.
The appellant denied helping the intruders take stolen items from the house. Eventually, when all the items had been taken, he said that he was walked outside to a four‑wheel drive vehicle. He was made to drive that vehicle back to his house in East Perth (ts 285). When he got there, the appellant said that the man who had been waiting with Lara hit and kicked him, and told him that if he went to the police, he would kill the appellant and his girlfriend. He said that the men who were with him took $6,000 from him and his car keys (ts 287).
With respect to the brake calliper, the appellant said that prior to the night in question, Mr Poduti had left it in the appellant's vehicle.
The appellant said that the wheel rim had been given to him by Mr Poduti.
The appellant said that on the night in question, he did not want to go to Mr Poduti's house with the intruders, but that he had no say in it at all (ts 291). Further, he said he had no capacity to prevent what happened at the house.
At ts 292, he repeated that before he went into the house, he had the impression that the men were not going to hurt anyone (ts 292). He said that the situation then 'blew up' and, at that point, there were just too many people in the house for him to do anything. He said that he did not want to make things any worse for 'Lara's situation' (ts 292).
In cross‑examination, the appellant said that, prior to the incident in question, it was not uncommon for him to have $10,000 or more in cash because he was selling drugs (ts 299).
He agreed that he and Mr Poduti were selling large amounts of drugs.
He agreed that he was in a joint enterprise with Mr Poduti selling drugs in or about October 2007 (ts 301).
The appellant agreed that he and Mr Poduti jointly purchased $100,000 worth of drugs on credit. He agreed that they were both liable to repay that sum. He further agreed that it was his contact who provided the drugs (ts 301).
With respect to the offence of 11 October 2007, the appellant said that he did not know the men who approached him in the tavern, nor did he know the men in the four‑wheel drive vehicle (ts 308).
He said that he did not refuse to go outside because the man who hit him did not 'look like the sort of guy to mess with'. He agreed that he did not seek assistance from the other patrons in the tavern, nor ask for someone to call the police (ts 309).
He confirmed that he went in the four‑wheel drive from the tavern to a house. He said that, at that house, he was slapped around and humiliated (ts 311). He described his treatment as 'definitely intimidating' (ts 312).
The appellant confirmed that he was then driven to his apartment in East Perth. He said that he was accompanied into the apartment by a number of men. He confirmed that his girlfriend was there. He could not recall any of the men saying anything to her directly. He confirmed that no threats were made to her, although he said that from their mannerisms 'it definitely seemed like that [bashing her] was possible' (ts 313). He did not say what it was about their mannerisms that gave him this impression.
The appellant agreed that he had not told the police in his interview that, prior to going to Mr Poduti's house, he had been taken to his own apartment.
The appellant denied that he knew that the men he was with were going to rob Mr Poduti and Ms Marshall. He denied knowing that they were going to assault Mr Poduti (ts 317).
The appellant confirmed that there was a marked police car across the road from Mr Poduti's house (ts 321).
The appellant said that he hoped, by mentioning this when he entered the house, that the situation would remain calm (ts 322).
The appellant said that when the men started hitting Mr Poduti 'there wasn't a lot that anyone could do' (ts 324). He agreed that at no stage did he tell the men to stop hitting Mr Poduti.
The appellant confirmed that Ms Marshall was scared and that she went to the toilet. He said that Ms Marshall was in the toilet for only a short time. He said that he tried to calm her down and he told her 'they've got Lara' (ts 328).
The appellant agreed that Ms Marshall said something like, '[w]e've got to ring someone'. The appellant said he told Ms Marshall that if she rang someone, that would have made it worse for the two of them, Mr Poduti and the appellant's girlfriend (ts 329).
The appellant denied that he went into the main bedroom because he was involved in looking for property to steal (ts 331).
The appellant said that he did not try to escape from the house because the intruders had his girlfriend (ts 331).
He denied the suggestion that he was free to run about the house as he wished (ts 332).
He agreed that he was not hit inside Mr Poduti's house (ts 333).
The appellant said that when he returned to his apartment in East Perth, he was not accompanied inside. He said that he went in and told the man who was there, 'Your mates are out the front'. The appellant said that he walked the man outside and they left (ts 336).
The appellant denied that he was a willing participant in what had occurred at Mr Poduti's house (ts 342).
Towards the end of his cross‑examination, the appellant said:
My main concern was I just wanted to make sure my girl was okay. That was the main - more than anything that's the one thing I was stressing out about, yeah (ts 346).
I now return to the appellant's police interview on 8 January 2008. Early in the interview, when the appellant was asked what had happened, he said this:
I can … remember clearly like, what happened. It was fucking horrible. That's all I'm going to say. It was fucking - mate, but basically … Steven fucking he fucking messed with the wrong people and he fucking got us both in the shit mate and … I copped it and then he copped it and then I copped it some more and … basically I'm probably still going to cop it you know … he left me in the shit hey. He left me fucking in the shit big time and that's how come (indistinct) friends because he did that and … I fear for my fucking safety after that because I copped it.
The appellant told the police that he had been placed under extreme pressure to pay the outstanding money. It is clear from the interview that he felt that Mr Poduti had put both him and his girlfriend in jeopardy by not paying his share of the debt. Further, he indicated to police that Mr Poduti was not taking the situation seriously enough. He plainly regarded the situation as Mr Poduti's fault. At one point in the interview, he said:
Steve fucked up and these people got to him okay and it's not my fault, it's not my problem anymore because like, well, it is my problem because he left me in the shit.
Later in the interview, he said:
He knew that I was going to fucking cop it. He fucking knew that I was going to cop it and that fucking sucked … Like, I even - even fucking gave him a chance to fucking (indistinct). Mate, like I'd been there every night, that week (indistinct) fuck I'm telling you I'm going to fucking go dude. You've got to sort these fucking dudes out man. Like, they're not going to fucking cop this.
The appellant plainly knew that failure to pay the drug debt would expose him and Mr Poduti to violence. As he put it:
[I]t wasn't until fucking like, fuck mate push went to shove and then I just went and copped it and, um, fuck mate. Wasn't really fucking surprising.
On several occasions in the interview, the appellant referred to his girlfriend. He told the police that she was placed in danger because of Mr Poduti. He said that at one point, he spoke to Ms Marshall about 'them having Lara'. He said to the police that he was worried about her and that his 'business … was to make sure my girl was all right'. He denied going to Mr Poduti's house of his own free will and said that he had been 'flogged' before going there. He denied taking the men to the house so that they could steal Mr Poduti's property. Further, he denied taking any active role in the events which occurred inside the house. Specifically, he denied stealing Mr Poduti's property or preventing Ms Marshall from leaving. He said that Ms Marshall was in a state of panic and so was he.
Lara Cameron testified that on 11 October 2007, she came home from work and described the appellant's appearance as 'quite frightened' (ts 354). He told her that he was going to meet some people at the Hideaway Tavern. She did not accompany him there. Rather, she stayed at home.
She said that a few hours later, the appellant returned with three or four other men. She said that when she saw them at the door, she went straight to her bedroom (ts 354). She observed that the appellant had no injuries. She said that after a while, the appellant and the other men left, save for one man who was sitting on a couch in the lounge room, watching television (ts 356). She said that she went back into her bedroom. She said she did not feel comfortable with the man in the house and was quite nervous and scared. She was not sure why the man was there. She said she thought about calling the police, but if she did, she thought something might happen to her or the appellant, so she decided to wait (ts 356). Eventually, the appellant returned. She said the appellant 'looked pretty bad'. She described his eyes as 'puffy, I think, from crying' (ts 357).
In cross‑examination, Ms Cameron said that although she had been told that the appellant had sold drugs before they started their relationship, she was not aware that he was selling drugs in September or October 2007 (ts 361).
In relation to the night before the incident, she recalled the appellant saying to Mr Poduti words to the effect of 'I need to pay them back, they're on my back about it. You have to pay the money Steve' (ts 363). She recalled that in response, Mr Poduti asked the appellant for more drugs to sell in order to repay the money that he already owed (ts 363).
With respect to the men who accompanied the appellant to the apartment, Ms Cameron said that she did not have any communication with them and that no‑one threatened or assaulted her (ts 366).
She said that the appellant told her when he returned what had happened at Mr Poduti's house. She recalled him saying something like, 'I told him that this would happen if he didn't - if he couldn't pay or didn't pay', referring to Mr Poduti (ts 368).

The trial judge's summing up

The trial proceeded on the assumption that the defences of duress (s 31(3) of the Criminal Code) and sudden or extraordinary emergency (s 25 of the Criminal Code) were open. No‑one, it appeared, thought otherwise. As a result, his Honour directed the jury as to both defences. Further, in relation to emergency, his Honour directed the jury that if they found as a fact that there was no emergency, the accused may nevertheless be excused if he honestly and reasonably, but mistakenly, believed an emergency existed.
Section 31(3) and s 25 were recently amended by the Criminal Law Amendment (Homicide) Act 2008 (WA) which commenced on 1 August 2008. These provisions do not apply to this case: see the transitional provisions in sch 1 of the Criminal Code.
Section 31(3) and s 25 were, relevantly:
31Lawful authority
A person is not criminally responsible for an act or omission ...
...
(3)When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence.
...
25Extraordinary emergencies
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.
With respect to duress, his Honour commenced his direction by reading to the jury s 31(3) of the Criminal Code.
His Honour directed the jury that the onus was on the prosecution to establish beyond reasonable doubt that the appellant was not acting under duress.
His Honour then directed the jury as follows:
When you come to consider this question of duress you must first identify what is said to be the possible threat of violence to the accused or to some other person, and consider whether on the evidence there was or may have been actual and unlawful violence threatened to the accused or to some other person.
A threat does not need to be expressed it can be implied, and in this case the accused maintains that he was threatened in circumstances where he had first been assaulted at the Hideaway Tavern. You will recall that he said that he received - that he was hit inside the tavern. He was standing at the bar and some chap said - a man said to him, 'Come with us champ.' He then went outside with that gentleman or another gentleman, I cannot recall if it was two or one. Went out to the front and was again assaulted.
Then those assaults continued outside the tavern, and the accused's evidence was that he was intimidated by that conduct. If you are satisfied beyond reasonable doubt that there was no such violence threatened to the accused at any stage then the issue of duress need not be considered any further by you. So, that is the end of duress if you are satisfied beyond reasonable doubt that there was no violence threatened.
If on the other hand you are not so satisfied beyond reasonable doubt then you should adopt this approach: identify the threat to the accused, focus on the act of the accused said by the prosecution to constitute the offence, and in this case the acts in question are the burglary, the provision of assistance for the burglary and the detention, and consider whether the accused's acts were reasonably necessary to resist the threat of violence to the accused or to another person. The question of whether his acts were reasonably necessary is to be determined in all the circumstances in which the accused found himself.
You have got to make findings and determinations as to what were circumstances that the accused found himself in on that day. The prosecution can discharge the burden upon it in relation to duress if it satisfies you beyond reasonable doubt of any one of the following things: that violence was not threatened to the accused, that the violence threatened was not unlawful, that the act done by the accused was not reasonably necessary in order to resist the threatened violence. If the prosecution satisfies you beyond reasonable doubt of any of those things then the State would have discharged the burden in relation to duress (ts 403 ‑ 404).
After his Honour directed the jury on duress, he directed the jury on emergency coupled with mistake in the following terms:
A further matter which you must consider is as follows, and this was described as extraordinary emergency to you. That is that a person is not criminally responsible under our criminal code for an act or omission done, or made, under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary powers of self control could not otherwise be expected to act otherwise. It is a sudden extraordinary emergency that an ordinary person possessing ordinary powers of self control could not reasonably be expected to act otherwise.
It is not for the accused to prove that he acted as he did because of the stress of a sudden or extraordinary emergency, it is for the State to satisfy you beyond reasonable doubt that he did not so act. Has the prosecution satisfied you that the circumstances which confronted the accused did not amount to such a sudden or extraordinary emergency? The emergency confronting the accused was the fact that Lara Cameron was in his home with one of the men, and he had been threatened, on his evidence.
If it has you do not need to consider the issue further. If the prosecution has not satisfied you that the accused was not acting under the stress of a sudden or extraordinary emergency are you satisfied beyond reasonable doubt that his reaction in the circumstances was outside what you could reasonably expect of an ordinary person with ordinary powers of self control? A person in a sudden emergency may make a wrong choice, but you must look at the situation as it presented itself at the moment to the accused.
The accused is not expected to be wiser or better than an ordinary reasonable person in the same circumstances, and you will appreciate that a person in an emergency cannot always weigh up and deliberate about what action is best to take. He must act quickly and do the best he can. If the State has satisfied you beyond reasonable doubt of those matters then there is a further matter that you must consider. That is the question of whether the accused mistakenly believed that a sudden or extraordinary emergency existed.
The law is that a person who does an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as he believed to exist. Like all issues, the onus is on - the issue of mistake is on the State. If the accused honestly and reasonably, but mistakenly, believed that a sudden and extraordinary emergency existed he would not be criminally responsible for the acts.
There is no burden on an accused to prove he had an honest and reasonable, but mistaken, belief. There is no burden, as I have said, on the accused to prove anything. The State may discharge the burden in relation to this question of mistake by proving either that the accused did not honestly believe that a sudden and extraordinary emergency existed, or that his belief was in all the circumstances unreasonable. The honesty of an accused's belief requires the examination of the state of his mind at the time of the act in question.
The reasonableness of his belief is an objective factor to be judged by the standard of a reasonable person of the same age, background and level of intellectual functioning as the accused, and familiar with all the circumstances that were known to him at the relevant time (ts 404 ‑ 405).

Later in the summing up, his Honour summarised the State and defence cases. His Honour, when summarising the defence case, said:
The defence case is that Lara was a hostage, the accused was assaulted and continued to be assaulted. There was a clear threat which had been made to the accused. He acted under duress and in circumstances of extreme emergency.
He did not want to go and did not want to be there. He did not provide, on the defence case, any assistance. The men had Lara and he was concerned for her welfare (ts 420).
Immediately after the jury retired to consider its verdicts, the prosecutor noted that when his Honour directed the jury about duress, he told the jury that the threat of violence had to be to the accused or another person and that he had not referred, when making reference to 'another person', to the words in the section 'another person in his presence'.
In response to this, his Honour read s 31(3) to the jury again.
Approximately an hour later, the jury asked two questions, one of which was, '[d]oes the State have to prove the accused was not under duress?'. His Honour answered this question by informing the jury that the onus was on the State to negative both duress and emergency (ts 428). He said:
The onus of proof is on the State. The State must prove that the accused - must prove beyond reasonable doubt that the accused was not acting under duress at the time or that the accused was not acting in a circumstance of emergency.
Similarly, in relation to the mistake, the State must prove he was not acting in a mistake - under - that he had an honest and reasonable mistake. As part of that, what I have said to you that the burden of proof is on the State throughout, the accused has no burden of proof at all in the course of the trial.

Counsel's submissions

Ground 1

The principal submission made by Mr Watters, on behalf of the appellant, with respect to ground 1, was that his Honour misdirected the jury on the defence of duress by, at ts 403 ‑ 404, effectively confining it to threats made to the appellant and not his girlfriend, Ms Cameron.
Mr Fiannaca SC, on behalf of the respondent, accepted that the directions at ts 403 ‑ 404 were flawed, but submitted that when the summing up was viewed as a whole, the jury would not have been misled into thinking that the only relevant conduct related to the appellant and not Ms Cameron.

Ground 2

Mr Watters submitted that his Honour's directions with respect to emergency were defective for the following reasons:
(a)his Honour erred by instructing the jury that the State could negate the defence by proving there was no emergency;
(b)his Honour failed to tell the jury that the words in s 25 have their ordinary, everyday meaning;
(c)his Honour failed to draw a distinction between the words 'sudden' and 'extraordinary';
(d)his Honour failed to give examples of what might constitute a sudden emergency or an extraordinary emergency; and
(e)his Honour failed to adequately relate the defence to the facts.
Mr Fiannaca submitted that the defence of emergency should not have been left to the jury. He pointed to the opening words of s 25, namely, 'Subject to the express provisions of this Code relating to acts done under compulsion', and submitted, on the basis of the authority of Johnson v The State of Western Australia [2009] WASCA 71; (2009) 194 A Crim R 470 [47], that those words exclude the operation of s 25 where the act or omission said to amount to the emergency require the application of s 31(3) of the Criminal Code.
Mr Fiannaca submitted if this submission is upheld, it follows that, even if his Honour erred in his directions in relation to emergency, there would have been no miscarriage of justice because the appellant would not have been deprived of the benefit of the defence. However, Mr Fiannaca submitted that, in any event, there was nothing wrong with his Honour's directions on emergency. He submitted that there was no merit in any of the appellant's submissions on the point.

Were there flaws in his Honour's directions on duress and emergency?

His Honour's directions on duress, but not emergency, were flawed. However, the flaws do not lead to the appeal being allowed, because, as I will explain in due course, in my view, duress (and, for that matter, emergency) should not have been left to the jury.
At this point, I will deal with the sufficiency of his Honour's directions on duress and emergency. I do so on the assumption which operated at the trial, that there was sufficient evidence for the defences to be left to the jury.
His Honour's directions on duress at ts 403 ‑ 404 are flawed because he conveyed to the jury that the only relevant conduct to be considered related to the appellant and not Ms Cameron.
As I have noted, his Honour began his directions on duress by reading to the jury the terms of s 31(3), including the words 'or to another person in his presence'. However, when he instructed the jury as to how the State might discharge its onus, he referred only to threats made to the appellant and not to any threats made to Ms Cameron.
I am, of course, mindful that his Honour's directions must be seen in the context of the summing up as a whole: Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 [72] (Kirby J). I acknowledge that, at ts 420, his Honour referred to Ms Cameron's position in the context of duress, but that reference was brief and at the part of his Honour's summing up where he was outlining the appellant's case. I do not think it was sufficient to rectify the flaws at ts 403 ‑ 404. I think there is a reasonable possibility that the jury were misled into believing that the only relevant conduct to duress related to the appellant.
I now turn to his Honour's directions on emergency.
If there was a proper basis for duress to be left to the jury, the operation of the defence of emergency would have been excluded because of the opening words of s 25, 'Subject to the express provisions of this Code relating to acts done under compulsion'. This was explained by Owen and Miller JJA in Johnson v The State of Western Australia [47] in this way:
The effect of the opening words of s 25, namely, 'Subject to the express provisions of this Code relating to acts done upon compulsion', is to exclude the operation of s 25 where the act or omission and what is said to be the compulsion require the application of s 31(3) or (4): R v Smith [2005] QCA 1; [2005] 2 Qd R 69 [20] ‑ [23].
As a result, any defects in the summing up on emergency are of no consequence. However, even if s 25 applied to the case, none of the appellant's counsel's criticisms of his Honour's directions can be sustained.
Contrary to the appellant's submissions, his Honour did not leave the jury with the impression that all the State was required to do to negative the defence of emergency was to prove that the appellant was not acting in a state of emergency. His Honour told the jury that even if the State established that there was, in fact, no emergency confronting the appellant, the defence applied unless the State excluded the operation of s 24 of the Criminal Code. His Honour made this abundantly clear in his directions on emergency at ts 404 ‑ 405, and later when he redirected the jury at ts 428.
There is nothing in the submission that his Honour was required to give specific directions concerning the words 'sudden', 'extraordinary' or 'emergency'. Nor was there any need for the trial judge to draw a distinction between the words 'sudden' and 'extraordinary'. The words 'sudden', 'extraordinary' and 'emergency' are all words in common, everyday usage and it would be unnecessary, indeed it would have been an affront to the intelligence of the jury, for his Honour to define them. His Honour was clear in his summing up that the relevant emergency had to be either sudden or extraordinary. At no time did he give the jury the impression that the emergency had to be both sudden and extraordinary.
There is no requirement upon a judge to give examples of what may constitute a sudden or extraordinary emergency. Speaking generally, while in some cases the giving of examples as to how a defence may operate is helpful, it is a matter best left to the discretion of the trial judge based on the trial judge's perception of how a jury should be instructed, having regard to all the circumstances of the case. I do not think in this case that his Honour was obliged to give examples of sudden or extraordinary emergency.
Finally, I turn to the submission that his Honour failed to adequately relate the defence of emergency to the facts of the case. The evidence with respect to duress and emergency overlapped. Both defences were based on threats made to the appellant and to Ms Cameron. His Honour correctly encapsulated the position in these terms:
The emergency confronting the accused was the fact that Lara Cameron was in his home with one of the men, and he had been threatened, on his evidence (ts 404).
Later, his Honour said, when summarising the respective cases:
The defence case is that Lara was a hostage, the accused was assaulted and continued to be assaulted. There was a clear threat which had been made to the accused. He acted under duress and in circumstances of extreme emergency (ts 420).
When one reads the summing up as a whole, his Honour did not fail to adequately relate the defence to the facts.
In my opinion, it has not been demonstrated that, if there was a basis for the defence of emergency to be put to the jury, his Honour erred in his directions on the defence.

Should duress and emergency have been left to the jury?

I now turn to whether duress and emergency should have been left to the jury at all. This was a matter raised by the bench at the hearing of the appeal, to which both counsel made submissions on the point.
The fundamental question here is whether, on a view of the evidence most favourable to the appellant, there was material on which the jury acting reasonably could fail to be satisfied that the prosecution had excluded the operation of duress and emergency: Heijne v The State of Western Australia [2010] WASCA 86.
In order to answer this question, careful attention is needed to both the statutory language and the policy considerations which apply to s 31(3) and s 25.
I will deal first with duress.
It is plain from the statutory language of s 31(3) that in order for duress to apply, there must be a causal connection between the violence threatened to an accused or another person in his or her presence and the act or acts said to constitute the offence. Further, those acts must be 'reasonably necessary' in order to resist the threatened violence.
The words 'reasonably necessary' introduce an objective limitation to the availability of the defence. The question of what is reasonably necessary in order to resist threatened violence must be answered having regard to the public policy considerations which underpin this area of the law.
These policy considerations were recently articulated by the High Court of Australia in Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95.
The facts of this case were as follows. The appellant was convicted of trafficking in and possession of a large quantity of methylamphetamine, which was found by police in a car in which he was travelling. He did not dispute that he was in possession of the drug. The appellant gave evidence that he owed a large sum of money to two men who had, in the past, supplied him with illicit drugs. He testified that these men threatened to cause serious harm to himself, his de facto wife and his mother unless he drove to New South Wales to pick up the drugs in question and deliver them to the two men. During cross‑examination, the trial judge asked the appellant why he had not sought the assistance of the police. The appellant said that he did not believe that the police would be able to protect him from the two men. The appellant submitted that he acted under compulsion within the meaning of s 31(1)(d) of the Criminal Code (Qld). The trial judge declined to leave the issue of duress to the jury. The appellant appealed, alleging that this ruling was wrong. The Court of Appeal of the Supreme Court of Queensland (Keane & Fraser JJA & Lyons J agreeing), while not agreeing with the reasoning of the trial judge, nevertheless held that his Honour was correct not to leave compulsion to the jury and dismissed the appeal: R v Taiapa [2008] QCA 204; (2008) 186 A Crim R 252. The appellant appealed to the High Court. In a joint judgment, French CJ, Heydon, Crennan, Kiefel and Bell JJ upheld Keane JA's reasoning and dismissed the appeal.
The High Court accepted at [31] that the starting‑point when considering the reasonableness of an accused's actions is the assumption stated by King CJ in R v Brown (1986) 43 SASR 33, 40:
The ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police. That must be assumed, under ordinary circumstances, to be an effective means of neutralising intimidation. If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation.
The court recognised that the failure of an accused to take advantage of an opportunity to report a threat to police was not necessarily fatal to a defence of compulsion or duress. However, 'in the absence of an explanation, or reasons apparent from the circumstances, for the failure to seek the protection of the law enforcement authorities there will be no basis on which to leave consideration of duress' [35].
At [36] and [37], the court referred to Morris v The Queen [2006] WASCA 142; (2006) 201 FLR 325 and Rogers v The Queen (1996) 86 A Crim R 542 saying:
Morris v The Queen was a case in the Court of Appeal of Western Australia on the defence of duress under s 10.2(2) of the Criminal Code (Cth) in which the accused failed to report threats to the police. McLure JA observed that prima facie the appropriate means of rendering a threat made by another ineffective is to report the matter to, and obtain the protection of, law enforcement authorities. Her Honour drew on the observations of Gleeson CJ in R v Rogers with reference to the policy that informs this area of the law. In Rogers a prisoner sought to rely on the defence to excuse his escape from lawful custody to avoid threatened lethal violence. At issue was the availability of the common law defence of necessity, which shares features in common with the defence of duress. Gleeson CJ 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 value higher than that implicit in the law which is disobeyed.'
Gleeson CJ rejected the view that the defence of necessity required proof of urgency and immediacy as technical elements. Instead he favoured treating these as factual considerations relevant to the accused person's belief and the reasonableness of the grounds for it. He went on to observe:
'Reasonableness is not designed to allow people to choose for themselves whether to obey the law ... A reluctance or (as will appear in the case with the present appellant), an unwillingness to go on protection may be understandable, but the principle of necessity is not intended to give prisoners who are threatened a choice between going on protection and removing themselves, permanently or indefinitely, from custody.' (footnotes omitted)
It is apparent from the cases referred to by the High Court and by Keane JA in the court below, that the policy considerations which inform the Criminal Code (Qld) provisions relating to compulsion also inform the defence of duress under the common law and the Criminal Code (Cth). I can see no reason why the same policy considerations would not apply to the duress provisions of the Criminal Code (WA).
Returning, then, to the statutory language of s 31(3), whether an act is reasonably necessary in order to resist threatened violence depends upon what alternatives were available to the accused at the time. Where the accused may reasonably have sought the protection of police from his or her intimidators, but fails to do so, the actions that follow cannot be reasonably necessary in order to resist violence threatened to the accused, or to another person in the accused's presence.
Consistent with these policy considerations, when deciding whether an accused may reasonably have sought the protection of police from his or her intimidators, it is no answer to say that resort to the police was impossible because the accused was involved in an illegal enterprise and that going to the police would have exposed the illegal enterprise and the accused's participation in it.
There was no dispute at trial about the context in which the alleged offences were committed. Both the appellant and Mr Poduti were involved in the sale of illicit drugs. The appellant had purchased on credit $100,000 worth of drugs, which he and Mr Poduti sold. The appellant was responsible to his supplier for the entire debt.
It was not disputed at trial that because of the appellant's participation in the drug trade, he had made himself and those around him liable to harm in the event that the debt was unpaid. These risks are a well‑known, but accepted, feature of the drug trade.
The appellant said, in his evidence, that in the days leading up to 11 October 2007, he knew he was going to be hurt unless the debt to his supplier was paid. This meant that Mr Poduti had to contribute his share of the debt, $50,000, which, on the appellant's evidence, he was reluctant to do.
What the evidence shows is that the appellant was, on the night in question, assaulted and threatened with violence because of his failure to pay the debt for which he was liable.
In relation to Ms Cameron, there is no evidence that she was expressly threatened with harm. Nevertheless, both the appellant and Ms Cameron were afraid of what might happen, having regard to the presence of the man who was left behind at the East Perth apartment. This fear arose not from the actions or words of the men who accompanied the appellant to his East Perth apartment or from the man who stayed behind, but from the appellant's involvement in the drug trade and what he perceived people in that trade did to people, like Ms Cameron, who are closely associated with drug dealers.
Looking at the evidence in its most favourable light to the appellant, he acted in the way that he did because the drug debt which he had incurred was unpaid and not because of any threats made on the night of 11 October 2007 to him or his girlfriend.
In my opinion, there was no evidence fit to go to the jury which was capable of establishing a causal link between the alleged threats either to the appellant or Ms Cameron and the acts which constituted the offences.
Further, not only was there an absence of evidence to establish causation, there was also an absence of evidence to explain why the accused could not have reasonably availed himself of the protection of the police.
A remarkable feature of the evidence in this case is that the appellant observed a marked police car directly across the road from Mr Poduti and Ms Marshall's house upon his arrival there. At no stage did the appellant seek the protection of the police who were on the spot. Later, when he was in the house and Ms Marshall suggested that the police be called, the appellant failed to take up the suggestion.

The evidence also shows that prior to going to the Hideaway Tavern, he was aware that he would be subjected to threats and yet he failed to seek the protection of the police. Even when he was at the Hideaway Tavern, he had the opportunity to seek help when he was asked to go outside but failed to do so.
It is clear from the evidence that the appellant did not seek the protection of the police because he was willingly involved in the business of selling drugs. This could not be a reasonable explanation for his failure to seek the protection of the police. There is nothing in the appellant's evidence which would have enabled the jury to conclude that the appellant's acts were reasonably necessary in order to resist any actual and unlawful violent threat to him or Ms Cameron.
For these reasons, I am of the opinion that the defence of duress should not have been left to the jury.
The appellant sought to raise s 25 on the basis of the threats that were made on the night in question. But for the same reasons as I set out when dealing with duress, I do not consider that the acts committed by the appellant were caused by any sudden or extraordinary emergency. Rather, they were caused by the appellant's voluntary involvement in the drug trade.
Like the words 'reasonably necessary' in s 31(3), the words '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' in s 25 provide an objective limitation to the defence. In my view, the same policy considerations which are pertinent to the operation of duress apply to emergency. In a situation where a person is confronted with a sudden or extraordinary emergency, which leads a person to break the law, consideration must be given to whether the emergency could in some reasonable way have been alleviated other than by committing the acts which constitute the offence. While it must be acknowledged that a person in an emergency cannot, as his Honour told the jury, always weigh up and deliberate about what action is best to take, the present case was not one where it was suggested that the emergency, such as it was, had come suddenly upon the appellant. As is apparent from defence counsel's closing address, it was not suggested that the emergency was a sudden emergency, rather, it was said to be extraordinary. It was not suggested that the appellant had no time to weigh up alternative courses of action.
The ordinary way in which a citizen responds to an emergency is to seek the help of the police or emergency services, if that is reasonably possible. As I have already pointed out in the context of the duress defence, the appellant did not seek the assistance of the police. The clear reason why he did not do so was because he was involved in a criminal enterprise. That cannot justify the commission of further offences. Accordingly, in my opinion, there was no proper factual basis for the defence of sudden or extraordinary emergency to be left to the jury.

Conclusion

In my opinion, neither of the grounds of appeal have been made out. In light of this and the gross and unsatisfactorily explained delay, I would not grant an extension of time within which to appeal.
I would make the following orders:
1.The application for an extension of time within which to appeal is refused.
2.The appeal is dismissed.