Taiapa v The Queen [2009] HCA 53 16 December 2009 B6/2009
ORDER
1.Extend the time for filing the application for special leave to appeal to 20 February 2009.
2.Special leave to appeal granted.
3.Appeal treated as instituted and heard instanter, and dismissed.
On appeal from the Supreme Court of Queensland
Representation
G D Wendler for the applicant (instructed by John D Weller & Associates)
M J Copley SC for the respondent (instructed by Director of Public Prosecutions (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Taiapa v The Queen
Criminal law – Defences – Compulsion – Applicant convicted of possession of and trafficking in a dangerous drug – Whether Court of Appeal erred in holding that evidence did not disclose a case fit for consideration by jury that there were reasonable grounds for applicant's belief that he was otherwise unable to escape the carrying out of the threat within the meaning of s 31(1)(d) of the Criminal Code (Q).
Words and phrases – "reasonable belief".
Criminal Code (Q), s 31(1)(d).
FRENCH CJ, HEYDON, CRENNAN, KIEFEL AND BELL JJ. The applicant, Dion Robert Taiapa, was convicted in the Supreme Court of Queensland of the offences of carrying on the business of unlawful trafficking in a dangerous drug, methylamphetamine, and the possession of a quantity of that drug[1]. The factual basis of the Crown case was not in issue at the trial. It was the applicant's case that he did the acts that were said to constitute the offences in order to save himself and members of his family from threatened serious harm. He contended that he was not criminally responsible for his admitted conduct in collecting and transporting a substantial quantity of methylamphetamine because he had acted under compulsion within the meaning of s 31(1)(d) of the Criminal Code (Q).
[1]Count 1 charged an offence contrary to s 5(1)(a) of the Drugs Misuse Act1986 (Q) that, on 22 July 2006 at or near Ingham in the State of Queensland, Dion Robert Taiapa and Robert John Ackers carried on the business of unlawfully trafficking in the dangerous drug methylamphetamine. Count 2 charged an offence contrary to s 9(a) of the Drugs Misuse Act 1986 that, on 22 July 2006 at or near Ingham in the State of Queensland, Dion Robert Taiapa and Robert John Ackers unlawfully had possession of the dangerous drug methylamphetamine, in a quantity exceeding 2.0 grams.
The trial judge withdrew the issue of compulsion from the jury's consideration, thereby making the applicant's conviction of each offence inevitable. The applicant appealed against his conviction on the ground that the trial judge erred in not leaving compulsion for the jury's determination.
The Court of Appeal of the Supreme Court of Queensland (Keane and Fraser JJA and Lyons J) dismissed the appeal. The applicant applied…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Taiapa v The Queen [2009] HCA 53
Case
[2009] HCA 53
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the applicant, Mr Taiapa, who had been convicted of possession of and trafficking in a dangerous drug. The central issue on appeal was whether the Queensland Court of Appeal had erred in holding that the evidence presented did not disclose a case fit for consideration by the jury regarding the defence of compulsion under section 31(1)(d) of the Criminal Code (Q).
The legal issue before the High Court was whether there were reasonable grounds for the applicant's belief that he was otherwise unable to escape the carrying out of threats made against him, as required by section 31(1)(d) of the Criminal Code. This involved determining whether the evidence, viewed in the light most favourable to the applicant, could lead a jury to conclude that he had no reasonable alternative but to commit the offence to avoid the threatened harm. The court also considered the onus of proof, noting that while the legal burden rests on the Crown to disprove compulsion beyond reasonable doubt, the evidential burden to raise the issue lies with the accused.
The High Court upheld the decision of the Court of Appeal, finding that the evidence did not support a reasonable belief that the applicant was unable to escape the carrying out of the threats. The court reasoned that the applicant's belief that he lacked sufficient information to identify his tormentors to the police, or his general concern that police protection might not be "100 per cent safe," did not constitute reasonable grounds for believing he had no alternative but to commit the drug offences. The court noted that the applicant had ample opportunity to seek police assistance and that the police might have had their own means of investigating or apprehending the individuals. The mere fact that the threats were made with a gun and included instructions not to contact the police did not, in itself, negate the reasonableness of seeking police protection.
The High Court extended the time for filing the application for special leave to appeal, granted special leave, and then treated the appeal as instituted and heard instanter, ultimately dismissing it.
Orders
Orders of the court
1. Extend the time for filing the application for special leave to appeal to 20 February 2009.
2. Special leave to appeal granted.
3. Appeal treated as instituted and heard instanter, and dismissed.
Background
Background to the litigation
While it is conventional to describe s 31(1)(d) as providing the defence of compulsion, it is well-settled that if there is some evidence capable of raising the issue, the legal or persuasive burden is on the Crown to exclude the proposition that the accused was acting under compulsion beyond reasonable doubt – that is, exclude any reasonable possibility that the proposition is true[3]. In deciding whether the evidence sufficiently raises the issue to leave compulsion to the jury, it is necessary for the trial judge to be mindful of the onus of proof. The question is whether, on the version of events most favourable to the accused that is suggested by the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused was not acting under compulsion[4]. It was not disputed that the onus on that question – an evidential burden – is on the accused[5]. It is the accused who must tender evidence, or point to prosecution evidence, to that effect. [3]R v Mullen (1938) 59 CLR 124 at 136-137 per Dixon J; [1938] HCA 12; Ugle v The Queen (2002) 211 CLR 171; [2002] HCA 25; Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26. [4]Stingel v The Queen (1990) 171 CLR 312 at 334 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; [1990] HCA 61; Van Den Hoek v The Queen (1986) 161 CLR 158 at 161-162 per Gibbs CJ, Wilson, Brennan and Deane JJ; [1986] HCA 76. [5]It was so at common law: R v Bone [1968] 1 WLR 983; [1968] 2 All ER 644. There is nothing in the Criminal Code altering that position. The facts What follows is a summary of the facts giving rise to the prosecution and of the applicant's account of the circumstances leading to his involvement in the enterprise. The applicant was arrested on 22 July 2006. The police intercepted the vehicle in which he, his co-accused, Robert Ackers, and a young woman were travelling. They located 364.213 grams of methylamphetamine in the course of searching the vehicle. The estimated value of the drug, which varied according to how it was to be sold, was between $459,000 and $1.15 million. The sum of $3,200 in cash was found on the applicant and a further sum of $25,220 in cash was found in the boot of the vehicle. The applicant had a history of marijuana and cocaine use. In the period 1999 to 2002 he had dealt in drugs to support his use of them. His suppliers were two men named Tony and Salvatore. By 2002 he had accumulated a debt to Tony and Salvatore of $60,000. At around this time the applicant was convicted of trafficking in drugs and sentenced to a term of six years' imprisonment. He had not repaid the debt to Tony and Salvatore at the time he was taken into custody. He was released on parole in December 2005. Following his release the applicant and his de facto wife, Kristy Jarvis, moved to Cairns and took up residence in premises in Kidston Street. It was a condition of his parole order that he reside in the Cairns area. On the evening of 29 May 2006 the applicant and Ms Jarvis were at home in the Kidston Street premises. At around 8.00pm the applicant answered a knock on the front door. As he opened the door he was seized around the neck and forced backwards into the lounge room by Tony, who was holding a gun to his face. Salvatore was also present. The two men demanded the repayment of their money. They instructed the applicant not to go to the police and threatened that, if he did, he or Kristy would be shot. The two men left, telling the applicant that he had four weeks in which to repay the money and that they would return in a fortnight.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, HEYDON, CRENNAN, KIEFEL AND BELL JJ
The decision of the trial judge, that the evidence did not raise an issue of necessity proper to be left to the jury, was upheld[51]. His Honour's observations set out above are pertinent to the consideration of the issue raised in this application. [51]Rogers (1996) 86 A Crim R 542 at 550.Conclusion The belief that s 31(1)(d)(ii) posits is that the accused or the other person who is subject to the threat is unable otherwise to escape the carrying out of the threat. "Otherwise" in this context means other than by engaging in the unlawful conduct. It was necessary for the applicant to identify some basis in the evidence raising as a reasonable possibility the existence of reasonable grounds for his belief, that he had no alternative other than to collect and transport a quantity of prohibited drugs in order to avoid the carrying out of the threats made by Tony and Salvatore. This necessarily requires consideration of the basis for the applicant's belief that reporting the matter to the police would not have prevented the carrying out of the threats. The circumstance that the demands and threats made by Tony and Salvatore were made with a gun and were accompanied by instructions not to report the matter to the police does not support the reasonableness of the applicant's belief that he had no option other than to comply with the demands in order to escape the carrying out of the threats. The applicant had, as he acknowledged, ample opportunity to seek the assistance of the police. He offered three reasons for his failure to do so. The first was that he did not have sufficient information to enable the police to identify Tony and Salvatore. The second was that he did not believe that police protection was "100 per cent safe". The third was that Tony and Salvatore were "not your every day drug dealers" and were unlikely to fall into a booby trap. The Court of Appeal said that the police could have placed surveillance on the applicant's premises and that a controlled delivery of the drugs to Tony and Salvatore might have led to their arrest. It is true that there was no evidence about the investigative methods or the resources available to the police. However, this does not undermine the Court of Appeal's conclusion. There is no reason to doubt it. The applicant's belief that he did not have sufficient information to enable the police to identify Tony and Salvatore does not take into account that the police may have known more about these men than he thought that they did or that the police may have been able to find out more about them than he thought they could. In any event, it does not explain his failure to report the matter to the police in order to seek their protection. The applicant's belief that police protection may not be 100 per cent safe provided no basis for a reasoned conclusion that it was not. It may explain the applicant's preference for complying with the unlawful demands. However, 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.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HEYDON, CRENNAN, KIEFEL AND BELL JJ