The State of Western Australia v Auckram
[2013] WASC 69
•21 FEBRUARY 2013
THE STATE OF WESTERN AUSTRALIA v AUCKRAM [2013] WASC 69
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 69 | |
| Case No: | INS:211/2012 | 21 FEBRUARY 2013 | |
| Coram: | EM HEENAN J | 21/02/13 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Self defence available under s 248 Criminal Code Duress defence under s 32 Criminal Code not available | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA BRADLEY THOMAS DANUAL AUCKRAM |
Catchwords: | Criminal law Defence of self defence and defence of duress both applicable to charge of murder Scope of duress defence under s 32 Criminal Code |
Legislation: | Criminal Code (WA) |
Case References: | R v Hasan [2005] UKHL 22 R v Z [2005] 2 AC 467 R v Z [2005] 2 WLR 709 Smith v The State of Western Australia [2010] WASCA 205 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Prosecution
AND
BRADLEY THOMAS DANUAL AUCKRAM
Accused
Catchwords:
Criminal law - Defence of self defence and defence of duress both applicable to charge of murder - Scope of duress defence under s 32 Criminal Code
Legislation:
Criminal Code (WA)
Result:
Self defence available under s 248 Criminal Code
Duress defence under s 32 Criminal Code not available
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Category: B
Representation:
Counsel:
Prosecution : Mr D Dempster
Accused : Ms L B Black & Ms K J King
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : Kate King Legal
Case(s) referred to in judgment(s):
R v Hasan [2005] UKHL 22
R v Z [2005] 2 AC 467
R v Z [2005] 2 WLR 709
Smith v The State of Western Australia [2010] WASCA 205
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- EM HEENAN J: (This judgment was delivered extemporaneously on 21 February 2013 and has been edited from the transcript.)
1 In this trial of Bradley Thomas Danual Auckram on a charge that on 8 June 2012 at Clarkson he murdered Jason Jeffrey Burton, the stage has been reached where all evidence for the prosecution has been adduced and the prosecution has closed its case and all evidence for the accused has been adduced and the defence has closed its case. Counsel for the accused has made submissions in the absence of the jury about what defences should be put to the jury and seeks rulings upon these before counsel address the jury.
2 I have reserved my decision for a short while in order to consider relevant materials. I should say that during the course of these submissions I have taken the advantage of the opportunity to enquire from counsel whether there is agreement between them as to what verdicts should be left to the jury. Counsel submit, and I accept, that the jury should be left to decide only whether or not the accused is guilty of murder or, failing that, whether or not he is guilty of manslaughter, and that no other verdicts should be sought from the jury.
3 The questions upon which my ruling is sought are whether or not self defence under s 248 of the Criminal Code should be left to the jury, and also whether or not a defence of duress under s 32 of the Criminal Code should also be left to the jury. Counsel for the prosecution accepted that self defence should be left, but submitted that duress under s 32 was not open and should not be left.
4 It is necessary to say a little about the state of the evidence in relation to the applicability of those potential defences. The circumstances are there is little controversy in the evidence that the deceased, Jason Jeffrey Burton, who was the stepson of the accused, was shot by the accused in the house at Clarkson where both were living at the time. The shooting was by four shots from a rifle held by the accused and discharged rapidly, inflicting the fatal wounds.
5 This episode followed a discussion in the home between the accused and the deceased, in which the accused had attempted to settle certain 'ground rules' with the deceased about living and remaining in the house. There is a long history, which I will not go into at this point, showing that the deceased was troubled, used alcohol and illegal drugs in the past, but had been abstinent from those, although he was using a very wide variety of prescription drugs, including narcotic pain reduction drugs,
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- anti-psychotic drugs, benzodiazepines and anti-rheumatic drugs. The evidence is that there was a large accumulation of such drugs in the deceased's room, and there are suggestions that he was self medicating and overdosing on various drugs, and that this produced very eccentric, what has been called bizarre, behaviour.
6 There was, over the years, a history of threats made by the deceased to his mother and to the accused.
7 There is also evidence that not long before these incidents the deceased had consulted a psychiatrist, who had been concerned about disclosures in the course of those consultations indicating that the deceased may be suicidal or inclined to harm members of the family, and had raised those concerns with the deceased's mother, who in turn told her husband, the accused.
8 All this, according to the defence, made the accused apprehensive about the conduct of the deceased, particularly if angry and emotionally excited. During the course of the discussion in the family room of the house, shortly before the fatal shots, the deceased, according to the accused, became angry and aggressive at the demands that he should conform to regulation within the house or make financial contributions, and that as the stipulations were further expanded by his stepfather, he became noticeably hostile, and at one point put his finger to his forehead, resembling the barrel of a gun, and said words to the effect that, 'If you kick me out of the house, I'll come back and (f…) slaughter the lot of you'.
9 This remark was coupled with an apprehension by the accused that the son-in-law had a gun in the house, or access to one nearby, although one was never found. The circumstances giving rise to the suspicion that the deceased had a gun are themselves contestable. But in the face of that suspicion, the accused man says that he was of the mind that his stepson was going to kill him or other members of the family, including his wife, the young man's mother, and possibly his sister.
10 As a result, the deceased went to the bedroom, obtained his licensed rifle, loaded it, came into the corridor and had a very short glimpse of the deceased who, on the state of the evidence, must be regarded as then holding a cup of coffee in his hand. According to the accused, he believed that the deceased was holding a gun and thereupon began shooting. Four shots were fired at rapid succession, in less than about five seconds, resulting in the death, as already described.
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11 The question is whether or not the history which I have narrated, particularly the threat of coming back to the house to 'slaughter the whole "f…" lot of you', or words to that effect, taken in conjunction with earlier threats and erratic behaviour, could give rise to a potential defence of self defence. Both counsel agree that it could and that the question of self defence should be left to the jury. I agree with that and propose to leave that defence to the jury with a suitable direction.
12 The controversial question is whether the same circumstances could give rise to a potential defence of duress under s 32 of the Criminal Code. Without setting out the terms of that section, I simply remark that the section has recently been amended by Parliament, in 2008, and that its present form is markedly different from its preceding form. There is, as I am assured by counsel, no reported decision on the meaning and scope of application of the amended section in this state.
13 The submission for the accused is that s 32(2) means that a person who does an act or makes an omission under duress, does so if that person believes:
(1) a threat has been made; and
(2) the threat will be carried out unless an offence is committed;
(3) the doing of the act or making the omission is necessary to prevent the threat from being carried out; and
(b) that the act or omission is a reasonable response to the threat in the circumstances as the person believes them to be;
(c) there are reasonable grounds for those beliefs.
15 The submission for the prosecution is that that is not the case, and that the situation postulated is dealt with exclusively by the defence of self defence under s 248. There are indications that this must necessarily be the case because of the language of s 32(2)(ii), which stresses that the threat will be carried out unless 'an offence' is committed, whereas the self
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- defence provisions make the performance of the violence or harmful act excusable and not constituting an offence in the circumstances.
16 I must say it is difficult to accept any interpretation stemming solely from the statutory language of the section. It is quite clear that the former s 32 applied only in circumstances where the defence of duress applied to excuse an act done by an accused, not against the person making the threat but against some third person or persons. It is necessary, therefore, to look to the history of the law and of these amendments.
17 In doing so, I pause to note the decision of the Court of Appeal in this state of Smith v The State of Western Australia [2010] WASCA 205, which was a decision on the meaning and scope of the application of the duress defence under s 31 of the Code before the 2008 amendments.
18 Nevertheless, in relation to that earlier section, McLure P said, at [8]:
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. See M.J. Murray QC, the Criminal Code a general review 1983 and Colvin and McKechnie, 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.
19 Her Honour went on:
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'.
21 The origin of the 2008 amendments to the Code are to be found in the Law Reform Commission of Western Australia's Review of the Law of Homicide, Final Report, project number 97 which was published in September 2007. At ch 4 at pages 184 to 190 of that report, there is a detailed discussion about the then existing scope of the defence of duress and recommendations for change. The recommendations which were made by the Law Reform Commission were adopted entirely in this
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- respect by the Parliament and I will come to the Parliamentary debates which resulted in the amendment to the law.
22 Significantly, the Law Reform Commission recommended that a number of material alternations ought to be made to the law. Perhaps the most significant for the present purposes was that the defence of duress should be available in the case of murder. That had not been the position under the pre-existing law. It also recommended that there should be a subjective element in relation to the offence but coupled with the need for an objective element as well. That recommendation was also adopted.
23 There was a detailed discussion of the reasons leading towards this in the Law Reform Commission Report which, among other things, drew attention to the previous incongruity between the limited form of the defence of duress then existing and to the defence of self defence and indicated that there should be a degree or harmonisation between them. That particular recommendation had been made in other Law Reform reports, notably in the United Kingdom.
24 In the course of the Law Reform report there is a reference at page 184 as follows, referring to the defences of duress and emergency:
Duress and emergency are similar to self defence because the accused acts for the purpose of self preservation or for the purpose of protecting another. However, as a general rule for self defence the accused acts directly against the attacker, whereas for duress and emergency, the accused acts against an innocent person.
- and there was reference to a decision of the House of Lords in R v Hasan [2005] UKHL 22 [19] for that proposition. I shall say more about Hasan's case in a moment.
25 If one peruses carefully the balance of the Law Reform Commission report on duress, there is nothing in it which I can see which would vary or modify that traditional distinction between duress and self defence which I have mentioned, namely that in duress and emergency cases the accused acts against an innocent person and for self defence the accused acts directly against the attacker. That is a suggestion that no accommodation of the defence of self defence was therefore intended to be included within the amended duress defence. Certainly, there was no suggestion to that effect.
26 When the matter came before Parliament the Attorney-General who was responsible for introducing the Criminal Law Amendment Homicide Bill of 2008, said in the Legislative Assembly on 19 March 2008 that the
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- amendments introduced by that legislation were the result of the Law Reform Review and then proceeded to deal with particular notable provisions of the amendments, including the introduction of a significant number of amendments to the defences that are available to people who kill.
27 These, of course, included for the first time the role of duress. It is notable that the amendments introduced by that legislation also introduced significant amendments to the defence of self defence. Had it been the intention of Parliament to include duress as some species of self defence then one would have expected some acknowledgement of that. I realise that omissions and negative implications are of limited strength but I mention that as, at least, a straw in the wind.
28 The learned Attorney-General then said:
In the case of duress there will be exceptions when the person is voluntarily associating with the person making the threat and when the associations for the purpose of doing the act or making the omission that creates the offence or when the association is for an unlawful purpose in which it is likely that such a threat would be made, thus, for example, the person who joins in a bank robbery would not be able to rely on the defence of duress if an accomplice threatened to shoot the person if he or she did not harm a bank teller.
29 Again, the language of the second reading speech seems to acknowledge the continuity of the distinction between the role of self defence in relation to attacks against a person making the threat and the role of duress in relation to attacks or crimes committed against some third person.
30 I come now to the decision of the House of Lords in R v Hasan which, as I said, is [2005] UKHL 22.
31 It is also reported but in a different name under R v Z [2005] 2 WLR 709 then, more relevantly, for present purposes, under the name of R v Z [2005] 2 AC 467.
32 This was essentially a case which, so far as it is presently relevant, dealt with whether or not the defence of duress was available to a criminal who had committed a crime while associating with other criminals in the pursuit of a joint unlawful purpose; the kind of situation which is excluded specifically from the defence of duress in Western Australia by s (32)(3). Not surprisingly, the decision, the unanimous decision of their Lordships was that it was not so available. So far as is presently relevant,
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- the law in the United Kingdom, as considered by their Lordships' House in this case, resembled the law in Western Australia as it existed before the 2008 amendments, although there were some differences which need not be noticed.
33 In the speech of Lord Bingham of Cornhill, his Lordship addressed the defence of duress as follows. He said:
[17] The common sense starting point in the common law is that adults of sound mind are ordinarily to be held responsible for the crimes which they commit. To this general principle there has, since the 14th century, been a recognised but limited exception in favour of those who commit crimes because they are forced or compelled to do so against their will by the threats of another. Such persons are said, in the language of the criminal law, to act as they do because they are subject to duress.
[18] Where duress is established, it does not ordinarily operate to negative any legal ingredient of the crime which the defendant has committed, nor is it now regarded as justifying the conduct of the defendant as has in the past been suggested. Attorney General v Whelan [1934] IR 518; Glanville Williams, Criminal Law, The General Part (2nd ed, 1961). Duress is now properly to be regarded as a defence which, if established, excuses what would otherwise be criminal conduct: Director of Public Prosecutions for Northern Ireland v Lynch and Hibbert v The Queen [1995] 2 SCR 973.
[19] Duress affords a defence which, if raised and not disproved, exonerates the defendant altogether. It does not, like the defence of provocation to a charge of murder, serve merely to reduce the seriousness of the crime which the defendant has committed. And the victim of a crime committed under duress is not like a person against whom a defendant uses force to defend himself, a person who has threatened the defendant or being perceived by the defendant as doing so.
[20] The victim of a crime committed under duress may be assumed to be morally innocent, having shown no hostility or aggression towards the defendant. The only criminal defences which have any close affinity with duress are necessity where the force or compulsion is exerted not by human threats but by extraneous circumstances and perhaps marital coercion under section 47 in the Criminal Justice Act 1925.
34 His Lordship then went on to explain how closely the traditional defence of duress was confined. In par [21] his Honour noted seven major areas limiting the defence which resemble very closely the
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- restrictions referred to by the Court of Appeal in Smith. His Lordship concluded in that case duress was not available to that particular offender because he had voluntarily joined in the unlawful enterprise.
35 Other members of their Lordships' House agreed. It is notable, however, that Baroness Hale of Richmond, commencing at par [67], recorded that she had endorsed the Law Reform Commission's report in the United Kingdom in 1993 on legislation relating to Criminal Offences Against the Person and General Principles, which recommended that, like the Western Australian Law Reform Commission, a number of the traditional limitations on the scope of the defence of duress should be removed and that the defence should be made available in cases of murder.
36 As it turned out that report had not been acted upon, certainly by the time that Hasan's case called for consideration. The significance of her Lordship's speech, however, is that there is not the slightest hint of disagreement by her Lordship who supported modern reforms with the distinction maintained by Lord Bingham and others of the House of Lords about the traditional distinction between the scope of duress and of self defence in the senses that I have already described.
37 I consider, therefore, that this is a powerful and influential indication that duress of the kind contemplated even by the amended s 32 of the Code does not apply in cases where the person charged has acted against the person making the threat as distinct from against some third or other persons. That situation is, I am satisfied, adequately and comprehensively covered by the existing defence of self defence.
38 If one has regard to the harmonising effect of the reforms introduced by the 2008 amendment, this makes sense in the light of the observations made by McLure J that the defence is complementary to the provisions of the Code dealing with self defence, essentially, putting a person relying on a defence of duress in a similar position to a person relying on the defence of self defence but in circumstances where that accused person has acted against a third party under influence of the threat rather than against the person making the threat.
39 For those reasons I do not consider that the defence of duress under s 32 is available in the present case and that the defence should be confined to self defence and to any other matters relating to lack of proof of the requisite intention as maybe remarked upon. That is the ruling which I make.
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