The State of Western Australia v Auckram [No 2]
[2013] WASC 170
•2 MAY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- AUCKRAM [No 2] [2013] WASC 170
CORAM: SIMMONDS J
HEARD: 2 MAY 2013
DELIVERED : 2 MAY 2013
FILE NO/S: INS 211 of 2012
BETWEEN: THE STATE OF WESTERN AUSTRALIA
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 (WA)
Legislation:
Criminal Code (WA), s 32, s 248
Result:
Duress defence under s 32 Criminal Code not available
Category: B
Representation:
Counsel:
Prosecution : Ms L E Christian
Accused: Ms L B Black
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused: Kate King Legal
Case(s) referred to in judgment(s):
R v Z [2005] 2 AC 467
Re York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922; (2007) 162 FCR 358
Smith v The State of Western Australia [2010] WASCA 205
The State of Western Australia v Auckram [2013] WASC 69
SIMMONDS J:
(This judgment was delivered extemporaneously on 2 May 2013 and has been edited from the transcript.)
These are my reasons for my answer to a question arising in the retrial of the accused on a charge that on 8 June 2012 in Clarkson he murdered Jason Jeffrey Burton. Mr Burton was a stepson of the accused.
The previous trial concluded on 22 February 2013 after the jury had been unable to arrive at any verdict.
The question is whether or not a defence of duress under Criminal Code (WA) (the Code) s 32 should be left to the jury in circumstances where the defence of self defence is accepted to be one that should be so left, so accepted by both counsel.
In the previous trial this question had also arisen. The presiding trial judge, EM Heenan J, ruled that the answer to the question was no, the defence of duress was not available and should not be so left. His Honour's reasons were delivered extemporaneously prior to the closings of the prosecution's and the defence's respective cases and after his Honour had heard submissions from both counsel.
His Honour arrived at his answer on the basis, as it appears to me, that the defence of duress in Code s 32 is confined to offences committed against a person or persons other than the person or persons making the threat to which the offence was a response. Mr Burton was the person who made that threat, on the defence case, so far as I apprehend it and indeed so far as I apprehend it can be put.
That answer so viewed is one, in my estimation, on the application of Code s 32, as a matter of construction of the provision.
On the evidence in this case, as it was tried before me thus far, it cannot be contested that the answer to his Honour's question would, if not departed from, be determinative of the answer to the question before me.
That is because, to make it abundantly clear so far as my understanding of the matter is concerned, it cannot be suggested that, on the evidence before me, the defence case is other than that the harmful act or acts of the accused that caused the death of Mr Burton was or were a response to a threat by Mr Burton.
EM Heenan J's reasons were published as The State of Western Australia v Auckram [2013] WASC 69. On the opening day of the trial after I had raised the matter with counsel, I accepted their views that it would be appropriate to remove that decision from the court's database until the conclusion of the trial or further order.
The question before me was first raised by counsel for the defence on the opening day of the trial, after the jury had retired to choose their foreperson, and prior to the prosecution opening. Both counsel agreed then that they would not present any fresh submission on the question unless I requested these. From that, it was my understanding that I should treat those submissions made to his Honour EM Heenan J to be also submissions made to me. That was specifically confirmed again moments ago before me by counsel for the defence.
Further, as both counsel confirmed later in the trial, and before the closing of the prosecution's case, both counsel expected me to deliver my ruling at any time following the closing of the case for the defence, but prior to the delivery of the parties' respective closing addresses.
I considered that it was not appropriate to deliver that ruling until that time so as to allow for the completion of the evidence in the trial.
In the event, I consider my ruling on the question should be no, the defence of the duress is not available in this case and so should not be put to the jury.
I do not consider it is necessary to deliver any further than the following brief reasons. I start with this.
The approach by a first instance judge, such as myself, to the answer to a question of law concerning such an issue as the application of a legislative provision, where that previous answer has been given by another first instance judge, whether of this state, such as EM Heenan J's answer in Auckram on the application of Code s 32, or of another state or territory, as on federal or uniform legislation, which of course the Code is neither of, appears to be clearly established.
That approach is that I should not depart from the answer previously given unless I am convinced that that answer was 'plainly wrong'. See the review of the authorities in Re York Street Mezzanine Pty Ltd (in liq) [2007] FCA 922; (2007) 162 FCR 358 [22] (Finkelstein J).
I consider that that approach requires me to carefully examine the reasons given for the previous answer as well as the legislation in question. I have so examined Auckram and I have so examined Code s 32 as well as Code s 248 on self defence.
In Auckram, EM Heenan J carefully considered Smith v The State of Western Australia [2010] WASCA 205 on the defence of duress before the amendments to the Code in 2008, which produced the defence in its present form. His Honour also carefully reviewed the Law Reform Commission Report which resulted in that form as well as R v Z [2005] 2 AC 467, a decision of the House of Lords to which the Law Reform commission report referred. The decision R v Hasan was given as R v Z in the appeal case's report. Finally, I note that his Honour also carefully considered the second reading speech of the Attorney General on the bill that was for the amendments producing the present form of Code s 32.
I have also reviewed the language of Code s 32 in its present form, as well as the language of Code s 248.
On that review, both of Auckram and of the language of those statutory provisions, I am unable to conclude that the answer in Auckram to the question before EM Heenan J concerning the application of Code s 32 was 'plainly wrong'. Indeed, I consider that answer was correct for the reasons given by his Honour.
Accordingly, my ruling is as I have indicated, that the defence of duress is not available in this case and should not be left to the jury.
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