IA v R

Case [2013] NZSC 88 19 September 2013

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IN THE SUPREME COURT OF NEW ZEALAND

SC 38/2013
[2013] NZSC 88

BETWEEN	IFEANYI JUDE AKULUE Appellant
AND	THE QUEEN Respondent

Hearing:	14 August 2013
Court:	Elias CJ, McGrath, William Young, Glazebrook and Gault JJ
Counsel:	L O Smith and B J Hunt for Appellant M F Laracy and M L Wong for Respondent
Judgment:	19 September 2013

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

(Given by William Young J)

The appeal

The appellant – a Nigerian who has been living in New Zealand for many years – faces charges of importing and conspiring to supply methamphetamine. The drugs were brought into New Zealand by a courier who was intercepted at Auckland Airport. She was placed in a hotel and remained under police supervision. The appellant and another person contacted her there and were subsequently both arrested. The appellant admits that he knew that the courier had imported drugs and that he approached her in order to obtain the drugs which were then to be passed on to another person.
The appellant maintains that he was coerced into the offending by a cousin living in Nigeria and known as Zuby. He says that Zuby threatened to kidnap and kill members of his family in Nigeria unless he assisted with the importation of the drugs. This account of events – including the full name and telephone number of Zuby – is set out in an affidavit which the appellant has sworn. In this affidavit the appellant also said that in 2009, his uncle had been kidnapped in Nigeria, and held to ransom, which resulted in some $20,000 being paid to secure his freedom. His narrative is supported by other affidavits. In one, his wife refers to phone calls from Zuby on the night of the appellant’s arrest. The others confirm the kidnapping of the uncle and payment of the ransom.
The appellant sought an order under s 344A of the Crimes Act 1961[1] as to the admissibility of the affidavit evidence. This was on the basis that its admissibility turned on whether the narrative disclosed a defence.[2] It was common ground in the District Court that the statutory defence of compulsion under s 24 of the Crimes Act was not available.[3] However, the Judge ruled the evidence could be led in support of a common law defence of necessity.[4] The Solicitor‑General then appealed and the Court of Appeal held that the evidence would not support a defence of necessity.[5] The Court expressed no concluded view on the availability of s 24 but recorded that the case had been run on the basis that the appellant was not able to rely on that section.[6]
[1]This section has been repealed on 1 July 2013 by s 6 of the Crimes Amendment Act (No 4) 2011. The corresponding provision is s 101 in the Criminal Procedure Act 2011.
[2]We heard no argument as to whether this was an appropriate procedure…

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.

Continue reading IA v R

Details

AGLC: IA v R [2013] NZSC 88
Case: [2013] NZSC 88
Decision Date: 19 September 2013

CaseChat Overview and Summary

In the Supreme Court of New Zealand, the appellant, Ifeanyi Jude Akulue, faced charges of importing and conspiring to supply methamphetamine. Akulue argued that he was coerced into participating in the drug importation by threats made by a relative in Nigeria, and sought to rely on a defence of compulsion under section 24 of the Crimes Act 1961. The District Court and the Court of Appeal rejected this defence, holding that the statutory defence was unavailable because the threats were not immediate and were not made by a person present when the offence was committed. The Court of Appeal also held that a common law defence of necessity was not available. Akulue appealed to the Supreme Court, arguing that the statutory defence should be interpreted in light of the New Zealand Bill of Rights Act 1990 and that a common law defence of necessity was preserved by section 20 of the Crimes Act. The Supreme Court held that section 24 must be applied in accordance with its terms, and that the common law defence of compulsion was not preserved by section 20 to the extent that it conflicted with or was altered by the Act. The appeal was dismissed.

Orders