R v Neho

[2009] NZCA 299

IN THE COURT OF APPEAL OF NEW ZEALAND

CA122/2009
[2009] NZCA 299

THE QUEEN

v

AROHA MERE NEHO

Hearing:24 June 2009

Court:Baragwanath, Randerson and Miller JJ

Counsel:B Hunt for Appellant

M F Laracy for Crown

Judgment:14 July 2009 at 11.30am

JUDGMENT OF THE COURT

A        The appeal against conviction is dismissed.

B        Any suppression order remaining in force is revoked.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1]       The appellant was convicted in the District Court on two counts of dishonestly obtaining a document and eight counts of dishonestly using a document.  She pleaded guilty at the end of the defence case after Judge Behrens QC ruled there was an insufficient evidential foundation to warrant leaving the defence of compulsion to the jury.  The appellant was later sentenced to 150 hours community work.

[2]       She now appeals against her convictions on the basis that there was a sufficient evidential foundation either for the statutory defence of compulsion under s 24 of the Crimes Act 1961 or the common law defence of necessity and that both issues should have been left to the jury. 

Background facts

[3]       The appellant admitted the dishonest use of two separate credit cards to obtain goods on finance.  Her role was to enter retail stores in the Wellington area, to acquire goods using the credit cards and to then collect the goods.  The goods were to a value of $16,000, and included electronic items, whiteware and furniture.  They were obtained from eight separate stores in various parts of Wellington.  The first offending occurred on 29 July 2006 and the remainder over the period 8-18 September 2006.  On the last occasion, a shop assistant became suspicious and the police were called. 

[4]       The appellant was arrested and interviewed.  During the interview she said she had borrowed money over a period of time from women who were partners or wives of members of the Porirua chapter of the Mongrel Mob.  She did so in order to fund a gambling habit.  She said she had associated with the Mongrel Mob, attending at the mob pad at some parties and other gatherings.  The money she owed according to her statement to the police was in the vicinity of $18,000 to $20,000.  When the Mongrel Mob called in her debt the appellant was unable to pay.  Her evidence was that she was required by members of the Mongrel Mob to carry out the offending in order to repay her debt.  She was told that, on each occasion when she obtained goods, her debt would be reduced by $100.  The appellant also told the police that members of the Mongrel Mob had threatened serious harm to herself and her children unless she complied with their demands.  More specifically, she said she was told she would “get a hiding”; that they would “kick the living daylights out of [her]”; and that they would hurt or sexually assault her two daughters (then aged 7 and 9 years).  She was afraid to go to the police because she thought she or her children would be harmed.

[5]       The appellant named a patched member of the Mongrel Mob as the person who had started making the threats.  While he did not go with her to the stores, her evidence was that a prospective member of the gang would always go with her on these occasions and “they like drummed it into my head all the time”.  The initial threat was reinforced, she said, every time she went to the shops to carry out a job.  She would generally drive to the store in her own vehicle but was either followed or preceded by a member or associate of the Mongrel Mob in another vehicle.  She added that there was always one member of the Mongrel Mob in the store with her when the offending occurred although the person would keep their distance from her while in the store.

[6]       Some of the witnesses called for the Crown gave evidence that the appellant appeared anxious or nervous when in the store in question and some gave evidence of seeing others outside the store when the goods were collected.

[7]       As to the immediacy of the threats, she said she was told that if she “mucked up” and walked out of the store without the goods, she would “have the living daylights kicked out of [her]”.  She believed this would happen “straight away”.  Evidence was given by a shop assistant that, on the penultimate occasion, the appellant was the last person in the store.  The witness did not notice anyone else waiting outside. 

The defence of compulsion

[8]       The statutory defence known as compulsion was first adopted in New Zealand in the Criminal Code Act 1893, then in s 44 Crimes Act 1908 and now in s 24 of the 1961 Act.  The section relevantly provides:

24   Compulsion

(1) Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion.

[9]       The statutory defence codifies that part of the common law defence of duress which may apply where criminal offending is carried out under threat of death or grievous bodily harm by another person or persons.  If the defence is available, it operates to protect or excuse conduct which would otherwise be criminal. 

[10]     The leading New Zealand authority is the decision of this Court in R v Teichelman [1981] 2 NZLR 64. The judgment of the Court delivered by Richardson J emphasised the precise limits of the availability of the defence at 66:

While based on common law principles, s 24 clearly and precisely limits the availability of a defence of duress to a criminal charge.  The legislation provides a narrow release from criminal responsibility where its strict requirements are met.  It reflects a policy decision that in those limited circumstances (and where the offence is not in the gravest category excluded from the application of the defence under s 24(2)) a person faced with the threat of immediate death or grievous bodily harm may properly be excused if he chooses the lesser evil of committing the offence.

[11]     Richardson J went on to identify the elements of the defence:

The critical features of the provision so far as they affect the present case are these.  First, there must be a threat to kill or cause grievous bodily harm.  Second, it must be to kill or inflict that serious harm immediately following a refusal to commit the offence.  Third, the person making the threat must be present during the commission of the offence.  Fourth, the accused must commit the offence in the belief that otherwise the threat will be carried out immediately.  It is that belief in the inevitability of immediate and violent retribution for failure on his part to comply with the threatening demand which provides the justification for exculpation from criminal responsibility.  The subsection is directed essentially at what are colloquially called standover situations where the accused fears that instant death or grievous bodily harm will ensue if he does not do what he is told.  It follows from what we have said that before the matter can go to a jury there must be evidence of a continuing threat of immediate death or grievous bodily harm made by a person who is present while the offence is being committed and so is in a position to carry out the threat or have it carried out then and there.

[12]     This Court found in Teichelman that the evidence fell well short of establishing the defence and that the trial judge had correctly directed the jury that the defence was not available.  Addressing the role of the judge where the defence is raised before a jury, Richardson J stated:

The appellant was not entitled to have the possibility of compulsion considered by the jury unless there was an evidential foundation for the defence.  (Salaca v The Queen [1967] NZLR 421 and R v Joyce [1968] NZLR 1070). It is necessary to consider whether or not there was evidence capable of being acted on by the jury that the appellant committed the particular offences “under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed”.

[13]     It has been recognised as implicit in the defence of compulsion that the offender must have no realistic choice other than to break the law.  If there is a reasonably available opportunity for the offender to seek help or protection or to escape, the defence will not ordinarily be available.  This issue was discussed by this Court in the R v Raroa [1987] 2 NZLR 486 at 490-491. The Court adopted with apparent approval the following passage from a judgment of the Court of Criminal Appeal of Ireland in Attorney –General v Whelan [1934] IR 518 at 526:

Where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at the time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats.

[14]     In delivering the judgment of the Court in Raroa, Bisson J added that the last words of this passage should not be taken as absolute requirements of the defence of compulsion but as factors to be taken into account by a jury (or a judge if sitting alone) in determining the belief of the accused.  While issues of this kind may be matters for the trier of fact, this does not preclude a judge taking the defence of compulsion away from the jury where there is no proper evidential foundation for its application.

Discussion

[15]     Assuming the most favourable view of the facts to support the defence of compulsion, we agree with Ms Hunt for the appellant that this case raises issues about the immediacy of the threat to the appellant and the presence or otherwise of the person making the threats.  It also raises the issue of whether the appellant had any realistic choice other than to carry out the offending.

[16]     Ms Hunt presented a comprehensive legal argument with reference to a number of authorities as well as other helpful material such as the article by the late Professor Orchard “The Defence of Compulsion” (1980) 9 NZULR 105 and the very useful text by Simister & Brookbanks Principles of Criminal Law (3ed 2007).  However, we do not see this case as warranting any prolonged discussion of legal principles since we consider the evidence falls well short of the exacting standard required to sustain the defence of compulsion.

[17]     There is no evidence that the person or persons making or continuing the threats of harm to the appellant or her children was or were present when the offence was committed.  While we accept that a threat originally made by one person might be reinforced by others who are physically present when the offence is committed, the evidence in the present case does not go beyond establishing that prospects associated with the Mongrel Mob were waiting outside the store and that, on each occasion, another prospect was somewhere within the store (keeping their distance from the appellant) when the offending took place.  The evidence on this point lacked the level of detail necessary to establish exactly what happened on each occasion.  Even assuming the same modus operandi on each occasion, the evidence does not establish that the persons making the threats were sufficiently proximate to the appellant at the time of the offending to amount to the physical proximity or presence which must be established for the purposes of s 24(1). 

[18]     Linked to this point is the immediacy issue.  Clearly, any physical assault on the appellant was most unlikely to occur within the store or even in the car park outside in the presence of other members of the public.  Nor was there any evidence that the appellant would be taken immediately to some other place where an assault would occur.  Her children were elsewhere and there is no evidence that they were under immediate threat (assuming in the appellant’s favour that a threat of serious injury to her children could amount to a threat to herself for the purposes of s 24).

[19]     Finally, and importantly, the appellant’s offending occurred on repeated occasions over a reasonably significant period of time.  On her own account given at her interview, the appellant acknowledged that the offending to which she pleaded guilty was her own idea to repay her debt.  If she did so willingly on the first occasion, that would rule out the defence of compulsion in any event.  Even if she were under some threat of serious harm on that occasion, she had options available to her.  While we can understand her reluctance to notify the police, it was a reasonably available option open to her at any stage prior to the offending.  It was also open to her to advise the shop assistant of her situation while she was in the store on each of the occasions. 

[20]     Taken overall, there was insufficient evidence to go to the jury of a continuing threat of immediate death or grievous bodily harm made by a person present while the offence was being committed and who was in a position to carry out the threat or to have it carried out “then and there”, to use the expression adopted by this Court in Teichelman.  There has been some academic debate about whether a threat to carry out serious harm to the offender may be sufficient if it is to be carried out “almost immediately” but it is unnecessary for us to enter that debate here.  We are satisfied that the evidence does not support the defence. 

[21]     In the circumstances, it was entirely appropriate for the Judge to take the defence of compulsion away from the jury. 

The common law defence of necessity

[22]     Ms Hunt also submitted that the common law defence of necessity should be left to the jury, referring us to the decisions of this Court in R v Hutchinson CA92/03 7 July 2003 and Kapi v Ministry of Transport (1991) 8 CRNZ 49.

[23]     In their text Principles of Criminal Law already cited, the learned editors draw a distinction between the common law defences of necessity and duress of circumstances.  In her submissions, Ms Hunt tended to treat the defence of necessity as equivalent to the defence of duress of circumstances.  It is unnecessary for us to reach any conclusion on any conceptual defences there may be.  We agree with the view expressed by this Court in Kapi that s 24(1) applies so as to exclude the common law where the criminal act is done under threat of death or grievous bodily harm from a person present when the offence is committed.  As Gault J concluded in Kapi at 55, s 20 of the Crimes Act cannot be said to preserve a common law defence of duress by threat or fear of death or grievous bodily harm from a person not present: see also the observations of this Court in Hutchinson at [48]. The legislature has plainly addressed in s 24 the scope of the available defence of compulsion or duress arising from threats of death or serious violence. That section therefore covers the field and there is no scope for the common law defence to remain.

[24]     Necessity or duress of circumstances may arise at common law where circumstances other than a threat of death or serious injury compel the accused to commit a crime.  We agree with the view expressed by this Court in Kapi at 57 that, if the defence is available in New Zealand, it requires:

... at least a belief formed on reasonable grounds of imminent peril of death or serious injury.  Breach of the law then is excused only where there was no realistic choice but to act in that way.  Even then the response can be excused only where it is proportionate to the peril.

[25]     On the facts as already discussed, this defence, even if available in circumstances such as the present, had no proper foundation for consideration by the jury.

Result

[26]     Leave to appeal out of time is granted but, for the reasons given, the appeal is dismissed.

[27]     Ms Hunt accepted that in the event of the appeal being dismissed, there was no longer any justification for an order suppressing the name of the appellant.  Accordingly, any orders previously made suppressing the name of the appellant from publication are revoked. 

Solicitors:
Crown Law Office, Wellington