Taiapa v The Queen [2009] HCATrans 155 (25 June 2009)

Last Updated: 26 June 2009

[2009] HCATrans 155

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B6 of 2009

B e t w e e n -

DION ROBERT TAIAPA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 25 JUNE 2009, AT 11.20 AM

Copyright in the High Court of Australia

MR G.D. WENDLER: If the Court pleases, I appear for the applicant. (instructed by John D. Weller & Associates)

MR M.J. COPLEY, SC: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

FRENCH CJ: Yes, Mr Wendler.

MR WENDLER: Before I open the application there is a procedural issue concerning time. I will take your Honours – we might need to proceed and then the time thing will follow, so to speak.

FRENCH CJ: I am sorry?

MR WENDLER: There is a procedural issue. The application for special leave is out of time.

FRENCH CJ: You seek an extension?

MR WENDLER: Yes.

FRENCH CJ: You object?

MR COPLEY: I do object to it in this particular case, yes.

FRENCH CJ: On what basis?

MR COPLEY: On the basis that the delay of almost five months is not satisfactorily explained. If regard is had to the affidavit of Mr Weller, the applicant’s solicitor, at application book 81 your Honours will see that he was not contacted, he asserts, by the applicant until 14 December 2008 in which conversation the applicant sought his assistance to bring an application for special leave. He goes on to assert that the applicant asserted that he had difficulty in the months from August through to November in getting his file returned from Legal Aid, Queensland, or Legal Aid, presumably Queensland.

That explanation is not satisfactory in itself but it is particularly not satisfactory when regard is had to page 68 of the application book where your Honours see that the instructing solicitors in the appeal court were:

John-Paul Mould, Solicitors (Brisbane) acting as Town Agent for John D Weller & Associates (Bundall) –

I am basing my opposition on an assumption that John D Weller, Bundall, is the same John D. Weller who is practising or resident at Ewingsdale near Byron Bay in the State of New South Wales. If that is so, if the applicant’s lawyers at the Court of Appeal were the same as the lawyers who filed this application five months out of time, then how can it be a difficulty in getting one’s file out of Legal Aid and my opposition, of course, is also on the basis on that the matter has no merit but that is a matter for later.

FRENCH CJ: Yes, all right. Thank you, Mr Copley. Yes, Mr Wendler.

MR WENDLER: Your Honours, can I proceed to develop the submission as part of the application for an extension of time?

FRENCH CJ: Perhaps you can tell us, first of all, anything you might want to say in relation to the objection Mr Copley has raised.

MR WENDLER: Your Honour, the applicant is in custody and was in custody at the time he sought legal advice in relation to prosecuting this application. Applicants who are in custody and often have communication problems, it is just a reality. His solicitor had a branch office - although his principal office is in Byron Bay - at Bundall and practices not just in northern New South Wales but throughout parts of Queensland. The documentation, which took a considerable amount of time to reach the applicant, who was in custody, then had to be forwarded to the solicitor and then eventually forwarded to me.

In fact, I recall working, I think, over Christmas, to get the documents in as quickly as possible. Then there was further delay by virtue of the fact that the solicitor who was based in Byron Bay also had to transfer the documents to his agent in Brisbane for filing and so on.

FRENCH CJ: None of which appears in any of the affidavit material.

MR WENDLER: No, it does not. There was also further transferring the file, as it were, back to the client in relation to further communication with Legal Aid. I agree that the affidavit perhaps needed, shall we say, further information, but it is my respectful submission that the reason why there has been this type of delay is because, essentially, the place of the custody and communication problems.

FRENCH CJ: Yes, just a minute. All right, we will consider the question of extension and hear you on the merits.

MR WENDLER: Yes, thank you. Your Honours, this application raises matters of general and special importance to the law of criminal responsibility.

FRENCH CJ: Do we have a copy – I do not think it is in the papers, is it – of the trial judge’s ruling?

MR WENDLER: No. The trial judge’s ruling is not in the papers. There is treatment of it, of course, in the reasons for judgment of his Honour Justice Keane.

FRENCH CJ: This is at page 71, I think.

MR WENDLER: Yes. I am glad your Honour mentioned that because it is a little unusual because the Court of Appeal proceeded to resolve the issue concerning the availability of the defence of compulsion on a basis different to the finding by the trial judge. The treatment by his Honour Justice Keane is correct in relation to his Honour’s analysis of the change in the legislation from 1997 to 2000, effectively removing two essential features concerning the availability of the defence, namely, the immediacy or the connection between the threat and the criminal conduct and the issue of whether a future threat, a threat of - - -

FRENCH CJ: The question here was whether the applicant had satisfied the evidential onus such that the defence was fit to go to the jury.

MR WENDLER: That is the bottom line in the application, yes.

FRENCH CJ: That comes down to what appears to have been within the framework of the Court of Appeal’s decision - and I do not know precisely what the trial judge said – based on a judgment of issues of reasonableness referred to in the defence.

MR WENDLER: Yes. Reasonableness and proportionality are the two issues, really, on the availability of a defence of this kind.

BELL J: Where is the clearest statement of what evidence there was by the time the trial judge made the ruling withdrawing the defence from the jury?

MR WENDLER: I am trying to pick that up. It came after, from memory, the evidence of the applicant. The applicant, and indeed two other witnesses whose evidence was capable of inference supporting what the applicant described had happened to him at the hands of these two – I will call them duressors. The single, perhaps – it is a combination of features, really, as to the issue of reasonableness and proportionality. I can summarise them in this way. There was actual violence rather than threatened violence upon the applicant and often a lot of these compulsion cases involve a threat of violence rather than actual violence.

BELL J: Can you take us to the references to this in the application book, Mr Wendler?

MR WENDLER: The actual finding and the treatment of his Honour Justice Keane is at application book 75 at paragraph [38].

FRENCH CJ: That is the conclusionary part.

MR WENDLER: Yes, that is the conclusion.

FRENCH CJ: I think what Justice Bell was really looking for was the state of the evidence. Maybe page 70, paragraph [16] which is the second confrontation, “new residence”.

BELL J: Mr Wendler, you said there were two other witnesses in addition to the applicant. Was one of those his co-accused, Mr Ackers?

MR WENDLER: No, the co-accused ran a totally separate defence. His defence was that he did not have any idea what was going on and he had never met these two people. The witness that your Honour is probably alluding to was his partner, a woman by the name of Kristy Jarvis, Ms Jarvis. Also the mother of the applicant gave evidence going to the issue of the money.

FRENCH CJ: But Kristy Jarvis only gave evidence in relation to the May 2006 threat.

MR WENDLER: Yes, that is right.

FRENCH CJ: Rather than the later event of 15 July 2006.

MR WENDLER: Yes, there were two episodes in relation to the conduct of these men. She was present and witnessed the very first episode which involved threats of significant violence and so on. The treatment by the Court of Appeal of the application of section 31, in particular, 31(1)(d)(ii), that treatment on the basis of proportionality and reasonableness effectively came down to the proposition that there was no reasonable basis why the applicant could not neutralise the threat by seeking police assistance.

BELL J: Do we not need to know something more in a more detailed way about the evidence in order to understand - - -

MR WENDLER: Yes, I have set out the evidence in my written submissions, if I can just take your Honours to that part of it?

BELL J: Yes.

MR WENDLER: It is probably best described at appeal book 89, paragraph 16, in the answer that he gave in his evidence. It effectively came down to a number of reasons. First, the determination of these particular fellows in hunting him down after a number of years, seeking him out, then proceeding to threaten him; and then the information he had about them, which was virtually nil other than their two Christian names; and the fact that there had been actual violence used, the fact that he had tried to avoid them but was not successful in that endeavour.

There was indirect application of threat of violence in his mind to his partner and his mother. These particular fellows, in effect, ordered him not to go to police otherwise they would react in a further violent manner. At the end of the day, there was sufficient evidence for the consideration of the jury in relation to the availability of this particular offence and the circumstances. The finding by his Honour effectively that there was no evidence – I mean, that is effectively the way his Honour Justice Keane characterised it in his reasons for judgment, that there was just no evidence going to the reasonableness of his behaviour in not neutralising the threat.

It may be useful now to move immediately to the language of the section. Section 31, in particular 31(d)(ii), talks in terms of:

the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat -

Now, the language appears to import some level of subjectivity because of the expression “reasonably believes”, and it is also informed by a reasonable response requirement. Really the challenge in relation to the utilisation of this type of defence is to determine when it does not apply rather than when it does. In my respectful submission, it was a ruling of great moment in the trial to dispossess as a matter of law the defence that the applicant was seeking to press. Indeed, the treatment by the Court of Criminal Appeal to hold that there was absolutely no evidence at all going to that part of the section, namely, 31(1)(ii), in my respectful submission, was a.....which is not fairly within the terms of 31(1)(d)(ii).

As your Honours know, this defence, sometimes referred to as compulsion, sometimes duress, sometimes coercion, is available in all jurisdictions. In some jurisdictions, of course, such as Queensland, there is a statutory definition in relation to it. In other jurisdictions the common law applies. The bottom line always is the issue of reasonableness and proportionality, and to hold in this case and dispossess the applicant of his defence on the basis there was absolutely no evidence at all justifying his response in not neutralising the threat, in my respectful submission.

FRENCH CJ: The basis upon which you are seeking special leave – I am just looking at your grounds in the draft notice – at least so far as 2 and 4 is concerned, just goes to the assessment of the sufficiency of the evidence by the Court of Appeal. You are not suggesting a misconstruction of the terms of the provision?

MR WENDLER: No, I am not suggesting that.

FRENCH CJ: What issue of principle does it give rise to?

MR WENDLER: Well, the determination of what the objective limitations are. I mean, this is an offence which is an Australia-wide defence. The determination of what the objective limitations are occasions significant difficulty, and the issue of policy effectively is how narrow is the treatment of the question of reasonableness and proportionality, how narrow is the application of those principles?

FRENCH CJ: Well, putting to one side for a moment statements about what happens in civilised societies which appear to inform some of the judgments referred to, I think that of Chief Justice King in Brown - - -

MR WENDLER: Yes, the South Australian case.

FRENCH CJ: - - - but when one gets to paragraph [38] on page 75 of
the judgment in the Court of Appeal, this is the crunch point, is it not?

There was, in this case, no evidentiary basis for a reasonable belief on the appellant’s part that he could not avail himself of the protection of the police to render ineffective the threats by Tony and Salvatore.

Now, is that not simply an assessment of the sufficiency of the evidence?

MR WENDLER: Well, it is, but it is - - -

FRENCH CJ: I mean, not the weight, of course, but rather saying, does this reach the threshold of reasonableness?

MR WENDLER: My submission is that that is such a narrow application it effectively ignores the rider also on page 75 identified by Chief Justice King in that statement reproduced from Brown. There are significant differences factually between the situation in Brown and this case. There was threatened violence in Brown, here there was actual violence, but at about point seven the Chief Justice makes this observation:

It would be naive to ignore the existence of situations in which no amount of police protection would be effective or in which it would be unreasonable to expect a person to avail himself of such protection. But such situations must be considered to be the exception. If there is evidentiary material which raises a real issue as to whether the opportunity to seek police protection was a reasonable opportunity to render the threat ineffective, that issue must be left to the jury.

Now, the evidence given by the applicant, supported to some extent by the witness, Jarvis, and other evidence, in my respectful submission, clearly moved the case into - - -

FRENCH CJ: Well, if one had to identify the integers if you like of support for a reasonable belief that he could not avail himself of protection, I take it that that would be his – those things which he said occurred, at least on the evening of the second visit - - -

MR WENDLER: Those things which occurred, and also the history of their relationship.

FRENCH CJ: Yes, but getting down to the – he has to believe or he has to have a case for a reasonable belief that he could not avail himself of the protection of police.

MR WENDLER: His case on that was that he had virtually no information about these people, there was actual violence that had been used. The violence had a capacity to be indirect to affect third parties. He had no confidence the police could effectively assist him in any way having regard to the information he had about these people.

FRENCH CJ: Now, where does that appear because we know there is a threat, they told him not to contact the police, he says?

MR WENDLER: Yes, I think that is contained in the passage at 89. Page 89 of the application book, paragraph 16.

BELL J: He expressed a view that he did not believe protection was “100 per cent safe”.

MR WENDLER: Yes, and further that these people were determined and that they were persons, having regard to his relationship, who were, as it were, ready willing and able to effect further violence upon him or others if

he did in fact go to the police. That combination of material was, in my respectful submission, sufficient for consideration of the jury. If we go to page 92 of the application book in paragraph 27 where I have reproduced an observation by Justice Lee in the New South Wales Court of Criminal Appeal where he refers to the English decision of Hudson and Taylor which was the first English decision which, as it were, gave greater flexibility to the availability of the defence, that is not requiring the threat to be immediate, but capable of being a future threat. The observation by his Honour referring to Justice Lee was that:

“whilst the matter of the appellants having taken no steps to neutralize the threats by seeking police protection was a factor to be taken into account, the mere failure on the part of the appellants to avail themselves of police protection did not disentitle them from relying upon the defence duress”.

That fact that he did not go to the police, that mere fact by itself, uninformed by a global assessment of reasonableness and proportionality would not disentitle him to have the defence go to the jury. Effectively, the principle of general application that this application throws up – a special application of course concerns the correct application of section 31, the general application that this application would be an appropriate vehicle for is an analysis of the idea of reasonableness and proportionality and its availability as defence having regard to the development of the common law in this area.

FRENCH CJ: I think you are out of time now, Mr Wendler. Thank you. Yes, Mr Copley.

MR COPLEY: Your Honours, in this particular case no point of general law of general public importance is raised. There is simply a complaint that there has been in the individual circumstances of the case a miscarriage of justice. However, that complaint cannot be made out. Nothing said by Justice Keane at paragraph [38] at page 75 of the application book is in any way inconsistent with the passage the applicant places his most heavy reliance upon at page 92 of the application book where he sets out the quote from the English Court of Appeal in Hudson and Taylor:

“whilst the matter of the appellants having taken no steps to neutralize the threats by seeking police protection was a factor to be taken into account, the mere failure on the part of the appellants to avail themselves of police protection did not disentitle them from relying upon the defence duress”.

His Honour Justice Keane did not form the view that because he had not gone to the police he therefore could not have duress. What his Honour Justice Keane said was that at page 75, paragraph [38]:

The appellant had ample opportunity to alert the police to his predicament, and he called no evidence which might have established a reasonable belief on his part, either he could not alert the police, or that police assistance would not have been forthcoming and efficacious.

The position is this, that the applicant’s reasons for not going to the police are summarised at paragraphs [12] through to really [15] of his Honour Justice Keane’s judgment, and what his Honour Justice Keane concluded was that even though the applicant had subjective beliefs about the police, they were not informed by any evidence that went to show in any way why going to the police would not have been an option. He did not say, for example - - -

FRENCH CJ: Just a minute. At paragraph [16] he gives evidence of a threat by people who might arguably be in a position to carry it out, but if he contacted the police, he would pay for it as well his partner and his mother.

MR COPLEY: Yes.

FRENCH CJ: That is not a matter of a subjective state of mind. That is a matter of his evidence about what was said to him.

MR COPLEY: Yes.

FRENCH CJ: Why does that not form a basis for a reasonable belief that was fit to go to the jury, the jury to decide of course whether they believed him or not?

MR COPLEY: Yes, of course. To have a basis to go to the jury, the applicant would have needed to have given evidence that complaining to the police would not have been effective.

BELL J: But did he not advance the reasons - in addition to the fact of the threat he expressed concerns, as I understand that part of his evidence that is summarised in Mr Wendler’s submissions at page 89, paragraph 16, that he did not have enough information to assist the police to locate these people so that the police could ensure that they were not in a position to carry out their threats. He knew that it was possible to seek protection from the police, but it was his belief that that might not be 100 per cent effective having regard to the character and dangerousness of these individuals. Was it not a matter for the jury to assess whether or not the defence was made out against that evidentiary foundation? More to the point, was it not for the Crown to negative the defence?

MR COPLEY: No, it was not enough in the circumstances of this case. The applicant gave no evidence, for example, that these men told me they were connected to the police, that they were related to the police. He gave no evidence that either of them was a police officer. The situation was not that his girlfriend, Kristy, was being held hostage in a dungeon and there was a time limit operating on him. He had a subjective belief that if you go to the police they cannot 100 per cent guarantee your protection. That is not enough, in my submission, to - - -

FRENCH CJ: He gave evidence of a threat that if he did he would suffer consequences.

MR COPLEY: That is right, and Justice Keane proceeded on the assumption that he was telling the truth about all of those things, he said in his judgment, but nevertheless, it was not sufficient to raise for the jury’s consideration whether his belief was reasonable in the circumstances. There needed to be something more. That did not necessarily have to come from his belief, but the case has to be judged in the circumstances, your Honours. Can I make this point. These men come into his house on the night in July, a gun is shoved down his throat and he is told you have to get this money.

FRENCH CJ: Up his nose, I think.

MR COPLEY: Okay. They come back some weeks later. Even though he has moved homes they find him again, and they say, “Right. The situation is this, that you have to get us the drug and your mother’s money. You have to go to Gosford, pick it up. Bring it back” and the evidence was they would be back on the evening of Sunday, 23 July to collect it. That is the factual scenario. Ms Jarvis has moved to the Gold Coast to get away from this situation. There is no particular time limit placed on the applicant to comply, it is not as if these men have got her hostage and a gun to his head, and it is just not even open to go to the police. He had an ample opportunity to do so, and he did not advance any cogent reason for why – apart from a purely subjective belief that “I do not regard the police as being able to find them, because I do not know their surnames or their registration number, and I do not regard police protection as effective”.

KIEFEL J: But once he has put forward a reason are you not then in a position where you are in a weighing exercise to see, as you say, whether it is cogent enough to amount to a reasonable attitude about police protection, is it not a matter for the jury? The question here really is why it was kept from the jury to determine this as a matter of fact and credit.

MR COPLEY: It was kept from the jury, in Justice Keane’s words, because there was no an arguable case, and even an arguable case to go. That was his assessment. I acknowledge at once that the way another court dealt with this on another occasion, in another State, does not necessarily carry the day, but it is interesting to compare this case with the case of Rogers (1996) 86 A Crim R 542, and that is in my material.

Now, Rogers was in a prison in Sydney and he believed that he would either be compelled to kill someone or be killed himself if he did not escape from lawful custody, so he tried to escape from lawful custody. He failed and he was caught, and he wanted the defence of necessity – which may or may not survive in Queensland, but we do not need to worry about it – to be left for the jury. The District Court judge relieved the excuse of necessity for the jury, and at page 548 his Honour Chief Justice Gleeson said, about halfway down:

The question to be addressed is whether, having regard to the evidence as to those three matters in particular, the facts of the case raised an issue of necessity proper to be left to the jury.

The three matters included the imminence of the threat, and whether there was any possible alternative course of action open.

BELL J: Necessity is a very confined defence. For my part it really does not assist to have reference made to a decision concerning the circumstances in which a trial judge might refuse to leave necessity to the jury, to an instance where the trial judge has ruled that the defence under section 31(1) of the Code is to be withdrawn from the jury in circumstances where evidence has been given by the applicant of the fact of threats of serious harm and some evidence concerning the reasons why he had not sought to enlist the aid of the police. I mean, it seems to me a very different case.

MR COPLEY: All right. Well, I will not bother your Honours with that any further. The position really comes down to this, that where the evidence established that he had opportunity to alert the police and where the courts proceed on the basis or the understanding or the assumption that in an ordered society the ordinary way you render a threat ineffective is to report it to a law enforcement authority there has to be something more than simply a subjective belief, not based on anything beyond the fact that “There are drug dealers” he said, “and then there are drug dealers and these blokes are up here in the drug dealer scale”.

There has to be more evidence than that before a judge is obliged to leave duress to the jury and evidence that he could have given, that might have got it over the line, might have been something along the lines of “These men told me they had the police in their pocket”, or, “I went to a detective or a uniform police officer and I told him my story and they laughed at me and said unless you have a numberplate or a surname, we cannot take you seriously”. If he had given that sort of evidence, in my submission, then the judge would have been obliged to leave duress to the jury, but none of that evidence was given in this case.

FRENCH CJ: Anyway, the basis on which the Court of Appeal dismissed the appeal was not tenuousness of evidence, it was simply no evidentiary basis.

MR COPLEY: That is right.

FRENCH CJ: So it is a question of logical relationship between what was there, to put it at its highest and the provisions of the section.

MR COPLEY: That is so.

FRENCH CJ: That imports the notion, does it not, that there must be implicit in the judgment of the Court of Appeal the proposition that this was not capable of amounting to a reasonable basis for a belief.

MR COPLEY: Yes.

FRENCH CJ: There was not evidence capable.

MR COPLEY: That is right, yes. Thank you, your Honour.

FRENCH CJ: Yes, thank you. Yes, Mr Wendler.

MR WENDLER: Two matters. My friend indicated the issue of necessity but I heard what fell from your Honour Justice Bell so I do not need to address that. They are two totally different concepts effectively. Second, there was evidence from the partner of the applicant, Ms Jarvis, that soon after the first encounter when she was so traumatised she left and relocated to the Gold Coast that she, in fact, attempted to indirectly contact the police and did so in the hope that the police would intervene, and as it were, keep the applicant under surveillance pending any further contact from these men. There was that piece of evidence in relation to the issue of neutralisation of the threat.

FRENCH CJ: The Court is of the view that this application for special leave and the application for an extension of time should be referred to a Full Court for hearing and that in that connection, Mr Wendler, it will be necessary to see some more fulsome evidence in support of your extension. I do not think the Court should be expected to make judgments on the kind of rather tenuous material that was filed in this case.

MR WENDLER: Yes, I will give an undertaking to file a further affidavit in greater detail. Thank you, your Honours.

FRENCH CJ: All right, thank you. What is your estimate – this would not take more than one day.

MR WENDLER: One-day case.

FRENCH CJ: Mr Copley?

MR COPLEY: I agree, your Honour.

FRENCH CJ: We will adjourn briefly to reconstitute.

AT 11.55 AM THE MATTER WAS ADJOURNED