Taiapa v The Queen [2009] HCATrans 235 (23 September 2009)

Last Updated: 23 September 2009

[2009] HCATrans 235

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

FRENCH CJ
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 23 SEPTEMBER 2009, AT 11.13 AM

Copyright in the High Court of Australia

MR G.D. WENDLER: If the Court pleases, I appear for the appellant. (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 (Qld))

FRENCH CJ: Yes, Mr Wendler.

MR WENDLER: If the Court pleases. Your Honours, the question in this appeal, as Justice McHugh would have introduced it, is whether the Queensland Court of Appeal erred by holding that there was no evidence in the trial of the appellant of a reasonable belief on the part of the appellant that he could not neutralise or dissolve the threat of serious harm or detriment that he alleged he was exposed to, firstly in May 2006 and later in July 2006. In other words, that his belief was, in effect, unreasonable, or the reasons he gave informing his belief that he could not neutralise the threat was unreasonable and did not amount to in law the reasonable belief that is contemplated and required by the law of Queensland in section 31(1)(d)(ii) of that section.

It may be useful immediately to go to those portions of the evidence which are relevant to the issue of the occurrence of this threat and the appellant’s reaction to the threat and the reasons he gave in the trial why he did not avail himself of the law enforcement authorities for the purpose of dissolving, severing or neutralising the threat that he alleged took place initially on 29 May 2006. Can I commence by inviting your Honours to page 127 of the appeal book.

Just before I introduce this portion of the evidence, I should in broad terms relate that the evidence disclosed, that is evidence given by the appellant, was that he was arrested at a point some 15 kilometres south of the township of Ingham on 22 July 2006. He was in a car which had two other occupants. The car was searched and there was a large quantity of illegal drugs discovered in the car. There was also a large quantity of cash discovered both in the car and on his person. The vehicle was taken by police back to the Ingham Police Station where a further search was made and there was discovered further amphetamine located in a concealed compartment of the backseat of this vehicle and there was also amphetamine located inside a box, which was in a paper bag in the boot of the vehicle.

At 127, the appellant described the circumstances of the home invasion on 29 May 2006. At 127, he told the jury in his examination in-chief at about line 40, that:

There was a knock at a door at around 8 o’clock. I’ve gone to answer it . . . the door’s come flying open and someone’s grabbed me by the neck and there’s this lounge – the head of the lounge is there as you open up the door. Someone’s grabbed me by the neck and I’ve fallen back onto the lounge-----

Yes?-- -----not realising what was going on. And I had a bit of a scuffle with him and gone to grab him. It was – before I knew it I had a gun shoved down my throat.

He qualified that by saying:

Well, not down my throat, but pressed pretty hard against me top lip and me nose.

He recognised these two were characters, and identified them as Tony and Salvatore, persons that he told the jury he had had a previous association some years before, about three years before, in respect of the drug milieu. He had purchased drugs, illegal drugs from these people and, in effect, was a drug dealer and consumer on behalf of these two persons. At 128, he further told the jury, about line 18:

Tony’s walked around – Salvatore’s walked around the side and sort of pinned me down. Tony’s walked in and produced a gun from under his shirt and put it – and that’s when he put it in my mouth – in the top of my mouth wanting the money that I owed him from before I went to gaol.

The appellant had related a $60,000 drug debt at a time prior to him going into custody, in or about December 2002. Further down at about line 30, Mr Salvatore told the appellant:

“I told you we’d find you and get you and you think you could run away from us. We’ve been waiting four years or something” I think it was. “We want our sixty grand, Dion, that you owe us.”

He said:

I was a mess. I was scared, I didn’t know what to think, what to do. I was in no position to do anything. I just – my whole body had just gone numb. One stage there I thought I was – almost going to urinate in my pants.

He claimed that this episode went for about five minutes, and one of the men said to him:

they said they want their $60,000 right or wrong, otherwise I’m going to pay for it. And they said, “I’ll give you four weeks.”

FRENCH CJ: Mr Wendler, you can, I think, take it that we are all familiar with the actual sequence - - -

MR WENDLER: I was just trying to set the atmosphere, as it were.

FRENCH CJ: Well, as intimidating. The question is really whether, and this is of course referred special leave, although we are asking you to argue it as on an appeal, the question is whether the trial judge was correct and whether the Court of Appeal was correct in upholding the trial judge in not letting the defence of duress go to the jury and did that turn on anything other than what appears at page 509 at paragraph [42], and perhaps the preceding paragraphs of Justice Keane’s judgment. This goes to the question of the reasonable belief required under section 31(1)(d)(ii).

MR WENDLER: Yes, effectively the significant passages of his Honour’s analysis and treatment of the availability of the protection in section 31, the protection against criminal responsibility, certainly in that portion that your Honour the Chief Justice identified, but it really runs from - - -

CRENNAN J: I think paragraph [38] is one of the important paragraphs, is it not, in - - -

MR WENDLER: Yes, I was just about to – I am glad your Honour Justice Crennan reminded me of that. It really commences at [38] and goes on to, and includes, paragraph [42]. It is that collection of passages, so that analysis where his Honour has effectively held that there was just no evidentiary basis at all for the defence to be available for the jury’s consideration in the circumstances of the case.

FRENCH CJ: What is the criterion for reasonable belief? Is it that the person holds the belief and there is a rational basis for holding that belief?

MR WENDLER: It is my submission that the – and of course the language of the section is controlling the dealing with the Code. You need to sort of shut down, if you like, any influence of the common law to some extent, but it is my respectful submission that the “reasonable belief” identified in 31(1)(d)(ii) is wholly subjective. In other words, it is a belief informed by the circumstances he found himself in, and whether that, in the end, is reasonable at the end of the day becomes a controversial question for the jury.

A lot of the criticism, with great respect to his Honour Justice Keane, that his Honour made in that series of paragraphs are really all jury questions. They were all considered effectively criticisms of the weight reliability of the evidence and so on. All classic jury questions, questions that a prosecutor would have - - -

KIEFEL J: I think before the 2000 amendments to the section, it was generally accepted in Queensland that the reference only to believing himself to be unable otherwise to escape the threat, without the limitation of reasonableness, gave itself over to a purely subjective assessment, but that after the word “reasonable” was put in to qualify belief, that that no longer pertained. The question then is, if you have the subjective element of belief, but a partly objective test of reasonableness, how it is meant to operate within that section, particularly given, I suppose, the other amendments which were effected in 2000 which otherwise broadened the defence. On one view, I suppose, the reasonableness of the belief might have been put in to temper the broadening of the defence.

MR WENDLER: I understand your Honour Justice Kiefel’s analysis. There is certainly an objective element that qualifies the subjectivity, if that makes sense, but first the starting point, in my respectful submission, is what the appellant believed, having regard to the circumstances he found himself in.

FRENCH CJ: You do accept that it is a two-pronged test? First of all, that the appellant actually held the belief referred to in (d)(ii) and, secondly, that there was some objective, rational basis for it?

MR WENDLER: Yes, I have to accept that there has to be an objective rational basis for it, and that is informed by the circumstances. One has to keep going back to what actually occurred. We had the criminal home invasion in May where effectively he surrenders his obedience to these people insofar as the repayment of the debt. There was no, of course, discussion about him being a courier of drugs at that stage, but that destabilising effect and creating an atmosphere of effective threat, which then crystallised further in the second home invasion by these two criminals two months later on 15 July - - -

KIEFEL J: How do you say that you test the reasonableness of his belief on his evidence, given that that is the only evidence which could go to the jury?

MR WENDLER: I need to qualify that, your Honour. It was not just his evidence - - -

KIEFEL J: And that of his girlfriend.

MR WENDLER: Yes, and indeed, indirectly, that of his mother, who supplied the money and I think an inference can be drawn from that that he was in trouble.

KIEFEL J: But he was the only witness who could describe why he took the action that he did. They only really corroborate the fact that he was threatened.

MR WENDLER: Sure. There is no support for his account of what occurred on the second home invasion, for instance.

FRENCH CJ: The reasonableness would not necessarily have to be independent corroborating evidence. I suppose he could give evidence as to his belief, an accused could give evidence as to his belief and also as to the factual matters which support that belief and if he were believed on that, or there was reasonable doubt, then you might say there is a basis for a reasonable belief.

MR WENDLER: Yes. Effectively what we are arguing about is whether the evidence was sufficient to get it over the line for the jury’s consideration.

FRENCH CJ: Whether there was an objective basis for the asserted belief.

MR WENDLER: Yes, and as I have already put to your Honours, the criticisms made by his Honour Justice Keane are all valid criticisms in respect to what a prosecutor might put to a jury as to the question of whether or not the prosecution had, beyond reasonable doubt, negatived the protection afforded by section 31. I mean, that is the bottom-line answer to the entirety of this appeal.

BELL J: Mr Wendler, the belief had to be that the act had to be done because the applicant was otherwise unable to escape the carrying out of the threat.

MR WENDLER: Yes.

BELL J: Now, you set out in your submissions at paragraph 20 those matters, as I understand it, that you say provided an evidential basis for the finding that the belief was a reasonable one. Is there any other evidence, apart from that which is summarised in paragraph 20, that you rely on for this aspect of it?

MR WENDLER: Yes. I can do it quickly by just identifying the appeal book page numbers. For the purpose of completeness, appeal book 128, 130, 131 - - -

BELL J: Are you taking us to the evidence generally of the atmosphere of intimidation and the threat, as distinct from the evidence that would permit a basis for a conclusion that he reasonably held the belief that he could not otherwise escape the carrying out of the threat save for doing the act?

MR WENDLER: The latter. It is the reasons why he did not go to the police.

BELL J: All right, yes.

MR WENDLER: That is the central, the nub - - -

CRENNAN J: That is the nub of Justice Keane’s argument in conclusion in relation to this – in paragraph [38] where his Honour says that:

he called no evidence which might have established a reasonable belief on his part –

and I have assumed from your submissions that you are making a simple point that there was evidence.

MR WENDLER: Yes, that is right. That is all I am saying.

CRENNAN J: And, accordingly, the matter should have gone to the jury to be weighed and judged by the jury.

MR WENDLER: That is right, your Honour. I mean, I can proceed with a greater and more detailed treatment, but your Honour Justice Crennan has answered the critical question in the appeal. The matter should have been left to the jury. As to whether the jury would have accepted or not, who knows.

To come back to your Honour Justice Bell’s inquiry, those issues as to – I can go through them. I have indicated appeal book 128. He is told right at the very first occasion of the home invasion at about line 48, that they also said:

“Don’t even think about going to the police about this, otherwise you – you and your girlfriend here will end up with a bullet in” -

Then at 130, at line 11:

we sat down and she was terrified. We didn’t know what to do. We couldn’t [go] to the police. We were in no position to go to the police after what they told us.

There were a number of questions also asked by the trial judge in relation to why he did not avail himself of the opportunity of the protection of the police. At 181, at the bottom, in cross-examination he said:

threatened me as well as Kristy if we went to the police.

Then 201, there is quite a bit of material there on 201 at line 20:

You could have reported to your parole officer after receiving the first threat –

This is about the parole officer. Then further down at about 25:

Well, it wasn’t an option. No. It – I believe it wasn’t an option at all to go to my parole officer, say anything to her. Or it wasn’t an option at all to go to the police . . .

Well, the threats and that were – that were made to me I was in no position at all to do that. I wasn’t going to take that risk at all to go to the police . . .

I don’t believe that – that is 100 per cent safe. Secondly, that these blokes, they’re not your every day drug dealers. They’re – like there’s drug dealers and then there’s drug dealers. These blokes are up there . . .

like if I tried setting them up or – they’re not going to fall into a booby trap or anything like that, I believe . . .

MR COWEN: If you had been stopped by the police driving your motor vehicle you knew that that would have been committing a criminal offence. Isn’t that right.

Then over the page at 202, the prosecutor, about 32, indicated to him that they would have been taken into police custody. Line 44, thereabouts:

The – the point is this; you could have easily have put yourself in a position to become involved with the police in a manner not reporting the incident if it occurred with Tony and Salvatore. Which would have prevented you from getting to Sydney. Isn’t that right?—No. That’s – I don’t believe so.

At the bottom of the page he said:

In my position the only option for me was – for me was to do as I was told. I didn’t want anyone else getting hurt. I didn’t – I especially didn’t want a bullet in my head . . .

I did weigh them up. I could have went to the police but in my position I was in my position whatsoever to go to the police the type of people these are . . .

It would have made things worse for myself, for Kristy, or for my mother.

Because there was evidence from the appellant too, that these men had extended their threat to his partner as well as his mother.

KIEFEL J: On one view, his Honour’s inquiries of the then accused at page 203 appear to go to the issue of whether or not he really gave any consideration at all to going to the police, but you would say, I suppose, that is a jury question.

MR WENDLER: Yes. All of these criticisms, effectively, are jury questions, in my respectful submission.

KIEFEL J: But the view Justice Keane appears to take is that there are two aspects to the police protection question. One is whether or not you can physically, I suppose, avail yourself of an opportunity to seek out the police and the second is whether or not police protection is efficacious, and it is in the latter area that he thought that there was no evidence at all. Really, what I was trying to ask you before is can you just identify succinctly what it is in the appellant’s evidence which you say is evidence fit to go to the jury on the question of his belief about the efficacy of police protection, that it was not sufficient or could not be sufficient?

MR WENDLER: His explanation – that is, the appellant’s explanation – was really an amalgam. It was that he did not think, he did not have information, he did not have sufficient information which would create an efficacious police reaction. He did not have - - -

KIEFEL J: Because he did not know how to contact them.

MR WENDLER: He did not know their surnames, yes.

KIEFEL J: The police could not find them in time.

MR WENDLER: Yes. Effectively there were a variety of reasons. I think I can list them in this way. First, he had had no contact with these people for about three years. These people had adopted a predatory approach by hunting him down, seeking the return of their money. Thirdly, his contact with them was brief and fleeting. It was about five minutes in relation to the first home invasion, or thereabouts. He saw them again in the second home invasion and also prior to when he left on the journey, but he did not have their surnames. He did not have that type of antecedent information which, in his mind at least, would have been effective in recruiting police assistance. That, I think, is really the nub of the reasons why he did not, in his own mind. Of course, this is all influenced by this what might be described as a surrender of obedience to these people and a reaction to the force of their behaviour.

CRENNAN J: There is another strand to his behaviour which is different from what you have been describing, and I think more closely comes into being the sort of evidence that Justice Kiefel is asking about. You did take us to this at 201, where at about point 6 of the page he says:

I wasn’t going to take that risk at all to go to the police.

MR WENDLER: Yes.

CRENNAN J: Around line 47:

I don’t believe that – that is 100 per cent safe.

MR WENDLER: Yes.

CRENNAN J: So that is going to quite a different issue, but bearing on the point that Justice Kiefel raised.

MR WENDLER: Yes.

CRENNAN J: Is there any more evidence of that kind, which is quite separate from the evidence about not having enough details to go to the police?

MR WENDLER: No, I do not think there is, your Honours. Effectively, his lament was in that style, that he did not consider it was 100 per cent safe. He did not have the information which would have rendered police involvement efficacious or effective in his circumstances, influenced also by the fact that he was attempting to not only protect himself but indirectly his partner and his mother.

BELL J: I think the view that Justice Keane took was that a subjective belief that police protection may not be 100 per cent safe does not provide any evidence of the fact that police protection is not a safe means of evading a threat of criminal intimidation. It is really, I suppose, linked to that, the sort of assumptions that Chief Justice King in Brown’s Case, speaking of the common law, had in mind when he considered in the context of the defence of duress the notion that the starting assumption is that one avoids criminal intimidation by recourse to the police. So if that is an operating assumption informing the content of reasonableness, one’s assertion of a personal fear that it may not be 100 per cent safe may not provide an evidentiary basis.

MR WENDLER: I appreciate the force of that observation, but Chief Justice King also identified in Brown situations where police protection, or circumstances where recourse to police protection is not efficacious or, indeed, in any way effective. It may be useful just to pick up the passage that Justice Keane relied on in the reasons for judgment of the Chief Justice in Brown because his Honour Justice Keane effectively anchored his jurisprudential approach to the findings he made in the passage that he reproduced in his own reasons for judgment. I should also say in passing that Justice Zelling dissented in Brown. He thought at least the circumstances of that case there was enough to go to the jury, to pick up the passage - - -

FRENCH CJ: For the record, the reference is (1986)43 SASR 33.

MR WENDLER: Yes, line 43, I beg your pardon, of the South Australian State Reports at page 40. What really was critical in the approach taken by Chief Justice King in that case where his Honour effectively held that there was not in law a case of duress to go to the jury was the fact that the appellant there gave no explanation as to why he did not have recourse to police protection. There was just no evidence about any explanation, where here, there is an explanation. The controversy of the explanation, in my submission, is really at the end of the day a matter for the jury.

HEYDON J: That cannot be right though, Mr Wendler. The section commands us to take his subjective belief, which was assume to be sound because we must take his evidence at its highest, and then judge it by criteria of reason. You cannot say that the whole thing goes to the jury. The section enables trial judges to prevent some things going to the jury if they fall below a standard of reason.

MR WENDLER: I am not suggesting that there was an evidentiary onus on the appellant to provide an evidentiary basis for the protection in section 31 to be left to the jury. I am not suggesting that at all. Really, the question is whether that evidentiary basis was satisfied in the circumstances, but the point that I think comes out of – or certainly an observation made by Chief Justice King in Brown was that there are circumstances where, given the nature of the particular situation that an accused or an appellant finds himself in, situations where recourse to police protection is not efficacious or effective.

The point is that the mere fact that he did not seek police protection does not disentitle him to the protection of the section. It is the circumstances that the appellant found himself which are all controlling as to whether or not the reasonableness of his belief was the sort of reasonableness of belief mandated by section 31 and the explanations that he gave and the criticisms made of those explanations in the reasons by Justice Keane are all matters, in my respectful submission, which were controversial jury questions. I mean, he got over the line, in short, so far as - - -

KIEFEL J: In Brown at page 39 Chief Justice King discusses the threshold question for the judges to whether there is evidentiary material relating to the issue and at about point 8 says that it is whether “there is material upon which a reasonable jury could find”, not only that he was overborne and that he might yield to the threats, but also that he has not failed to avail himself of an opportunity. He draws that in, albeit in relation to the common law test, he draws questions as to the opportunities reasonably open to render the threat ineffective as part of the evidentiary test which has to be passed before it can go to the jury.

MR WENDLER: Yes, but that was tempered by that last sentence in his Honour’s reasons for judgement being, “For this purpose, of course, the contents of the unsworn statement must be assumed to be true”, and in the unsworn statement he gave no reason. That is what turned it against him effectively.

KIEFEL J: Yes, that is on the facts of that case, but the statement of principle by his Honour looks not only to the question of belief but also to what might have been available to render the threat ineffective as part of the evidence which is to be considered before it goes to the jury.

MR WENDLER: Yes, I have no problem with that.

KIEFEL J: That appears to be the approach Justice Keane has taken.

MR WENDLER: Yes, but at the end of the day what his Honour found was that there was no evidence – zilch, zero, nothing – for the jury’s consideration, and that effectively was on the basis of a value judgment he made concerning the appellant’s explanations in relation to why he did not go the police. Such as they were, in my respectful submission, they were all, at the end of the day, critical jury questions.

KIEFEL J: I suppose on one view of the approach taken by Justice Keane in this case it may come down to a question of the quality of the evidence that goes to the jury because his Honour appears to be referring to some objective indicia which would give the stated belief of the appellant, the then accused, some weight, whereas you would appear to argue that it is sufficient to go to a jury if an accused identifies a basis, for example, that they were particularly violent drug dealers who had found him. He felt that he would always be found. You say that is sufficient to go to the jury.

MR WENDLER: Coupled with the fact that, in the context of the criminal acts perpetrated upon him, they ordered him. Part of the threat was an order not to go to the police by them, reaffirmed throughout the contact. It was not something that could be inferred from the contact through some ambiguous statement made by them: “Don’t tell anyone”, for instance. The order was at the point of a gun, “Do as you are told. Don’t go to the police”. That was part of the order, according to the appellant, that was delivered by these men.

If we go back to page 509 in the reasons for judgment, his Honour Justice Keane, in particular in paragraph [41] on 509 – that paragraph effectively identifies a number of criticisms going to the reasonableness of the appellant’s belief as to why he did not dissolve the threat. They were all valid criticisms but, with great respect to his Honour, they were controversial jury questions. I should also point out his Honour found, at about line 19:

The appellant gave no evidence as to how the delivery of the drugs and money was to be made by him to Tony and Salvatore –

With great respect to his Honour, that is not a correct finding. In fact, there was evidence about that. It can be found at pages 136 and 179, where the evidence was that they told him they would meet him back at his place when he returned from Sydney. That was the evidence. That is at 136.

HEYDON J: I do not think that does contradict Justice Keane’s reasoning, if it matters.

MR WENDLER: I am not suggesting it does. I am simply pointing out that that observation on the evidence is not, with respect to his Honour, a correct observation. There was evidence as to how they were going to meet.

HEYDON J: I will not argue with you about this, Mr Wendler.

MR WENDLER: My point is that in that passage they were all effectively, as I said, criticisms of the appellant in relation to the reasonableness objectively assessed of his belief, objectively from a jury point of view, of course.

FRENCH CJ: Just going to the content belief for a moment. The passage you have quoted in your submissions at page 5, paragraph 20, seem to involve an assertion that there is no guarantee of police protection if he went to the police. In other words, he seemed to be asserting a belief that the risk of going to the police, the risk that he would nevertheless suffer harm at the hands of Tony and Salvatore was unacceptable. How does that fit into 31(1)(d)(ii) which requires a belief that “he or she or the other person is unable otherwise to escape the carrying out of the threat”? Does that allow for a kind of risk analysis?

MR WENDLER: To some extent it is a sort of balancing risk analysis because the expression “unable otherwise to escape” unable otherwise to do anything other than to commit the crime. So there is, indeed, when one looks at the common law position, certainly in the most recent decision in the House of Lords, which I will not go to but mention in passing, in that R v Z, there is this powerful policy consideration to ensure that the defence is kept at narrow limits, and whether that policy – certainly Justice Keane thought that policy ideal should be built into 31(1)(d)(ii) because it was part of “civilised” behaviour or society to approach those organisations that were obviously in a position to detect and deal with criminal behaviour of the kind the appellant described had taken place in his presence.

So there is a sort of, I suppose if one stands back, jurisprudential risk-type analysis embedded in 31(1)(d)(ii). Indeed, the Chief Justice in Brown’s Case had indicated that normal civilised behaviour requires an expectation, as it were, that persons subjected to this type of situation do not become sort of plastic pawns in the hands of determined criminals but embark on some form of self-help and contact the authorities.

Your Honours, I am not sure whether I can really take it much further other than what I have already set out in the written submissions. I have mentioned the approach taken, for instance, in Canada where there is what is described as an “air of reality” test. If Justice Keane had had available to him this type of common law test, I have no doubt that he would have held that the defence had no air of reality about it at all and, as a matter of law, had no chance in front of a jury.

I only identify that in passing as an approach that has been taken by the law of Canada in relation to the application of any defence known to the

law of Canada. Unless there is anything else, your Honours, I will leave it to my written submissions.

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

MR COPLEY: Your Honours, I propose to make submissions first concerning why in the particular circumstances of this case the defence of duress was not sufficiently raised on the evidence, and then after having done that, I shall make some submissions to your Honours regarding the legislative history of the provision with the aim of perhaps hoping to persuade your Honours that some understanding of the importance of the requirement that the belief be reasonable is of some significance. Your Honours, when he was cross-examined at his trial the applicant said at appeal book pages 202 point 55 to appeal book 203 point 25 that:

In my position the only option for me was – for me was to do as I was told –

by Tony and Salvatore. He went on to say that he was in no position to go to the police in view of the type of men Tony and Salvatore were, that it would only have made matters worse, not just for himself but for his girlfriend and his mother had he reported the matter to the police. Thus, that evidence very clearly raises this, that the applicant believed that he could not – that he was unable otherwise to escape the carrying out of the threat. So that part of 31(1)(d)(ii), that limb of it was raised in the case very clearly, and that is probably the clearest point where he says, “I had no other option but to do something”.

However, the trial judge was only obliged to leave the excuse provided for by section 31 if that belief was – to use the words of Justice Keane – arguably reasonable, or to put it another way, and to put it in the ways that this Court has put it over the years, for example, if there was some evidence for the jury to consider that the belief was reasonable, and that formulation comes from Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158 at 161, or to put it another way, that the evidence that the applicant gave raised an issue about whether the belief was reasonable. That is the way members of this Court put the matter in He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at 535 and 593, and indeed the way it was put by Justice Hayne in the recent case of CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 at 492 to 493, paragraph 179.

HEYDON J: How did Justice Hayne put it, precisely?

MR COPLEY: I will just go to that. After quoting a passage from Justice Dawson in He Kaw Teh he said at page 493:

As these reasons will later show, no question of mistake was sufficiently raised at the trial of the appellant to require consideration of that issue by the jury.

So he simply employed the word “raised”. I do not understand my learned friend, and I am certainly, for the respondent, not inviting your Honours to depart from the various ways in which this Court has expressed the test for whether or not an evidential – an onus like this on an offender is discharged. So I do not understand my learned friend in referring to the Canadian test to be asking your Honours to endorse that test. To some extent it could be an easier test for the prosecution - - -

HEYDON J: Can I get one basic thing straight? If the accused satisfies the evidential burden so that the judge says the defence may be considered by the jury, it is then for the prosecution to negative the defence?

MR COPLEY: That is so, yes.

HEYDON J: Presumably the task for the accused is to put on sufficient evidence capable of raising a reasonable doubt in the jury’s mind if it went to the jury.

MR COPLEY: Yes.

CRENNAN J: Then the onus is on the prosecution to show that the crime was voluntarily committed. It is part of what the prosecution needs to show.

MR COPLEY: Yes. At the special leave hearing it was said by your Honour the Chief Justice that what this case possibly gave rise to was the question of whether or not there had been an individual miscarriage of justice. So with that in mind, the respondent submits this, that in the particular circumstances of this case, and they were the only circumstances in which Justice Keane was considering the matter. the evidence that the applicant gave was not sufficient to raise an arguable case that his belief was reasonable.

The circumstances that the respondent points to to support that submission are six in number and they are to be considered, in my submission, in combination. The first circumstance is that the applicant conceded at the trial that he had ample opportunity to inform the police about the threats made to him. That appears at a number of places, including at appeal book 173, point 10. The next circumstance is this - - -

HEYDON J: We have to get one thing straight, Mr Copley. We will do anything to secure justice according to law, but if you think we are going to go through the appeal book looking for further references in support of proposition 1 than that which is found on 173 in the knowledge that you have a little list in your possession of what those references are, we are not on the same wavelength. Have you got a list of what references you are talking about?

MR COPLEY: No, that was the only one I was going - - -

HEYDON J: You said it can be found in a number of places in the appeal book. Do you know those places?

MR COPLEY: There are others, but there is no need for me to give you others because that would be wasting your time.

HEYDON J: Very well, that is all right. So one need not spend one’s Sunday afternoons looking for an additional reference?

MR COPLEY: No, your Honour. The next circumstance is that a proper report of the matter to the police – and by the use of the word “proper” I mean a fulsome report, a report in which the man tells the police everything that he knows – would, to use the word “employed” in the provision, otherwise enable the applicant to escape the threat. That submission is made because, your Honours, it is not a matter of an idle hope or an urban myth that if one goes to the police and reports something the police will do something about it.

In Queensland – and this piece of statute law can be found at No 5 in our material – the Police Service Administration Act 1990 section 2.3 sets out the functions of the Queensland Police Service and they are extensive. The Acts Interpretation Act states that the word “function” includes duty. So the functions or the duties of the Queensland Police Service are set out extensively in section 2.3, but the one of most relevance to the respondent’s case is paragraph (g), that:

the provision of the services, and the rendering of help reasonably sought, in an emergency or otherwise, as are –

. . .

(ii) reasonably sought of officers by members of the community.

In considering whether or not the belief was arguably reasonable, the court below could not be blind to the fact that there was a statutory obligation on members of the Queensland Police Service to render help to people reasonably sought in an emergency.

That statutory obligation is perhaps a statutory reflection of the matters that Chief Justice King was talking about in Brown’s Case, that ordinarily it must be assumed, he said, that a report to the police will be effective or efficacious to overcome a threat. Now, the respondent is not going so far as to say that as long as the man had the ability to report it, because he had ample opportunity to do so, therefore he has not raised an arguably reasonable belief. I am not asserting that, but I am saying that that is one of six reasons in combination which go to demonstrate why the belief was not arguably reasonable here.

FRENCH CJ: Was this a matter relied on by Justice Keane?

MR COPLEY: He makes no reference to the Police Service Administration Act provision. He confined himself to what Chief Justice King said. The next matter is that the applicant was in a position where he could have advised the police about an apparently definite time and place on and at which the police could position themselves to apprehend Tony and Salvatore. The reference for that is only one, appeal book 173 point 25 to point 35.

The next circumstance is that there was no evidence in the case that either the applicant or any of those threatened, that is to say, girlfriend or mother, were in imminent danger of suffering serious harm or detriment. In fact, the applicant’s evidence is really only capable of this interpretation, that any prospect of that possibility was to be deferred or postponed until the time appointed for the delivery of the money and the items collected from Gosford.

KIEFEL J: Is this a reversion to the trial judge’s reasoning?

MR COPLEY: No, it is not, because the trial judge denied the defence because these men were not in a position to carry out the threat at the time the offence was being committed, but my submission is that in weighing up whether or not the belief is arguably reasonable, one has to have regard to the circumstance that those threatened were not in imminent danger, that the danger was a contingent danger, and it was, at the time he got his instructions on Sunday night as to what to do, at least seven days away.

FRENCH CJ: When you are using the term “reasonable” here, in what sense are you using it? Are you using it in the sense of that which provides rational support for the belief asserted?

MR COPLEY: My submission is that a requirement that a belief be reasonably held necessarily contemplates that a range of beliefs may fall within the ambit of what might be regarded as reasonable, and I am not saying that any one of these particular circumstances considered on its own, or the absence of any one of them, or the presence of any one of them, is sufficient to say that the belief was not arguably within the range of what is rationally open, but it is the combination of them all together in the circumstances of this case. There was no evidence - - -

HEYDON J: The Chief Justice’s question is a very important one. The section says “reasonably”. It does not say “correctly”, and as you say, I think, in a reasonable fashion, the word “reasonably” connotes various possibilities, but can we take the analysis to any more precise level than that? Your case is really this, that if you take these six factors or circumstances you were going through, you would look at it and just say that is simply outside the range of reasonableness.

MR COPLEY: That is the point I am coming to.

HEYDON J: He could have said a lot of different things that would be reasonable, but those things are not reasonable.

MR COPLEY: Yes.

HEYDON J: Right.

MR COPLEY: That is the point I am coming to. There were two more circumstances, that is, first that there was no evidence to suggest that the police would not have taken any complaint from the applicant seriously either because he had a criminal record or for any other reason. One could well imagine a person who had served a lengthy gaol term for offences of this nature perhaps having a belief that because of prior dealings with the police, “They just don’t like me; they don’t take any notice of me”. He did not assert that. The last circumstance is that the applicant did not assert that either Tony or Salvatore claimed to be police officers or claimed to be connected with the Queensland Police Service or any other law enforcement agency thus arguably making any complaint to any such body futile.

My submission then is that, as stated before, while the requirement that a belief be reasonably held contemplates that a range of beliefs may fall within the ambit of what is reasonable, to regard the applicant’s belief in the circumstances of this case that he had no option but to comply as raising an arguably reasonable belief would be to regard such an obviously absurd belief as arguably satisfying a requirement the belief be what it was not, namely, that it be reasonable. The belief was simply not in accordance with reason or it exceeded the limits prescribed by reason, to pick up the various dictionary definitions I put in my written submission at paragraph 5.6 of my written submissions. That, in effect, is the respondent’s answer to why his Honour Justice Keane was right to conclude that the defence was not arguably raised.

BELL J: Mr Copley, as I understand the applicant’s contention, it is that the test is as to the reasonableness of the belief of the accused in the circumstances in which he believed he was in. Is that accepted to be the appropriate test?

MR COPLEY: Yes.

BELL J: There is no issue as to that.

MR COPLEY: No, there is not. In fact, the respondent could embrace that because the first circumstance the respondent pointed to was the ample nature of the opportunity to report or the concession he made about there being police stations, numerous of them, between Townsville or Cairns and Gosford.

BELL J: The circumstances that you have taken us through may be quite compelling, but when one looks at the approach that is ordinarily adopted – and you have taken us to the statement of the test in the context of the provocation cases – a relevantly slim evidentiary foundation is sufficient to leave a defence. Do you submit any reason to take a different approach here?

MR COPLEY: No. It is a very low hurdle to get over. But can I perhaps digress into the area of an honest and reasonable mistake, an honest and reasonable belief. If one goes right away from this case and thinks about a situation where a woman alleges that she was raped and she says that she resisted or that she called out and told him no. An offender gives evidence and said, “Well, the situation was that we had been drinking a lot and I made advances to her and she didn’t actually say anything at all. She didn’t do anything one way or the other so I kept going”.

Now, it would be almost impossible to imagine that that would not be sufficient to raise an honest and reasonable mistake and thus in Queensland section 24 of the Code would be left for the jury to consider. But the reasonable belief that has to be had in this case is quite a different one from just a mistake about a fact. The reasonable belief has to be that he was unable otherwise to escape the carrying out of the threat. That is why at first blush it may appear harsh to deny the defence when the person says, “I had a belief and here are the reasons for my belief”. But the expression “the reasonable belief” has to be read by reference to the rest of the provision, which is that he is unable otherwise to escape it.

The person has to demonstrate to the low threshold that his belief that he had no other option, no other option at all was arguably reasonable. That is a much more confined mistake, perhaps – if one wants to call it that – or a much more confined belief than when compared to an honest and reasonable but mistaken belief in the existence of a state of things.

FRENCH CJ: Here he has given evidence of two determined and resourceful criminals who seem to have the will and the capacity to track him down, even after he has changed his address, and to make these threats and he asserts – on the basis of if you accept what he said about having guns jammed in his face and so forth and the nature of the people they are, to carry them out. The question, I suppose, is whether a jury might be left in reasonable doubt as to the existence of a rational basis for a belief that these people would get him, even if he went to the police, either somewhere down the track or get his girlfriend and his mother.

MR COPLEY: Yes.

FRENCH CJ: The question is, is there no rational connection between those base facts and the asserted belief?

MR COPLEY: That is the question. I would only be repeating myself now to respond further to that, because I have given your Honours - - -

FRENCH CJ: You have talked about other factors.

MR COPLEY: The combination of factors.

FRENCH CJ: I just wonder whether they are not matters which might be put to a jury. The question is do they deny the possibility of any rational link between the facts which he has deposed to and the belief he asserts?

MR COPLEY: They do both. They could have been matters put to the jury by the prosecutor but they were, in the particular circumstances of this case, relevant to an assessment of whether the belief was arguably reasonable.

KIEFEL J: The trouble with saying that there is a list of matters and that they should be taken in combination often suggests that it is an answer to an issue rather than in a sense that it is weighed against an issue; whereas the question here is simply, is it not, whether or not his evidence about his understanding of their level of violence and their ability to find him was sufficient to raise the issue, and the rest is left to the jury alone.

MR COPLEY: Yes.

KIEFEL J: I think in the context of these self-defence provisions in the Queensland Code in Marwey, Justice Stephen pointed out that the question of the reasonableness of the amount of force necessary was par excellence a question intended to be dealt with by a jury. It was the statute is interested in the jury’s view, not the judge’s consideration of whether the evidence is sufficient in all the circumstances.

MR COPLEY: I accept, of course, what your Honour says about that and about what was said in Marwey’s Case, but my response is again that the belief in section 271 of the Code is that you have to believe on reasonable grounds that you could not otherwise defend yourself, or you have to have a reasonable apprehension of death or grievous bodily harm in the second limb of the provision. Again, I would ask your Honour to compare the broader nature of the belief that a person might reasonably hold with the much more specific belief that has to be reasonably held here, that is that there was just no other option open. Other than that, that is the only submission I have to make in relation to what your Honour put to me.

HEYDON J: Mr Copley, you know the slogan, I suppose it is, in this type of problem that one takes, in this case, the applicant’s evidence at its highest - that cannot be completely correct though. If the applicant had said, “I couldn’t go to the police because there aren’t any policemen in Queensland”, now Justice Keane knows that is an untrue statement and he would not be accepting the applicant’s evidence at its highest, so it must be possible for the court to decline to accept some of the things that an applicant says. In other words, perhaps you take the evidence of belief at its highest, but for the purposes of assessing reasonableness you are entitled to fillet, attack, discount and so on, the applicant’s evidence. Do you agree?

MR COPLEY: Yes, a court is entitled to, if it regards a belief as simply being so outlandish or so extreme.

FRENCH CJ: You might call it inherently incredible, I suppose.

MR COPLEY: Yes, or inherently illogical, or inherently irrational.

HEYDON J: There is another problem. He said that, “I don’t believe that being put in protection is 100 per cent safe”. Now, the trial judge and Justice Keane and the other members of the Court of Appeal would know a great deal more than I do about whether or not the operations of police protection programs in Queensland are safe or not, or whether it is safe in gaol, or whether Queensland police have efficient methods of arriving at the scene of a crime just as the criminals are about to consummate the crime.

MR COPLEY: Yes.

HEYDON J: This is not something – perhaps Justice Keane had some merit when he said the applicant gave no evidence in support of his position on these things. But what use can be made of Justice Keane’s views on the likelihood of an interception, or effective police surveillance of the appellant’s residence until Tony and Salvatore called to pick up the parcels and the money. These are - what are they, judicial notice, or matters of common knowledge in the Queensland legal profession?

MR COPLEY: It probably can be characterised that way.

HEYDON J: If the Privy Council were hearing this, what would they know about it and what - - -

MR COPLEY: They would perhaps defer to what the intermediate appellate court seems to be saying it knows about it. But to say that “I don’t believe”, as the offender did, “that police protection will be 100 per cent effective”, is perhaps not saying very much because there is very little it has tried to say about anything in life that is 100 per cent sure or certain. He perhaps, if he put it more thoughtfully and more carefully, was saying “There is always the possibility that even a person being protected with the best will in the world by the Queensland Police Service, could be got at, could be harmed. No one, if I asked them, would guarantee me that they could absolutely rule that out 100 per cent. Hence, it was reasonable for me not to report it”.

KIEFEL J: On one view that is a question for directions to the jury about how they approach it, is it not?

MR COPLEY: Yes, there is a weakness in my position in that regard, yes. Your Honours, might I now just take you to some aspects of the matter generally. There is discernible in the authorities, and this may have played a part in the approach Justice Keane took to the matter your Honours may find, but there is discernible in the authorities a concern to confine the duress within narrowly defined limits. Now, I hasten to add that the words of the Code have to be given their proper interpretation and one does not say the common law tries to narrowly define it therefore we will too when interpreting the Code. That approach is discernible in some of the cases that my learned friend had on his list. First of all, most recently in R v Z [2005] UKHL 22; [2005] 2 AC 467 at 490, paragraph 21. It is really only a short paragraph so I could perhaps read it. Lord Bingham said:

Having regard to these features of duress –

which he sets out above –

I find it unsurprising that the law in this and other jurisdictions should have been developed so as to confine the defence of duress within narrowly defined limits.

On the preceding page at line H he refers to a report of a law commission in England which pointed out:

that the defence of duress is peculiarly difficult for the prosecution to investigate and disprove beyond reasonable doubt.

Then he quotes a passage from the writings of Sir John Smith, QC which effectively said the same thing. A similar approach was discernible in the DPP v Lynch [1975] UKHL 5; [1975] AC 653 at 670, lines D to E, where Lord Morris said:

that duress must never be allowed to be the easy answer of those who can devise no other explanation of their conduct nor of those who readily could have avoided the dominance of threats . . . Where duress becomes an issue courts and juries will surely consider the facts with care and discernment.

Now, when the Code was enacted in 1899 and up until 1997 the act of the accused was only excused if it was done to save himself from immediate death or grievous bodily harm threatened to be inflicted on him by someone who is actually present and in a position to execute the threats and all that mattered was his subjective belief. Then in 1997, by the Criminal Law Amendment Act of that year, section 13, the ambit of the excuse in section 31 was extended in two ways. That piece of legislation extending the ambit in those two ways is at tab No 3 of my material.

First of all, paragraph (d) was repealed and re-enacted and it was broadened to cover threats to inflict not just death or grievous bodily harm on an accused person, but on others. Now, the common law had certainly moved in that direction by 1997, but the Code did not until then. Secondly and importantly, the person making the threats no longer had to be actually present and in a position to carry them out, it was sufficient if he was simply in a position to execute the threats, so again a broadening. But notwithstanding the broadening of the excuse in those two areas, the accused’s belief that he was unable otherwise but had no other opinion other than to do what he did to escape the threat was still not the subject of any requirement of reasonableness.

Then in 2000 the whole provision was repealed and re-enacted again and, amongst other places, it can be seen at tab 4 of my material. Now, on this occasion a very much broader range of threats was included. Gone was the requirement of confining it to death or grievous bodily harm, which was present here, but it became threats of serious harm or detriment, a much broader concept. There is a definition in the Code now of “detriment”, but that was not there at the time this offence occurred, “serious harm” was not defined. Importantly, those threats could even encompass threats of serious harm or detriment to the accused’s property or to the property of another.

My submission is that to this extent the Queensland legislature has now provided a broader excuse from criminal responsibility than so far contemplated by the common law. The excuse at common law has not so far extended to threats relating to property. So much can be seen again in the case of the DPP v Lynch [1975] UKHL 5; [1975] AC 653, this time at page 686 in the speech of Lord Simon, lines A to B, where his Lordship produced what he described as “a working definition of duress”, fifth line down of death:

to denote such [well-grounded] fear, produced by threats, of death or grievous bodily harm –

Importantly, further down the page at line G he said:

Where so little is clear, this at least seems to be established: that the type of threat which affords a defence must be one of human physical harm (including, possibly, imprisonment), so that threat of injury to property is not enough.

In Queensland, the legislature in 2000 broadened it to that extent and my submission is that this very much broader range of threat was then at the same time made the subject of a further amendment and that was for the first time in Queensland the accused’s belief that he could not otherwise escape the threat had to be a reasonable belief. So to the extent that the legislature broadened the ambit of the excuse, it narrowed it back again by saying that any belief subjectively held must be within the range of what is reasonable. It is not sufficient, in my submission, and I do not for a moment suggest my learned friend is making a submission as simplistic as this, that it is enough if an accused simply has a belief and advances reasons for the belief. The belief must be arguably reasonable.

KIEFEL J: The requirement of immediacy was taken out in the 2000 amendment, was it not?

MR COPLEY: It may have been taken out earlier than that.

KIEFEL J: I think it still appears in your tab 3 in the 1997 provision.

MR COPLEY: I am sorry, it does too, yes.

KIEFEL J: It is still there. That came out and that was in part a response to the Taskforce on Women and the Criminal Code and the domestic violence cases.

MR COPLEY: It was. I have copies of the relevant passages from that report. It is only a few pages long, should your Honours wish to receive the extract from that report. That is what prompted these amendments in 2000.

KIEFEL J: The immediacy was something, I think, that that report focused on. I do not think that it actually recommended the requirement of reasonableness. Perhaps you should hand a copy to the members of the Court.

MR COPLEY: Yes, I hand up nine copies for your Honours. At page 170 in the black box there is recommendation No 56. In answer to your Honour Justice Kiefel’s question, it seems that the word – they did suggest a requirement of reasonableness.

KIEFEL J: Yes, but if you read above, perhaps it was in the unanimous agreement that it was missing. In the second full paragraph:

The Taskforce unanimously agrees –

There is no reference to “reasonableness” in that. It appears in the recommendation.

MR COPLEY: Yes.

KIEFEL J: It is not entirely clear where it came from.

MR COPLEY: No.

KIEFEL J: I suppose one question is whether or not the requirement of “reasonableness” was intending to temper the lack of immediacy in the defence or whether it was a purely subjective nature that it was – probably both.

MR COPLEY: My submission is that it is discernable that the hitherto purely subjective belief, which only pertained to a very narrow range of threats - - -

KIEFEL J: Yes, that is true.

MR COPLEY: - - - was made the subject of an objective limitation because Parliament broadened out the range of threats that a person could point to to excuse criminal conduct. So to put it really crudely, what Parliament gave with one hand it took back somewhat with the other.

BELL J: Some of the taking back was also in the requirement for consideration of proportionality.

MR COPLEY: Yes. That is the third requirement.

KIEFEL J: I notice on page 169 of the report the judges of the Supreme Court in their submission had said:

The making of substantive changes to the criminal law to widen defences to crimes of violence should be approached cautiously, since this would also widen the parameters of justifiable male violence.

MR COPLEY: Yes. Thank you, your Honours.

FRENCH CJ: Thank you, Mr Copley. Mr Wendler.

MR WENDLER: Just briefly, your Honours, during an exchange, I think, between my friend and Justice Heydon concerning the legal nature of the reasonableness of the belief in section 31(1)(d)(ii), the reasonableness of the belief is also informed, in my respectful submission, by what appears, of course, in (d)(i) and (iii).

The section has to be approached obviously as a whole because of the conjunction “and”. There were two conjunctions “and” in respect of that section. So the reasonable belief must be informed at some level by the nature of the serious harm and detriment threatened and in this case it effectively was murder directed at the appellant and indirectly to his partner and the mother, the determination of the persons that are involved and their resourcefulness in respect of hunting him down and, in effect, recruiting him as a drug courier. It is important, in my respectful submission, that the focus not be on 31(d)(ii) as if it were interdependent of the sections above and below it. The conjunction “and” brings in the nature of the serious harm and detriment as being relevant to the reasonableness of the appellant’s belief.

If I can just go back to The Queen v Brown (1986) 43 SASR 33 very briefly at page 40. At about point 5 where the Chief Justice was handling the Court of Criminal Appeal decision in Hudson and the earlier Full Court South Australian decision in Goddard v Osborne, his Honour observed that those two authorities:

show that in particular situations an opportunity to seek the protection of the authorities may not be an effective way of neutralizing the threat. It would be naïve 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.

The expression “unreasonable to expect a person to avail himself of such protection” obviously must emerge from the particular circumstances in each case, and the submission here is that the belief that he had, having regard to the violent circumstances he found himself in, informed the reasonableness of his belief and the rest was really a matter for the jury as to whether or not the jury were prepared in the end to accept his explanations concerning that belief and his activities subsequent. If the Court pleases.

FRENCH CJ: Thank you, Mr Wendler. The Court will reserve its decision. The Court adjourns to 10.15 tomorrow morning.

AT 12.34 PM THE MATTER WAS ADJOURNED