Wednesday, January 27, 2010

Law Report for Taiapa v Queen

I recently posted about Taiapa v The Queen [2009] HCA 53. I also see that there was a Law Report episode on the case yesterday which you can listen to or read here.

The defendant's solicitor, John Weller, was interviewed. He saw the case as being somewhat broader in application than I did. He said:
It's very clear. [The statutory defence of duress is] quite narrow, and the High Court effectively in my view as the policy, has said, look, if you have life-threatening threats, you, or serious threats to property, the appropriate course of action is to go to the authorities. ...
It means no, have faith in the authorities, and report the perpetrators of violence and threats, and just have faith. And I can assure you that there's a lot of citizens out there, clients of mine, that are dubious of that faith.
He's right to say that his client's who are "dubious of that faith" won't be provided with the protection of this provision, but the Court wasn't saying, 'always have faith in the police'. As I said, I think the Court was trying to say that you need a specific justification for your doubt in the effectiveness of police protection (which is particular to your circumstances or to the nature of the threat), rather than simply an "unparticularised concern".

Friday, January 15, 2010

Taiapa v The Queen

Taiapa v The Queen [2009] HCA 53 (16 December 2009)


Majority: Unanimous (French CJ, Heydon, Crennan, Kiefel and Bell JJ)

Decision: Appeal dismissed.

Defendant claimed he had carried out the alleged crime under threat of violence. He claimed that he did not report it to police because he did not believe that the police would be able to relieve the threat. The Court held that the defendant's unparticularised belief that police protection will not be effective is not of itself adequate for a defence of compulsion under the Criminal Code 1899 (Qld). Therefore, the issue of compulsion did not reasonably arise on the evidence and so the trial judge did not err in removing it from the jury’s consideration.

The Defendant was found in possession of a substantial amount of amphetamines and almost $30,000 in cash. He was charged with unlawfully trafficking in a dangerous drug and unlawfully possessing a dangerous drug. The defendant did not deny the substance of the Crown’s case but said that he was not criminally responsible because he was acting under compulsion. The defence of compulsion in Queensland is set out in s 31(1)(d) of the Criminal Code 1899 (Qld).

The defendant’s case was that he had been a drug user and that he had generated substantial debt to two drug dealers, aptly named Tony and Salvatore. The defendant said that Tony and Salvatore had twice threatened him and his de facto with a gun in order to motivate him to raise the money.

Despite borrowing $29,000 from his mother, the defendant was unable to raise the money. Tony and Salvatore told him that the debt would be expunged if, in adddition to paying them the money which he had raised, he also picked up some drugs from Sydney and deliver them to Cairns. The defendant did so and was on the way to Cairns when he was apprehended. This, the defendant argued, explained the presence of the money and the drugs.

On the conclusion of the evidence, the trial judge refused to leave the issue of compulsion to the jury, thereby ensuring a guilty verdict. The defendant appealed.

Section 31(1)(d) of the Criminal Code 1899 (Qld) states that a person is not criminally responsible:

when –
(i) the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and

(ii) 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; and

(iii) doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.
Burden of Proof in Compulsion Cases

The Court confirmed that the Code does not alter the common law position with respect to burdens of proof in common law duress cases. That is, there is an evidential burden on the accused to show that “on the version of events most favourable to the accused… a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused was not acting under compulsion” (at [5]). If this is satisfied then there is a persuasive burden on the prosecution to disprove compulsion.

Compulsion in Protracted Offending

The primary difficulty of applying the compulsion provisions to this case is that it is a case of protracted offending. That is, it is a situation in which the offending occurred over a period of time, during which the offender could have reported the threat to the police.

The Crown argued that the compulsion was not reasonably raised on the facts because the defendant did not avail himself of the opportunity to report the threats to the police before carrying out the crime. Therefore, s 31(1)(d)(ii) was not satisfied as he was not “unable otherwise to escape the carrying out of the threat”.

The defendant said that he did not report the crime because a) he did not know the identities of Tony and Salvatore sufficiently to lead to an arrest; b) he did not believe police protection to be “100% safe”; and c) he considered Tony and Salvatore to be too sophisticated to be apprehended by police.

The Court found that the defence of compulsion did not arise on the evidence. It was said that “an unparticularised concern that police protection may not be a guarantee of safety cannot without more supply reasonable grounds for a belief that there is no option other than to break the law in order to escape the execution of a threat” (at [41]).


For my part, I see this case as simply ensuring that the Criminal Code defences of compulsion are brought into line with the common law of duress with respect to the public policy of requiring people to report to the police in cases of protracted offending.

Of course, there may be cases where reporting to the police would not be necessary, even in protracted offending cases. However the Court did not take the extra step of providing us with any indication of what degree of evidence would have been sufficient to show that the defendant is “unable otherwise to escape the carrying out of threat”.

It seems that the problem with the three reasons offered by the defendant for not reporting the threat is that they all derive from a general, rather than specifically justified, lack of faith in the effectiveness of the police force. Allowing those reasons to be sufficient opens the gates for potential duress claims in almost any case of protracted offending. If the defendant had a specific reason for doubting that police protection would be ineffectual – in the circumstances of that offending – it would be more likely to find that compulsion arises.

I would suggest that the decision might be different if the evidence of the accused were along these lines: “I know these guys, they would have been following my car and if I made one wrong move, Kristy (the de facto) and my mother would be dead.” It is then a question for the jury whether he actually reasonably held this belief.

Wednesday, January 13, 2010

First Post

Welcome to the first post of the The Lamp Post. This is designed to be a place for consideration of High Court decisions. Initially it will be simply producing free summaries and providing comment on recent decisions but perhaps it will evolve into discussion of upcoming decisions as Elucubrator at Quis Custodiet suggested would be helpful.

Following the MO of many other Blawgs, the title of this blog is inspired by a quote. To paraphrase what is originally a statistics gag, 'legal academia is used as a drunk uses a lamp post, more for support than illumination'.
In case it is not abundantly clear from the context, none of what is written here should be considered legal advice or anything close to it.
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