Citation: Oblach v Regina [2005] NSWCCA 440
Court: NSW Court of Criminal Appeal
Date: 15 December 2005
Judge(s): Spigelman CJ; Sully J; Hulme J
Background
The appellant was convicted in the District Court of importing a trafficable quantity of cocaine into Australia. It was not in dispute that he had entered Sydney Airport on 11 December 2003 carrying 728.2 grams of cocaine concealed in his clothing. His defence at trial was duress: he claimed, through a police interview (he did not testify), that threats of violence had been made against him and his former wife if he refused to carry the drugs.
The trial judge, Ainslie-Wallace DCJ, directed the jury on the defence of duress under s 10.2 of the Commonwealth Criminal Code. The jury returned a guilty verdict. The appellant then appealed both his conviction and the sentence imposed.
On the conviction appeal, the sole ground was that the trial judge misdirected the jury on the correct legal test for duress. On sentence, the appellant argued the sentencing judge erred by refusing to take into account the evidence of threats when determining the appropriate penalty.
Legal Issues
- What does the phrase "reasonably believes" in s 10.2(2) of the Commonwealth Criminal Code require? Specifically, does the test call for an assessment of what the accused himself might reasonably have believed, taking into account his personal circumstances and perceptions, or is it an entirely objective standard measured against the circumstances as they objectively existed?
- Did the trial judge's jury directions on duress adequately reflect the requirements of s 10.2?
- Did the sentencing judge err by declining to have regard to the evidence of threats when determining sentence?
Decision
On the meaning of "reasonably believes" in s 10.2
Spigelman CJ and Hulme J held that the phrase "reasonably believes" in s 10.2 requires that the accused's actual belief be objectively justifiable, assessed against the objective circumstances as they actually existed. The test does not permit the jury to take into account the circumstances as the accused subjectively perceived them to be, nor the accused's personal characteristics. The majority reached this conclusion in part by contrasting s 10.2 with s 10.4 of the Code (self-defence), which expressly accommodates the accused's perception of circumstances, and noting that no equivalent language appears in s 10.2. Hulme J added that there was no satisfactory or jury-accessible way to separate an accused's perception of circumstances from the formation of belief, and that the test under s 10.2 is therefore entirely objective.
Sully J approached the question differently, framing the inquiry as whether any ordinary person in the position of the accused would have held the same beliefs. While his Honour's formulation was somewhat distinct from the majority's, all three judges agreed on the outcome.
On whether the jury directions were adequate
Despite the disagreement about the precise formulation of the test, all three judges agreed that the directions given by Ainslie-Wallace DCJ did not risk misleading the jury into applying a straightforward "reasonable person" standard divorced from the appellant's actual situation. The appeal against conviction was dismissed by the full bench.
On sentence
All three judges agreed that the sentencing judge erred by declining to take the evidence of threats into account. That failure constituted an error in the exercise of sentencing discretion. The sentence was quashed and the matter remitted to the District Court for resentencing.
Orders Made
- Appeal against conviction dismissed.
- Appeal against sentence allowed.
- Sentence imposed by Ainslie-Wallace DCJ on 17 December 2004 quashed.
- Proceedings remitted to the District Court for further consideration on sentence.
Key Takeaways
- Under s 10.2(2) of the Commonwealth Criminal Code, the "reasonably believes" test for duress is assessed against the objective circumstances as they actually existed, not as the accused perceived them to be. The majority held that personal characteristics and subjective perceptions do not inform this standard.
- The contrast between s 10.2 and s 10.4 (self-defence) was central to the majority's reasoning. Section 10.4 expressly incorporates the accused's perception of circumstances; the deliberate omission of equivalent language from s 10.2 was treated as a signal of a stricter, more objective standard.
- Sully J's formulation framed the inquiry as whether an ordinary person in the accused's position would have held the same beliefs, differing in emphasis from the majority but not in outcome.
- No error was established in the trial judge's jury directions. Although the statutory test was debated, all judges were satisfied the directions carried no real risk of the jury misapplying the standard.
- A sentencing court's failure to take evidence of threats into account when that evidence is properly before it can constitute a material error, sufficient to warrant the sentence being quashed and the matter remitted for resentencing.
Legislation and Cases Referenced
Legislation:
- Commonwealth Criminal Code, Ch 2; ss 10.2, 10.3, 10.4
- Crimes Act 1900 (NSW), s 418
- Criminal Appeal Rules, r 4
- Queensland Criminal Code, s 31
- Western Australian Criminal Code, s 31
Cases:
- Viro v The Queen (1978) 141 CLR 88
- Zecevic v DPP (1987) 162 CLR 645
- Stingel v The Queen (1990) 171 CLR 312
- R v McCullough (1982) 6 A Crim R 274
- R v Conlon (1993) 69 A Crim R 92
- R v Hawes (1994) 35 NSWLR 294
- Taikato v The Queen (1996) 186 CLR 454
- Masciantonio v The Queen (1995) 183 CLR 58
- R v Campbell [1997] QCA 127
- R v Acton [2001] QCA 155
- R v Katarzynski [2002] NSWSC 613
- R v Smith [2005] QCA 1
- Fingleton v The Queen (2005) 79 ALJR 1250