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Court of Criminal Appeal 14 February 2008

NGUYEN v R

[2008] NSWCCA 22

Also reported as (2008) 181 A Crim R 72
Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION DURESS WHETHER THREAT SUFFICIENTLY IMMINENT

Citation: Nguyen v R [2008] NSWCCA 22
Court: NSW Court of Criminal Appeal
Date: 14 February 2008
Judge(s): Hodgson JA; Kirby J; Buddin J

Background

The appellant, a Vietnamese farm worker, was convicted in the District Court of cultivating not less than a large commercial quantity of cannabis, contrary to s 23(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The cultivation took place on a large rural property near Dubbo between November 2003 and January 2004, where police ultimately found more than 30,000 cannabis plants. He was sentenced to twelve years imprisonment with a non-parole period of eight years.

At trial, the appellant gave evidence that he did not initially know the crop was cannabis. He said that once he discovered the true nature of the plants, he tried to leave but was threatened by the principal organiser and an associate: that he would be killed if he escaped and was caught, and that if he escaped undetected his son in Sydney would be kidnapped.

The trial judge declined to leave the defence of duress to the jury. The appellant challenged that ruling on appeal, arguing that his evidence was capable of supporting the defence and that the jury should have been permitted to consider it.

  • Whether the threats described by the appellant were directed at procuring his commission of the offence, as required for duress
  • Whether those threats were sufficiently imminent and continuing to satisfy the legal test for duress
  • Whether the appellant was precluded from relying on duress because he had voluntarily joined an illegal enterprise by knowingly participating in an earlier cannabis operation at the same property

Decision

Hodgson JA (with whom Kirby J and Buddin J agreed) held that the trial judge erred in withdrawing the duress defence from the jury. The appellant's evidence, taken at its highest, was capable of supporting a reasonable possibility that he acted under duress. The threats described, including death and the kidnapping of his son, were capable of constituting threats of death or serious bodily harm directed at procuring continued participation in the cannabis cultivation.

On imminence, the court accepted that the evidence could support a finding that the threats were continuing, imminent and impending throughout the relevant period. The appellant's evidence that he constantly thought of escaping but lacked the courage to do so was consistent with a genuine and ongoing apprehension of the threatened consequences.

The Crown argued that the defence should be excluded because the appellant had voluntarily joined an illegal enterprise, given his earlier stint at the same property processing what the Crown contended he must have known was cannabis. The court found this was a factual question for the jury. The appellant had denied knowing the nature of the earlier crop, and it was not open to the trial judge to resolve that contest against him.

On the application of the proviso (which allows a court to dismiss an appeal despite an error if no substantial miscarriage of justice has occurred), the court declined to apply it. Duress was the appellant's only real defence, and the jury had never considered it. The court also noted that, having reviewed the full record, it could not in any event be satisfied beyond reasonable doubt of the appellant's guilt.

Orders Made

  • Appeal against conviction allowed
  • Conviction quashed
  • New trial ordered on the cultivation count

Key Takeaways

  • A trial judge must leave a duress defence to the jury where the accused's evidence, taken at its highest, is capable of supporting a reasonable possibility that the defence is made out.
  • Threats of death or serious harm extended to a defendant's family members are capable of satisfying the threat requirement for duress, provided all other elements of the defence are also arguably established.
  • Where the accused denies knowing an earlier engagement was illegal, the question of whether voluntary participation in a prior criminal enterprise precludes reliance on duress remains a question of fact for the jury, not a matter to be resolved adversarially by the trial judge.
  • The Court of Criminal Appeal declined to apply the proviso where duress was the accused's sole defence and the jury had been prevented from considering it at all, noting it would be inappropriate to substitute appellate review of the record for trial by jury on an issue never put to the jury.
  • Sufficient uncertainty remained on the full record that the court could not be satisfied beyond reasonable doubt of the appellant's guilt, reinforcing the refusal to apply the proviso.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW) s 23

Cases
- Clarkson v Regina [2007] NSWCCA 70
- Darkas v the Queen [2006] HCA 34; (2006) 227 CLR 373
- R v Baker and Ward [1999] 2 Cr App Rep 335
- R v Dawson [1978] VR 536
- R v Hudson [1971] 2 QB 202
- R v Hurley and Murray [1967] VR 526
- R v Lawrence [1980] 1 NSWLR 122
- Weiss v the Queen [2005] HCA 81; (2005) 224 CLR 300