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District Court 19 March 2010

R v Tan Phuong LE (No 3)

[2010] NSWDC 37

Drugs
CRIMINAL LAW JUDGMENT DURESS COMPULSION NECESSITY FAILURE TO INFORM THE AUTHORITIES

Citation: R v Tan Phuong LE (No 3) [2010] NSWDC 37
Court: District Court of New South Wales
Date: 19 March 2010
Judge(s): Berman SC DCJ

Background

The accused faced charges relating to the importation of illegal drugs into Australia. During trial, he gave evidence in chief for more than a week and was cross-examined for two days, claiming he had acted under duress because of threats made against him.

The defence sought to have the duress defence left to the jury, and also proposed to call psychiatric and psychological evidence. Because the admissibility of that expert evidence depended on whether duress would be left to the jury, the court needed to resolve the question before the defence case closed.

The Crown was represented by the Commonwealth Director of Public Prosecutions, reflecting that the charges arose under federal law and that the applicable duress provision was s 10.2 of the Commonwealth Criminal Code.

  • Whether there was sufficient evidentiary foundation to leave the defence of duress to the jury under s 10.2 of the Commonwealth Criminal Code
  • Whether the accused's failure to contact the police or other authorities defeated any reasonable possibility that a jury could accept the defence
  • What role the objective component of the duress defence plays, and how it is assessed under the Commonwealth Code as compared with common law duress

Decision

The court accepted, for the purposes of the ruling only, the accused's evidence about threats at its highest. Even on that basis, Berman SC DCJ concluded it was not reasonably possible that a properly instructed jury would accept the defence of duress, and declined to leave it to the jury.

Central to the reasoning was the objective component embedded in s 10.2. The court drew on Oblach v R to confirm that the test does not ask what a reasonable person would have done, nor does it focus on the accused's personal characteristics or subjective perceptions. Instead, it asks whether the actual belief held by the accused was objectively justifiable, assessed against objective circumstances but not the accused's individual frailty.

The court identified multiple alternative courses of action available to the accused, with the failure to contact the authorities being particularly significant. Even if police contact could not have rendered the threat entirely ineffective, the court found it could not be seriously disputed that reporting to the authorities would have significantly reduced the risk. A jury could not reasonably fail to reject the defence on this ground alone.

The court also surveyed the theoretical basis for duress, concluding that the prevailing view treats duress as an excuse operating as a concession to human, rather than individual, frailty. This underpins the necessity of an objective test and distinguishes duress from a negation of voluntariness.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court confirmed that before duress can be left to a jury, the accused bears an evidentiary onus: the defence will not be put unless it is reasonably possible that a jury could accept a reasonable possibility of duress.
  • Under s 10.2 of the Commonwealth Criminal Code, the objective component of duress asks whether the accused's actual belief was objectively justifiable, assessed against objective circumstances, but not against the accused's personal characteristics or subjective perceptions.
  • Duress under Australian law operates as an excuse, a concession to human frailty rather than individual weakness, and does not negate the voluntariness of the accused's conduct.
  • A failure to contact the police or other authorities, where doing so could have significantly reduced the risk that a threat would be carried out, is a weighty factor against leaving duress to the jury.
  • The availability of alternative courses of action, the imminence of the threat, and the nature of the act committed are all matters of factual significance in assessing whether a duress defence has an adequate evidentiary foundation.

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code, s 10.2 (duress) and s relating to sudden or extraordinary emergency
- Criminal Code Act
- Queensland Criminal Code (compulsion provisions)

Cases
- R v Hudson (1971) 2 QB 202
- DPP for Northern Ireland v Lynch (1975) AC 653
- Oblach v R 65 NSWLR 75
- Perka v The Queen (1985) 14 CCC 385
- R v Abusafiah (1991) 24 NSWLR 531
- Rogers v The Queen (1996) 86 A Crim R 542
- Taiapa v The Queen [2009] HCA 53

Secondary Materials
- Stanley Yeo, "Voluntariness, Freewill and Duress" (1996) 70 ALJR 304
- Professor Glanville Williams, Textbook of Criminal Law (1st ed, 1978)