R v Qaumi & Ors (No 64)

1. [1]

   In the State of New South Wales, the defence of duress is a creature of the common law. In many jurisdictions the defence has been codified or modified by legislative enactment. [1] A controversy has arisen in the present case surrounding the precise content of the defence of duress. Insofar as they exist, the authorities on the issue are either not binding or flawed. As Lord Wilberforce said, as he considered the scope of the defence of duress in Director of Public Prosecutions for Northern Ireland v Lynch (1975) 61 CR App R 6; [1975] AC 653, at 684-685:

2. [2]

   More simply, as Moffitt P said in R v Lawrence [1980] 1 NSWLR 122 at 247, while considering a similar issue and adopting Lord Wilberforce’s words:

3. [3]

   It is one thing for the House of Lords to declare the common law of the United Kingdom or for the NSW Court of Criminal Appeal to declare the law of New South Wales. It is a very different thing for a puisne judge to indulge in that undertaking in the course of a criminal trial. However, that is the task that must now be undertaken in order to determine the proper directions to be given to the jury in the Crown’s case on two counts of attempted murder (and, in the two alternative charges of shoot with intent to inflict grievous bodily harm) against the accused man, Mohammed Kalal.

4. [4]

   The controversy affects one of the five accused men currently standing trial in relation to a number of shooting offences which allegedly arose out of their involvement in a criminal gang called the Brothers for Life at Blacktown (“BFL Blacktown”). This issue arose initially in the context of an argument as to whether duress should be put to the jury at all: R v Qaumi & Ors (No 63) [2016] NSWSC 1216 at [25]-[39]. I decided that the defence should be put to the jury but identified at [32]-[36] that there was an outstanding question as to the precise content of the defence, which would need to be resolved before directions were given to the jury. That question, in short, is whether there is a limitation on the availability of the defence of duress when an accused voluntarily joins a criminal gang or otherwise puts themselves in a position where they might be subject to illegal compulsion. If there is such a limitation, there is a further question as to the content and extent of that limitation.

5. [5]

   Mr Kalal faces one count of inflicting grievous bodily harm with intent to murder (count 8) and three counts of shoot with intent to murder (counts 11, 13 and 15). There are alternative charges (counts 9, 12, 14, and 16) that arise if the prosecution does not establish an intention to kill. All of these charges arise out of two separate shooting incidents. It is not in dispute that in the first of those incidents (referred to throughout the trial as “the Zakaria shooting”), Mr Kalal discharged a pump action shotgun at or into a residential home. The sister of the intended target received serious injuries when she was struck by shotgun pellets. A fellow member of the BFL Blacktown (Witness D) attempted to lure the target out of the house and another member (Witness I) was present, armed with a revolver. It appears to be common ground that Witness I did not discharge his weapon. In the second incident (referred to as the “Chokolatta Café shooting”), Mr Kalal discharged a .38 calibre revolver at or into a motor vehicle occupied by three men. At the same time, Witness D discharged a shotgun into the car. There is no evidence that the bullets fired from the revolver hit any of the men inside the car but two of the men were struck and injured by shotgun pellets.

6. [6]

   The Crown case is that the principals in each shooting were solicited and directed by the leaders of the BFL Blacktown. Mr Kalal embraces this part of the Crown case and relies on evidence from various witnesses that he was threatened before each of the shootings and expressed a reluctance to be involved. This includes evidence that he was told before the Zakaria shooting, “If you don’t get Masood [Zakaria] one of yous are going to get shot” and “whoever doesn’t get him, I’m going to shoot him”. Prior to the Chokolatta Café shooting he was told, “If you don’t do it I’ll have to get your family, sorry bro, like it’s not a game”. There is other evidence to similar effect. This evidence is disputed by Farhad Qaumi, Mumtaz Qaumi and Jamil Qaumi.

7. [7]

   Subject to the matters identified in R v Qaumi & Ors (No 63) at [30] and [38], the Crown properly and fairly concedes that the evidence gives rise to a possible defence of duress.

The legal problem and conflict in the authorities

1. [8]

   In R v Qaumi & Ors (No 63), I identified the difficulty in determining the issue as follows:

The proposed draft directions

1. [9]

   Having decided that the defence of duress should be left for the jury’s determination, I circulated to the parties a proposed written direction in draft form for their comments and suggestions. [4] I sought submissions on the question of whether there was any restriction on the defence when a person voluntarily joins an organisation knowing that they may be subject to compulsion to commit criminal offences. I also sought submissions on the question of whether any such limitation was based on the subjective knowledge or belief of the accused or whether it was an objective test under which the question for the jury was whether the accused “ought to have known” that joining the organisation would place himself or herself in a position where they may be subject to illegal compulsion. Finally, I sought assistance on the extent of the limitation, if one existed, and whether the limitation included the accused placing themselves in a position where they may be subject to unlawful compulsion or whether it went further and concerned unlawful compulsion to commit offences of a similar kind to those in fact committed. Those are the questions thrown up by the decisions of Hasan v R [2005] UKHL 22, R v Baker and Ward [1999] 2 Cr App R 335 and Nguyen v R (2008) 181 A Crim R 72; [2008] NSWCCA 22.

2. [10]

   The draft direction was in two parts. First, it identified four propositions that purported to summarise the relevant law relating to duress. Second, it identified four questions that arose. If the jury came to an affirmative answer in relation to any one of those questions, the defence of duress would be disproved. The parts of the draft direction that are controversial were in the following terms:

The position taken by the parties

1. [11]

   The parties took diametrically opposing positions although they did agree on one proposition – the proposed draft directions were wrong.

2. [12]

   Counsel for the accused Mohammed Kalal argued that the law of New South Wales contemplated no limitation on the defence of duress along the lines of that articulated by the Court of Appeal in Baker and Ward and the House of Lords in Hasan. He relied on the draft direction provided in the Criminal Trials Courts Bench Book and the absence of any direction in that publication along the lines proposed. There are two difficulties with this submission.

3. [13]

   The first is that the notes that follow the draft directions in the Bench Book include the following under the heading Notes at [6-170]:

4. [14]

   This note contains a significant error in that the limitation to which it refers has more in common with the test stated by the House of Lords in Hasan while attributing that test to the earlier case of Baker and Ward which Hasan overruled. However, by including this note, the authors of the Bench Book clearly contemplated that there was some such limitation on the availability of defence of duress.

5. [15]

   The more fundamental flaw with this argument concerns the use to which the Bench Book can legitimately be put. The Foreward to the current version contains the following observation by the former Chief Justice made in October 2002:

6. [16]

   A disclaimer two pages later is in the following terms:

7. [17]

   In Hong v Regina [2009] NSWCCA 242, Spigelman CJ criticised the use of the Bench Book as authority in support of legal submissions:

8. [18]

   His Honour then set out parts of the Foreward including the passage to which I have referred above at [15], as well as the following:

9. [19]

   Further, there have been cases, including a recent case, where directions based upon those contained in the Bench Book have been held to be erroneous: see, for example, H v R [2016] NSWCCA 63 at [41]-[44]. [5]

10. [20]

    Counsel for Mr Kalal ultimately submitted that he was unable to find any case in New South Wales where the restrictions suggested in Baker and Ward and Hasan were adopted as the law of this State or the common law of Australia. In relation to the observation of Hodgson JA in Nguyen v R [2008] NSWCCA 22, counsel relied on the fact that the comment made at [40] of that judgment was clearly an obiter remark. This was a fact to which I referred in R v Qaumi & Ors (No 63) at [36] while indicating:

11. [21]

    Counsel for the Crown took the opposite view. His submission was that the proposed draft direction was unduly restrictive in terms of the limitation on the defence of duress. His submission was that Hasan was correctly decided and that the principles stated by Lord Bingham of Cornhill at [38]-[39] should be taken as representing the law of New South Wales.

12. [22]

    He accepted that the obiter remark of Hodgson JA in Nguyen v R went too far and was “just a very loose paraphrasing of what the real test is” but, as I understood it, relied on the judgment in Nguyen v R as indicative that the New South Wales Court of Criminal Appeal had at least impliedly accepted that a limitation on duress arose when a person voluntarily placed themselves in a position where they may be subject to compulsion.

13. [23]

    The learned Crown Prosecutor submitted that the policy considerations behind Hasan, namely to “discourage association with known criminals”, was equally applicable to New South Wales and Australia in 2016. He submitted that the reasons of Lord Bingham at [29]-[39] were “compelling” and should be followed.

14. [24]

    To summarise the position of the parties. Mr Kalal submitted that paragraph 4 and question 4 of the draft direction should be deleted and that the jury should not be instructed that there was any limitation on the defence of duress based upon Mr Kalal’s voluntary association with the BFL Blacktown. The Crown submitted that the directions should be amended in two ways. First, to delete the reference to “the kind of crime that was in fact committed” and, secondly, to emphasise that the defence would not apply when the accused “ought to have known” that he may be subject to unlawful compulsion.

Whether the defence applies to attempted murder

1. [25]

   Toward the end of the submisisons, the Crown drew my attention to the decision of the House of Lords in R v Gotts (1992) 94 Cr App R 312; [1992] 2 AC 412, in which a majority of their Lordships held that the defence of duress did not apply to cases of attempted murder. He also referred me to R v Goldman (2004) 147 A Crim R 472; [2004] VSC 291 in which Redlich J (sitting at first instance in the Supreme Court of Victoria) declined to follow R v Gotts. The Crown brought these authorities to my attention for completeness given that the charges faced by Mr Kalal are in the nature of attempted murder charges. [6]

2. [26]

   The decision in Gotts was not relied on in the earlier argument as to whether the defence should be withdrawn from the jury’s consideration and the Crown did not submit that the defence was not available.

3. [27]

   However, in my judgment the approach taken by Redlich J and by the dissentients in the House of Lords (Lord Keith and Lord Lowry) is to be preferred. I agree with the simple statement of Lord Keith at 313:

4. [28]

   See also Lord Lowry at 323 and the analysis by Redlich J in R v Goldman at 480-481.

5. [29]

   Other jurisdictions have enacted legislation which abolishes the defence of duress in respect of certain serious offences: see, for example, Criminal Code Act 1924 (Tas), s 20; Criminal Code 1899 (Qld), s 31(2), Criminal Code Act 1983 (NT), s 40(2); Criminal Code (RSC) 1985 c C-46, s 17; Crimes Act 1961 (NZ), s 24(2). There is no such legislative restriction on the defence in New South Wales.

6. [30]

   No authority has been brought to my attention in which it has been suggested that the common law of Australia does not recognise a defence of duress in cases of attempted murder. In R v Goldman, Redlich J held that the defence applied to attempted murder and noted at [36]:

7. [31]

   In R v McConnell [1977] 1 NSWLR 714, the Court of Criminal Appeal held the defence did not apply to principals present at the scene of a murder, but there was no suggestion that the defence would not apply to an accused charged as an accessory. Street CJ followed the decision of the House of Lords in DPP for Northern Ireland v Lynch, in which it seemed to be accepted by a majority that the defence would (or at least may) apply to an accessory to murder but would not apply to a principal, at least a principal in the first degree. Street CJ set out at 718 the position in the United Kingdom following Lynch:

8. [32]

   Taylor CJ at CL at 723 held that the defence did not apply “in the case of principals (that is, those who perform an act in furtherance of the proposed killing)” and Begg J (also at 723) held that it did not apply “in a case of actual killing by a first degree principal”.

9. [33]

   It would be anomolous if an accessory to murder could rely on the defence of duress while a person charged with attempted murder could not. Some of the judgments in the House of Lords show there is an anomaly in allowing a person who acts with murderous intent to rely on the defence while a person charged with the completed offence cannot: see, for example, the speech of Lord Jauncey in R v Gotts. On the other hand, as Lord Keith demonstrates, it is anomalous to allow the defence for the intentional infliction of grievous bodily harm but not for the same offence done with the intent to kill. Lord Lowry collected some of the earlier judgments at pp 231-323. Some judgments question the proposition the defence is not available for murder itself. For example, Lord Brandon in R v Howe and Others [1987] AC 417 at 438:

10. [34]

    It seems to me, the answer is provided by Lord Kieth at 313: “Murder is a crime in a category of its own”.

11. [35]

    There is an observation in Blackmore & Hosking, Criminal Law NSW (Thompson Reuters, 2012, update 220) that duress does not apply to the offence of attempted murder. The learned authors cite Gotts in support of that proposition but I am not aware of any Australian (or NSW) authority that justifies this approach. Howie and Johnson, Criminal Practice and Procedure NSW (Butterworths) do not suggest the defence is excluded in cases of attempted murder. Duress is dealt with at [6-705] which includes the following:

12. [36]

    Howie and Johnson do not suggest the defence does not apply to cases of attempted murder and there is no reference to the United Kingdom authorities suggesting otherwise.

13. [37]

    I proceed on the basis that, as of the time of these offences and this trial, the defence applies to an accused charged with attempted murder in New South Wales. To adopt the words of Deane J in Zecevic v DPP (Vic) (1987) 162 CLR 645 at 678; [1987] HCA 26, it would be “simply wrong that an accused may be adjudged not guilty or guilty of [attempted murder] according to the chance of whether his trial is completed before or after this Court has abolished a defence” upon which he could previously have relied. As his Honour said at 677, such an approach would reduce the administration of the criminal law to a “macabre lottery”.

14. [38]

    Further, there is much to be said for consistency and comity between the approach of this Court and that taken in the Victorian Supreme Court by Redlich J in R v Goldman.

15. [39]

    For those reasons, I confirm my earlier ruling that the defence will be left for consideration by the jury. The more difficult question is the content of the defence.

Is there a restriction on the availability of the defence of duress when the accused voluntarily associates with a criminal group?

1. [40]

   The policy considerations that attracted the House of Lords in Hasan are equally applicable to the circumstances prevailing in Australia in the early part of the 21st century. The prevalence of criminal groups and street gangs is an important consideration in determining whether there should be some limitation on the availability of the defence of duress to those who voluntarily associate with or join criminal organisations.

2. [41]

   Further, the analysis of Lord Bingham shows there was a longstanding understanding, at least in the United Kingdom, that there is a limitation on the availability of the defence of duress when a person is part of a criminal organisation or where they otherwise put themselves in a postion where they may be coerced to commit criminal offences.

3. [42]

   In Nguyen, Hodgson JA clearly accepted that there was such a limitation although, because the question did not strictly arise for determination, his Honour referred at [28.1] to the wrong case (or to the wrong test) and at [40] overstated the nature of the limitation. In spite of these flaws in the judgment and the fact that the observations were obiter dicta, it is impossible to escape the conclusion that his Honour (with whom Kirby and Buddin JJ agreed) understood there was such a limitation on the availability of the defence.

4. [43]

   Howie and Johnson refer to his Honour’s decision as authority for the proposition that “the defence would not apply if the accused had voluntarily joined an illegal corporation but this was a question for the jury”. The learned authors did not analyse the case law upon which Hodgson JA relied in Nguyen and did not make reference to the errors to which I have drawn attention. As I have said, the authors of the Bench Book considered there was such a limitation although, again, the patent errors in Nguyen are present in the Bench Book and the Bench Book does not purport to be a substitute for authority.

5. [44]

   The relevant policy considerations and the obiter remarks of the Court of Criminal Appeal in Nguyen satisfy me that the law of duress in New South Wales contains a limitation of the kind under consideration.

Is the limitation based on objective or subjective considerations?

1. [45]

   Many cases have considered whether or not the defence of duress involves entirely subjective considerations. Any suggestion to that effect has been firmly rejected over many years: see, for example, R v Lawrence at 138 (Moffit P) and 162-163 (Nagle CJ at CL and Yeldham J); R v Abusafiah (1991) 24 NSWLR 531 at 537 and 542 (Hunt J, with whom Gleeson CJ agreed). At least part of the defence of duress involves an objective consideration of how the reasonable person of ordinary firmness would conduct themselves and whether that hypothetical person would have yielded to the threat in the way that the accused person did.

2. [46]

   In R v Abusafiah, Hunt J drew an analogy with other defences such as necessity, self-defence and provocation. [7] His Honour noted at 541 that each of those defences introduced “an objective test of reasonableness, in order to ensure that accused person with sensitivities fall outside the ordinary or common range of human temperaments are not permitted to escape responsibility for their actions”. However, Hunt J was careful to note “beyond that … there is no true analogy”.

3. [47]

   Consistently with the approach of the law to those other defences and the introduction of an objective analysis to the defence of duress more generally, it is appropriate that the jury be directed that an accused who joins a criminal organisation should be restricted in their reliance on the defence of duress not only on the basis of what they knew, but also on the basis of what they ought to have known. This is consistent with the approach of the House of Lords in Hasan.

4. [48]

   In the present case, any distinction between the objective and subjective aspect of this limitation to the defence is unlikely to impact on the jury’s determination. Similar observations were made in R v Lawrence by Nagle CJ at CL and Yeldham J at 162:

5. [49]

   While that remark was made in the context of the defence more generally and in circumstances where there was no evidence that the accused were other than men of ordinary firmness, similar considerations apply here. The way in which the prosecution put its case to the jury is really that the accused knew that he may be compelled to commit a crime because of his knowledge of the violent conduct and reputation of the group and the way in which the leaders of the group exercised control over the group by intimidation and fear. For example, the learned Crown Prosecutor addressed the jury: [8]

6. [50]

   I propose to direct the jury in accordance with what I consider to be the law – that is, the limitation is based on what the accused “knew, or ought to have known”. However, I will make it clear to the jury that the real issue in the present case appears to be what the accused actually knew based on his knowledge of the activities and conduct of the group and its leaders.

What is the content of that which the accused knew or ought to have known?

1. [51]

   The second matter upon which the House of Lords in Hasan overruled the decision in Baker and Ward concerned the subject matter of the accused’s knowledge. Baker and Ward held that what was required was for the accused to be aware that the group might “coerce him into committing criminal offences of the type for which he is being tried”. Hasan held that this was incorrect and that the real question was whether the accused knew, or ought to have known, that there was a “risk of being subjected to any compulsion by threats of violence” [my emphasis].

2. [52]

   The rationale behind the decision in Hasan was the desirability of discouraging association with criminal organisations. While I accept that this is a strong policy consideration in favour of some limitation to the availability of defence, the terms in which the House of Lords stated the test has a capacity to operate harshly and to produce unjust results. To take a hypothetical example, a youth who joins a group that is involved in small-time shoplifting or minor drug dealing organised by a criminal cartel would (on the House of Lords’ formulation) be denied the defence if he was forced at gun point to take part in a bank robbery, kidnapping or major drug importation. While I must afford a decision of the House of Lords considerable deference, I am unable to conclude that the approach in Hasan represents the law of New South Wales.

3. [53]

   In the circumstances of the present case, the distinction may be significant depending on the factual findings made by the jury. On the one hand, there is no evidence that Mr Kalal had previously been directed to engage in offences of violence – his only criminal activity appears on the evidence to have been in the sale and distribution of cannabis. On the other hand, the jury may conclude that he was aware both of the involvement of the group in violent offending and the intimidation and threats used by the leadership against other members.

4. [54]

   The formulation I prefer allows some flexibility and permits the jury to apply its sense of justice to the facts and to determine, applying the community’s standards of fairness and common sense, whether the association with the BFL Blacktown disentitles Mr Kalal from relying on the defence in all of the circumstances. That formulation is as follows:

5. [55]

   Similarly, the fourth question to be posed in the written directions will be:

6. [56]

   I amended the written directions accordingly and provided the revised document to the parties on the third day of the Crown Prosecutor’s address. [9] The jury will be instructed that those written directions are not a substitute for the summing up. The summing up will include more extensive directions as to the law of duress, including this limitation on its availability, and will be calculated to place those directions in the context of the factual matrix of the present case.