Hay v R

JurisdictionNew Zealand
JudgeStevens J
Judgment Date27 July 2015
Neutral Citation[2015] NZCA 329
Docket NumberCA384/2014
CourtCourt of Appeal
Date27 July 2015
BETWEEN
Graham Stewart Hay
Appellant
and
The Queen
Respondent

[2015] NZCA 329

Court:

Stevens, Heath and Collins JJ

CA384/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against conviction for aggravated burglary and sentence of seven years and six months' imprisonment — appellant and co-offender broke into a house armed with weapons — appellant said he was acting under compulsion as a result of threats by his co-offender — co-offender had left the house for 15 minutes during which the appellant was left in the house with one of the victims — the appellant remained at the property for 15 minutes after the co-offender had left — consideration of elements of defence of compulsion pursuant to s24 Crimes Act 1961 (“CA”) (compulsion) — whether the Judge had failed to direct the jury correctly as to the onus and burden of proof in relation to the defence of compulsion resulting in a miscarriage of justice — whether there was an adequate evidential foundation on which the defence of compulsion could be invoked — whether the sentence was manifestly excessive when compared with the sentence received by the co-offender.

Counsel:

P J Kaye for Appellant

G A Kelly for Respondent

The appeal against conviction and sentence is dismissed.

JUDGMENT OF THE COURT
REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

Para No

Introduction

[1]

Background

[4]

Appeal against conviction

[9]

Defence of compulsion

[14]

Statutory provision for compulsion

[14]

The elements of compulsion

[15]

Jury directions on compulsion

[18]

Analysis

[26]

Evidential foundation

[33]

Submissions on evidential foundation

[36]

Our evaluation

[44]

Sentence appeal

[55]

Result

[63]

Introduction
1

Mr Hay faced trial in the Auckland District Court on one charge of aggravated burglary and one charge of unlawfully taking a motor vehicle. 1 He had earlier pleaded guilty to one separate count of unlawfully taking a motor vehicle. Following a jury trial on the first two counts, he was sentenced in March 2014 on all three counts to seven years and six months' imprisonment. He now appeals against the jury's guilty verdict and against his sentence.

2

The conviction appeal is advanced on the basis the defence of compulsion by another was not accurately put to the jury. He contends the convictions are unsafe and should be overturned.

3

Mr Hay appeals against the sentence imposed as being manifestly excessive when compared with the sentence received by his co-offender, Mr Taylor. He says he only played a secondary role in the offending.

Background
4

The charges arose out of events occurring one evening in November 2011 when Mr Hay was contacted in the early hours of the morning by Mr Taylor. Mr Hay received a text message (“are you up bro?”) which led to him going with Mr Taylor to the property of the complainants, Mr Waddington and Ms Connelly, in West Auckland, apparently to collect a debt.

5

The complainants and their three children were asleep at the address. Messrs Hay and Taylor broke in through the back door of the house, Mr Taylor armed with a loaded firearm, Mr Hay armed with a crowbar he had obtained from a shed on the property. Mr Waddington was woken up by the noise and went to

investigate. Mr Taylor pointed the firearm at Mr Waddington and he and Mr Hay ushered him back into his bedroom, where Ms Connelly was. Both Mr Waddington and Ms Connelly were threatened. Mr Taylor demanded drugs and money. Mr Waddington told him there were none. After searching rooms in the house, Mr Taylor asked about the vehicles parked at the property
6

At that point Mr Taylor swapped weapons with Mr Hay and took Ms Connelly outside to unlock the gate to the property. Mr Hay, having swapped weapons with Mr Taylor and now holding the firearm, kept Mr Waddington in the bedroom.

7

Ms Connelly obtained keys for the vehicles parked at their property. She unlocked the gate, and Mr Taylor returned with her to the bedroom, whereupon he again swapped weapons with Mr Hay. Mr Taylor searched through the complainant's bedroom and took $60 cash. He then took Mr Waddington from the address in a Ford V8 vehicle to locate an associate. Mr Hay remained at the property for approximately 15 minutes, before taking another vehicle and leaving the property.

8

Mr Hay was charged with and pleaded guilty to unlawfully taking a motor vehicle, being the white Mazda. He pleaded not guilty to the two charges of aggravated burglary and unlawfully taking the Ford V8. His defence at trial was that he was acting under compulsion from Mr Taylor. He claimed Mr Taylor threatened to do him serious harm if he did not participate in the activities. The jury found him guilty on both counts.

Appeal against conviction
9

For Mr Hay, Mr Kaye submits Judge Kiernan failed to direct the jury correctly as to the onus and burden of proof in relation to the defence of compulsion. This error, it is said, resulted in a miscarriage of justice. 2

10

Also relevant to this issue of miscarriage is the question of whether there was an adequate evidential foundation on which the defence of compulsion could be invoked. Counsel for the Crown, Ms Kelly, provided helpful written submissions on this issue and Mr Kaye responded in some detail at the hearing.

11

We record that at the trial, no application was made by the Crown to have the defence of compulsion taken away from the jury for want of a proper evidential foundation. The Judge therefore, without opposition, allowed the defence to go to the jury.

12

It is common ground that if the defence of compulsion is available the onus of proof is on the Crown to establish that the defence has not been made out. Thus the Crown must prove beyond reasonable doubt that the defendant did not act under compulsion. The Crown therefore bears the burden at trial of disproving the existence of the elements of the defence.

13

We first set out the principles in relation to the defence. We then address the adequacy of the Judge's jury directions on the defence of compulsion, before turning to address the existence or otherwise of an evidential foundation for it.

Defence of compulsion
Statutory provision for compulsion
14

The defence of compulsion is set out in s 24 of the Crimes Act 1961 as follows:

24 Compulsion

(1) Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he or she believes that the threats will be carried out and if he or she is not a party to any association or conspiracy whereby he or she is subject to compulsion.

The elements of compulsion
15

This Court in R v Teichelman set out the elements of the defence of compulsion as follows: 3

The critical features of the provision so far as they affect the present case are these. First, there must be a threat to kill or cause grievous bodily harm. Second, it must be to kill or inflict that serious harm immediately following a refusal to commit the offence. Third, the person making the threat must be present during the commission of the offence. Fourth, the accused must commit the offence in the belief that otherwise the threat will be carried out immediately. It is that belief in the inevitability of immediate and violent retribution for failure on his part to comply with the threatening demand which provides the justification for exculpation from criminal responsibility. The subsection is directed essentially at what are colloquially called standover situations where the accused fears that instant death or grievous bodily harm will ensue if he does not do what he is told. It follows from what we have said that before the matter can go to a jury there must be evidence of a continuing threat of immediate death or grievous bodily harm made by a person who is present while the offence is being committed and so is in a position to carry out the threat or have it carried out then and there.

16

Over time, particular aspects of these elements have been clarified and explained. The applicable principles may be summarised as follows:

  • (a) Fear caused by general threats will not be enough to make out the defence — the requirement in s 24(1) is strict. Acting out of fear is not enough. 4

  • (b) The nature of the threat sufficient to establish the defence is guided by s 24(1). Nothing less than “really serious harm” will suffice. 5

  • (c) The defendant invoking the defence must have believed the threat would be carried out. This is a mixed subjective-objective test — the belief need not be entirely reasonable, but the reasonableness of the belief will be relevant to whether the belief was genuinely held. 6

  • (d) Where the offence is of a continuing nature, the defence will be lost if during its continuance the threatener ceases to be present, and the defendant had the opportunity of bringing the offence to an end. 7

17

Accordingly the elements of compulsion are:

  • (a) The existence of a threat to kill or cause grievous bodily harm;

  • (b) The threat must be to kill or cause grievous bodily harm immediately upon refusal to comply;

  • (c) The person making the threat must be present during the commission of the offence; and

  • (d) The defendant must commit the offence in the belief that the threat will be carried out immediately.

Jury directions on compulsion
18

The trial Judge included questions relating to the defence of compulsion in a question trail and gave directions in her summing-up to the jury about it. Because they are central to the appeal against conviction, we set out the directions in detail. First, Judge Kiernan described the concept of compulsion to the jury:

[20] Now I'm going to summarise for you what compulsion means. Again,...

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