Ifeanyi Jude Akulue v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeWilliam Young J
Judgment Date19 September 2013
Neutral Citation[2013] NZSC 88
Docket NumberSC 38/2013
Date19 September 2013

[2013] NZSC 88

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, McGrath, William Young, Glazebrook and Gault JJ

SC 38/2013

Between
Ifeanyi Jude Akulue
Appellant
and
The Queen
Respondent
Counsel:

L O Smith and B J Hunt for Appellant

M F Laracy and M L Wong for Respondent

Appeal from a Court of Appeal decision which ruled that affidavit evidence could not be introduced by the appellant as its narrative did not disclose a defence, and that defences under s24 Crimes Act 1961 (compulsion) or necessity under s20 Crimes Act (common law justifications) were not available to the appellant — the appellant was Nigerian and had been living in New Zealand for many years — he faced charges of importing and conspiring to supply methamphetamine — appellant maintained he had been coerced into the offending by a cousin living in Nigeria who had threatened to kidnap and kill his family in Nigeria — appellant sought an order under s344A Crimes Act (interlocutory order relating to admissibility of evidence) as to the admissibility of the affidavit evidence from family matters detailing the kidnapping of another relation and threatening calls made to family in Nigeria on the night of the offending — whether threats were of immediate harm under s24 Crimes Act — whether common law defence of necessity was available.

Held: While the CA in Hutchinson left open the possibility that threats which did not meet the s24 Crimes Act criteria might give rise to a common law defence of necessity, it was not authority for the proposition that such a defence was available.

The operation of s24 Crimes Act depended on the criteria of immediacy (of the harm that was threatened) and presence (of the person making the threats). Satisfaction of those criteria was highly indicative of coercive circumstances leaving no practical alternative but compliance. Threats which did not meet the immediacy and presence criteria might nonetheless be very coercive in the sense of leaving no reasonable alternative but compliance.

Section 24 Crimes Act had been applied by NZ courts very much in accordance with its terms. Those terms did not explicitly require that the threat be of harm to the defendant, but they had to have an immediate character and they had to derive from a person who was present at the time of the offence. Whatever flexibility was inherent in the section, it did not encompass the explanation of events offered by A. Any elasticity which was inherent in the presence requirement was insufficient to encompass Z being in Nigeria and A being in Auckland when the offending occurred. Z's threats were not of harm which was to be inflicted immediately on A's family in Nigeria.

The requirements under s24 Crimes Act (immediacy of harm and presence of the person making the treats) reflected a legislative purpose that if there was sufficient time to seek assistance from the authorities, a defence of compulsion was not available. The section was not drafted with a view to allowing a defence of compulsion based on the belief, reasonable or otherwise, of the defendant that assistance from the authorities would not be forthcoming if requested.

There was no inconsistency between s24 Crimes Act as drafted and the New Zealand Bill of Rights Act 1990 (“NZBORA”). It followed that s6 NZBORA (interpretation consistent with Bill of Rights to be preferred) did not assist A.

Section 20 Crimes Act did not preserve common law defences “so far as they were altered by or were inconsistent with the Crimes Act or any other enactment”. The approach of the NZ courts to date was that it excluded a defence of necessity based on threats of harm sourced in other persons. To the extent that s24 expressed the elements of the defence of compulsion in respects which differed from the current common law, it might be thought to have “altered” the defence. And to the extent of the resulting differences, it might be thought that the common law was “inconsistent” with s24. On either basis, it followed that the common law defence of compulsion was not preserved by s20.

The Court of Appeal noted that various proposals to amend the law of compulsion had been floated over recent years, but there has been no legislative response. Suggestions by A that this absence of response warranted judicial intervention were inconsistent with the proper limits of the Court's role. It would be an obvious usurpation of legislative function to allow, under the guise of a common law defence of necessity, a defence based on compulsion by threats in respect of the offences listed in s24(2). This being so, it might be thought to be equally an usurpation of legislative function to allow such a defence to be advanced in circumstances where other requirements of s24, in particular, immediacy and presence, had not been satisfied.

The legislative history of s20 and s24 was against A's argument. The defence of compulsion at common law was seen by the lawmakers as being a subset of the defence of necessity and s they ought to codify exclusively the circumstances in which compulsion by threats of harm from another person provided a defence, leaving only other circumstances of necessity to the common law. It would be inconsistent with the purpose underpinning the codification of NZ's criminal law to treat s24 Crimes Act as codifying the defence of compulsion only in respect of threats of a kind recognised by the section, leaving a common law defence in respect of threats which did not meet the statutory criteria.

Appeal dismissed.

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by William Young J)

The appeal
1

The appellant – a Nigerian who has been living in New Zealand for many years – faces charges of importing and conspiring to supply methamphetamine. The drugs were brought into New Zealand by a courier who was intercepted at Auckland Airport. She was placed in a hotel and remained under police supervision. The appellant and another person contacted her there and were subsequently both arrested. The appellant admits that he knew that the courier had imported drugs and that he approached her in order to obtain the drugs which were then to be passed on to another person.

2

The appellant maintains that he was coerced into the offending by a cousin living in Nigeria and known as Zuby. He says that Zuby threatened to kidnap and kill members of his family in Nigeria unless he assisted with the importation of the drugs. This account of events – including the full name and telephone number of Zuby – is set out in an affidavit which the appellant has sworn. In this affidavit the appellant also said that in 2009, his uncle had been kidnapped in Nigeria, and held to ransom, which resulted in some $20,000 being paid to secure his freedom. His narrative is supported by other affidavits. In one, his wife refers to phone calls from Zuby on the night of the appellant's arrest. The others confirm the kidnapping of the uncle and payment of the ransom.

3

The appellant sought an order under s 344A of the Crimes Act 19611 as to the admissibility of the affidavit evidence. This was on the basis that its admissibility turned on whether the narrative disclosed a defence. 2 It was common ground in the District Court that the statutory defence of compulsion under s 24 of the Crimes Act was not available. 3 However, the Judge ruled the evidence could be led in support of a common law defence of necessity. 4 The Solicitor-General then appealed and the Court of Appeal held that the evidence would not support a defence of necessity. 5 The Court expressed no concluded view on the availability of s 24 but recorded that the case had been run on the basis that the appellant was not able to rely on that section. 6

4

Although it was thus common ground in the Court of Appeal as well as in the District Court that the statutory defence under s 24 was not available, the appellant, in this Court, maintains that he can invoke it. Accordingly, there are two questions in issue:

  • (a) Does the appellant's account of events give rise to a defence under s 24? And, if not:

  • (b) Can the appellant rely on a common law defence of necessity?

For the reasons which follow, we answer both questions in the negative. The appeal must therefore be dismissed.

The relevant sections of the Crimes Act 1961
5

Section 24 is relevantly in these terms:

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 believes that the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion.

  • (2) Nothing in subsection (1) shall apply where the offence committed is an offence specified in any of the following provisions of this Act, namely:

    • (a) Section 73 (treason) or section 78 (communicating secrets):

    • (b) Section 79 (sabotage):

    • (c) Section 92 (piracy):

    • (d) Section 93 (piratical acts):

    • (e) Sections 167 and 168 (murder):

    • (f) Section 173 (attempt to murder):

    • (g) Section 188 (wounding with intent):

    • (h) Subsection (1) of section 189 (injuring with intent to cause grievous bodily harm):

    • (i) Section 208 (abduction):

    • (j) Section 209 (kidnapping):

    • (k) section 234 (robbery):

    • (l) section 235 (aggravated robbery):

    • (m) section 267 (arson).

6

From the point of view of the appellant, the problems with the s 24 defence are:

  • (a) The threats which he says Zuby made were not “of immediate death or grievous bodily harm”; and

  • (b) Zuby was not “present when the offence [was] committed”.

7

Also relevant is s 20 which is in these terms:

20 General rule as to justifications

(1) All rules and principles of the common law which render any circumstances a justification or excuse for any act...

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