Ifeanyi Jude Akulue v R

• Jurisdiction: New Zealand
• Judge: William Young J
• Judgment Date: 19 September 2013
• Neutral Citation: [2013] NZSC 88
• Docket Number: SC 38/2013
• Court: Supreme Court
• Date: 19 September 2013

Between

Ifeanyi Jude Akulue

Appellant

and

The Queen

Respondent

[2013] NZSC 88

Court:

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

SC 38/2013

IN THE SUPREME COURT OF NEW ZEALAND

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.

Counsel:

L O Smith and B J Hunt for Appellant

M F Laracy and M L Wong for Respondent

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 1961 1 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:

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

• (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?

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 or omission, or a defence to any charge, shall remain in force and apply in respect of a charge of any offence, whether under this Act or under any other enactment, except so far as they are altered by or are inconsistent with this Act or any other enactment.

…

The appellant argues that if he cannot rely on the statutory defence of compulsion there is nonetheless a common law defence of necessity which is preserved by s 20 and runs alongside the s 24 defence but without all, or some, of its limitations.

The judgments in the courts below

8 In the District Court, Judge Dawson recorded that it was accepted that the statutory defence of compulsion was unavailable because the threats were not of immediate death or grievous bodily harm from a person present when the offence was committed. 7 However, he concluded that the Court of Appeal judgment in R v Hutchinson 8 supports the view that the common law defence of necessity was preserved pursuant to s 20 of the Crimes Act. 9 He also held that such defence was potentially available to the appellant. 10 We note in passing that the judgment of the Court of Appeal in Hutchinson (which did not involve duress by threats) discussed earlier New Zealand authority to the effect that any defence based on duress by

threats from another person can only be advanced under s 24. 11 While the Court in Hutchinson left open the possibility that threats which do not meet the s 24 criteria might give rise to a common law defence of necessity, 12 it is certainly not authority for the proposition that such a defence is available

9 On appeal from Judge Dawson's decision, the Court of Appeal held that a defence based on duress sourced in the threats of another person is available only under s 24. 13 In doing so, it followed and applied earlier judgments of that Court, including Kapi v Ministry of Transport 14 and R v Neho. 15 The Court also discussed the Canadian case, R v Ruzic, 16 to which we will revert shortly, and which the Court of Appeal saw as supporting a narrow approach to s 24. 17

10 The Court of Appeal also referred to various proposals which have been made to provide for a statutory defence of necessity which would encompass and change the existing s 24 defence. The Court of Appeal then went on to say:

[32] It is notable that there has been no legislative movement in response to these various proposals. Further, it is clear that the proper scope of these defences is a matter of considerable debate. For example, if immediacy and presence are to be jettisoned, there are numerous ways one can seek to capture the concepts of no reasonable alternative, or no safe avenue of escape. Issues also exist concerning whether the assessment of the reality of the threat should be subjective, objective, or a mixed assessment. … Further, decisions would be required about what offences are excluded, a process which inherently seems to be legislative in nature.

The defence of compulsion – an overview

11 The shape of the defence of compulsion has always been affected by policy considerations. There should be proportionality between the harm which is threatened and the harm caused by the commission of the offence. Those who are put under pressure to offend should show firmness of character and seek the assistance of the authorities or do whatever else is practicable. So a high level of

coerciveness and the absence of any reasonable alternative to compliance are part of the rationale of the defence. Any formulation of the defence must thus address

• (a) proportionality; and

• (b) the level of coerciveness (including absence of practical alternative to compliance).

12 The exclusion of some offences from the scope of the defence is a mechanism, albeit perhaps a little crude, for ensuring that the harm done by the defendant is not disproportionate to the threatened harm. What offences should be excluded is quintessentially a policy question. According to Hale's Pleas of the Crown, 18 murder, treason and robbery were excluded offences. But despite this, judges left compulsion defences to juries in the treason trials which followed the 1745 Jacobite uprising. 19 More recent common law developments as to excluded...