HOLLAND v R [2016] NZCA 621

HOLLAND v R [2016] NZCA 621 [19 December 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA160/2016[2016] NZCA 621BETWEEN MICHAEL ANTHONY HOLLANDAppellantAND THE QUEENRespondentHearing: 20 October 2016Court: Cooper, Brewer and Peters JJCounsel: A J D Bamford for AppellantZ R Johnston for RespondentJudgment: 19 December 2016 at 12.30 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Background[1] One afternoon in July 2014, the police observed the appellant, Mr Holland, driving a vehicle in Takaka at speed and not wearing a seat belt. The vehicle was stopped and as a consequence of interactions that then took place the police searched the vehicle and found a quantity of methamphetamine together with approximately $11,000 in cash. A combined weight of approximately 100 grams of methamphetamine was located and seized from two bags found in the vehicle.[2] Mr Holland was charged with possession of methamphetamine for supply and supplying methamphetamine.1 He pleaded not guilty to both charges and the matter proceeded to a trial before Judge Hastings and a jury in the Nelson District Court in October 2015.[3] At the end of the Crown's case, Mr Holland elected to give evidence. In thatevidence he sought to lay a foundation for a defence of compulsion in relation to the charge alleging supply of methamphetamine. Judge Hastings heard counsel on the question of whether there was a sufficient foundation for the defence to be left with the jury. Having reviewed the relevant evidence, the Judge ruled, relying on the judgment of the Supreme Court IA v R,2 that a sufficient evidential foundation had not been established.3 He said that he would direct the jury that the evidence given by Mr Holland did not support a defence of compulsion and that they must put any sympathy for him generated by the evidence on one side.[4] The Judge indicated, however, that in the event of a guilty plea the issues raised might be taken into account on sentencing. At that point, Mr Holland pleadedguilty to both charges and was sentenced to an effective term of five years'imprisonment.4[5] Mr Holland now appeals against his conviction. It is common ground that if Judge Hastings' ruling was incorrect, the circumstances in which the guilty pleaswere entered were such as would give rise to a miscarriage of justice for the purposes of s 232(2)(c) of the Criminal Procedure Act 2011.5The relevant evidence[6] In his police interview, Mr Holland said that he had been selling methamphetamine in Nelson, which was sourced from the Head Hunters gang in Auckland. He claimed he had moved away from Auckland to remove himself from1 A further charge of possession of cannabis was laid following a search of his house. Mr Holland pleaded guilty to that charge when arraigned at the start of his trial.2 IA v R [2013] NZSC 88, [2014] 1 NZLR 17.3 R v Holland Nelson DC CRI-2014-042-1426, 21 October 2015.4 R v Holland [2015] NZDC 24319.5 See R v Le Page [2005] 2 NZLR 845 at [20].his association with the gang but the gang had found him and pressured him to distribute drugs.[7] At the trial, there was evidence from Constable Davies that Mr Holland told him that the methamphetamine was to be delivered on behalf of the Head Hunters,adding, "I don't want to tell you names because they'll kill me."[8] In evidence, Mr Holland explained how he had become involved with the Head Hunters gang after a friend became a member. He explained occasions on which he had been subjected to home invasions that involved threats, beatings andallegations that he owed the gang money for "mahi" (work) they had done for him. Gang members had appropriated electronic equipment such as projectors and televisions on these occasions. On one occasion, he said he had been hit in the face with the butt of a gun. Overall, he had been subjected to four or five of these violent robberies. He decided to leave Auckland as a consequence.[9] However, his work as a DJ took him back to Auckland from time to time and on one of those occasions he was contacted by a gang associate and persuaded to take methamphetamine back to Nelson. Mr Holland claimed that, when he initiallyrefused to comply, he had been threatened, with the associate saying "you know what happens". He took that to mean he would be beaten or, given the quantity of drugs they wanted him to distribute, possibly killed if he did not cooperate.[10] When Mr Holland returned to Nelson, he received a phone call and was told that he had two hours to meet the caller at a stated location. He was told that he had"better turn up", which he took as a continuation of the threats he had received before leaving Auckland such as "don't fuck this up" and "you don't want to steal from us". He said that when he arrived at the stated location there was a "kind ofthugly [sic] looking guy" who Mr Holland considered a gang associate, together with another man who remained in the car. Both were described as "hard men big dudes" of an "intimidating kind". Mr Holland handed over a package in return for money.[11] Mr Holland went on to describe about four occasions during this periodwhen, in each case, he had had to "drop everything" to meet with persons involvedand hand over drugs. On one occasion, when he was in Golden Bay and he had been telephoned, he described the situation as being: basically told me to drop everything and it was, like, yeah, be here or[you're] fucked kind of a message it's like, it wasn't worth taking the risk. It's like they knew where I lived. They knew where my parents lived.[12] The following exchange took place during his evidence-in-chief:Q. In terms of where, you know, your dealings with these people, if —did you have any option? Did you feel you had any option?A. Nah, from — well, not unless I wanted to take a beating or run andhide, kind of thing. Um, 'cos, yeah, before they've always, like,used intimidation and violence.Q. When you say "take a beating", what sort of — how would that be?A. Oh, it'd been bad enough before, like, yeah, getting struck in theface with, like, weapons or, like, yeah, given, like, fist beatings and—Q. You talked about was it a gun butt?A. Yeah, yeah, but it's like, you know, basically came to the door withthe weapons and do the standover but, like, yeah, just smashed me in the face with it to start with and then, like, yeah, pointing it at meafterwards but it's, like, yeah, basically by that time I'm on the floor.[13] In re-examination Mr Bamford sought to clarify when the threats Mr Holland referred to had been made:Q. I want to go back and try and get a clear understanding of each of the stages. You were given drugs in Auckland?A. Yeah.Q. By this ex-friend, former friend?A. Yeah.Q. What do you say would have happened to you if you'd refused totake them?A. He would have basically said that, 'cos he was saying that I owedhim for something, so he would have said that basically made up thebill like they'd done in the past when they robbed me and said it wasfor mahi they had done. It's like yeah basically what they say ends up being their gospel.Q. But what would you have anticipated the consequence of that to be?A. Um, basically ending up with a debt that's known about to theHead Hunters which would then end up with me getting severely beaten, property taken, um, possibly like yeah they'd mentioned my parents so, or my mum. So yeah I didn't want to think about that.Q. In terms of the next stage, you're in Golden Bay for example whenyou get a call —A. Yeah.Q. — what would you have anticipated the consequence to be had yousaid no I'm not coming over the hill to deliver this stuff?A. Then it's like they would have, I'd say, sent someone over to me toa) take that off me and b) give me a hiding.Q. How bad would the hiding have been?A. Bad enough, like a, like gang member that's pissed off with you that has to travel two hours to come and see you, it's like yeah theywould have been well pissed off by the time they got there.Q. True.A. It's like yeah they would have, they would have at least put me in hospital kind of thing, it's [14] Counsel further clarified what might have happened if he had refused to deliver packages. Mr Holland claimed that he was scared he would have been beaten and possibly killed.The defence of compulsion[15] Section 24(1) of the Crimes Act 1961 provides 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.[16] In R v Teichelman this Court described the critical features of s 24 as being:6(a) A threat to kill or cause grievous bodily harm.(b) The threat must be to kill or inflict the serious harm immediately following a refusal to commit the offence.(c) The person making the threat must be present during the commission of the offence.(d) The defendant must commit the offence in the belief that otherwise the threat will be carried out immediately.[17] It was said that the section provides a "narrow release from criminalresponsibility where its strict requirements are met", reflecting a policy decision that,in those limited circumstances:7 a person faced with the threat of immediate death or grievous bodily harmmay properly be excused if he chooses the lesser evil of committing the offence.[18] The Court went on to say:8The 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.[19] The policy behind the section was further addressed in IA v R.9The Supreme Court observed:[23] The requirements under s 24, for threats to be made by a person who is present and for the harm threatened to be immediate, reflect a legislative purpose that if there was sufficient time to seek assistance from the authorities, a defence of compulsion is not available. The section was not6 R v Teichelman [1981] 2 NZLR 64 (CA) at 67.7 At 66.8 At 67.9 IA v R, above 2.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.[20] Mr Bamford, in advancing the present appeal, did not purport to rely on a common law defence of necessity. Rather, he couched the argument in terms of the defence provided in s 24(1) of the Crimes Act. That was consistent with theSupreme Court's conclusion in IA v R that the common law defence had not been preserved by s 20 of the Act.10This case[21] Mr Bamford submitted that the threats made in Auckland, namely, "you know what happens", "don't you fuck this up", and "you don't want to steal from us"constituted threats to cause grievous bodily harm, if considered in the light of the serious assaults Mr Holland alleged he had suffered at the hands of the Head Hunters gang. He argued that, because of what had already happened to Mr Holland, there had been no need on the part of those threatening him to specify in any more detail the sort of harm he would come to should he not comply with the instructions.[22] The threats initially made in Auckland were then continued and adopted by the persons with whom Mr Holland dealt in Nelson. This was to be inferred from the peremptory way in which they demanded that he be present, telling him he hadbetter come "or else". Mr Bamford submitted that the necessary threat did not haveto be made for the first time at the time of the offence; it would be sufficient if the threat had been made previously and continued in effect, so long as the person making the threat was present at the time of commission and in a position to carry it out immediately. As part of this argument, Mr Bamford referred to the definition of"person" in s 30 of the Interpretation Act 1999, which includes a "body of persons",inviting us to treat the threats as coming from the Head Hunters gang as a whole.[23] Similarly, Mr Bamford argued that the requirement the threat be of harm that will happen immediately following a refusal to commit the offence was also established on the present facts. This was so because there was a person present to10 At [25].receive delivery of the drugs from Mr Holland and that person would have been in a position to carry out the threats had the drugs not been handed over.[24] Again, on the basis that the time the offence was committed was when the drugs were handed over, that was sufficient to satisfy the requirements of the section that the person making the threat must be present while the offence is committed.[25] In advancing these submissions Mr Bamford referred to this Court's decisionin R v Neho.11 He submitted that this Court accepted that a threat originally made by one person may be enforced by others who are physically present when the offence is committed. The Court referred to the need for the evidence to establish:12 that the persons making the threats were sufficiently proximate to theappellant at the time of the offending to amount to the physical proximity or presence which must be established for the purposes of s 24(1).[26] Mr Bamford contended that, here, the immediacy required was established, given that at the time of the commission of the offence the persons to whom Mr Holland was required to hand the drugs were the persons who would carry out any physical violence should he refuse to comply.[27] Finally, Mr Bamford submitted that Mr Holland's evidence established whathe believed would be the immediate consequence should he not hand over the methamphetamine. He would at least be beaten, and possibly killed. That threat had to be seen in the context: the threat was emanating from a gang, against a background of a number of unpleasant and dangerous encounters that Mr Holland historically had with the gang. Mr Bamford emphasised that the point at which the assessment of the defence of compulsion must be made is the point at which the offence is committed. Here, the relevant point to consider was the point at which Mr Holland delivered the methamphetamine. He contended that the Crown'ssubmission there had been ample opportunity to go to the authorities was relevant only to the charge of possession for supply. When Mr Holland was at the car park in Nelson delivering the drug, the basis of the supply charge, that opportunity did not exist.11 R v Neho [2009] NZCA 299, [2013] NZAR 464.12 At [17].[28] However, these arguments overlook the fact that it was Mr Holland'spresence in the carpark that put him into danger. He would not have been exposed to that danger had he chosen to go to the police, explained his predicament and sought their assistance. That may have appeared as an unpalatable option having regard to his perception that the members of the gang might exact retribution at some later stage. But the defence as it has been explained in the authorities discussed above does not contemplate that such long-acting threats will excuse the offender's conductin effectively putting himself in a position of danger.[29] If Mr Holland's evidence is accepted he might indeed have been subject tosome form of violence if he had gone to the appointed place, and once there and in the presence of the gang associates expecting him to hand over the methamphetamine, refused to do so. But it is clear from the authorities that he could not subject himself to danger for the purpose of committing a crime and then attempt to rely on the statutory defence of compulsion so as to excuse the fact he proceeded to offend.[30] On his own evidence Mr Holland had ample time to contact the police after the threats were made and before he committed the offence. Accordingly, the decision of Judge Hastings declining to allow the defence of compulsion to go to thejury was correct. Mr Holland's conviction must be upheld.Result[31] The appeal against conviction is dismissed.[32] We note that Mr Bamford advanced an application that Mr Holland's nameshould be suppressed. We are not persuaded that the circumstances warrant such an order being made.Solicitors:Crown Law Office, Wellington for Respondent