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• Elements Of The Defence
• Proposals For Reform

10. Compulsion

160 SECTION 24 OF THE CRIMES ACT 1961 provides:

(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) of this section 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):

[(ka) Section 235 (aggravated robbery):]

(l) Section 294 (arson).

(3) Where a married woman commits an offence, the fact that her husband was present at the commission of it shall not of itself raise the presumption of compulsion.

161 Commentators have criticised the inflexibility of the statutory defence (while acknowledging the benefits of its certainty) when compared with the development of the defence at common law. Nevertheless, New Zealand courts have interpreted the section strictly and have resisted arguments that the section should follow the common law approach.[245] In R v Maurirere the Court of Appeal commented that:[246]

... there are strong policy reasons for confining the defence of compulsion. Because the section protects a person who would otherwise be guilty of committing a criminal offence from responsibility for that offence, the defence is only to be available if a person has satisfied the strict requirements of the section.

ELEMENTS OF THE DEFENCE

162 In R v Teichelman, the Court of Appeal explained the effect of section 24(1) as follows:[247]

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.

SECTION 24 AND BATTERED DEFENDANTS

163 In this part we examine the implications for victims of domestic violence who offend under coercion.

Particular kind of threat associated with a

particular demand

164 Section 24 excuses offending under compulsion by threats in limited circumstances. The Court of Appeal has said that the threat “need not be in words ... but it must be a particular kind of threat associated with a particular demand”.[248] Victims of domestic violence may offend in response to general fearfulness of their abuser, rather than in response to “a particular kind of threat associated with a particular demand”. For example, in Runjanjic and Kontinnen,[249] there appears to have been no specific articulated threat. Rather the two defendants did what they were told in fear of the consequences if they did not do so. The relationship between the two female defendants and their abuser was marked by habitual violence. He prevailed on both women to work as prostitutes. They were expected to attend to his every need and the price of disobedience was a severe beating. The availability of an excuse in such circumstances would seem consistent with the rationale of the defence, yet the facts would probably not satisfy the requirements of section 24, as interpreted by the Court of Appeal, because there was no specific threat associated with a particular demand to commit an offence.

Actual existence of a threat

165 Section 24 appears to require the actual existence of a threat, although there is no definitive case law on the point,[250] but only an honest belief that the threat will be carried out. It has been argued that an honest belief in the existence of a threat should be sufficient as “the pressure on the accused is the same whether or not his belief is correct”.[251] On the other hand, to do away with the requirement of an actual threat would make the defence available on entirely subjective grounds. It may be preferable to follow the common law and require reasonable grounds for the belief.[252]

The identity of the victim of the threat

166 There is nothing in the wording of section 24 that would prevent a defendant relying on the defence where another person had been threatened (for example, the defendant’s child). Such an interpretation is consistent with the common law developments in overseas jurisdictions,[253] but we have been unable to find any New Zealand case law on point. The issue may be important to victims of domestic violence who may act, or fail to act, in order to protect children or other family members. Legislative expression will clarify the issue.

The presence of the threatener when the offence is committed

167 In R v Witika the Court of Appeal upheld the trial judge’s decision not to allow compulsion to go to the jury on the basis that “the evidence did not disclose a credible case of excuse for the failure to secure medical care” by the defendant for her young daughter, who died after severe physical abuse.[254] Witika alleged that she was too frightened to get help for her daughter because of the violence she had suffered at the hands of her male partner Smith. The trial judge had held that:[255]

[Section] 24 ceased to be available when there was a failure or omission at a time when Smith as the alleged maker of the threat was not present, presence at the time of the commission of the offence being an essential requirement ... Assuming ... that her failure to get medical help was capable of being excused under s 24 while Smith was present, she lost that ground of exemption from liability when he was no longer present and she had the opportunity to get help.

The Court of Appeal agreed with this reasoning, adding:[256] “[w]hile those periods continued she failed in her duty. Her situation was no different from that of a person who has an opportunity to escape and avoid committing acts under threat of death or serious injury”.

168 More recently, in R v Richards,[257] the Court of Appeal dismissed another appeal relating to the application of section 24 in the context of domestic abuse. The Court held:[258]

The appellant incontestably was suffering from Battered Women’s Syndrome.[259] She sought to argue that this amounted to a compulsion situation within s 24. The difficulty was that her abusive partner was not present at the time of the offending on either occasion concerned. Counsel contended for a so-called “constructive presence” due to the Battered Women’s Syndrome condition. The argument cannot succeed. We refer to the plain words of the statute which require actual presence and the established line of authority comprising in particular R v Teichelman ... R v Raroa ... Kapi v Ministry of Transport ... R v Witika ...

169 Yet in the earlier case of R v Joyce, while categorically affirming the requirement of actual presence, the Court of Appeal nevertheless seemed to have suggested there may be room for some flexibility:[260]

[T]here is no justification for concluding that the Legislature ... intended to include as a good defence anything less than threats by a person actually present when the accused committed such acts as were alleged against him, for the very object of the section is to provide a defence to persons who commit offences under “immediate” threats of death or grievous bodily harm from persons who are in a position to execute their threats. This may sometimes be a matter of degree depending on the particular circumstances of the case including the means adopted in making the threat. [Emphasis added.]

The italicised sentence is capable of being read as suggesting that the real question should be whether the threatener is in a position to carry out the threat, rather than whether he or she was actually present.

170 In another context, Thomas J in the Court of Appeal has recognised the pernicious and pervasive control that an abusive partner can exert in a battering relationship:[261]

[T]he battered woman relationship is characterised by the batterer exerting excessive control over the woman. The abuser generally exerts not only physical control but financial and social control as well. Women in these relationships are frequently kept without money, are not allowed friends, and are forbidden to move outside the house without the knowledge of the dominant party.

171 Victims of such relationships would require neither an actual threat nor the actual presence of their abuser to be coerced into offending. It is arguable that the current wording and application of section 24 limit – in a way which is contrary to the rationale of the defence – the availability of the defence for victims of domestic violence and others[262] who commit offences under duress.

PROPOSALS FOR REFORM

172 In its 1991 report on the Crimes Bill 1989, the Crimes Consultative Committee proposed a revised clause 31:

Duress –

(1) A person is not criminally responsible for any act done or omitted to be done because of any threat of immediate death or serious bodily harm to the person or any other person from a person who he or she believes is immediately able to carry out that threat.

(2) Subclause (1) does not apply where the person who does or omits the act has knowingly and without reasonable cause placed himself or herself in, or remained in, a situation where there was a risk of such threats.

(3) Subclause (1) does not apply to the offences of murder or attempted murder.

173 The revised clause addresses some of the issues outlined in the previous discussion. Exclusion of the defence based on a voluntary association is more clearly expressed in subclause (2) than in section 24(1). The strict application of subclause (2) may exclude victims of domestic violence who fail to leave a violent relationship, although the words “knowingly and without reasonable cause” should allow expert evidence to explain why a victim of domestic violence remains in a battering relationship.

174 However, subclause (1) still requires the presence of a threat, which current case law interprets as “a particular threat associated with a particular demand”. As discussed in paragraphs 164 and 171 above, victims of long-term domestic violence may respond to a demand even if it is not accompanied by a “particular threat” because of a fear of the predictable consequences of refusal based on the pattern of past abuse.

175 The words “who he or she believes is immediately able to carry out the threat” replace the current presence requirement. While these words would cover hostage situations they may not significantly alter the availability of the defence to victims of domestic violence. If the defence is intended to excuse those who act out of fear of dire consequences, it does not logically need to be limited to immediate retaliation. Behaviour brought about by the honest belief that the threatened retaliation will inevitably occur is nonetheless coerced behaviour. The use of the word “inevitably” rather than immediate may therefore be preferable.

176 Like section 24, clause 31 does not require the defendant’s belief that the threat will be carried out to be reasonable, only that it be genuine. Arguably, a genuine but unreasonable belief will have just as strong an effect on a defendant as a reasonably based belief. On the other hand, since the defence offers a complete excuse for committing what would otherwise be a criminal offence, it may be preferable to follow the common law and only excuse those who act on reasonably based beliefs.

177 Subclause (3) drastically reduces the existing list of excluded offences in section 24(2). In the words of the Crimes Consultative Committee, “[t]he formulation in the bill dispenses with the arbitrary list of offences to which the defence does not at present apply”.[263] The submissions on the Bill were consistent with the academic criticism of the existing list[264] and the proposed revision was well supported. However, we question whether any form of duress should be a defence to serious personal injury. While the defendant may have committed the crime under great pressure, a complete defence for those offences listed in section 24(2) and other shocking offences such as rape and torture[265] (which are inexplicably not listed in the section) may lessen public faith in the criminal justice system. In such cases, it may be preferable to rely on a plea of mitigating circumstances on sentencing. We seek submissions on the subject.

Question 13: Should section 24 of the Crimes Act 1961 be replaced by clause 31?

Question 14: If the answer to question 13 is yes:

(a) Should clause 31 be amended so that:

(i) The definition of “threat” includes non-specific threats arising from the circumstances of the violent relationship?

(ii) The immediacy requirement is replaced with an “inevitability” requirement?

(iii) The defendant’s beliefs about the existence of a threat and whether it will be carried out must be reasonable?

(b) What offences, if any, should be excluded from the defence?