f
AN ANALYSIS AND COMPARISON WITH
CRIMINAL RESPONSIBILITY IN QUEENSLAND, AUSTRALIA (FOCUS ON COMPULSION)
l .. :~;< ? ~, " ',--, . . ,
'.' .
NIKEN SA VITRI
FAKULTAS HUKUM
UNIVERSITAS KATOLIK PARAHYANGAN BANDUNG
AGUSTUS - 1999
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CRIMINAL RESPON;IBILITY IN QUEENSLAND AUSTRALIA FOCUS ON COMPULSION
CHAPTER ONE
INTRODUCTIONThe comparative analysis of Laws can be seen as long ago as the works of Aristoteles (384-322 BC), who did research on 153 of Greek Constitutions ane! some other cities in his book, Politic. This branch of legal science is very important to a country which is still developing the systems of law like Indonesia. That is one of the reasons why comparative law, especially in Criminal Law focusing on Compulsion will be discussed in this paper. Another reason is because Australia and Indonesia are geographically close, which influences regulation - in this case Criminal Law- in each country. Because of the global era, there is always a possibility for an offender in Indonesia to be arrested in Australia or the contrary. So, discussion of the comparison and analysis of the two legal system is always beneficial.
The determination of guilt in offenders always involves a reference to criminal responsibility. This Criminal responsibility has a main role in the criminal justice system and can not be separated from the system of law of a country. Although there are some similarities in criminal respunsibility in Indonesia and Australia, there are some distinctions as well. These similarities and distinctions will be an interesting issue to be discussed, especially because their analysis can be useful in predicting outeon"'5 in different systems of law. These issues will be discussed and explained in this paper.
Initially, reference will be made to the system of criminal law in each Cllllntry, lndonesin and Australia, especially in Compulsion as part of criminal law system. Then, the similarities and distinctions will be analyzed before the paper reaches its conclusion.
CHAPTER TWO
CRIMINAL LAW SYSTEM IN INDONESIA
1. HISTORICAL BACKGROUND
Indonesia has been colonized by the Dutch for about three hundreds years. During the colonial time, the Dutch Government forced Indonesia to implement their laws including Criminal Law. At that time, law which was applicable in Indonesia had a dualistic character. It meant there were two systems of law, one was applied only for European people who stayed in Indonesia while another was applied for Indonesian people. In Criminal Law, the law which applied to Indonesianpeople was The Criminal Act as regulated under the Code number 732, which was put into effect in 1915. After that time, all criminal conduct was regulated according to those Acts.
When the Japanese occupied Indonesia, after the Dutch had left, the Criminal Act was still declared to be applied to Indonesian people. After Indonesia oroclaimed its independence, based on section 2, transitional part of the Indonesian Constitution, the Criminal Act stilI applied, but with some changes. Thereafter, Indonesia enacted laws which made the Criminal Act applicable for all Indonesian people. Thus, unification was its essential character.
Because the Criminal Act in Indonesia was inherited from the Dutch Government, the system which influenced it is Dutch law or Civil Law. The Civil Law system, including Criminal Law has four sources - Constitution, statutes or acts, custom or case law and doctrine1• These sources of Criminal Law give their character to the Criminal Law system in Indonesia which will be explained below.
2. SYSTEM AND DIVISION OF CRIMINAL LAW IN INDONESIA
As noted above, Criminal Law in Indonesia is influenced by Dutch Law or Civil Law.
The first characteristic of the Civil Law is that the Criminal Law has four sources as described above. The second characteristic of the Criminal Law in Indonesia is an adherence to the principle of Iegality2 . This principle involves the folJowing :
1. A person's conduct is not criminal conduct unless the act was regulated befoJ'(~ that the conduct isan offence.
, ...
'.
" "" ... n~ .. _ ..• ~ ... II\"HI _ 'lno2. Acts and statutes must be interpreted by means of literal translation.
3. Only offences which are encompassed in the acts, can be the subject of prosecution.
Thirdly, the principle of legality, as mentioned above, influences criminal responsibility. The general condition of criminal responsibility is the proof of prohibited conduct by the person who did or omitted to do an act. In the responsibility issue, the Civil Law incorporates the principle that punishable conduct is based on fault.
The fourth character involves the principle of legality which requires judges to be bound by statutes in making their decision. Judges must not interpret statutes in a manner which will result in the creation of new offences (criminalization).
Fifthly, The Civil Law differentiates conduct into felony 01' crime (mala in se) and minor offence (mala prohibita). The concepts of Mala il1 se and Mala prohi/Jita have been inherited from the Greek Law. Mala il1 se is a serious offence because it involves bad conduct. Mala prohibita is prohibited conduct because the statutes so declare. In the Indonesian Criminal Act, the distinction between felony and minor offence is reflected in the punishment prOVided.
Sixthly, the civil law system incorporates an inquisitorial approach to prosecution. This system places the accused as a subject, for examination and before the court.
The last character is that the punishment procedme in the civil law system is one involving the imposition of an alternative punishment or an alternative-cumulative punishment. Alternative punishment means that judges have to select only one punishment if the offender commits more than one act which is prohibited by the statute. The judges can senl.,nce according to alternative-cumulative principles, with limited punishment regulated by statutes, only to the offender who commits a special act which is limited by the statutes as well.
Criminal Law in Indonesia can be devised into several parts. Here below, reference will be made to some divisions of Criminal Law in Indonesia.
"
A. Objective Criminal Law alld Subjective Criminal Law3
Objective Criminal Law !jus poenale) is all of regulations which accommodate prohibition and obligation for all people. People who breach the regulations will be punished. Subjective Criminal Law !jus poenielJdi) is all of regulations which accommodate the government right to sentence a person who cOlnmitted a prohibited
2 Romli Atmasasmita. SH .. LL.M .. Comoarison in Criminal Law. Mandar Maiu; 1996, p. 48.
act. Subjective Crimin"l Law will exist with reference to objective criminal law. So, the government right to punish will exist after being stipulated by the objective criminal law. Clearly, the government cmmot punish despotically, because their right is limited by the objective criminal law.
B. Material Crimim,l Law and Formal Criminal Law
Material Criminal Law is Objective Criminal Law which is mentioned above, which accommodates regulation on :
• Kinds of conduct which arc prohibited;
• Persons who can be punished for criminal responsibility;
• Kinds of punil,;hment which can be imposed on persons who commit the conduct which is prohibited.
Formal Criminal Law or Procedural Law is all of the regulations which accommodate government ways to use their right to implement the criminal law.
C. Common Criminal Law mod Specific Criminal Law
Common Criminal Law is criminal law which is implemented generally for all of the people. This criminal law is stipulated in the Codified Crimin,tl Act. Specific Crimiml1 Law is criminal law which is implemented specifically for some particular groups of people, e.g. Army members, or that which is assigned for particular forms of conduct such as economic crime, subversion, corruption and drug abuse. This specific criminal law is stipulated in acts other than Codified Criminal Act. In this specific criminal law, judges can sentence in accordance with the alternative-cumulative system of punishment as mentioned above.
,
3. COMPULSION AS PART OF CRIMINAL RESPONSIBILTY
In Criminal Law in Indonesia, absence of criminal responsibility is the reason which enables a person who commits an act which is stipulated to be criminal not to be punished.
A person can not be pU11lsn.j because of two factors :'
1. Although the conduct is qualified as a crime, it ,is not a crime because it is not against the law.
~ Sofyan Sastrawidjaja, SH, Criminal Law, Armico - Bandung, 1995, p. 14.
2. Although the conduct is 'Iualified as a crime, the person is not responsible because there is no fauIt (intention or negligence) involved.
Relating to the above issues, the criminal responsibility is stipulated in Criminal Acts with the division as described below:
1. Faith of Justifkation
Faith of Justification is the faith which eliminates the character of illegality from criminal conduct, so the conduct becomes justified. This faith of justification can be broken down into four kinds:
1) duress or compulsion in emergency circumstances - under section 48;
2) defence under duress or compulsion - under section 49 sub-section 1;
3) execution of the law - under section 50;
4) obedience to ol'der - under section 51 sub-section 1.
2. Faith of Execution
Faith of execution is the faith which eliminates fault of the accused. The conduct is still against the law, but the person who commits the conduct can not be punished because there is no fault (intention or negligence). This faith of execution can be broken down into four kinds:
1) insanity - under section 44;
2) duress or compulsion in narrow view- under section 48;
3) extraordinary defence - under section 49 sub-section 2;
4) unlawful order - under section 51 sub-section 2.
From the above explanation, the discussion will be focused on compulsion which is stipulated in section 48 and section 49 (1) and (2) of Criminal Act.
Section 48 Indonesian Criminal Act stipulates:
" A Person WilD conn·Iits the acts under threat, is not criminally responsible."
Although the Criminal Act does not give explanation aboutthe meaning of compulsion, the doch'ine does give some meaning to the term. The doctrine divides compulsion into two forms: absolute compLllsion and relative compulsion. These two forms will be further discussed below.
A. Absolute Compulsion
(vis absa/uta)
Absolute compulsion is duress or compulsion which is not able to be endured. This compulsion can be physical or psychologicai.SThe example of this absolute compulsion is a person who is hypnotized to commit the criminal conduct. This
absolute compulsion is not the compulsion which is embraced by section 48 of the Criminal Act. This is because, in this form of compulsion, the person who commits the conduct under ~ther conduct such as hypnotism is being usee! a lelol to c0111mit the criminal conduct.
B. Relative Compulsion (vis complllsiva)
This is compulsion which is covered by the Criminal Act, section 48, In this form of compulsion, the person who commit the conduct could endure the duress or the compulsion but he/she did not do so in performance of the criminal conduct. This relative compulsion can be divided into two kinds:
1) compulsion in narrow view or physical duress;
is duress which comes from some other person, For examt;le, a person robbed a store under duress by another person who pointed a gun toward him/her, This person could endure the duress but does not do so, and commits the off~nce because of the risk that the other person will fire the gun.
2) necessity;
is duress which is not coming from some other person but from particular conditions, The difference between this kind of compulsion from that of compulsion in narrow view is in the initiative of 'he conduct. In this kind of compulsion, initiative of
-.
conduct is fully decided by the person himself/herself, He/she is free to choose which conduct will he b" acted on,
In this kind of compulsion there are three forms of situations or conditions which caused person to do the criminal act:
a) Conflict of two interc;ts;
The classic example of conflict of two interests is Cllrnendes Bon I'd' . Carneades and his friend experienced the sinking of their boat. They were washed away in the ocean holding on to the board which could not support two people. To save his life, Carneades had to push his friend away which means he let his friend die.
Carneades sacrificed interest of law to save his life or [0 save his interest.
a) Conflict of interest of law and obligation of law;
A person stole bread because he/ she was starving and dying. In this example, his/her obligation to obey the law was sacrificed for his/her interest of law.
b) Conflict of two obligation of law.
An example of this is where a person in the same day and same time is called to testified in 'front of different courts. By choosing one option, it means he/she sacrificed the other obligation of law.
Another compulsion is regulated in section 49 (1) and (2) of the Criminal Act. The Criminal Act stipulates:
(1) A person who commits the criminal ncts ill order to snve himself or herself or allother persoll or to save his or her hOllor or his or her property or allother person's properh).. from the direct threat at that time, is Ilot criminally responsible. (2) A person who commits an extraordillanj self defence because of his 01' her emotion resulting from the threat, is not crimmally responsible.
Section 49 (1) and (2) regulate the different compulsion, that is called self defence and extraordinary self defence.
In section 49 (1), there is a requirement regarding the conduct which is called self defence. The conduct has to be for the purpose of saving himself or herself or his or her property or his or her honor from threat. So, it requires causation between the threat and the conduct. If the conduct does not have a causation, the person who commits the conduct is still responsible fur his or her conduct.
Section 49 (2) regulates extraordinary self defence. The defence has to be for the purpose ,
of the accused saving himself or herself or his or her property 01' his br her honor like the above section. But, in this section, the defence may not be to equal 01' stronger that the threat. A person who acts in extraordinary self defence is not responsible for his or her conduct, only if the defence is influenced by his or her emotion because of the threat.
61l .. :A ... ...,"),1
CHAPTER THREE
CRIMINAL LAW SYSTEM IN AUSTRALIA
1. SYSTEM AND DIVISION OF CRIMINAL LAW IN AUSTRAJ.lA
Criminal Law is a branch of public law, that law which is concerned with the relationships of members of the community and the state. The most important thing which distinguishes the system of Criminal Law in Queensland from other systems of law - such as Contract Law - is that the law, in the main, has a statutory basis. This contrasts fundamentally with the situation prevailing in the criminal law of England, New South Wales, Victoria and South Australia, where the common law is still an important source of the primary source of the law rather than the legislation of parliament.' In Queensland, any criminal dispute must be solved by the stahlte, although cases which were decided before can be relied upon to hd p in interpreting the statutes.
Unlike Indonesian criminal law which is divided into two main parts, material criminal law and procedural criminal law, Criminal law in Queensland does not recognize that division. Regulation of criminal law procedure was integrated in the stahltes or acts.
The only division which is regulated specifically is the division or classification of offences such as Crimes, Misdemeanors, Indictable Offences and Non-indictable offences, which has an influence on the trial process.
2. COMPULSION AS PART OF CRIMINAL RESPONSIBILITY A. Compulsion and Mens Rea
There i~ a major principle in the Common Law that a person may not be convicted unless the prohibited act done by him or her was accompanied by a guilty mind. This principle was known as doctrine actlls ltoll fadt reltlll nisi lIleJIS sit ren or the act does not constitute guilty conduct unless the mind is guilty. The criminal responsibility is explained in accordance with the doctrine which required in any case there should be a guiltiness of mind to constitute the offence. It means that a person who brings about the external physical element of a recognized criminal offence (the ne/ns rells) with the
7 R G Kenny, An Introduction 10 (riminal Law in Queensland and Western A ustralia,Butterwonhs, 1997, p. J
appropriate fault element (sonctimes called lJIeIlS ren) without justification 01' excuse is said to commit the offence ami is liable to punishment.8According to D O'Connor and P A Fairall, at Common Law, criimnal responsibility depends upon proof of the following matters :9
(a) a prohibition or obligation imposed by the criminal law;
(b) some conduct required by the offence charged - usually an act but sometimes, as where there is a duty to act, an omission (the aetlls reus 01' the conduct element);
(c) a culpable state of mind accompanying the conduct or omission (called /IIellS rea or the fault element);
(d) the absence of any defence justifying or excusing the conduct or omission.
A person who commits an of(~nce under compulsion is a person who does not have mens rea element in his/her conduct, so he/ she cannot be said to intend the
consequences of his/her conduct. Compulsion or duress may sometimes be treated as relevant to the denial bf a statutory fault element, such as a particular state of mind.ro In R V Stenl1elJ,the defendant was charged under the Defense Regulations of doing an act (namely broadcasting to the allies from Germany during the second World War) with intent to assist the enemy. There was evidence that the defendant acted out of fear that he or his family ",ould be placed in a concentration camp by the Nazis. This evidence was capable of sustaining an inference that the defendant lacked the intention to assist the enemy which was expressly required by the regulations. This decision does not sit well with more recent cases which analyze intention in terms of undesired but foreseen risk. Assuming that Steane knew that the broadcasts could or would be of assistance to the German war- effort, such knowledge could sustain an inference of intention regarding assistance. It is les, confusing and more realistic to allow duress to operate as an independent matter of jUSlific~tlon or excuse.l2
B. Compulsion in The Queensland Criminal Code
Compulsion or JU5tification and Excuses arises under section 31 of the Criminal Code.
Section 31 (1) (a) excuses acts done in the execution of the law; section 31 (1) (b) excuses acts done in obedience to the order of a competent authority which the person is bound
8 D O'Connor and PA Fairall, Criminal De/ences, Butterworths, 1996, p. 2.
9 Ibid.
\0 Ibid, p. 151.
"(1947) I KB 997; (1947) I All ER 813.
by law to obey, unless the order is manifestly unlawful; section 31 (1) (c) and section 31
(1)
(d) excuse acts which ar'= done under compulsion and section31 (2)
sets limitations for the excuse. Here below "ill be discussed each of those provisions.1) Execution of the Law
The execution of the law is legulated in section 31 (1)
(a).
InR
v Slade, the Court held 13:That section 31 (1) of the Code operated to exculpate an official who did an act otherwise criminal which was necessary in tl,e performance of his duty so that it could truly be said to be an act done under the compulsion of that duty.
In this case, a police officer who carries out his or her task, is not criminally responsible for his criminal conduct, if he did it in order to perform his duty. About the police officer's conduct, Lee J, in R V Slade said: 14
It was submitted that the accused broke the law in the hope of his discovering or detecting crime and that no individual should be permitted to take unto himself the role of making the value judgment that it is in the greater good, in his opinion, to break one law in the hope vf
uncovering other possible breaches of the law.
In this case, compulsion was not be able to be a defence, because the police officer was doing the criminal conduct which was not necessary in the circumstances. About the compulsion which will be a defence to a police officer, the court held:
Section 31 (1) (a) can only apply where the act which would otherwise be criminal was necessary in the performance of the officer's duty so that it can be truly said to be an act done under the compulsion of that duty.
2) Superior Orders
Superior orders are regulated under section 31 subsections (1) (a) and (b). It is provided that' a person is not criminally responsible for an act or omission if he does or omits to do the act in obedience to the order of a competent authorily which he is bound by law to obey unless tlle order is manifestly unlawful. Stanley
J,
in HUllt I' Malolley, held 15:It is not necessary to determine the precise limit of section 31 (2), but I think it is directed to a S4bordinate's obedience to orders e.g. soldier or sailol', a consttlble, a gaoler. An ordinary agent is not necessarily bound to obey his principal's orders; he Illay terminate his agency.
12 D O'Connor and PA Fairall. op. Cit., p. 151.
"(1995) I Qd R 390.
14 Ibid.
15 fll\.c:'O\run It::A
In this kind of compulsion, whether an order is manifestly unlawful is a question of law. The section does not exculpate the accused if he or sne obeys an order which he or she knows to be unlawful merely because it is not manifestly so. Mack
J,
from what GriffithCJ
held in Hardgrove v The King (1906) 4 CLR . 232 at p. 237, saidl6 :The general rule is th"t a person is not criminally responsible for an act which is done independently of the exercise of his will or by accident. It is also a general rule that a person who does an act under a reasonable misapprehension of fact is not criminally responsible for it even if the facts which he believed did not exist.
3) Self Defence
Subsection (1) (c) provides an excuse which is similar in many respects to self defence.
This provision also extends to resist violence threatened to another in the person's presence. This section could also be used to excuse an act in relation to property rather than being limited to excusing assaults committed in self defence.
Subsection (1) (c) provides no protection to an act which would constitute a crime of murder. In accordance to 'his kind of compulsion, Kelly A], in R v Fietkllil held 17 :
It would have the curious result that a person who does or olnits to do an act in order to tnve
himself from immedjab~ death or grievoLis bodily harm threatened to be inflicted upon him would not be ['rotected in respect of an act which itself would constitute an offence of which grievous bodily harm or an intention to cause such harm is an element; whereas a person who does' an act reasonably necessary in order to resist actual and unlawful violence threatened to him or another person, but not necessarily such violence as would cause or cause the risk o(death,or grievous bodily harm, would be so protected.
This is to be'related to criminal conduct under duress or compulsion which results in causing death or grievous ~odily harm to the attacker. This kind of self defence is not protected by law and excluded from the compulsion issues.
4) Compulsion or Duress
Subsection (1) (d) provides tbat an act must be under threat which is of immediate death or grievous bodily harm. In R v Picknrd18, Stanley
J
said at 476 in relation to section 31 (l)(d),16 Ibid.
17 (1995) I Qd R 667 (CA)
18 (1 nC',\\ r\.J n A-H. ( I nc:n\ c: ,I "rDD 'l()
" It is sufficient to say that its key note is the freedom from responsibility of a person who has committed a crimina'. act or omission under the urgency of compulsion by threats, but reading the section compels one to notice that the freedom is extended only when the
threatened injury·is to follow immediately on non compliance with the threat."
The word 'immediate' qualifies the words 'death' and 'grievous bodily harm' and must be related to some very shJrt time after the doing or the omission of the act. When Pickard appealed against a conviction of breaking, entering and stealing, Stanley
J,
held19:
In my opinion the word' immediate' obviously cannot mean some wholly indefinite future tinle and place. It must be related to some very short time aftcr the doing 0)" the omission of the act. Whether the length of the time depends on the nature of the threatened injury 01'
whether the section is wh<Jlly inapplicable, if some appreciable length of time mllst elapse before the threat is carried out, need not be discussed further in this particular case on the particular facts. The words 'actually present and in position to execute the threats' so far as it is necessary in this case, I am of the opinion that those words mllst be read striclly.
When one speaks of being actually present, a person cannot be both present and absent when absence is the opposite of presence.
So, through the cases we can see that a person must believe himself or herself being otherwise unable, except by doing the act or making the omission, of escaping the carrying out of the threats into execution. This requires the test to be subjectivel"
applied.
C. Limitations on the Excuse
Section 31 subs~ction 2 provides the limitations on the excuse. It mentions that the Duress or Compulsion dcie~ not extend to an act or omission which would constitute the crime of murd~r,. or any of the crime defined in section 81 (2) and section 82, or an offence of which grievous bodily harm to the person of another, or any intention to cause such harm is an element. So, the law of compulsion excludes several types of offences from the scope of the defence : murder, piracy, treason and serious offences which cause han'n to other person. The availability of the protection is further limited by not extending La a person who has by entering into an unlnvvful association or
19 11..:...1
conspiracy renderec' himself or herself liable to have such threats made.20 But, if the accused person is threatened with violence in circumstances in which the reasonable person might have chosen to act as the accused did, as a concession to human frailty, the accused can raise the defence of duress.21
Sir William Blackstone has a comment regarding the compulsion:
Duress involves a constraint upon the will, whereby a man is urged to du that which his judgment disapproves; and which it, it is to be presumed, his ""ill (if left to itself) would reject. As punishments are therefore only inflicted fur the abuse of that free will, which God has given to man, it is highly just and equitable that a man should be excused for those
acts, which arc done throllgh unavoidable force and compulsioll. :!2
As decided in the R v Fietkllll', the accused cannot rely on the defence which resulting in the death or grievous bodily harm of the threat-maker.
D. Onus of Proof
The Crown is responsible for proving that the accused is guilty of the offence charged.
In this case, the Crown has tLe persuasive onus of proof to persuading the arbiter of fact of guilt. But, in the case where there the accused wants to rely on defence such as insanity, he or she has to prove it to tl~e jury.
In Carter's Criminal Law of Queensland, the onus of proof of compulsion is explained as bellow:
Where an accused person desires to rely on the defense of <.lures,..;, he or she must, either by the
cross-examination of the prosecution witnesses, or by evidence called, or by a combination of the two, place before tl~e COllrt such material as makes duress or compulsion a live isslle fi
'.
and proper to be left to the jury. 24
This is explained in R I' SlIIyth 25 where Sholl
J
said:Once evidence ·is given on \\;hich a jury may hold that duress in the necessal'Y sense was exercisedt or ohce evidence is given that raises a reasonable doubt whether duress in that sense was exercised ,against the accusedt the onus is on the Crown to rebut that evidence, because (subje.ct'to the special rule as to insanity) the onus is always on the Crown in the
.,
20 JF Jerrard QC et all, CarieI' 's Cl'illlina/ Law a/Queens/and, Butterworths, 1997, p. III.
21 See R v Shepherd (1988) 86 Cr App R 47.
22 Stanley M H Yeo, Compulsion in the Criminal Law, The Law nook Company Ltd., 1990, p. 36.
13 (1995) I Qd R 667 (CA)
24 JF Jerrard QC, BJ Butler SC alid MJ Shanahan, op. Cit., p. 112.
25 {1f'1.£'I' "n "7')"7 ... + ",)0
ultimate result to prove that the criminal act alleged against the accused person was the free and voluntary act of a responsi')1e individual.
So, in Queensland, apart from insanity, and such express statutory reversals, the onus of proof is with the Crown. The accused may satisfy the evidential onus by referring to evidence given in cross examination of the prosecution.
CHAPTER FOUR
COMPARISON AND CONTRAST OF THE TWO SYSTEM
As mentioned in the introduction, the aim of this paper is to consider SLlme similarities and differences between the two systems of criminal, to assist in developing the criminal justice system in Indonesia. Because the laws of Queensland and Indonesia are both based on stahIte, the similarities seem to be more easily found in the two systems, especially in respect of compulsion.
1. SOURCES OF THE CRIMINAL LAW
In Indonesia, because of the influencing from the Dutch Colonialism, the system which is applied in Criminal Law is Civil Law System or European Continental System. The Civil Law system, as has mentioned, is mainly based on stahlte. This means that cases in the Civil Law system not playa major role.
In contrast, in Queensland, although the Criminal Law System is also based on stahIte, the cases still playa major role. This is because of the influence of the Common Law System which is applied in Queensland.
Nevertheless, the major sirr,ilarity of the two systems is that the main source of law is stahIte. The similarity extends to the regulation on criminal responsibility, especially through compulsion, of the two jurisdictions.
2. THE DIVISION OF CRIMINAL LAW
In Indonesia, the division of the criminal conduct - according to the Civil Law - is felony or crime and minor offence or misdemeanor. The division's main consequence is seen in the punishment which applies. The stahIte provides for separate regulation in the punishment of the felony and the misdemeanor. The felony is regulated in chapter two of the Criminal Code while the misdemeanor is regulated in chapter three. Because the felony is the more serious crime, the punishment is usually higher than that for a misdemeanor.
In Queensland, the criminol conduct is divided according to the seriousness of the conduct into indictable and non indictable offenses. The division relates to the determination of the court of h'ial and the procedure of the prosecution.
•
3. COMPULSION AS PART OF CRIMINAL RESPONSIBILITY a. Compulsion Meaning
In the Indonesian Criminal Act, Compulsion is one of the exemptions from criminal responsibility. It regulates separately in different section with self defence, and superior orders. Compulsion comprises two different kinds of conduct, that is absolute and relative compulsion. Relative compulsion can be broken down into two other kinds, that is compulsion in narrow v iew or physical duress and compulsion in emergency circumstances. In Queensland, this is recognized as necessity.
Self defence is another kind of compulsion in Indonesia, and is regulated separately in another section. Self defence can be broken down into self defence itself and eXh'aordinary self defence.
In Queensland, compulsion is part of the criminal responsibility issues which are regulated in Chapter Five of the Criminal Code. Compulsion is regulated together with other justification and excuse for the criminal conduct - such as execution of the law and superior orders - in section 31. There are two kinds of compulsion which are regulated by section 31 (1) (c) and section 31 (1) (d). One is compulsion which requires the force to be reasonably necessary (section 31 (1) (c)) and another is compulsion which requires an immediacy of threat from a person in a position to carry it out and a belief by the accused that no alternative solution is available.26
There is only one meaning of compulsion in Queensland and necessity is not part of compulsion in Queensland. It means that the circumstances which force a person to commit criminal conduct is not referred to as compulsion. Compulsion in Queensland is only conduct by a person in order to save himself or herself or another person from immediate death or grievous bodily harm threatened.
This means that there are dissimilarities in the scope of compulsion in Indonesia and
Queensland. ,
b. Compulsion and Criminal Responsibility
In Indonesia, the Criminal Responsibility doctrine stipulates that a person who commits a criminal conduct is responsible, unless he or she cannot be responsible because he or
7,6,.,,· . , . ,.,., I " . ' J . t",
..
•
she is justified or the conduct is excused by the law. A person is justified if he or she commits a criminal conduct in self defence. The conduct is excused if a person commits it under duress or com,:>ulsion.
In the Common Law system, whether a person responsible or not for his or her conduct depends on the doctrine of 'mens rea'. A person who commits a criminal conduct under duress or compulsion or regarding a self defence is a person who does not have frce will. So, in the person's mind there is no 'bad mind' motivating the criminal conduct.
Thus, the person cannot be responsible for his or her act.
c. Limitation of Compulsion
There is no particular limitation in applying the defence of compulsion in Indonesia.
The limitation only comes generally in requiring which compulsion or duress can be used to justify ~r excuse criminal conduct. As has been explained before, the duress or compulsion which results in the justification or excuse of the criminal conduct, requires allocation of duress by anocher person. The conduct has to have an equality with the threat, except in eXh·aordinary self defence. So, there is nO limitation on compulsion regarding the conduct which has been taken by a person.
In conh'ast, in Queensland, some serious offenses are excluded from compulsion, such as treason, murder and piracy. Lord Chief Justice Lee said in M'Crowt/zer
'The only force that doth excuse is a force upon the pusan, and present fear of death;
and this force and fear must continue all the time the party remains with the rebels'.There seems in principle no reason to suppose that duress
is
not open on a charge of treason, trmchery or sabotage under the Crimes Act 1914 (Cth).27It has been decided by tl'e courts in Aush'alia that duress cannot be raised by the principal in the first degree or for the actual killer.2B
d. Burden of Proof
There is similarity in burden of proof of existence of the compulsion in front of the court, in Indonesia and in Qteensland .
•
.
In Indonesia, an accused who wants to rely on compulsion, does not have to prove the existence of the compulsion as an emergency circumstance 01' necessity. He or she only
27 D O'Connor and.PA Fairall, op. Cit., p. 154.
')11 ., ••
has to bring sufficient eviliL'nce to support his or her defense. In the other side, th, prosecutor has to prove the contrary, that there is no dl~fcnce in the casc.
In Queensland, inS/l/ytfl"Sholi
J.
decided that the burden of proof IJ1 relation to compulsion is in the Crown, after the accused has raised sufficient evidence.3" The effect of this rule is that, once evidence which can amount to duress has been inh'ocjuced, the jury should convict only if they are satisfied beyond reasonable doubt, not only that the accused committed the crime charged but also that did so, he was not acting under the influence of duress or compulsion.The difference between the method of conviction of the accused Jies in the system of judge and jury. Because there is no jury in Indonesia, the judge or judges will decide. In Queensland, the' jury will decide, whether Crown has discharged its burden of proof in respect of the existence of compulsion.
"
29 (1963) VR 737, 738.
30ro_I: .• II_ ••. _~.J ",.: ••• : •• _1' _", 1(\0'" _ AlA
'j
..
CHAPTER FIVE CONCLUSION
