Was duress properly raised?
33 The reasons given by the primary judge were to the effect that the threats were not made to cause the appellant to carry out the work, but only to ensure he did not leave the property; and the Crown submitted that this was correct, relying inter alia on R v Dawson [1978] VR 536.
34 In that case, the applicant had been charged with the offence of escaping from prison; and he sought to raise a defence of duress, leading evidence that he escaped because he feared for his life as a result of threats made against him in prison. The trial judge ruled the defence of duress was not open, and the applicant was convicted. In the Full Court of the Supreme Court of Victoria, Anderson J (with whom Starke J agreed) and Harris J both quoted with approval the following passage from the judgment of Smith J in R v Hurley and Murray [1967] VR 526 at 543:
Where the accused has been required to do the act charged against him (i) under a threat that death or grievous bodily harm will be inflicted unlawfully upon a human being if the accused fails to do the act and (ii) the circumstances were such that a person of ordinary firmness would have been likely to yield to the threat in the way the accused did and (iii) the threat was present and continuing, imminent and impending (as previously described) and (iv) the accused reasonably apprehended that the threat would be carried out and (v) he was induced thereby to commit the crime charged and (vi) that crime was not murder, nor any other crime so heinous as to be excepted from the doctrine and (vii) the accused did not, by fault on his part when free from the duress, expose himself to its application and (viii) he had no means, with safety to himself, of preventing the execution of the threat, then the accused, in such circumstances at least, has a defence of duress.
35 Anderson J at 538 said that, in all cases relating to duress of which he was aware, "the offence which the accused person has been constrained to commit has been a particular offence nominated by the person making the threats". Harris J at 542-3 held to the effect that the defence was available only when threats were made to coerce the accused to commit the act which was the basis of the offence of which he was charged. On that basis, the Full Court held the primary judge was correct on the question of duress. It also held that the defence of necessity was not open.
36 I accept, on the basis of this and other decisions, that the defence of duress in this case would require that the threats in question were made to coerce the accused to cultivate cannabis. I understand that this would require that what was said and done by the threateners actually manifested an intention to coerce the appellant, not merely not to leave, but also to go on working; and that the appellant so understood them. The question then is, was the evidence capable of supporting a reasonable possibility that this could have been the case.
37 In my opinion, the following two considerations indicate that the evidence was so capable:
1. It may be considered unlikely that Vince would continue to provide food and shelter for the appellant for an extended period if the appellant did not work, so that for the appellant to remain on the farm but not to work may not have appeared either to the appellant or to Vince as a viable option.
2. That this is how the appellant saw the situation could be seen as being confirmed by his statement in the video recording, made shortly after his arrest, that "they forced me to do the illegal."
38 Although the primary judge did not rely on this, it could be said that the threat that the appellant would never see Sydney again and the threat to kidnap his son were not threats of sufficient gravity or immediacy to satisfy the test. I note that there is in Lawrence reference to a requirement that the threat be of immediate death or serious bodily violence; but in my opinion the better view is that it is sufficient if the threat is continuing, imminent and impending, as stated by Smith J in Hurley. In the case of R v Hudson [1971] 2 QB 202, referred to by the Court in Dawson, the English Court of Criminal Appeal held that it was a question for the jury whether a threat of violence to two young girl witnesses if they did not perjure themselves was sufficiently imminent, where the person who made the threat sat in the court where the girls were giving evidence and was seen there by the girls.
39 In the present case, the defence would require that the threat be of death or serious bodily violence to the appellant or his son, in the event that the appellant did not do what it was that the threatener required, and also that this threat be continuing, imminent and impending. In my opinion, the evidence is capable of supporting a reasonable possibility that this was so.
40 The defence would be excluded if the appellant voluntarily joined an illegal organisation. The Crown case is that he must have known that he was working with cannabis on the previous occasion, so he must have known that he was being recruited by Vince for another illegal operation. The appellant denied this in his evidence; and in my opinion, it was a question for the jury whether he should be disbelieved about this, beyond reasonable doubt.
41 Accordingly, in my opinion the primary judge was in error to exclude the defence of duress.