R v Zaharias [2001] VSCA 168

5. At the trial, the applicant did not dispute his taking of the large amount of cash charged in the presentment. He sought to be excused from the consequences of the crime charged by relying upon duress imposed upon him by threats allegedly made against his family by a person or persons unknown. He gave no evidence at the trial but relied upon evidence given by prosecution witnesses to raise the issue of duress. The Crown alleged that the so-called "duress" was a sham, carefully manufactured by the applicant to avoid the consequences of the crime committed. There were circumstances which strongly supported the Crown contention. The telephone call received by the applicant immediately before he set off with the proceeds - said to have contained the relevant threats - was traced to a telephone registered to one of his friends; and on the day following the theft the applicant handed over $9,000 in cash to a private school (attended by his children) in part satisfaction of fees which the school had, for some time, been demanding.

8. The principal contention made on the applicant's behalf was that, in giving his directions to the jury, his Honour had mis-stated the elements of duress and had erred in directing the jury as to the onus and standard of proof. No exception on that account had been taken at trial to his Honour's charge by the experienced counsel who had then appeared for the applicant. Although the fact that an exception was not taken below does not prevent this Court from entertaining a ground of appeal asserting a misdirection in the judge's charge, if it appears that a miscarriage of justice has occurred, it will nevertheless provide cogent evidence that counsel absorbed in the atmosphere of the trial perceived no injustice or error in what was done[1].

11. Counsel's primary submission was that the trial judge had misdirected the jury as to the elements of duress. In instructing the jury as to those elements, his Honour said:

"... where the accused has been required to do the act charged against him [1] under threat that death or grievous bodily harm will be inflicted unlawfully upon his family if the accused fails to do the act and [2] the circumstances were such that a person of ordinary firmness of mind and will would have been likely to yield to the threat in the way in which the accused did and [3] the threat was present and continuing, imminent and impending until he did the act and [4] the accused reasonably apprehended that the threat would be carried out and [5] he was in fact and in reality compelled by the threats to commit the crime charged and, finally, the accused had no means with safety to himself of preventing the execution of the threat ... ".

15. Counsel submitted that the manner in which the elements were put to the jury were "too absolute" and tended to dilute the onus which was imposed upon the prosecution to exclude them. In particular, in support of ground 2(a), it was contended that, in formulating the objective element relating to the "person of ordinary firmness of mind and will" his Honour had used the words "would have been likely to yield to the threat" instead of the words "could" or "might" have yielded which, so it was said, is the appropriate form of direction; as it is in the analogous "defence" of provocation. Counsel submitted that the misdirection was compounded by the directions which the judge gave to the jury in respect of the onus of proof. Although the judge told the jury on more than one occasion that the Crown bore the onus of proving beyond reasonable doubt that the applicant had not acted under duress, it was submitted that he failed to put the direction in terms of "eliminating any reasonable possibility" that the accused was acting under duress. Thus, so counsel contended, it was the combination of these directions which had diluted the Crown's burden in respect of the "objective element" of the "defence" upon which the applicant relied. Similar submissions were made in respect of the terms in which certain of the other elements were couched.

18. The difficulty which immediately confronts these submissions is that his Honour's directions upon the elements of duress, including the objective element, are in the standard form in which such directions have been given in this State since Smith, J. formulated them in R. v. Hurley over 30 years ago[2]. It is a form of direction which attracted the approval of the Court of Criminal Appeal in New South Wales in R. v. Lawrence[3]; and as Hunt, J. pointed out in R. v. Abusafiah[4]:

"It is, I think, correct to say that, since the judgment of Smith, J. in Hurley, the test has usually been stated in Australia as `would have been likely to have yielded'."

Counsel submitted that, although the form of directions formulated in Hurley had been commonly used, it should no longer be accepted as representing the law, particularly having regard to the directions which are now required to be given in respect of the analogous "defence" of provocation[5]. It is true that the objective test has been stated in different form from time to time and that some judges have used the words "might have yielded" or "could have yielded"[6]. However, I am inclined to share the views expressed by Hunt, J. in Abusafiah (supra at 435) that the differences referred to are more apparent than real in the context of the directions that the judge is required to give; namely that the onus is upon the Crown to prove to the jury's satisfaction beyond reasonable doubt that the accused was not acting under duress at the time when he committed the crime. In this case the judge left the jury in no state of misapprehension about their task. He told them on several occasions that it was not for the applicant to prove that he was acting under duress; it was for the Crown to prove beyond reasonable doubt that the applicant's crime was committed voluntarily and that, therefore, it was for the Crown to exclude to the jury's satisfaction beyond reasonable doubt that the applicant was not acting under duress at the time when the crime was committed. Such directions, in my view, would mean to the average jury that the objective element of duress would not be made out if, at the end of the day, they considered it a reasonable possibility that the threats were of such a nature as to lead a person of ordinary firmness of mind and will to yield to them and commit the crime. In those circumstances, it would be inconsequential whether the definition of the objective element was couched in terms of "could", "might" or "would be likely to". More particularly would this have been likely to be so where the real issue in dispute was whether the threats alleged had been made at all. Although counsel for the applicant submitted that the directions here given should have been explicitly couched in terms of the Crown "eliminating any reasonable possibility", I am - for my own part - unable to conclude that any miscarriage of justice has flowed to the applicant as a consequence of the directions which were so clearly given. Counsel's submission is based upon the passage in Hunt, J's judgment in Abusafiah (supra at 435) that:

"The judge never said expressly that the Crown had to disprove the existence of duress or (as I suggest that it should be put) that the Crown has to eliminate any reasonable possibility that the accused had acted under duress, but such would appear to be the necessary conclusion which would have been drawn ..."

His Honour was, of course, simply expressing a view as to how a direction as to the exclusion of a "negative" might most appropriately be given. But it should, of course, be noted that his Honour was talking about a case in which the trial judge had given no express direction to the jury that it was for the Crown to disprove the existence of duress. That is not this case and, as I have already said, the directions given here were the equivalent of directions in terms of reasonable possibility[7].

25. For these reasons and those given by O'Bryan, A.J.A., I am of the view that ground 2(a) has not been made out. For the sake of completeness, I should also say that, like Hunt, J. in Abusafiah (supra at 434), I entertain reservations about the proposition, which was put on behalf of the applicant, that the appropriate directions to be given by judges in respect of "duress" should "take their cue" from, or conform to, directions traditionally given where "provocation" is in issue. The analogy between the two "defences" is far from perfect. They are conceptually different as are the consequences which flow from them. It is, however, unnecessary in this case to express any concluded view in respect of the argument.

28. I adopt the reasons given by O'Bryan, A.J.A. for rejecting grounds 2 (b), (c) and (d) of the application. Accordingly, ground 1 must also be rejected and the application for leave to appeal against conviction dismissed.

33. I also agree that this application should be dismissed. I do so for the reasons advanced by Winneke, P. and O'Bryan, A.J.A.

37. On 31 January 2001 the applicant pleaded not guilty in the County Court to one count of theft at Noble Park on 11 July 1999 of cash in the amount of $71,470 belonging to A.L.H. Group Pty. Ltd. trading as Sandown Park Hotel.

40. After trial, on 8 February 2001 the jury returned a verdict of guilty. Following plea the court sentenced the applicant to 16 months' imprisonment and fixed a non-parole term of 8 months.

43. An application for leave to appeal against conviction was initially made on one ground: The verdict was unsafe and unsatisfactory. An application to add additional grounds was granted in terms to which I shall refer.

46. An application for leave to appeal against sentence was abandoned with the leave of the Court.

49. On 29 August 2001 the Registrar, Court of Appeal made an order that the applicant be granted leave to amend the grounds of appeal by adding the following two grounds:

2. The learned trial judge erred in his directions concerning duress, and in particular he erred: (a) in framing the elements of duress in absolute terms such as "the accused has been required to do the act charged", "a person of ordinary firmness of mind and will would have been likely to yield", "the threat was present and continuing", "the accused reasonably apprehended that the threat would be carried out", "he was in fact and in reality compelled by the threats", "and the accused has no means" - rather than in terms which speak of possibilities such as "might", "could" and/or "may". (b) in giving directions that had a tendency to reverse the onus of proof, or at least dilute the standard of proof, by speaking of inter alia evidence "which if accepted might show that the accused acted under duress", evidence "which could establish that he acted under duress" and "all those facts and circumstances must exist before the accused's acts can be regarded as having acted under duress". (c) in directing that "if the Crown can satisfy you beyond reasonable doubt that one of those facts and circumstances did not exist, it will have discharged the onus resting upon it of proving that the accused did not act under duress and your verdict would be guilty". (d) in directing that "in duress the relevant act is done only because the accused has lost his free choice to refrain from doing the act in that he did the act because he feared that the consequences of the threat were greater than the consequences flowing from the crime he commits". (e) in directing that one of the elements of duress is that "the accused has no means with safety to himself of preventing the execution of the threat." (The words underlined are to add emphasis) 3. The learned judge erred in giving directions which: (a) infringed the prohibition in s.399(3) of the Crimes Act 1958, (b) undermined the applicant's account in his record of interview and to others by directing that it did "not carry the same weight as sworn evidence" and that, because it was something "in his favour", that account should be looked at "with a good deal of caution". An application for leave to appeal against the sentence was abandoned when this hearing commenced.

53. In this court counsel abandoned grounds 2(e) and 3.

56. At the conclusion of the charge the learned judge asked each counsel if he had any exceptions. Counsel for the applicant took no exception to the charge.

59. It is necessary to describe briefly the circumstances of the offence. The Crown case was that the applicant planned to rob the Sandown Park Hotel in Noble Park of note money collected from gaming machines in the hotel whilst employed as a manager for the night shift with duties principally related to the operation of the gaming area. The theft was carried out early on 11 July 1999.

62. A police investigation into the theft of $71,470 belonging to the hotel commenced on 11 July 1999 shortly after the applicant telephoned the Springvale Police Station at 5.53 a.m. to report that he had received a telephone call at the hotel from persons concerned in an assault incident two days earlier. The purpose of the call had been to inform him that his family's safety was threatened if he did not carry out their instructions to take the evening's takings and deposit them on the nature strip beside a particular tree in Justin Drive, Noble Park. The applicant told Constable Kursnierz that he had complied with the demand on 11 July under duress and then went home to check on his family's welfare. Upon arriving home he said that he found red paint splashed over his front door and a knife embedded in the front security door.

65. When police attended the applicant's house at about 6.10 a.m. Senior Constable Dale observed a knife stuck in the front door of the house with red paint on the door.

68. The applicant told investigating police that he took the money as charged, but acted under duress at the time. The Crown did not accept the duress defence and submitted to the jury that the applicant was a willing participant in the theft from his employer for the benefit of himself and family members.

71. The applicant did not give evidence at the trial and witnesses were not called for the defence.

74. To negate the defence of duress the Crown relied upon a number of circumstances which, it argued, proved that the theft was committed voluntarily by the applicant with the requisite criminal intent.

77. An incident occurred at the hotel at about 5 a.m. on Friday, 9 July 1999 when the applicant was on night duty. The applicant informed a security guard on duty at the hotel that he had received a telephone call concerning some suspicious activity in the car park of the hotel. Coincidentally, the security guard had also noticed three men loitering near the car park some minutes earlier but had lost sight of them.

80. The applicant and the security guard went out to the front of the car park to investigate for suspicious activity but saw none. The applicant next asked the guard whether there were cars at the rear of the hotel and they then proceeded separately to the rear. The guard heard a noise and noticed a male in a black balaclava standing over the applicant, who was on his knees, apparently being threatened with a gun. The guard went towards the hotel to contact the police and in doing so was hit by another person in a black balaclava, apparently holding a knife. The guard thought a third person may have been nearby in the trees.

83. Later in the morning the applicant told the guard he had "copped one" and they made statements about the assault incident to the police. One employee described the applicant as "stressed" at work after the incident.

86. The Crown contended the assault incident was a sham, firstly because the telephone call received by the applicant prior to the incident was traced to a caller in Tullamarine, and not from someone near the hotel who could have seen the suspicious intruders.

89. Secondly, the armed offender made no demand for money of the applicant or threats to his family. Thirdly, the applicant had asked the guard whether cars were parked at the rear of the hotel, the site of the assault, but he was familiar with the rear car park and had no need to ask the guard whether cars were parked at the rear of the hotel.

92. On Sunday 11 July the applicant was working on the clearance of money from the gaming machines commencing between 3.30 and 4 a.m. His duties were to clear and count the notes from the note acceptors and the coins from the coin boxes. This was done with other employees in the strongroom, but the applicant was responsible for counting the money.

95. The applicant was required to count and place the cash notes in an envelope and then place the envelope through a slot in the safe door which could not be opened without two keys, one of which was kept by Armaguard.

98. A gaming float was also kept in the strongroom in a bottom drawer of the safe which could only be accessed with the correct combination. The applicant had access to the gaming float in the drawer. The coins were kept in separate containers, but not secured in the safe.

101. On 11 July the clearance commenced earlier than usual and finished at about 5.15 a.m. Normally, the clearance began at about 6.30 a.m. and was completed at about 7.30 a.m., but on some occasions commencement time was earlier than 6.30 a.m.

104. On 11 July after the applicant counted the notes he did not place the envelope through the slot in the safe, nor did he sort the notes into the various denominations, which was the usual procedure. The float money was not secured in the lower safe drawer.

107. The Crown invited the jury to infer that the departures from the usual procedure enabled the applicant to effect the theft more easily. However, one witness employed by the hotel said that he had observed the applicant place notes in the "non-safe" drawer on previous occasions.

110. It may have been significant to the jury that the usual security procedure was not followed by the applicant only 48 hours after the assault incident had taken place in the car park.

113. At approximately 5.36 a.m. an employee received a telephone call from an unknown male who asked for "Z", the nickname by which the applicant was known. The applicant spoke to the caller for approximately five minutes. Later, the applicant told the gaming machine attendant who had transferred the call to him it was a personal call. The applicant subsequently told the police the threat to his family was made unless he carried out the instructions to take the money to Justin Drive.

116. The call at 5.36 a.m. was made to the hotel from a mobile service number held in the name of Peter Tarquino, a friend of the applicant. The applicant and Tarquino regularly contacted one another using mobile telephones.

119. The Crown invited the jury to infer that Tarquino probably made the call.

122. The Crown suggested it was significant that the applicant did not respond to the call, either by ringing his family or the police.

125. A few minutes after the call the applicant filled a plastic bag with the notes he had counted, the gaming takings, $55,790 and $15,680 from the gaming float and placed the bag in a rubbish bin which he carried out of the strongroom. The coins in the containers were left in the strongroom.

128. The first call to the police was made at 5.53 a.m. as earlier indicated. Constable Kursnierz was informed by the applicant of the threat and that he had followed the instructions of the caller and taken the note money to Justin Drive.

131. Later, on 11 July, the applicant made a statement to the police in which he maintained that he took the money under duress.

134. The Crown ascertained that the applicant's financial situation was desperate in July 1999, he was overdue in paying private school fees to the extent of $19,395.85 and he had been told that his children could not continue at the school if the fees were not paid. He usually paid the fees by cheque but on 12 July the applicant was able to pay $9,000 in notes to the school in part-payment of the debt.

137. The Crown asked the jury to infer that $9,000 was part of the proceeds of the theft and that the applicant's financial position was the motive for the theft.

140. The applicant never provided an explanation for having $9,000 in notes the day following the theft. His failure to explain the $9,000 payment was very compelling evidence of his involvement in the theft of note money on the day previous to the payment.

143. Before proceeding to consider the submissions of counsel it should be noted that the trial judge, a judge of considerable experience in a criminal trial court, directed the jury in accordance with the proposition stated by Smith, J. in R. v. Hurley and Murray[8]. Although Smith, J. dissented from the majority judgment of Winneke, C.J. and Pape, J. which dismissed the appeal, the proposition stated by Smith, J. has since been followed in Victorian courts as a correct statement of the elements of duress. It will be helpful to an understanding of ground 2 to repeat the passage in which the elements are stated by way of introduction.

"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 ... 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) the 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 own 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."

150. In the circumstances of the charge in this case elements numbered (vi) and (vii) were not relevant and were omitted by the trial judge in his directions to the jury.

153. It will be helpful to refer to a decision of the Court of Criminal Appeal in New South Wales before considering counsel's submissions - R. v. Abusafiah[9], and particularly to the judgment of Hunt, J. in whose judgment Gleeson, C.J. and Mahoney, J.A. agreed.

"In all cases in which a so-called `defence' is raised by the accused (such as duress, self-defence or provocation), the issue is whether the Crown has eliminated any reasonable possibility that the accused acted under duress or in self-defence or under provocation, as the case may be: see R. v. Youssef[11]. This court has suggested on many occasions that the trial judge should put such issues raised by way of `defence' to the jury in that way, so as to avoid any confusion as to the Crown's onus of proof."

160. No doubt, in New South Wales, trial judges direct in accordance with Abusafiah.

163. It will be necessary to refer to Abusafiah again for certain submissions made by Mr. Boyce, counsel for the applicant, were considered and ruled upon in the judgment of Hunt, J.

166. The principal submissions of Mr. Boyce were made under ground 2 which was formulated in five parts. Part (e) was abandoned.

169. Ground 2 asserted errors in the trial judge's directions concerning duress. In each part of ground 2 reference is made to particular words extracted from a passage in which the judge purported to give the jury directions in accordance with the Hurley proposition. It is convenient to set out the complete passage before considering particular words and phrases.

172. His Honour had directed the jury that it was for the Crown to prove that the accused did not act under duress and that the Crown had to negate duress. He said: "They have got the burden of persuading that he did not act under duress". He had stated the standard of proof correctly and said: "Once there is evidence that the person may not have freely chosen to do the act, then the Crown must prove affirmatively that the person did the criminal act of his own free choice. That is to say he was not acting under duress."

175. A direction in those terms was approved by this Court in R. v. Lanciana[12] in the leading judgment of Callaway, J.A. His Honour said:

"A question debated before us was whether Abusafiah's case drew a logical distinction between a direction that the prosecution must satisfy the jury beyond reasonable doubt that the accused was not acting under duress and a direction in terms of reasonable possibility, whether the latter be expressed as the Crown establishing that there is no reasonable possibility of duress or eliminating any reasonable possibility thereof. I am not persuaded that there is such a distinction."

179. The issues and evidence in a particular trial may well entitle the trial judge to adopt the approach recommended in Abusafiah. However, there is no single formulation that must be followed by a trial judge when charging a jury as charges must be directed to the provision of appropriate instruction in the context of the evidence and issues raised in the trial. What is required is instructions expressed with sufficient clarity that the jury could be left in no doubt with respect to the principles that they apply to the task before them.

182. The trial judge directed the jury as follows:

"It is necessary for me to tell you in more detail exactly what the law regards as duress. Duress is not a defence at all in a murder charge. I tell you that for the sake of completeness. Now in so far as this case is concerned, all I need to tell you about duress is this: where the accused has been required to do the act charged against him, one, under threat that death or grievous bodily harm will be inflicted unlawfully upon his family if the accused fails to do the act and, two, the circumstances were such that a person of ordinary firmness of mind and will would have been likely to yield to the threat in the way the accused did and, three, the threat was present and continuing, imminent and impending until he did the act and, four, the accused reasonably apprehended that the threat would be carried out and, five, he was in fact and in reality compelled by the threats to commit the crime charged and, finally, the accused has no means with safety to himself of preventing the execution of the threat, then the accused has a defence of duress."

186. The words in italics are set out in paragraph (a) of ground 2.

189. Mr. Boyce argued that the trial judge erred in the passage above in using "would", "has been", "would have been likely", "was in fact and reality" and "has" for the use of such language had a tendency to confuse the appropriate and applicable standard of proof.

192. The trial judge instructed the jury at the commencement of his charge as to the burden and standard of proof in the following terms:

"The Crown seeks to put the case here as a case in which you can infer the guilt of the accused from the facts and circumstances which they have proved before you, or which they say they have proved before you, but as you have been told already, and I will be telling you again, you have got to be satisfied of the guilt of the accused beyond reasonable doubt. If you do not reach that standard, then your verdict would have to be not guilty, so that before you could draw an inference of guilt against the accused, you would have to be satisfied, and satisfied beyond reasonable doubt, that the guilty inference is the only reasonable explanation for all the facts and circumstances as you find them to be, because if you think about it for a moment if you say to yourselves: yes, there is a reasonable explanation for those facts and circumstances which is consistent with innocence, you have already conceded as a matter of logic that you cannot be satisfied beyond reasonable doubt of the guilt of the accused by way of inference, so that you would only draw an inference of guilt against the accused if you were satisfied that the guilt of the accused was the only reasonable explanation of all the facts and circumstances as you find them to be."

In other words, the judge specifically instructed the jury that they had to exclude any reasonable explanation or hypothesis consistent with innocence before they were entitled to return a verdict of guilty.

197. Almost immediately after this instruction was given, the court was adjourned for the afternoon. Within moments of the resumption of the proceeding on the following morning, his Honour stated:

"The next matter of law is a matter which is extremely important in this case and that is this: that the Crown having brought the charge the Crown has the burden or onus of proving the charge. In a case like this the accused does not have to prove anything. Now you have been told and it has been made clear to you that here the accused claimed to the police that he acted under duress and that is called a defence because it is a defence if a person acts under duress, but stating it that way could easily mislead you into thinking that he has to prove that he acted under duress, but he does not. Once that question arises as to whether or not he did act under duress it is for the Crown to prove that he did not act under duress, so the Crown have to negative that. They have got the burden of persuading that he did not act under duress. The next matter of law is that the Crown has to prove its case against the accused and the law says that it has got to prove the case against him beyond reasonable doubt. Now those words mean what they say and that is the highest standard of proof that the law ever requires."

201. Turning to the issue of duress, he instructed the jury:

"Now I want to go on to tell you something about duress. The law punishes criminal acts freely done by a person. Normally there is no problem arises because it is assumed that a person doing a criminal act freely chooses to do that act. That is what you would normally assume and that is what is assumed normally, but once there is evidence that the person may not have freely chosen to do the act, then the Crown must prove affirmatively that the person did the criminal act of his own free choice. That is to say he was not acting under duress."

205. After providing instruction as to the "facts and circumstances" to which regard was required in considering whether the prosecutor had established that an individual was not acting under duress, his Honour stated:

"I went through all those facts and circumstances which are necessary to constitute duress and all those facts and circumstances must exist before the accused's acts can be regarded as having acted under duress. Therefore, if the Crown can satisfy you beyond reasonable doubt that one of those facts or circumstances did not exist, it will have discharged the onus resting upon it of proving that the accused did not act under duress and your verdict would be guilty. Thus if you are satisfied on the whole of the evidence that his will was not overborne by threats of death or serious bodily injury to steal all this money, but that he did it for the benefit of himself and others, or that the threats were not made or that he did not believe that they would be carried out or that he had at his disposal means of preventing the threats from being carried out, the Crown will have established that he did not act under duress and your verdict would be guilty. If you are not satisfied beyond reasonable doubt that he was not acting under duress your verdict must be not guilty."

209. After setting out the Crown contention that the appellant had engaged in an elaborate exercise designed to accomplish the theft of money without attracting responsibility to himself, the judge returned to the burden and standard of proof saying:

"You have got to be very careful when you are considering whether or not you should draw an inference, and you look at all the facts that you are satisfied of, all the facts and circumstances, and you do not totally disregard one fact because it does not prove the guilt of the accused, it standing alone does not prove the guilt of the accused, but if of course there is one fact which you want to rely upon to prove his guilt, then you need to be satisfied of that fact beyond reasonable doubt. If, for example, it forms a link in a chain of reasoning which would lead to a conclusion that the accused was guilty, then you would need to be satisfied of that fact beyond reasonable doubt because the strength of a chain is at its weakest link, but if it is just one of a whole set of circumstances which taken together establish to your satisfaction beyond reasonable doubt of the guilt of the accused, then you need of course to be satisfied of those facts."

"There it is ladies and gentlemen, it is a matter for your to consider this evidence carefully and to decide whether or not on the whole of the evidence you are satisfied beyond reasonable doubt that he was a willing party to the theft of this money and was not subject to duress. Unless you are satisfied beyond reasonable doubt that he was not subject to duress you would have to may have return a verdict of not guilty. [sic] I may have got that wrong. It is easy to get this wrong, because it all suddenly turns around the other way does it not and the Crown have to prove that he was not subject to duress. If they do that to your satisfaction beyond reasonable doubt satisfy you he was not subject to duress your verdict would be guilty. On the other hand unless you are so satisfied then your verdict would be not guilty. Now you may retire and consider your verdict."

215. When the language is compared to the language used by Smith, J. in Hurley (see para.37) it will be seen that the trial judge has, in substance, repeated the words used by Smith, J. in Hurley.

218. The thrust of the argument was intended to persuade this Court that the standard direction in duress derived from Hurley is wrong because it tends to dilute directions given as to the onus and standard of proof and that an Abusafiah direction should now be given in Victoria.

221. As already demonstrated the trial judge repeatedly reminded the jury that no onus rested upon the accused to prove anything and that the Crown had to negate duress beyond reasonable doubt.

224. A very similar argument was put to the court in Abusafiah and was rejected by Hunt, J.[13] The phrase derived from Hurley: "would have been likely to yield" had been approved in the Court of Criminal Appeal in New South Wales: R. v. Lawrence[14]. Hunt, J. said: "It is, I think, correct to say that, since the judgment of Smith, J. in R. v. Hurley and Murray, the test has usually been stated in Australia as `would have been likely to have yielded'".[15]

"I believe that the distinction between `would' (or `would be likely to') and `could' (or `might') is an unnecessary one to make for a jury. That is because, in all cases in which a so-called `defence' is raised by an accused (such as duress, self defence or provocation), the issue is whether the Crown has eliminated any reasonable possibility that the accused acted under duress or in self defence or under provocation, as the case may be."

231. Since this Court found in Lanciana no logical distinction between the "reasonable possibility" direction given in New South Wales since Abusafiah and the standard direction given in this State since Hurley that the prosecution must satisfy the jury beyond reasonable doubt that the accused was not acting under duress, it is not tenable to submit that the objective test requires "could" or "might" rather than "would" or "would be likely to", in my opinion.

234. It has to be remembered that the trial judge repeated his direction to the jury that the onus was always on the Crown and that the standard of proof was beyond reasonable doubt on a number of occasions. No jury acting reasonably could have been mistaken as to either the burden of proof or the onus of proof in relation to the issue of duress.

237. Under part (b) of ground 2 counsel submitted that the trial judge reversed the onus of proof in the following passages:

"1. `There is some evidence which if accepted might show that the accused acted under duress ..'. 2. `Now here you have some evidence which could establish that he acted under duress'. 3. `I went through all those facts and circumstances which are necessary to constitute duress and all those facts and circumstances must exist before the accused's acts can be regarded as having acted under duress.'"

241. As to the first passage, the trial judge was referring to the evidence relied upon by the accused raising duress as an issue. The evidence raising duress was in the oral and written statements made to the police after the theft. Such evidence was unsworn and could be accepted or rejected by the jury. The judge correctly reminded the jury that the evidence was unsworn and self-serving. The passage was incapable of being understood as a reversal of the onus of proof, in my opinion.

244. As to the second passage, in my opinion no reasonable jury could have understood the judge to be talking about the onus of proof. His Honour was clearly speaking about the evidence capable of raising duress as an issue for there was an evidentiary onus on the accused at the trial.

247. As to the third passage, the introductory words, "all those facts and circumstances", clearly referred to the elements required for duress which the judge had correctly identified for the jury a few seconds earlier. In the impugned passage his Honour immediately told the jury correctly that, if one of those "facts and circumstances" did not exist, "it will have discharged the onus resting upon it of proving that the accused did not act under duress and your verdict would be guilty." No criticism can be made about that direction.

250. In my opinion, nothing said by the trial judge in the passages set out above, read in context, reversed the onus of proof.

253. Under part (c) of ground 2 counsel developed a similar argument to the argument I have addressed in relation to the third passage under part (b). As I said in paragraph 60 the jury would have understood the words "facts and circumstances" as referring to the six elements of duress and not to the evidence and inferences capable of being drawn from the evidence. His Honour was giving the jury directions about the law and had not begun to discuss the evidence.

256. Mr. Boyce fairly conceded that, if the judge was speaking about the elements of duress, ground 2(c) could not be sustained. I am of the opinion that his Honour was referring to the elements of duress and would have been so understood by the jury. It has often been said in this Court that it is unfair to subject a charge to a minute analysis. Words in a charge must be read in context and in the setting of the whole charge.

259. Under part (d) of ground 2, objection was taken by counsel to the word "only" in the impugned passage. Counsel submitted that the relevant factors constituting duress need not be the "only" considerations motivating an accused before an accused may be found not guilty by reason of having acted under duress. Counsel submitted that an accused may act in response to a myriad of concerns but still be said to have acted under duress.

262. As the argument was put to the Court it appeared that counsel was contending that duress could have applied to the theft of part only of the money, but that would have required the trial judge to direct the jury to find the applicant guilty, if the jury found he stole some of the money under duress and opportunistically stole some of the money not under duress. Such a case was never put to the jury because there was no evidentiary basis for it.

265. In Abusafiah[17] Hunt, J. observed:

"In duress, the relevant act is done only because the accused has lost his free choice to refrain from doing the act, in that he did the act because he feared that the consequences of the threat were greater than those flowing from the crime he commits."

269. The impugned passage the subject of ground 2(d) is in identical language. For the purposes of the charge the "relevant act" was the theft of notes. One issue was whether the accused did the relevant act only because he had lost his free choice to refrain from doing the act.

275. Ground 1 - unsafe and unsatisfactory - was not argued upon the basis that the evidence was so wanting in credibility as to raise a substantial possibility that the jury might have been mistaken in finding the accused guilty.

278. Mr. Boyce submitted that on account of misdirections by the trial judge on both the standard and onus of proof the conviction was unsafe and unsatisfactory.

281. The correct test for determining whether a verdict should be set aside because it is unsafe and unsatisfactory was stated in M v. The Queen[18]:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty .... But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."

The correct test was applied by this Court in R. v. Haseloff[19].

286. In my opinion, there being an abundance of evidence to sustain the conviction and no errors in the directions which would justify setting aside the guilty verdict ground 1 must fail. The case for the Crown was very strong in terms of the theft of money by the applicant from his employer. The sole issue for the jury was whether the Crown negatived duress. The jury was entrusted with the primary responsibility of determining guilt or innocence. It was satisfied the Crown negatived duress and found the applicant guilty.

289. For these reasons I am of the opinion that the application for leave to appeal against conviction should be dismissed.

[1] R. v. Clarke & Johnstone [1986] VicRp 64; [1986] V.R. 643 at 661-2; R. v. Gallagher [1998] 2 V.R. 671 at 681 per Brooking, J.A.; R. v. Wright [1999] VSCA 145; [1999] 3 V.R. 355 at 360-1 per Callaway, J.A.

[2] R. v. Hurley & Murray [1967] VicRp 57; [1967] V.R. 526 at 543 per Smith, J.; R. v. Darrington & McGauley [1980] VicRp 36; [1980] V.R. 353, per Anderson, J., and 374 per Jenkinson, J.

[3] [1980] 1 N.S.W.L.R. 122, at 141 (per Moffitt, P.) and 163 (per Nagle, C.J. at CL and Yeldham, J.).

[4] (1991) 56 A.Crim.R. 424 at 433.

[5] See Stingel v. R. [1990] HCA 61; (1990) 171 C.L.R. 312; Mascantonio v. R. [1995] HCA 67; (1995) 183 C.L.R. 58; R. v. Thorpe (No.2) [1999] VSCA 172; [1999] 2 V.R. 719.

[6] cf. per Cox, J. in R. v. Palazoff (1986) 43 S.A.S.R. 99 at 108. (Although it would seem that, in England, the objective test is expressed in terms "Would a sober person of reasonable firmness sharing the defendant's characteristics, have responded to the threats by taking part in [the crime]?"; R. v. Howe [1986] 1 Q.B. 626 at 642-3.)

[7] cf. per Callaway, J.A., R. v. Lanciana (1996) 84 A.Crim.R. 268 at 271-2; R. v. M.C.G. [2001] VSCA 17, per Callaway, J.A. at [118].

[8] [1967] VicRp 57; [1967] V.R. 526 at 543.

[9] (1991) 24 N.S.W.L.R. 531.

[11] (1990) 50 A.C.R. 1 at 2-3.

[12] (1996) 84 A.C.R. 268 at 271.

[18] (1994) 187 C.L.R. 487.

[19] (1998) 4 V.R. 359 at 376-377.