The King v Anna Rowan - A Pseudonym - [2024] HCA 9 - HCA 2023 case summary

The King v Anna Rowan - A Pseudonym - [2024] HCA 9 - HCA 2023 case summary — Zoe

[7]

The respondent was born in 1974. According to the report of a forensic psychologist, Ms Pamela Matthews, tendered on the voir-dire, the respondent has a full-scale IQ of 70 and a mild intellectual disability, with her abstract reasoning, vocabulary and general knowledge in the bottom 0.5% of the population.
The respondent's partner, JR, was born in 1971.[5] The respondent and JR commenced a relationship in 1992. Throughout their relationship, the respondent lived with JR on a farm in rural Victoria. Their first child, Paige, was born in November 1999 and their second child, Alicia, was born in June 2001. They had two more children. The evidence at the trial reveals extreme family dysfunction. JR was violent and controlling toward the respondent and their children. The respondent was financially and socially dependent on JR.[6]
In November 2015, JR was arrested and charged with committing sexual offences against Paige and Alicia. In September 2016, the respondent was arrested and charged. JR and the respondent were initially arraigned on a single indictment that contained 13 joint counts and numerous separate counts against JR.
After a joint trial in the County Court of Victoria in early 2019, JR was found guilty on 26 separate counts on the indictment. However, the jury was unable to return verdicts on the 13 joint counts and was discharged. The voir-dire was conducted just prior to the date fixed for the retrial of JR and the respondent on the joint counts. The trial judge ruled that there was no factual basis for the respondent to rely on duress. JR then applied for and obtained a separate trial on the joint counts, after which the appellant decided not to prosecute him further. He was later sentenced to a lengthy term of imprisonment for the 26 offences of which he was convicted.[7]
In June 2021, the respondent stood trial on the 13 joint counts. Consistent with the trial judge's ruling, the jury was not instructed on duress. On 30 June 2021, the jury found the respondent guilty of counts 1 and 3 to 13, and not guilty of count 2. On 13 August 2021, the respondent was sentenced to terms of imprisonment for each count. The effective term of imprisonment imposed was seven years and five months with a non-parole period of four years and 11 months.[8]
The respondent sought leave to appeal against her convictions and sentence. The respondent maintained one ground of appeal against her convictions, namely, that the trial judge erred in ruling that the defence of duress was not available, which thereby occasioned a substantial miscarriage of justice.[9] On 28 October 2022, the Court of Appeal (Kyrou, McLeish and Niall JJA) upheld this ground, set aside the trial judge's ruling and the respondent's convictions, and ordered a retrial in respect of counts 1 and 3 to 13.[10] On 16 June 2023, Kiefel CJ and Jagot J granted the appellant special leave to appeal that decision.

[9]

Paige said that the acts that constituted counts 1, 3 and 4 occurred on the same occasion in the bedroom of the respondent and JR.[16] Those counts respectively involved JR and the respondent having sexual intercourse in the presence of Paige, JR digitally penetrating Paige and JR penetrating Paige with his penis. Paige described various uncharged acts, such as JR licking the respondent's vagina in Paige's presence, JR wanting Paige to put her fingers in her vagina, the respondent touching and playing with Paige's breasts, and the respondent touching her own vagina while JR penetrated Paige. Paige said that JR told her that he "talked [the respondent] into showing [Paige] what to do".
Counts 5 and 6 were committed in the bedroom of the respondent and JR on a different occasion to counts 1, 3 and 4 and respectively involved JR penetrating Paige's vagina with his penis and then with a sex toy. Both immediately prior to and after the commission of count 5, JR and the respondent had sexual intercourse. During the commission of count 6, the respondent rubbed Paige's breasts. Paige said that she complained about pain, but that JR dismissed her complaint before the respondent said something to JR and he stopped.
Counts 7 to 10 were committed on a different occasion to the other counts in a cabin that was located behind the farmhouse. Those offences involved JR penetrating Paige twice with his penis and twice with a sex toy. The first act of penetration occurred while JR and the respondent were having sexual intercourse. During one of the other acts of penetration, the respondent penetrated herself with a sex toy.
With these counts, Paige said that at one point she resisted JR's attempts to make her have an orgasm and protested that she was in pain. JR said something to the respondent, and the respondent put her breast in Paige's mouth. Paige resisted. Paige described JR as "really angry" and said that he told her to "stop it, just take it and get past the pain, it won't be as bad and stop fighting". Paige began crying and the respondent told JR to stop, which he did. JR and the respondent then argued.
Counts 11 and 12 were also committed in the cabin behind the farmhouse, but on a different occasion to counts 7 to 10. With count 11, JR grabbed Paige and placed her close to the respondent, who was sitting naked on a bed with her legs open. The respondent then inserted a sex toy into Paige's vagina. With count 12, JR interrupted sexual intercourse with the respondent to penetrate Paige's vagina with his penis.
Paige gave evidence of violent acts committed against both her and Alicia by JR without the involvement of the respondent. Paige described JR as "hot-tempered" and said he would "just lose it". On one occasion he smashed a baseball bat against the wall, causing Alicia's hand to scar. Paige said that JR kept a belt hanging over his bedroom door which he would use to hit the children, making them cry and leaving marks on them. She said that JR threatened to kill her if she disclosed the sexual abuse.
Paige described various acts of extreme depravity committed by JR against her accompanied by threats of violence that did not involve the respondent, including making Paige watch pornography that depicted bestiality and making her allow the family dog to lick her vagina under threat that, if she moved, he would hit her. On one occasion, he urinated on Paige. Paige said that JR made her use "dildos and vibrators", which she did because she believed JR would hit her if she refused. On another occasion when JR sexually assaulted Paige, JR hit her and held his hand over her mouth to stop her from yelling.
Paige's evidence included observations about the respondent's willingness to participate in the sexual abuse. Paige made notes of her recollection of her abuse to assist her memory, which included the statement that "to [her] knowledge [JR] made [the respondent] do those things". In cross-examination, Paige confirmed that, to her knowledge, JR made the respondent "do stuff". In re-examination, Paige said that "at times, it did not look like the [respondent's] involvement in the sexual abuse was voluntary because they were not making decisions together, she was very quiet and she would even argue with JR". Paige described the respondent as "easily pushed around by everyone in the family, including the children".

[12]

On the voir-dire, the respondent contended that Paige and Alicia's evidence, Ms Matthews' report and the evidence the subject of a tendency notice concerning JR were a sufficient evidentiary basis for duress to be put to the jury. Paige and Alicia's evidence has already been described.
Some aspects of Ms Matthews' assessment of the respondent's intellectual functioning have already been noted. Ms Matthews also opined that the respondent's "social deficits", which were associated with her intellectual disability, made it more difficult for the respondent to "withstand persuasion and manipulation". Ms Matthews' report includes verbatim extracts of her discussion with the respondent concerning her relationship with JR. These extracts supported Ms Matthews' conclusion that the respondent was subject to JR's financial and social control, was unable to leave the farm without his permission and suffered emotional abuse, intimidation and sexual abuse at his whim. The report recounts the respondent stating that JR would hit her every time during sex and that he displayed extreme anger towards her which made her afraid.
Parts of Ms Matthews' report recount the respondent's response to Paige and Alicia's allegations against her. The respondent admitted having sexual intercourse with JR in the presence of Paige and Alicia but denied so much of the allegations that suggested she took any active step beyond that to sexually abuse Paige or Alicia. The report recounts the respondent repeatedly stating that she had sexual intercourse with JR in Paige's presence because JR made her ("I tried to say no, but he made me"; "I only knew what I was told"). The report also recounts that the respondent explained that she did not stop JR from abusing Paige and Alicia because she felt "afraid" and that if she ran away from him, he "would take the kids off me". When she was pressed as to why she did not stop having sex with JR in the presence of Paige and Alicia, the respondent stated "[JR's] short fuse would come out, and [I was] afraid of [what] might happen, [JR got] angry on those occasions when he would hit, I would get afraid for the girls, afraid [he would] hit the girls ... hit me".
Under the heading "Opinion", Ms Matthews concluded that the respondent was intellectually disabled and that her circumstances were suggestive of her having experienced "Battered Woman Syndrome". This syndrome was described as a "learned helplessness process" in which women who have been repeatedly abused within a relationship believe they cannot escape. Ms Matthews described this syndrome as a form of Post‑Traumatic Stress Disorder.
On the voir‑dire, the Crown Prosecutor objected to the tender of Ms Matthews' report. The trial judge did not address that objection, but instead made a ruling on the assumption that the report and the statements of the respondent it contained were admissible. The appellant maintained its objection in the Court of Appeal. However, in this Court, the appellant accepted that the appeal is to be decided on an evidentiary basis that includes Ms Matthew's report.
The respondent's tendency notice[17] described a tendency of JR to display "towards all family members ... threats, intimidation, psychological violence, physical violence and family violence including economic for the purpose of control, coercion and domination of all family members".
The tendency notice identified 19 passages from the evidence of Paige and Alicia as supporting the alleged tendency, which included the violent and sadistic acts of JR described above. The tendency notice also identified nine statements made by the respondent set out in Ms Matthews' report concerning violent and controlling conduct of JR. It suffices to state that the evidence identified in the tendency notice was capable of establishing the asserted tendency on the part of JR during the period covered by the indictment.
In the trial judge's ruling rejecting the respondent's reliance on duress, his Honour concluded that there was no evidence that the respondent was acting under any form of threat which had constrained her to commit the offence nominated by the person making the threats (ie, JR).
As noted, the respondent sought leave to appeal against her convictions and her appeal was allowed. Before considering the appellant's complaints about the Court of Appeal's reasoning and conclusion, it is necessary to address so much of the common law concerning duress that requires that the accused be subject to a threat of the relevant form of harm if the accused fails to do the acts that constitute the offence charged.

[16]

The necessity for the accused to be subject to a threat of infliction of the relevant form of harm if the accused fails to commit the acts that constitute the offence charged has been a consistent feature of the consideration of the common law of duress by intermediate courts of appeal in the common law jurisdictions in this country.[31]
The nature of the requisite threat is illustrated by the facts of R v Dawson[32] and R v Lorenz.[33] In Dawson, the accused escaped from prison but led evidence that he did so because he feared for his life after receiving threats from other prisoners. The Full Court held that duress was not open because the threats were not made on the basis that, if he did not escape, he would be subject to violence.[34] In Lorenz, the accused robbed a supermarket employee with a knife after her de facto partner threatened to kill her if she did not obtain enough money to re-register his car. The accused was pregnant at the time.[35] After noting Hurley and Dawson, Crispin J held that the defence of duress was not available as the accused's de facto partner did not direct her to commit the robbery.[36]
However, neither Dawson nor Lorenz suggests that a threat to inflict the relevant form of harm if the accused fails to commit the acts constituting the charge cannot be implied. In Hurley, Smith J postulated the scenario of armed men taking possession of a house at gunpoint and sending the accused to commit a crime on their behalf while retaining a hostage such that "the threat to the hostage's life, whether it is formulated in words or left unsaid, may be held to be, during the execution of the commission, sufficiently present and continuing, imminent and impending to found the defence of duress" (emphasis added).[37]
The references in Hurley to the threat being "present and continuing, imminent and impending" do not require that all the conduct relied upon as giving rise to the threat be engaged in immediately prior to the crime being committed. Instead, those statements should be taken as conveying a requirement that the threat conform with the description of the equivalent aspect of duress noted in other cases, namely that the threat be "operative"[38] or "effective"[39] at the time the accused committed the acts that constitute the offence charged. The relevant threat does not have to immediately precede the accused's criminal act if there was no reasonable opportunity to avoid committing the offence in the meantime (that being the issue raised by element (viii) in Hurley).[40]
The significance of antecedent conduct of the maker of the threat and what is known about their character in determining whether there is a threat to inflict violence unless the accused commits the acts that constitute the offence can be illustrated by the facts in Director of Public Prosecutions for Northern Ireland v Lynch,[41] which was decided before the developments in the law of duress in England and Wales discussed below. In Lynch, the appellant drove a motor car containing a group of gunmen, who shot and killed a police officer.[42] The appellant said that he acted under a threat that, if he did not co-operate, he would be shot.[43] The debate at trial and at two levels of appeal concerned the availability of duress as a defence to murder, a matter that is not of present significance in this case.[44]
What is of present significance is the facts that were found to be sufficient to raise the defence of duress in Lynch. The appellant was summoned to meet Meehan, a known "member of the IRA and a ruthless gunman", and was told to drive Meehan and two other gunmen to the scene of the killing.[45] Lord Edmund-Davies described the balance of the evidence that was adduced in support of duress as follows:[46]

[31]

The appellant's sole ground of appeal in this Court was that the Court of Appeal erred in finding that the trial judge had erred in ruling that the respondent could not avail herself of the defence of duress. The focus of this ground was that the Court of Appeal erred in its approach to element (i) in Hurley.
In the Court of Appeal, Kyrou and Niall JJA addressed the respondent's application for leave to appeal her convictions on the basis that Ms Matthews' report was available to be deployed to support the defence of duress.[59] McLeish JA considered whether the evidence was sufficient to raise duress solely on the basis of Paige and Alicia's evidence and without reference to Ms Matthews' report.[60]
Relevantly, Kyrou and Niall JJA concluded that the trial judge had erred in implicitly accepting that element (i) specified in Hurley "requires a specific, overt threat in close temporal proximity to the offending and that a continuing or ever present threat is not sufficient".[61] Their Honours added that "a continuing or ever present threat which is subsisting at the time an accused committed the charged offence can suffice if, in all other respects, the defence of duress can be made out" (emphasis added).[62] This aspect of their Honours' reasons and the passages noted below were the basis for the appellant's concern that the Court of Appeal had extended duress to accommodate duress of circumstances, or at least had drifted towards its adoption.
To the extent that Kyrou and Niall JJA can be taken as accepting that at least part of the origin of a threat that addresses element (i) in Hurley can be the antecedent conduct of the maker of the threat and that what is necessary is that the threat be "subsisting" (ie, operative), then, for the reasons outlined above, their Honours' approach was in accordance with accepted principle. However, if their Honours are to be understood as suggesting that a "continuing or ever present threat" of serious violence per se is a sufficient form of threat to raise a defence of duress, then their statement would not be in accordance with accepted principle, as such a threat would not constitute a threat to inflict the relevant form of harm if the accused failed to commit the acts that constitute the offence. Ultimately, having regard to another finding made by their Honours noted below, it is apparent that is not what their Honours were intending to convey. Instead, their Honours' statement was focussed on the temporal proximity of the threat to the commission of the acts that constitute the offence. The necessity to demonstrate that the threat included a requirement or demand for the accused to avoid the violence by committing the acts that constitute the offence was encompassed by the phrase "in all other respects".
Having identified this error on the part of the trial judge, Kyrou and Niall JJA then considered whether this and other errors resulted in a "substantial miscarriage of justice".[63] Their Honours considered that question would be answered in the affirmative if there was "any possibility the jury might not unreasonably discover in the material before them enough to enable them to find a case of duress".[64] This formulation seems to have been intended to correspond with an inquiry into whether an accused has discharged their evidentiary burden in seeking to raise duress. The proper formulation of that test by reference to Braysich is set out above.
After reviewing the evidence, their Honours made the following critical findings:[65]

[38]

The emphasised finding accords with element (i) in Hurley. His Honour's approach was consistent with the accepted understanding of the nature of the threat required for the defence of duress at common law.
The remaining issue is whether Kyrou and Niall JJA erred in holding that the evidence adduced before the trial judge on the voir‑dire, including Ms Matthews' report, supported the above finding. In the terms posed by Braysich: was the evidence, taken at its highest in favour of the respondent, such that it could lead a reasonable jury, properly instructed, to have a reasonable doubt that the prosecution negatived the existence of a threat to inflict the relevant form of harm if the respondent failed to commit the acts that constituted the offence charged?
One difference between this case and cases such as Dawson or Lorenz is that here the maker of the threats (JR) was a participant in the acts said to constitute the offences. The prisoners in Dawson who threatened the accused were not escaping and the de facto partner in Lorenz did not participate in the robbery of the supermarket employee. In neither of those cases could it be said that any conduct of the maker of the threats amounted to an express or implied request that the relevant accused assist them in committing a crime. By contrast, in Lynch, Meehan told the appellant to drive him and the other gunmen to the scene of the execution. The threat of serious violence if the appellant did not do so may have been implied (or "unstated"), but it was nevertheless real.
In this case, the evidence of pervasive violence, intimidation, control and sexual abuse perpetrated by JR on the respondent and their children over a sustained period raised a reasonable possibility that any express or implicit demand JR may have placed on the respondent to join in the sexual abuse of Paige and Alicia carried with it the implication that serious violence and more severe sexual abuse would be inflicted on the respondent or their children if she refused. The evidence also raised a reasonable possibility that it was JR who initiated the sexual abuse of Paige and Alicia on the occasion of the offences and that he insisted, by words or conduct, on the respondent participating. Similar to the circumstances described above in Lynch, the evidence raised a reasonable possibility that there was an express or implied (or "unstated") requirement that the respondent participate in the sexual abuse, with an implied (or "unstated") threat of serious violence or more severe sexual assaults being committed on the respondent or their children if she did not comply.
The evidence adduced on the voir‑dire was sufficient to raise a reasonable possibility that there was an operative threat to inflict the relevant form of harm unless the respondent committed the acts the subject of the charges against her (as well as a threat that satisfied s 322O(2)(a)(i) of the Crimes Act). Kyrou and Niall JJA were correct to so hold. In light of the evidentiary basis on which this appeal was conducted, it is not necessary to consider whether McLeish JA was also correct to so hold on the evidence his Honour considered.
It was not disputed that, if the effect of the trial judge's ruling was that an available defence was not put to the jury, then a substantial miscarriage of justice was occasioned. Accordingly, the appeal should be dismissed.

[39]

Free will, or individual choice, is a fundamental assumption of the common law. So long as that assumption holds, the common law will excuse people from criminal liability where their ability to choose, and the like ability of others in their position, is deeply impaired. This appeal requires consideration of when duress, either at common law or under s 322O of the Crimes Act 1958 (Vic), will sufficiently impair a person's ability to choose so as to excuse the commission of an offence. This deceptively simple question has caused enormous difficulties in the authorities. The difficulty is compounded by errors in understanding the underlying principle and errors in the language used to describe the defence of duress.
The short point of principle upon which this appeal should be resolved is this. In general, a common law defence of duress should be left to the jury to assess whether the Crown has disproved the defence beyond reasonable doubt, in circumstances which include those where there is an evidentiary foundation upon which the jury might conclude that: (i) there was an express or implied human threat to the accused of serious physical harm or death (to which threat the accused had not voluntarily left themself open[68]); (ii) the threat caused the accused to commit the charged acts; (iii) the threat would have left a reasonable person in the position of, and with the general attributes of, the accused with no reasonable alternative expected of them other than to commit acts in the general nature of the charged acts.[69] A matter that is highly relevant to (iii) is whether the threat was accompanied by a demand or direction for the accused to perform an act in the general nature of the charged act.
There was an evidentiary foundation for this sufficient set of circumstances to raise duress at common law on the facts of this appeal. So too, there was an evidentiary foundation for the defence of duress in relation to one count relevant to this appeal under s 322O of the Crimes Act. The trial judge erred in failing to leave the defence of duress to the jury. The appeal was properly allowed by the Court of Appeal of the Supreme Court of Victoria. The appeal to this Court should be dismissed.

[40]

This appeal, with all names pseudonymised, concerns the principles of duress in the context of shocking acts of abuse by JR upon two of his children, Paige and Alicia. JR was charged with 40 sole counts as well as 13 joint counts with his partner, Ms Rowan (the respondent in this appeal). JR was convicted of 26 of the sole counts but the jury were unable to reach a verdict on any of the joint counts. Ms Rowan was subsequently tried alone for the 13 joint counts. These offences involved Ms Rowan and JR's wilful commission of an indecent act in the presence of a child under the age of 16 years,[70] and Ms Rowan taking part in an act of sexual penetration of a person known to be the child of her and JR.[71] At a voir dire prior to the trial, the trial judge held that there was no factual basis upon which the defence of duress could be properly raised by Ms Rowan before the jury. Ms Rowan was subsequently convicted of 12 of the 13 counts.
In the Court of Appeal, Ms Rowan sought leave to appeal on the ground that a substantial miscarriage of justice occurred because the trial judge failed to leave the defence of duress to the jury. The focus of the Court of Appeal was upon the recorded evidence of Paige and Alicia which had been played at trial, including aspects of their evidence that had been relied upon by Ms Rowan for the purposes of proving a tendency by JR "[t]o display towards all members of the family threats, intimidation, psychological violence, physical violence and family violence including economic" and "[f]or the purpose of control, coercion and domination of all family members".[72]
The evidence of Paige and Alicia upon which Ms Rowan relied, as described by the Court of Appeal, included: JR having "talked [Ms Rowan] into showing Paige what to do"; JR becoming "really angry" at Paige on an occasion when she resisted abuse, following which JR and Ms Rowan got in a fight; incidents of JR's physical abuse and hot temper including JR smashing a baseball bat against a wall, causing Alicia's hand to scar, and hitting the children with his hands and with a belt; JR threatening to kill Paige and incidents of extreme abuse of Paige by JR; Paige's evidence of JR "ma[king]" Ms Rowan "do those things" and "do stuff" and that "[a]t times, it did not look like [Ms Rowan's] involvement in the sexual abuse was voluntary because they were not making decisions together, [Ms Rowan] was very quiet and [Ms Rowan] would even argue with JR"; Ms Rowan being easily pushed around by everyone in the family, including the children; Alicia's evidence that during the incident giving rise to count 13, Ms Rowan "was just standing in the room and looking at Alicia"; Alicia's evidence, at one point, of Ms Rowan asking JR why she (Ms Rowan) needed to be there and Alicia saying that she did not know why Ms Rowan would have been involved in the incident unless JR forced her.
Before the Court of Appeal, Ms Rowan also relied upon a 2019 report from a forensic psychologist, Ms Matthews, who had previously assessed Ms Rowan and concluded that she was not fit to plead. After a special hearing, a jury nevertheless found that Ms Rowan was fit to stand trial.
In her 2019 report, Ms Matthews observed that Ms Rowan had an IQ of 70 and that her overall intellectual ability fell within the "mildly intellectually disabled" category. Ms Matthews' report contained observations about factual incidents of which Ms Rowan had informed her and Ms Matthews' opinions about Ms Rowan's state of mind based on those incidents. She also observed that the behaviour of Ms Rowan was consistent with battered woman syndrome, which Ms Matthews described as "a learned helplessness process in which women who have been abused repeatedly within a relationship [that] they believe they cannot escape from, learn 'good coping skills as a trade-off for escape'".
There are difficulties with relying upon the evidence of Ms Matthews. As McLeish JA observed, there is force in the argument of the Crown that the expert opinion of Ms Matthews could not be admissible without independently admissible evidence sufficient to provide a foundation for that opinion.[73] Moreover, for the evidence of Ms Matthews to be part of the record on the appeal in this Court, her evidence would need to have been admitted as evidence at trial or as evidence before the Court of Appeal.[74] Her evidence was not evidence at trial but evidence at the voir dire. The appeal was an appeal from the conviction at trial, not an appeal from the decision given on the voir dire.[75] And there is uncertainty about whether Ms Matthews' report was separately admitted as evidence on the appeal rather than merely being relied upon as part of the record of the voir dire ruling.[76]
Since there was little argument in this Court about the basis for the admissibility of Ms Matthews' evidence, and since (for the reasons explained below) the appeal should be dismissed without reliance upon the evidence of Ms Matthews, the better approach is to put aside the evidence of Ms Matthews, as McLeish JA did in the Court of Appeal.[77] The only evidence that need be considered for the defence of duress was the evidence that was led at trial, including the pre-recorded evidence of Paige and Alicia. The tendency notice filed by the Crown is not itself evidence, although it relies upon evidence given at the trial.

[41]

The criminal law recognises a hierarchy of claims by which an accused person can deny liability for punishment.[78] First, the accused might deny that any crime has been committed because some element of the offence was not satisfied. Secondly, the accused might claim that although all elements of the offence were satisfied, their conduct was justified with the effect that no offence was committed. Thirdly, the accused might accept that an offence was committed but claim that the offence was excused so that the accused can be relieved of liability for punishment by a finding of not guilty.
Although very difficult questions can arise at the margins, particularly when questions of statutory interpretation involving the relation between statutory offences and common law defences are involved, there is a fundamental distinction of principle between the second and third of these claims. A justification, whether for criminal or civil wrongs, provides a privilege to engage in an act that would otherwise be wrongful.[79] In general, justified conduct is rightful in the sense that the balance of reasons demonstrates the propriety of the action.[80] An excuse (or immunity from liability), whether for criminal or civil wrongs, affords no privilege to engage in the conduct; it "concedes the wrongfulness of the action".[81] In criminal law, in general terms, an excuse relieves the offender of consequences including liability for punishment for their wrongful conduct because the offender cannot reasonably be expected to have acted otherwise.[82]
H L A Hart described the distinction between justifications and excuses as one "of great moral importance".[83] The distinction is "of fundamental theoretical and practical value",[84] and was important to the development of the common law of crimes against the person, particularly homicide.[85] Subject to the terms of legislation, it remains of practical importance in areas such as derivative liability (where the justified act of a principal precludes derivative liability for punishment but the excused act of a principal does not)[86] and, at least in some cases, the legality of using force to resist another.[87] Any treatment of justification and excuse as synonymous has rightly been described as a "serious mistake".[88]
The distinction between justifications and excuses is important for this appeal because much of the oral argument in this Court focused on the relationship between the defences of duress and necessity. "Necessity" is a label that can be, and sometimes is, used to describe different defences. Relevantly to this appeal, when necessity is seen as a justification there are significant differences between the defence of necessity and the defence of duress. But, when the defence of necessity is seen as an excuse, the differences between the defences of necessity and duress are, at best, slight. In short, there is a need "to distinguish clearly between necessity as an excuse and necessity as a justification".[89]
In England, the defence of necessity has sometimes been treated as a justification, occasionally described as "pure necessity", with the propriety of the action assessed in utilitarian terms: "on a choice of two evils the choice of avoiding the greater harm was justified".[90] In Australia, necessity has sometimes been recognised as a justification by analogy with self-defence at common law although in terms that muddle the distinction between justifications and excuses.[91] Self-defence at common law was traditionally regarded as "a ground of justification based upon the necessity of repelling force with force".[92]
There are, however, other instances in which a defence of necessity is recognised independently of the propriety of the conduct, where the accused could not reasonably have been expected to act otherwise. In those cases, necessity is not relied upon as providing a privilege to act (which it might not) but is relied upon only as an excuse for wrongful conduct.[93] Arguably one difficulty with the much-debated case of R v Dudley and Stephens[94] is that the Divisional Court conceived only of the possibility of necessity as a justification and neglected the possibility that necessity might function as an excuse.[95]
Insofar as necessity is conceived of as a justification, on the facts of R v Dudley and Stephens the Court was undoubtedly correct to hold that the defence of necessity failed. This is because even the extreme circumstances of that case did not create a privilege to kill the emaciated cabin boy, who posed no threat. The balance of reasons did not favour the killing as proper or rightful conduct. But it is a different question whether necessity could have excused the wrongful act of killing in that case. Referring to the "somewhat similar position" of a person who has a defence of duress due to a threat of death, Simpson observed that the judges failed "to separate clearly and analyze the different bases on which the claim to a defence of necessity can in principle be advanced".[96] On the assumption that an excuse could arise even for murder, where extreme pressure left no other reasonable alternative expected of the accused, it has also been suggested that the case "is a textbook example of the wrongful killing of an innocent person that might properly be excused on grounds of necessity".[97]

[42]

Duress has been said to be "a paradigmatic example of an excuse".[98] Whether or not it involves conduct that might be separately justified,[99] the defence is not shaped by whether the balance of reasons favoured the action taken as proper or rightful conduct. It is, instead, an excuse that is based upon a "merciful concession to human frailty".[100] As will be seen, the various formulations of the defence of duress have in common the central concern that the pressure on the accused caused the charged act and that the extent of that pressure left no other action that would reasonably be taken by a person in the position of, and with the general attributes of, the accused.
There is a contextual difference between what has traditionally been described as the common law excuse of duress and what has sometimes been described as a common law excuse of "necessity". That contextual difference is that the impairment of free choice in cases of duress arises from a threat made by a person whilst the impairment of choice in cases of necessity arises from other circumstances, including natural forces. That difference of context, rather than principle, led Glanville Williams to describe duress as "a species of necessity, in that it is necessity created by the illegal conduct of another, and not by natural forces".[101] Later English cases described the defence of "duress of circumstances"[102] as a "species of the genus of necessity".[103] On that view, necessity is the genus and the species of that genus are duress by human threats and duress by circumstances.
Whether or not the excuses of duress by human threat and duress by circumstances are seen as species of the genus of necessity, there is no principled basis for distinguishing between different sources of extreme pressure. As Sir Rupert Cross said, it would be the "apotheosis of absurdity" to allow a defence of duress by threats but to disallow a defence where exactly the same compulsion arises from the circumstances without a human threat.[104] Similarly, in R v Howe,[105] the Lord Chancellor observed that the excuses of duress and necessity involved "a distinction without a relevant difference, since on this view duress is only that species of the genus of necessity which is caused by wrongful threats". The point was also colourfully put by Lord Simon when he said:[106]

[48]

The availability of a "do this or else" defence, whether described as duress, duress of circumstances, or necessity, was at the forefront of this appeal. Neither party made submissions in favour of formally unifying the excuses of duress by human threats and duress of circumstances as species of necessity. The Crown submitted that the common law of this country should not accept the existence of a defence of "duress of circumstances" to excuse conduct that would otherwise satisfy the defence of duress but where the pressure arose from circumstances other than exclusively a human threat. Ms Rowan submitted that an excuse of duress should have been left to the jury on the existing state of Australian law, based on pressure arising from a human threat. But she argued that if the Court of Appeal had extended Australian law to embrace "duress of circumstances" then the matter should be remitted to the Court of Appeal to consider the defence of necessity (as "duress of circumstances").
It is convenient to begin the analysis with the traditional Australian view that a human threat is necessary for the defence of duress, putting to one side the operation of any functionally identical defence where the human threat is replaced by pressure of circumstances that are equally grave. As I explain later in these reasons, the functional identity of the two defences informs the understanding of the elements of duress in relation to any purported requirement of demand or direction to perform the charged act.
The dispute between the parties to this appeal was not merely over whether the Court of Appeal had expanded the defence of duress in Australia by extending it beyond instances of human threats. The Crown also argued that the Court of Appeal erroneously removed a purported requirement that the threat be accompanied by a demand or direction to perform the charged act.
It was assumed by the parties that the defence of duress required that implied threats by JR be accompanied by an express or implied demand or direction by JR that Ms Rowan commit the conduct involved in the charged acts. As explained below, however, a demand or direction is not always a necessary element of duress. Nor, in cases where it is a necessary element, will there always be the same degree of clarity required in the communication of the demand or direction. In order to appreciate the extent to which a demand or direction might be required in any case it is necessary to appreciate the purpose that a demand or direction might serve in establishing the defence of duress. A demand or direction is only ever a factual basis from which it could be established that the threat would have left a reasonable person in the position of, and with the general attributes of, the accused with no reasonable alternative expected of them other than to commit acts in the general nature of the charged acts.
The Crown's submissions should not be accepted. The Court of Appeal required an evidentiary foundation for threats of serious bodily harm by JR and it accepted, at least to the extent that such acceptance was required, the existence of an evidentiary foundation (assessed across all counts generally) for a conclusion that implied threats by JR were accompanied by an implied demand or direction to Ms Rowan that the charged acts be performed.

[57]

In relation to some of the counts, the reasoning of Kyrou and Niall JJA about an "unstated demand" is plainly correct. An evidentiary basis for such an unstated demand exists (in relation to some counts) in the evidence of Paige and Alicia as described in the trial judge's summing up to the jury and in the reasons of the Court of Appeal. For instance, Paige's evidence relating to counts 1 to 4 was described as including evidence that JR had told her that he "had talked [Ms Rowan] into" her action that was the subject of those counts.
By contrast, it does not appear that there was any direct evidence in relation to some of the other counts, such as count 11, that supported an express or implied demand or direction by JR for Ms Rowan to engage in the specific conduct that was the subject of the charge. In such cases, it appears from the reasons of the Court of Appeal that the highest that the evidence comes to establishing an evidentiary foundation for a demand or direction is the evidence of Paige and Alicia to the general effect that JR compelled Ms Rowan to "do stuff". Nevertheless, that evidence alone was sufficient for the defence to be put to the jury.
For the reasons explained below, it is not necessary to establish that a demand or direction by JR was present in relation to each and every count. Such a demand or direction is not generally a requirement to establish the defence of duress. The only reason that a demand or direction, express or implied, may be needed for a defence of duress in some cases is because it demonstrates that a reasonable person in the position of, and with the general attributes of, the accused would have had no reasonable alternative expected of them other than to commit acts in the general nature of the charged acts.[115] Despite the potential lack of any express or implied demand or direction by JR in relation to some specific counts, the evidence of JR's conduct, including evidence supporting implied demands concerning some counts, was a sufficient foundation for the possibility that the threats made by JR left Ms Rowan with no reasonable alternative expected of her other than to commit acts in the general nature of the charged acts. This required the Crown to establish that Ms Rowan did in fact have reasonable alternatives expected of her.

[63]

Whilst the cases after Hurley can be understood as treating the eight elements set out by Smith J as an "authoritative" test for circumstances that are sufficient for duress,[121] most of the cases do not need to be understood as having misunderstood, and misapplied, the basic point being made by Smith J that these elements established a sufficient test for duress but not a necessary one.
Nevertheless, a basic misunderstanding, in the reasoning but not the result, occurred in R v Dawson,[122] where a demand or direction to perform the charged act was treated as a necessary element of duress. In Dawson, the question for the Full Court of the Supreme Court of Victoria was whether the trial judge should have left a defence of duress to the jury in circumstances where the applicant gave evidence that his offence of escaping from prison was committed because he feared for his life due to threats made against him in prison.
The Full Court correctly dismissed the application for leave to appeal. There was no foundation for the assertion that escape was the only reasonable alternative expected of the applicant to avoid a threat to the applicant's life. There "was no immediate threat, nothing imminent or impending, which left no alternative" to the applicant, and he could have reported the threat to the authorities.[123] There was no suggestion that, like the situation in People v Harmon,[124] where a defence of duress was held to be available, "the conditions of [the relevant] penal institutions have reached the point where the only recourse to free one's self from unwanted personal attacks is to flee".[125] There was no "history of futile complaints to the authorities which made the results of any belated complaint illusory".[126] Nor was it suggested that the circumstances were akin to those of "a prisoner with his back to the wall, facing a gang of fellow-inmates approaching him with drawn knives, who are making it very clear that they intend to kill him", in which case it has been said that the prisoner "might be expected to go over the wall rather than remain and be a martyr to the principle of prison discipline".[127]
Despite correctly dismissing the application for leave to appeal in Dawson, the reasons of each of Anderson J (with whom Starke J agreed) and Harris J appeared to treat the first element in Hurley as necessary for a defence of duress: without a demand or direction to perform the charged act, the defence could not be left to the jury.[128] The misunderstanding by their Honours was ameliorated in part by Anderson J's recognition, under the description of "necessity", of an arguable defence where a threat by another left no reasonable alternative expected of the accused than for the accused to commit the charged act.[129] Perhaps for this reason, decisions subsequent to Dawson have focused upon developing the defence of necessity in the absence of a demand or direction to perform the charged act, albeit with some confusion in those cases concerning the separate conceptions of necessity as a justification and as an excuse.[130]
It would be more conducive to clear thinking if all instances where an excuse was based upon human threats were described as "duress". Ultimately, however, it may be no more than semantics if, in circumstances where it is open to conclude that a reasonable person in the position of, and with the general attributes of, the accused would have had no reasonable alternative expected of them other than to commit acts in the general nature of the charged acts: (i) one excuse of duress is left to the jury based upon human threats but not requiring a demand or direction to perform the charged act, or (ii) two excuses are left to the jury, with one described as duress and based upon human threats with a demand or direction to perform the charged act and another described as necessity with the same constraints as the excuse of duress and based upon the same human threats but without a demand or direction to perform the charged act. In this respect, I agree with the joint reasons[131] that the "authoritative" nature of Hurley does not prescribe any form of jury direction.

[69]

The example above demonstrates the grave difficulties with a requirement that the human threat must be accompanied by a demand or direction that the particular charged act be committed. It is also difficult to see the rationale for a requirement of a demand or direction that any act be committed. A person who drives a car recklessly in order to escape from a gang of 20 to 30 people "who were obviously bent upon doing further violence" should have a defence of duress without the need for a demand or direction that the person drive away recklessly.[133] There is no difference in principle between a threat of immediate death to the driver which can only be avoided by driving away and the same threat of immediate death that is accompanied by the words "unless you drive away".
It is therefore unsurprising that the model defence of duress, formulated by the American Law Institute in s2.09 of the Model Penal Code, contains no requirement of a demand or direction. It is also unsurprising that it has been said that "[t]he requirement of a direction is merely a guideline to demonstrate how free will can be affected. Insistence upon this element is, therefore, without logical basis."[134]
It is, however, necessary to reiterate that, as Smith J contemplated in Hurley, in the usual case there will need to be a demand or direction. A threat of serious physical harm or death to a person will usually present a number of alternatives to avoid the threat, some of which may involve lawful conduct. Therefore, without a demand or direction to engage in conduct in the general nature of the offence charged, it may be difficult to establish that there was no reasonable alternative action. An evidentiary foundation for a demand or direction will thus usually be highly relevant to establishing the evidentiary foundation for the requirement for duress that a reasonable person in the position of, and with the general attributes of, the accused would have had no reasonable alternative expected of them other than to commit acts in the general nature of the charged acts.

The King v Anna Rowan - A Pseudonym

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