| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0118 |
| ANNA ROWAN (A PSEUDONYM)[1] | Applicant |
| v | |
| THE KING | Respondent |
[1]To ensure that there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and some witnesses.
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| JUDGES: | KYROU, McLEISH and NIALL JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 September 2022 |
| DATE OF JUDGMENT: | 28 October 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 236 |
| JUDGMENTS APPEALED FROM: | DPP v Rowan (a pseudonym) (Unreported, County Court of Victoria, Judge Lyon, 30 June 2021) (Conviction); [2021] VCC 1135 (Sentence) |
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CRIMINAL LAW – Appeal – Conviction – One charge of indecent act with child under 16, 11 charges of incest – Applicant mother of two complainants – Rationale for defence of duress – Elements of common law defence of duress – Whether specific, overt threat required – Whether continuing or ever present threat sufficient – Nature of threatened harm required – Whether threat of physical and sexual abuse, including rape, sufficient – R v Hurley [1967] VR 526 applied – Warren v The Queen (1996) 88 A Crim R 78; R v Runjanjic (1991) 56 SASR 114 considered.
CRIMINAL LAW – Appeal – Conviction – Elements of common law defence of duress – Attributes of ‘a person of ordinary firmness’ – Relevance of expert evidence on battered woman syndrome – R v Abusafiah (1991) 24 NSWLR 531; R v Runjanjic (1991) 56 SASR 114 considered.
CRIMINAL LAW – Appeal – Conviction – Elements of common law defence of duress – Requirement that threat must be ‘present and continuing, imminent and impending’ – R v Abusafiah (1991) 24 NSWLR 531; R v Lorenz (1998) 146 FLR 369 considered.
CRIMINAL LAW – Appeal – Conviction – Elements of statutory defence of duress – Crimes Act 1958, s 322O.
CRIMINAL LAW – Appeal – Conviction – Defence of duress – Onus of proof – Test for determining whether evidence sufficient for defence to be left to jury – Martin v The Queen (2010) 202 A Crim R 97 applied – R v Abusafiah (1991) 24 NSWLR 531; Zaharias v The Queen (2001) 122 A Crim R 586 considered – Crimes Act 1958, s 322I.
CRIMINAL LAW – Appeal – Conviction – Defence of duress – Whether judge erred in ruling evidence insufficient for defence to be left to jury – Whether judge erred in being influenced by inconsistency between defence that offending conduct did not take place and reliance upon duress to avoid criminal liability for that conduct – Whether substantial miscarriage of justice due to judge’s ruling that defence not available – Leave to appeal granted – Appeal allowed – Convictions set aside – New trial ordered – Criminal Procedure Act 2009, s 276(1)(b).
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| Counsel | |||
| Applicant: | Mr P Morrissey SC with Mr C Mylonas | ||
| Respondent: | Mr CB Boyce KC with Ms S Clancy | ||
Solicitors | |||
| Applicant: | Brown McComish… | ||
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- AGLC
- Rowan (a pseudonym) v The King [2022] VSCA 236
- Case
- [2022] VSCA 236
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were the specific requirements of the common law defence of duress, including the necessity of a specific and overt threat, the nature of the threatened harm, and whether the threat needed to be both present and continuing or if an ever-present threat was sufficient. The court also examined the relevance of expert evidence regarding the battered woman syndrome and the attributes of a person of ordinary firmness. Additionally, the court considered the statutory defence of duress under the Crimes Act 1958 and the onus of proof for the defence of duress.
The court found that the trial judge erred in ruling that the evidence was insufficient for the defence of duress to be left to the jury. The court held that the judge had been influenced by the inconsistency between the defence's claim that the offending conduct did not take place and the reliance on duress to avoid criminal liability for that conduct. The court determined that this error led to a substantial miscarriage of justice. Consequently, the court allowed the appeal, set aside the convictions, and ordered a new trial. The ruling was grounded in the application of the Criminal Procedure Act 2009, section 276(1)(b).
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Ratio Decidendi
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