Anna Rowan (a pseudonym) v The King
[2022] VSCA 236
•28 October 2022
| 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 Solicitors | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TABLE OF CONTENTS
KYROU and NIALL JJA:
Introduction and summary
Family context, outline of offending and procedural history
Evidence at trial
Paige’s evidence regarding charges 1, 3–12 and JR’s coercion of applicant
Alicia’s evidence regarding charge 13 and JR’s coercion of applicant
Defence evidence
Statutory provisions relevant to ground 2
Principles relating to the defence of duress
Common law defence of duress
(a) Element (i): The accused was under a threat
(b) Element (ii): A person of ordinary firmness
(c) Element (iii): The threat must remain effective
Statutory defence of duress
Inconsistency between denial of offending and reliance upon defence of duress
Onus of proof and test for leaving the defence of duress to the jury
Evidence relied upon by the applicant in relation to the defence of duress
Matthews 2019 report
(a) Ms Matthews’ observations about applicant’s intellectual functioning
(b) Ms Matthews’ observations about JR’s controlling behaviour
(c) Ms Matthews’ observations about JR’s physical and sexual abuse
(d) Ms Matthews’ opinion
Complainants’ evidence
Tendency evidence notice
Judge’s duress ruling
Parties’ submissions on ground 2
Decision on ground 2
Conclusion
McLEISH JA ……………………………………………………………………………… 43
KYROU JA
NIALL JA:
Introduction and summary
On 30 June 2021, a County Court jury found the applicant guilty of one charge of indecent act with a child under 16 (charge 1) and 11 charges of incest (charges 3–13), and found her not guilty of an additional charge of incest (charge 2).
The complainant in respect of charges 1–12 was the applicant’s daughter, Paige Rowan, and the complainant in respect of charge 13 was another daughter, Alicia Rowan.[2] At the time of the alleged offending, the applicant was living with her partner, James Rowan (‘JR’),[3] the father of the complainants who was also convicted of sexual offences against them.
[2]Paige Rowan and Alicia Rowan are pseudonyms.
[3]James Rowan is a pseudonym.
On 13 August 2021, a County Court judge sentenced the applicant as follows:[4]
[4]DPP v Rowan (a pseudonym) [2021] VCC 1135 (‘Sentencing remarks’).
Charge
Offence
Max Penalty
Sentence
Cumulation
1 Indecent act with a child under 16 (Crimes Act 1958, s 47(1))[5] 10 years 9 months — 3 Incest (Crimes Act, s 44(1)) 25 years 3 years 3 months 4 Incest 25 years 3 years 3 months 5 Incest 25 years 3 years 3 months 6 Incest 25 years 3 years 3 months 7 Incest 25 years 3 years 3 months 8 Incest 25 years 3 years 3 months 9 Incest 25 years 3 years 3 months 10 Incest 25 years 3 years 3 months 11 Incest 25 years 4 years Base 12 Incest 25 years 3 years 3 months 13 Incest 25 years 4 years 14 months Total Effective Sentence: 7 years and 5 months’ imprisonment Non-Parole Period: 4 years and 11 months Other Relevant Orders:
1. Sentenced as a serious sexual offender on charges 4–13 pursuant to pt 2A of the Sentencing Act 1991.
2. Reporting for life under s 34 of the Sex Offenders Registration Act 2004.
[5]Sections 44(1) and 47(1) of the Crimes Act as in force during the period of the offending were repealed by s 16 of the Crimes Amendment (Sexual Offences) Act 2016. The offence of indecent act with a child under 16 is now set out in ss 49D (sexual assault of a child under 16) and 49F (sexual activity in the presence of a child under 16) of the Crimes Act and incest is now set out in s 50C (sexual penetration of a child or lineal descendent).
Although the applicant initially sought leave to appeal against her convictions on 11 grounds,[6] she ultimately pursued a single ground (ground 2), which was in the following terms:
[6]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
The learned judge erred in ruling that the defence of duress was not open on the evidence to be [led] at trial and thereby causing a substantial miscarriage of justice.
Particulars
a.The learned judge erred in failing to leave duress … to the jury.
b.The learned judge erred in failing to correctly identify the magnitude of threat in the applicant’s circumstances.
c.The learned judge erred in failing to correctly identify the immediacy of the threat in the applicant’s circumstances.
d.The learned judge erred in holding that [Paige] ‘considered that her mother had been made to commit offences’ did not ‘carry a great deal of weight’.
e.The learned judge erred in concluding that none of the general evidence of family violence, or of tension between [JR] and [the applicant] identifies either the nature of, or a time correlation with, a threat made so as to link it to the alleged offending.
f.The learned judge erred in considering the [report of psychologist Pamela Matthews dated 13 May 2019] as inadmissible.[7]
[7]Emphasis in original. Particular a., as originally formulated, also referred to the defence of marital coercion in s 336 of the Crimes Act. However, ground 2 was argued solely by reference to the defence of duress.
The applicant has also sought leave to appeal against her sentence upon the grounds that the judge erred in placing insufficient weight upon the factors in Verdins v The Queen[8] (ground 2) and in imposing a sentence that was manifestly excessive (ground 4).[9]
[8](2007) 16 VR 269.
[9]The applicant abandoned grounds 1 and 3.
For the reasons that follow, leave to appeal against conviction will be granted, the appeal will be allowed, the convictions sustained by the applicant will be set aside and a new trial will be ordered. In the circumstances, it is not necessary for us to consider the application for leave to appeal against sentence.
Family context, outline of offending and procedural history
The applicant was born on 25 August 1974. She has a mild intellectual disability, with a full-scale IQ of 70.
JR was born on 27 July 1971. In 1992, JR and the applicant commenced a relationship and she moved into his farm in rural Victoria. There was a cabin behind the farm house. Although the applicant and JR never married, she adopted his surname four or five years after their relationship commenced.
JR operated the farm with his father, Donald Rowan.[10]
[10]Donald Rowan is a pseudonym.
JR was violent and controlling towards the applicant. Their lives revolved around the farm and the applicant was financially and socially dependent upon JR.
The applicant and JR had four children, Paige (born on 27 November 1999), Alicia (born on 23 June 2001), Michael (born on 3 August 2003) and Mary (born on 16 June 2006).[11] It is not alleged that any offences were committed against Michael or Mary.
[11]Michael and Mary are pseudonyms.
In his sentencing remarks, the judge observed that ‘[t]he state of the house and farm … paint[ed] a picture of squalor’.[12]
[12]Sentencing remarks, [25].
The offending against Paige was alleged to have occurred during four separate incidents between 27 November 2009 and 26 November 2015, when Paige was aged between 10 and 15 and the applicant was aged between 35 and 41. The offending against Alicia was alleged to have occurred during a single incident between 1 January 2015 and 31 May 2015, when Alicia was aged 13 and the applicant was aged 40. The complainants’ evidence of the alleged offending is discussed in detail later in these reasons. At this stage, it suffices to summarise the alleged offending as follows:
Paige incident 1: Family home main bedroom 27.11.09 to 26.9.14 (charges 1, 3, 4)
JR inserted his penis into the applicant’s vagina while Paige watched (charge 1, indecent act with a child under 16). JR then inserted his fingers into Paige’s vagina in the applicant’s presence (charge 3, incest) and, following this, he inserted his penis into Paige’s vagina in the applicant’s presence (charge 4, incest).
Paige incident 2: Family home main bedroom 27.11.09 to 26.9.14 (charges 5–6)
JR inserted his penis into Paige’s vagina in the applicant’s presence (charge 5, incest). He then inserted a sex toy into Paige’s vagina in the applicant’s presence (charge 6, incest).
Paige incident 3: Cabin 1.7.11 to 26.11.15 (charges 7–10)
JR inserted a sex toy into Paige’s vagina in the applicant’s presence (charge 7, incest). JR then penetrated Paige’s vagina with his penis in the applicant’s presence (charge 8, incest). JR again inserted his penis into Paige’s vagina in the applicant’s presence (charge 9, incest) and, following this, he inserted a sex toy into Paige’s vagina in the applicant’s presence (charge 10, incest).
Paige incident 4: Cabin 1.7.11 to 26.11.15 (charges 11–12)
The applicant inserted a sex toy into Paige’s vagina in JR’s presence (charge 11, incest). JR then inserted his penis into Paige’s vagina in the applicant’s presence (charge 12, incest).
Alicia: Cabin 1.1.15 to 31.5.15 (charge 13)
The applicant inserted a sex toy into Alicia’s vagina in JR’s presence (charge 13, incest).[13]
[13]The evidence was unclear as to whether the applicant inserted the sex toy into Alicia’s vagina or whether she held Alicia’s legs apart to enable JR to do so. The judge sentenced the applicant on charge 13 on the basis that it was more likely that she held Alicia’s legs apart while JR inserted the sex toy into Alicia’s vagina: Sentencing remarks, [11].
In 2015, Alicia had a conversation via Facebook Messenger with two school friends, in which Alicia stated that her father wanted her to do things that she did not want to do. One of her friends approached a teacher on 6 November 2015 and gave her screenshots of the conversation. The teacher contacted the police.
Police and child protection officers attended the complainants’ school on 26 November 2015 to speak to Alicia. She was taken to the police station and completed her first Visual and Audio Recorded Evidence (‘VARE’). She made allegations against JR but not the applicant. Police and child protection officers attended the family home and the complainants’ school to collect the Rowan children and convey them to the police station. The children were then taken to a child protection facility. Paige and her brother Michael were initially placed in foster care with Gina Rolland[14] in November 2015. On 20 December 2015, all the children were placed with the same foster family.
[14]Gina Rolland is a pseudonym.
JR was arrested on 26 November 2015.
On 6 December 2015, Paige told Ms Rolland that her father had ‘sexually interfered with her’ twice. On the following day, 7 December 2015, Ms Rolland communicated this information to child protection authorities and took Paige to the police station. Paige made her first VARE on that day. In her VARE, she stated that JR had penetrated her vagina with his penis on two occasions. She did not make any allegations against the applicant.
On 30 December 2015, Paige and Alicia made their second VAREs. They did not make any allegations against the applicant.
On 9 September 2016, Alicia made her third VARE, following a report by a Centre Against Sexual Assault (‘CASA’) counsellor as to further disclosures. The third VARE implicated the applicant.
The applicant was arrested on 12 September 2016.
On 22 September 2016, Paige made her third VARE following disclosures to her counsellor which were passed on to child protection officers and police. The third VARE implicated the applicant in respect of the first and second alleged incidents.
On 26 September 2016, Paige made her fourth VARE. The fourth VARE implicated the applicant in respect of the third and fourth alleged incidents.
On 5 October 2016, Alicia made her fourth VARE, following further information she provided to counsellors and child protection officers.
The applicant and JR were charged in a single indictment alleging that they committed a number of sexual offences jointly against Paige and Alicia. The prosecution case was that, in relation to charges 3–10 and 12 set out in the table at [3] above, the applicant was complicit in the offending of JR against Paige in that she was present and encouraged his actions. The indictment also included a number of charges against JR in respect of sexual offences he allegedly committed alone against Paige and Alicia.
A forensic psychologist, Pamela Matthews, assessed the applicant on 24 April 2018 and prepared a report dated 6 May 2018 in which she concluded that the applicant was ‘not fit to plea’.
Between 4 and 7 June 2018, a special hearing was conducted under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 in respect of the applicant. Ms Matthews gave evidence at that hearing. The jury found that the applicant was fit to stand trial.
Between 8 and 21 June 2018, a special hearing was conducted under s 370 of the Criminal Procedure Act 2009 (‘CPA’) at which the complainants adopted their VAREs as their evidence in chief and were cross-examined separately by counsel for JR and counsel for the applicant.
On 25 June 2018, the joint trial of the applicant and JR commenced (‘first joint trial’). The jury were discharged on day 5 of the first joint trial (2 July 2018) without verdict due to a problem that arose within the jury.
A second joint trial took place between 18 February and 6 March 2019 (‘second joint trial’). JR gave evidence in his own defence and denied committing any of the offences. The applicant did not give evidence. Her case was that the complainants’ evidence about the offences committed against them by JR was true and should be accepted, but their evidence about her involvement in those offences was false and should be rejected. On 7 and 8 March 2019, JR was found guilty of 26 charges he faced alone but the jury were unable to return verdicts on the 13 joint charges against JR and the applicant, and were discharged on 8 March 2019.
Ms Matthews again assessed the applicant in April 2019 and prepared a report dated 13 May 2019 (‘Matthews 2019 report’). The assessment was commissioned by the applicant’s lawyers for the purpose of the applicant’s proposed defence of duress.
The Crown initially proposed a further joint trial of the applicant and JR in respect of the 13 remaining charges.
Prior to that proposed joint trial, on 24 February 2020 the applicant sought a ruling that the defence of duress was open on the evidence in relation to the charges against her. The prosecution argued that the evidence was incapable of supporting that defence. On 27 February 2020, the judge ruled that the defence was not open to the applicant.[15] As appears from [4] above, ground 2 contends that the judge’s ruling was erroneous and caused a substantial miscarriage of justice.
[15]Unreported ruling dated 27 February 2020 (‘duress ruling’). The judge also ruled that the defence of marital coercion in s 336 of the Crimes Act — upon which the applicant also sought to rely — was not open as a matter of law because the applicant and JR were not married. As indicated in n 7 above, ultimately ground 2 was confined to the defence of duress.
The evidence upon which the applicant relied in support of the defence of duress and the reasons for the judge’s duress ruling are discussed in detail later in these reasons. At this stage, it is convenient to note that the applicant placed primary reliance upon the Matthews 2019 report and that, in that report, Ms Matthews opined that the applicant’s behaviour was consistent with battered woman syndrome. Ms Matthews defined battered woman syndrome as ‘a learned helplessness process in which women who have been abused repeatedly within a relationship, they believe they cannot escape from, learn “good coping skills as a trade-off for escape.”’[16]
[16]Ms Matthews adopted the definition used by Lenore Walker, The Battered Woman Syndrome (Springer Publishing, 2017).
In early March 2020, JR applied for a ruling that he be tried separately from the applicant in respect of the 13 remaining charges. On 12 March 2020, the judge made such a ruling.
The Crown decided not to prosecute JR on the 13 remaining charges. On 27 March 2020, JR was sentenced to a total effective sentence of 20 years and 7 months’ imprisonment with a non-parole period of 15 years in respect of the 26 charges for which he was found guilty on 7 and 8 March 2019.[17]
[17]DPP v Rowan (a pseudonym) [2020] VCC 368.
The applicant’s trial in respect of the 13 remaining charges commenced on 17 June 2021 (‘third trial’ or ‘trial’).[18]
[18]The third trial was initially scheduled for March 2020 but was adjourned due to the COVID-19 pandemic.
As we have already stated, the applicant was found guilty of 12 out of the 13 charges on 30 June 2021 and was sentenced on 13 August 2021.
Evidence at trial
Set out below is the complainants’ evidence regarding the charged offences and JR’s coercion of the applicant.[19] Evidence upon which the applicant relied in support of ground 2 is italicised.
Paige’s evidence regarding charges 1, 3–12 and JR’s coercion of applicant
[19]The complainants’ evidence at trial was given by playing the recordings of their four VAREs and special hearing under s 370 of the CPA.
Paige stated that, on one occasion in her parents’ bedroom, she saw JR penetrating the applicant’s vagina with his penis. JR was instructing Paige as to what sexual acts to perform and the applicant was playing with Paige’s breasts. JR said that he had talked the applicant into showing Paige what to do. JR grabbed Paige and dragged her towards the applicant. He pushed Paige’s head into the applicant’s vagina and told Paige to lick the applicant. Paige licked the applicant ‘[a]round her clit’ and the applicant moaned.[20] JR also licked the applicant’s vagina and she moaned a lot more, while JR penetrated Paige’s vagina with his fingers. He then penetrated the applicant’s vagina with his penis, causing her to orgasm, before penetrating Paige’s vagina with his penis. While he did so, the applicant was lying next to them, touching her vagina.
[20]The licking of the applicant’s vagina by Paige was the subject of charge 2, upon which the applicant was found not guilty.
Paige stated that, on another occasion in her parents’ bedroom, JR penetrated the applicant’s vagina with his penis. He then penetrated Paige’s vagina with his penis before resuming his penetration of the applicant’s vagina and ejaculating. He then inserted a sex toy into Paige’s vagina while the applicant was ‘rubbing [Paige’s] boobs’.[21] Paige said that, when she complained that the penetration was hurting her, JR told her that she needed to push through the pain. The applicant then said something to JR and he stopped.
[21]The applicant’s rubbing of Paige’s breasts was an uncharged act.
Paige stated that, on an occasion in the cabin, while JR and the applicant had penetrative intercourse, he put a sex toy into Paige’s vagina. JR then penetrated Paige’s vagina with his penis while the applicant used the sex toy to penetrate her own vagina. One of the children knocked on the door and JR left the cabin briefly. When JR returned, he again penetrated Paige’s vagina with his penis before penetrating the applicant’s vagina until the applicant had an orgasm and JR ejaculated. JR then told Paige she was going to have an orgasm and inserted the sex toy into her vagina again. Paige said that she did not want to have an orgasm and that it was hurting. After JR said something to the applicant, she put her breast in Paige’s mouth.[22] Paige kept turning her head and saying ‘[i]t’s sore’ and that she did not want the applicant’s breast in her mouth. JR got really angry and told her to ‘stop it, just take it and get past the pain, it won’t be as bad and stop fighting’. Paige was crying and the applicant told JR to stop, which he did. JR and the applicant then got in a fight. The applicant said words to the effect that Paige was in pain and JR said ‘she always says it, she always cries to try and get out of it’. Paige did not hear most of the fight because she was crying.
[22]The placing of the applicant’s breast in Paige’s mouth was an uncharged act.
Paige stated that, on another occasion, she, the applicant and JR were in the cabin. The applicant was sitting on the bottom bunk bed with her legs spread. JR grabbed Paige and put her close to the applicant, and the applicant inserted a sex toy into Paige’s vagina. The applicant said that Paige was not close enough to her so JR grabbed Paige’s shoulders and pushed her closer to the applicant. JR had penile-vaginal intercourse with the applicant and then penetrated Paige’s vagina with his penis. He then resumed penetrating the applicant’s vagina with his penis until he ejaculated.
Paige stated that JR was very hot-tempered and he would ‘just lose it’. He once smashed a baseball bat against the wall, causing Alicia’s hand to scar. He kept a belt hanging over his bedroom door which he would use to hit the children, making them cry and leaving marks on them. Paige would go along with the sexual abuse to avoid JR getting angry and hitting her. On one occasion when he was trying to sexually abuse her, he hit her because she was not doing what he wanted her to do and left a hand print on her. At that point, the applicant came in and said to JR something like ‘You shouldn’t hit them’. The applicant then brought ‘a cold face washer’ so that Paige could put it where JR had hit her. On another occasion, he hit her and held his hand over her mouth to stop her from yelling. He made her use dildos and vibrators, which she did not want to do, but she used them because she knew he was going to hit her if she did not. He threatened to kill her ‘a long time ago’ if she ever said anything about the sexual abuse. She did not know if he was being serious, but she was terrified. There was a time when the applicant took the children away. Paige thought they left because of JR’s physical abuse of Paige and her siblings.
Paige described JR making her watch pornography with him. She stated that, on one occasion, he made her watch pornography of people with animals. He penetrated her vagina with his penis and told her that, if she moved, he would hit her. He then made the family dog lick her vagina and again said that, if she moved, he would hit her. She said that there was another occasion when he asked her if she wanted a ‘golden shower’. She said no and he then urinated on her.
Paige’s evidence during cross-examination is set out at [46]–[48] below.
Paige made no allegations against the applicant in her first or second VAREs because she could not remember the applicant’s alleged offending at those times. She got frustrated at the end of her third VARE on 22 September 2016 because there were ‘so many things’ that she did not know how to describe and she had said what memories she had at that point. The police informant suggested she make notes to help her remember what had happened, which she did on the same day. In those notes, she did not document any allegations against the applicant, although she wrote that ‘to [her] knowledge “he” made “[the applicant]” do those things’. She confirmed that, to her knowledge, JR made the applicant ‘do stuff’. The memories she described in her fourth VARE came to her after 22 September 2016, which is why her notes did not include her allegations against the applicant in respect of the third and fourth incidents. In re‑examination, Paige said that, at times, it did not look like the applicant’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 could not recall when the first incident happened or what the applicant and JR did during it, although she could recall that the applicant did not say anything or acknowledge her. Other than the allegations she made in relation to the second incident, she could not remember much of the night it occurred, including what the applicant and JR were doing, whether the applicant said anything, where she was in relation to the applicant, how it started or how it ended. In relation to the third incident, she could not remember when it occurred, how it started or what the applicant did or said. In relation to the fourth incident, she could not remember when it happened and how she got there. She could remember the beginning and the ending of the incident, but not the middle.
The applicant was easily pushed around by everyone in the family, including the children.
Alicia’s evidence regarding charge 13 and JR’s coercion of applicant
Alicia stated that, on one occasion when she and JR were alone in the cabin, JR left the cabin and returned with the applicant. Alicia had no idea why the applicant was there. The applicant was not doing anything, she was just standing in the room and looking at Alicia. JR told the applicant that he wanted to shave Alicia and the applicant said ‘Why do I need to be in here?’ He said that he wanted her help, before getting shaving cream and shaving Alicia’s pubic region. The applicant held Alicia’s legs open while JR inserted a sex toy into Alicia’s vagina. Alicia screamed with pain and the applicant let go of Alicia’s legs. Alicia closed her legs to try to stop JR inserting the sex toy into her vagina again. JR covered her mouth and she bit his hand. JR again pushed the sex toy into Alicia’s vagina and then let go of her and walked out. Shortly after, JR told Alicia that it was the applicant’s idea to ‘put it in [Alicia]’. Alicia told the applicant what JR had said and the applicant said that it was JR’s idea and that ‘he wanted her to take the blame because [Alicia] blamed him for so many other things’. Alicia subsequently said that she did not think that the applicant said anything the entire time she was there.
Alicia stated that she did not know why the applicant would have been involved in the incident unless JR forced her.[23]
[23]The judge attributed this evidence to Alicia in his duress ruling at [24]. It appears that Alicia gave this evidence during her third VARE, although the relevant passage was not included in the material before this Court. In his closing address, the prosecutor quoted Alicia’s answer as follows: ‘I don’t understand why [the applicant] would have been involved … unless [JR] forced her to and told her that if she didn’t do it, he’d [do] something to her’.
Alicia stated that she had disclosed to her psychiatrist ‘about some events that happened and my mum was involved in them’.
During cross-examination, Alicia gave the following explanation for her delay in disclosing the applicant’s involvement in the offending:
I wanted my siblings to still have a parent that they could look up to because [the applicant] was only concerned — she was only included in two situations whereas my father did the majority of the things to me. And where she seemed to be not as intrusive or not in charge of the scenarios in which she was taken place in.
Defence evidence
The applicant did not give evidence or call any witnesses. However, she tendered three exhibits, namely, a photo album (Exhibit 1), Paige’s notes referred to at [46] above (Exhibit 2) and Alicia’s Facebook Messenger conversation referred to at [14] above (Exhibit 3).
The applicant’s defence was that the charged conduct did not occur. She did not dispute that JR offended against the complainants but contended that she was not present and did not do any of the acts for which she was charged. Alternatively, she contended that she could not remember committing the offending because of memory difficulties. She sought to rely upon the defence of duress in the event that the jury concluded that she committed the offending.
Statutory provisions relevant to ground 2
On 1 November 2014, s 322Q of the Crimes Act abolished the common law defence of duress for all offences committed from that date and s 322O introduced a new statutory defence of duress for such offences. The third trial proceeded on the basis that the common law defence of duress was applicable to charges 1–12 relating to Paige and that the statutory defence of duress was applicable to charge 13 relating to Alicia.
Section 322O of the Crimes Act relevantly provides as follows:
322ODuress
(1)A person is not guilty of an offence in respect of conduct carried out by the person under duress.
(2)A person carries out conduct under duress if—
(a)the person reasonably believes that—
(i)subject to subsection (3), a threat of harm has been made that will be carried out unless an offence is committed; and
(ii)carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and
(b)the conduct is a reasonable response to the threat.
(3)A person does not carry out conduct under duress if the threat is made by or on behalf of a person with whom the person is voluntarily associating for the purpose of carrying out violent conduct.
Section 322P of the Crimes Act provides that, in circumstances where duress in the context of family violence is in issue, evidence of family violence may be relevant in determining whether a person has carried out conduct under duress. Section 322J contains detailed provisions about the type of evidence that may constitute evidence of family violence. It is not necessary for us to set out these provisions or to decide whether they extend to the common law defence of duress. That is because, on the hearing of the application for leave to appeal, senior counsel for the applicant eschewed reliance upon these provisions. He did so upon the basis that the family violence that the applicant suffered at the hands of JR, as described in the evidence of Ms Matthews and the complainants, was more severe — and thus more probative on the issue of duress — than the type of evidence that is dealt with by s 322J.
Section 97(1) of the Evidence Act 2008 deals with ‘[e]vidence of the character, reputation or conduct of a person, or a tendency that a person has or had’ which is sought to be admitted ‘to prove that [the] person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind’. The section stipulates two preconditions for the admissibility of such ‘tendency evidence’: first, the party seeking to use such evidence must give prior notice of its intention to use it; and secondly, the court is satisfied that the evidence will have significant probative value. Section 101(2) stipulates an additional requirement for the admissibility of tendency evidence against an accused in a criminal trial, namely, that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused.
Principles relating to the defence of duress
Common law defence of duress
The defence of duress operates by way of excuse. Where the defence is established, although all the elements of the charged offence are made out, the accused must be found not guilty on the basis that, notwithstanding that the accused’s acts were not involuntary, his or her will was overborne by a threat of harm.[24] Put another way, where the defence is established, the offending act is done only because the accused has lost his or her free choice to refrain from doing the act, in that he or she did the act because he or she feared that the consequences of the threat were greater than those flowing from the crime he or she commits.[25]
[24]R v Harding [1976] VR 129, 169 (‘Harding’).
[25]R v Abusafiah (1991) 24 NSWLR 531, 541 (‘Abusafiah’).
Where the accused’s will is overborne in a manner sufficient to engage the defence of duress, he or she may be said to choose to commit the charged offence because it is seen to be the lesser of ‘two evils’,[26] or to become a ‘mere innocent instrument’ of the charged offence.[27] The Supreme Court of Canada described the underlying rationale for the defence of duress as ‘moral involuntariness’.[28]
[26]Harding [1976] VR 129, 169.
[27]R v Dawson [1978] VR 536, 537 (‘Dawson’).
[28]R v Ryan [2013] 1 SCR 14, 27 [23] (‘Ryan’).
The leading authority on the elements of the common law defence of duress is R v Hurley.[29] In that case, Smith J stated the following:
[29][1967] VR 526 (‘Hurley’). In Taiapa v The Queen (2009) 240 CLR 95, 105 [28] n 46, the High Court stated that Smith J’s statement of the elements of the common law defence in Hurley has ‘frequently been cited as authoritative’.
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)that crime was not murder, nor any other crime so heinous as to be excepted from the doctrine and
(vii)the accused did not, by fault on his part when free from the duress, expose himself to its application and
(viii)he had no means, with safety to himself, of preventing the execution of the threat,
then the accused, in such circumstances at least, has a defence of duress.[30]
[30][1967] VR 526, 543. In Smith J’s judgment, the above passage appears as a single paragraph. We have separated out the eight elements for ease of reference.
In the present case, the most contentious elements were (i), (ii) and (iii). We will consider the case law on those elements in turn.
(a)Element (i): The accused was under a threat
The defence of duress is limited to cases where a threat is made to coerce the accused to commit the act which was the basis of the offence with which he or she was charged.[31] Accordingly, where the accused is threatened with physical harm but the person making that threat does not identify any particular offence for the accused to commit, the defence will not apply.[32]
[31]Dawson [1978] VR 536, 538, 542.
[32]Dawson [1978] VR 536, 538; R v Lorenz (1998) 146 FLR 369, 376–7 (‘Lorenz’).
For the purposes of element (i), a threat may be ‘formulated in words or left unsaid’.[33]
[33]Hurley [1967] VR 526, 543.
The defence of duress may apply where a threat is directed to the accused or other persons if a threat to those persons would be likely to coerce or compel a person of ordinary firmness of character to yield by committing the charged offence.[34]
[34]Abusafiah (1991) 24 NSWLR 531, 537, 545.
The authorities have not expressly determined whether element (i) requires a specific, overt threat or whether a continuing or ever present threat suffices. However, some assistance on this issue may be derived from Warren v The Queen[35] and R v Runjanjic.[36]
[35](1996) 88 A Crim R 78 (‘Warren’).
[36](1991) 56 SASR 114 (‘Runjanjic’).
In Warren, the three appellants, who belonged to a particular Aboriginal tribe, were relevantly convicted of causing grievous bodily harm with intent to cause grievous bodily harm to the victim, who was a member of a rival Aboriginal tribe, in an outback South Australian town. The appellants relied upon the defence of duress on the basis that the victim deliberately and provocatively breached customary law and that, if the appellants did not punish him by severely beating him, the appellants themselves would receive the same punishment in accordance with customary law. The trial judge relied upon two grounds for ruling that the defence was not available. First, customary law could not operate because it would be in conflict with Australian criminal law. Secondly, on the evidence, the appellants’ offending was not motivated by any duress imposed by customary law.
On appeal, Doyle CJ (with whom Cox and Debelle JJ agreed) held that the judge erred in relation to his first ground but was correct to exclude the defence of duress on the second ground. Because he determined that the judge’s exclusion of the defence was correct on the basis of the judge’s findings of fact, Doyle CJ said that it was not necessary for him to decide whether the defence was available as a matter of law. However, Doyle CJ made the following observations on that issue:
The Director of Public Prosecutions (DPP) argued that duress arose only if there was a threat of harm from what might be called an external source. He said that duress could not be raised when, as here, the accused simply claimed that the consequence of their customary law was that if they did not act in a certain way, they would be severely harmed. The DPP argued that it was necessary to show … that there was a specific threat of harm made by another person purporting to apply customary law to the circumstances of the case. If that is so then the law in this respect is somewhat formalistic. It would provide no defence to a person subject to a system of customary law in which there was no person or persons appointed to make authoritative decisions and in which the application of the customary law was, in a sense, self-regulated. I would need to be persuaded by citation of authority or by detailed argument that what the DPP advanced either was or should be the law.
On the other hand, it should also be observed that if duress is available in a case such as the present one, one cannot escape the fact that persons subject to customary law … will be able to act in the same manner as the accused should the occasion so require in the future. In short, the acceptance of duress on the basis advanced by the appellants is to accept on a continuing basis the permissibility of the infliction of serious personal injury when members of a relevant group, which need not be Aboriginal people, consider that their law or custom has been broken and that they must punish the infraction under pain of punishment themselves. In saying this, I of course do not overlook the fact that this may well be how customary law operates among the Aboriginal peoples or in certain Aboriginal tribes, and certainly the evidence was to this effect. But the matter is one requiring very careful consideration and because it does not have to be decided I refrain from doing so.[37]
[37]Warren (1996) 88 A Crim R 78, 81–2.
In Runjanjic, the Full Court of the Supreme Court of South Australia appears to have proceeded on the basis that a history of ongoing domestic violence against a female accused may give rise to an implied threat that domestic violence will be inflicted upon her if she did not commit the offending conduct demanded by her domestic partner.
The nature of the threatened harm that is sufficient for the purposes of element (i) is unclear. In Hurley, Smith J described the threatened harm the subject of that element as ‘death or grievous bodily harm’.[38] In Martin v The Queen, Ashley JA (with whom Buchanan and Redlich JJA agreed) described the requisite threatened harm as ‘serious injury’.[39] In R v Dawson, Anderson J (with whom Starke J agreed) simply referred to ‘physical harm’.[40] In Runjanjic, the Full Court of the Supreme Court of South Australia appears to have proceeded on the basis that a threat of domestic violence — without any specificity as to the nature of that violence — sufficed.[41]
(b)Element (ii): A person of ordinary firmness
[38][1967] VR 526, 543. See [61] above.
[39](2010) 202 A Crim R 97, 104 [20]; [2010] VSCA 153 (‘Martin’).
[40][1978] VR 536, 537.
[41](1991) 56 SASR 114, 116.
Element (ii) incorporates an objective test of reasonableness in order to ensure that an accused with sensitivities falling outside the ordinary or common range of human temperaments is not permitted to escape responsibility for his or her actions.[42] The objective test involves an evaluation of the behaviour of the accused by reference to a standard of reasonableness, not a prediction as to the way in which particular individuals may behave.[43]
[42]Abusafiah (1991) 24 NSWLR 531, 541.
[43]Abusafiah (1991) 24 NSWLR 531, 542.
In deciding whether the threat alleged to have been made was of such a nature that a person of ordinary firmness of mind would have yielded to it, the jury should have regard not only to the nature of the threat and its proportion to the crime committed, but also to any circumstances known to the accused concerning the individual making the threat which may reasonably have affected the ordinary person’s reaction to it.[44] In other words, the jury may have regard to the accused’s knowledge of the character and reputation of the person making the threat.[45]
[44]Abusafiah (1991) 24 NSWLR 531, 545; Lorenz (1998) 146 FLR 369, 376.
[45]Abusafiah (1991) 24 NSWLR 531, 543.
For the purposes of element (ii), a person of ordinary firmness of mind is to be taken to have some of the accused’s characteristics, including the accused’s age and gender.[46] The precise scope of the accused’s characteristics which are to be attributed to a person of ordinary firmness of mind is unclear. Obviously, such a person is to have the same history and relationship with the individual making the threat as the accused did, and to be placed in the same objective circumstances in which the accused was placed, including relating to family violence.[47] In R v Abusafiah, Hunt J (with whom Gleeson CJ and Mahoney JA agreed) referred to a person of ordinary firmness of mind being ‘of the same sex and maturity as the accused’, without clarifying whether ‘maturity’ was confined to age or included other aspects of the accused’s personality.[48] In R v Palazoff, Cox J (with whom Zelling ACJ and O’Loughlin J agreed) referred to ‘a person of the same age and sex and background and other personal characteristics (except perhaps strength of mind) as the [accused]’.[49] In R v Bowen, the Court of Appeal of England and Wales relevantly held that a recognised mental illness or psychiatric condition such as post-traumatic stress disorder (‘PTSD’) leading to learned helplessness may be relevant, but a low IQ was not.[50]
[46]Abusafiah (1991) 24 NSWLR 531, 545; DPP v Parker (2016) 258 A Crim R 527, 535–6 [26]–[27]; [2016] VSCA 101 (‘Parker’).
[47]Parker (2016) 258 A Crim R 527, 535–6 [26]–[27]; [2016] VSCA 101.
[48](1991) 24 NSWLR 531, 545.
[49](1986) 43 SASR 99, 109 (‘Palazoff’).
[50][1997] 1 WLR 372, 379–80. See also R v Coats [2013] EWCA Crim 1472, [33] (‘Coats’).
Expert evidence regarding battered woman syndrome may be admissible on the question of what would be expected of women of reasonable firmness of mind who should find themselves in a domestic situation such as that in which the accused was.[51] Such evidence may assist the court in assessing whether such women in such a situation would succumb to the pressure to participate in the relevant offence or seek to escape the situation.[52]
(c)Element (iii): The threat must remain effective
[51]Runjanjic (1991) 56 SASR 114, 120.
[52]Runjanjic (1991) 56 SASR 114, 120.
In order for the defence of duress to apply, the threat must be effective at the time when the crime was committed, though the carrying out of the threat may be delayed because of particular circumstances.[53]
[53]Dawson [1978] VR 536, 538; Abusafiah (1991) 24 NSWLR 531, 538.
The defence will not be available if the threat was ineffective at the time the crime was committed or if the accused failed to take advantage of an opportunity which was reasonably open to him or her to render the threat ineffective.[54]
[54]Abusafiah (1991) 24 NSWLR 531, 538, 545; Lorenz (1998) 146 FLR 369, 376.
In R v Lorenz, in deciding that element (iii) was satisfied, Crispin J took into account the relationship between the female accused and her abusive male domestic partner, his constant control over her and the nature and extent of his violence towards her.[55]
Statutory defence of duress
[55](1998) 146 FLR 369, 376.
The statutory defence of duress in s 322O of the Crimes Act, which is set out at [56] above, requires that the following five factors be established:
(a)The accused reasonably believes that a threat of harm has been made.
(b)The accused reasonably believes that the threat will be carried out unless an offence is committed.
(c)The accused reasonably believes that carrying out the conduct is the only reasonable way that the threatened harm can be avoided.
(d)The conduct is a reasonable response to that threat.
(e)The threat was not made by or on behalf of a person with whom the accused is voluntarily associating for the purpose of carrying out violent conduct.
Inconsistency between denial of offending and reliance upon defence of duress
Where the evidence of duress is sufficient to warrant consideration by the jury, the fact that the accused’s primary defence is that he or she did not commit the offending conduct does not preclude the defence of duress from being left to the jury. The inconsistency between the two defences is a matter for the jury to consider in assessing the weight of the evidence in the case and whether to accept the defence of duress.[56]
Onus of proof and test for leaving the defence of duress to the jury
[56]Runjanjic (1991) 56 SASR 114, 116–17.
The evidentiary onus lies upon the accused to adduce or point to evidence that is capable of establishing the defence of duress. Accordingly, where there is evidence from which it could be inferred that there is a reasonable possibility that the accused acted under duress, the defence of duress should be left to the jury.[57]
[57]Abusafiah (1991) 24 NSWLR 531, 544.
Where the defence is left to the jury, the accused does not have to establish that he or she acted under duress; rather, the legal onus lies upon the prosecution to prove beyond reasonable doubt that the acts committed by the accused which constitute the charged offence were not committed under duress.[58] Put another way, the prosecution must eliminate any reasonable possibility that the accused acted under duress.[59] Where the common law defence applies, the prosecution can do so by eliminating any reasonable possibility that any one of the eight factors set out at [61] above are made out. Where the statutory defence applies, the prosecution can do so by eliminating any reasonable possibility that any one of the five factors set out at [78] above are made out.
[58]Lorenz (1998) 146 FLR 369, 375–6.
[59]Abusafiah (1991) 24 NSWLR 531, 542, 544–5; Zaharias v The Queen (2001) 122 A Crim R 586, 588–9 [5]–[6]; [2001] VSCA 168.
In Abusafiah, Hunt J stated that, in relation to elements (i) and (ii) of the common law defence of duress, the onus on the Crown operated as follows:
(a)In relation to element (i), the prosecution must establish that, when the accused did the charged act, there is no reasonable possibility that he or she did so by reason of a threat that serious physical harm would be inflicted upon him or her (or, if relevant, another person) if he or she did not do that act.[60]
(b)In relation to element (ii), the prosecution must establish that there is no reasonable possibility that any threat which may reasonably have been made was of such gravity that a person of ordinary firmness of mind, and of the same sex and maturity as the accused, would have yielded to that threat in the way in which the accused did.[61]
[60]Abusafiah (1991) 24 NSWLR 531, 545. Hunt J used the expression ‘death or really serious physical harm’. As appears from [70] above, this formulation may not encompass all of the types of harm that may suffice. Hunt J also referred to the accused’s family rather than another person. However, threats of harm to persons other than the accused are not confined to threats to the accused’s family for the purposes of element (i).
[61]Abusafiah (1991) 24 NSWLR 531, 542, 545.
The above principles regarding the onus of proof, which apply to the common law defence of duress, are also reflected in s 322I of the Crimes Act, which deals with the statutory defence in the following terms:
322IOnus of proof
(1)The accused has the evidential onus of raising … duress … by presenting or pointing to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish … duress …
(2)If the accused satisfies the evidential onus referred to in subsection (1), the prosecution has the legal onus of proving beyond reasonable doubt that the accused did not carry out the conduct … under duress …
In Martin, Ashley JA applied the following test in determining whether a judge had erred in concluding that there was no evidence which could support the defence of duress in that case: whether by any possibility the jury might not unreasonably discover in the material before them enough to enable them to find a case of duress.[62] He made the following further pertinent observation:
It is a large step for a judge to take a defence away from the jury’s consideration. The step is a particularly significant one where … what was done by the judge effectively meant that the applicant must be found guilty. In an extreme case, however … the step will be justified. But the step should be confined to a case which is clearly of that kind.[63]
[62](2010) 202 A Crim R 97, 102–3 [13]–[16]; [2010] VSCA 153.
[63]Martin (2010) 202 A Crim R 97, 104 [21]; [2010] VSCA 153.
Evidence relied upon by the applicant in relation to the defence of duress
In support of the defence of duress, the applicant relied upon the Matthews 2019 report and some aspects of the evidence of the complainants. She also relied upon a tendency evidence notice dated 17 February 2020 that she served (‘tendency evidence notice’).
The application for leave to appeal was conducted on the basis that, as the judge’s duress ruling treated the Matthews 2019 report as admissible in relation to the defence of duress, this Court should also proceed on that basis. However, in the further written submissions that the Crown filed with the leave of the Court after the hearing of the application, the Crown pointed out that the prosecutor had submitted before the judge that the representations the applicant made to Ms Matthews were inadmissible hearsay. The Crown’s further written submissions did not contend that we should determine ground 2 on the basis that the Matthews 2019 report was inadmissible. Indeed, those submissions addressed the elements of the defence of duress by reference to the representations that the applicant made to Ms Matthews. Further, the submissions of the prosecutor before the judge acknowledged that the applicant’s representations would be admissible if she gave evidence. In these circumstances, we will proceed on the basis that the Matthews 2019 report is admissible.
In his reasons, McLeish JA concludes that, in its further written submissions, the Crown indicated that it was no longer conceding the question of admissibility of the Matthews 2019 report. If that conclusion is correct, then, for the reasons set out by McLeish JA, even if the applicant’s account given to Ms Matthews constituted inadmissible hearsay, the direct evidence to which McLeish JA refers would be sufficient to provide the evidentiary platform for the defence of duress to be left to the jury.
We will discuss the Matthews 2019 report, the complainants’ evidence and the tendency evidence notice separately below.
Matthews 2019 report
The Matthews 2019 report relevantly deals with: the applicant’s intellectual functioning; JR’s controlling behaviour towards the applicant; JR’s physical and sexual abuse of the applicant; and Ms Matthews’ expert opinion regarding the applicant’s ability to resist JR’s coercion. We will summarise these aspects of the report in turn. The factual matters set out in the report are based upon statements made to Ms Matthews by the applicant. As will become evident from the summary that follows, some of the applicant’s statements were disjointed and ungrammatical.
(a)Ms Matthews’ observations about applicant’s intellectual functioning
The applicant had a full-scale IQ of 70.[64] Her overall intellectual ability fell within the ‘mildly intellectually disabled’ category. Her social deficits associated with her intellectual disability made it more difficult for her to understand social cues, to make judgements of risk and to withstand persuasion and manipulation, and undermined her capacity to assert herself.
[64]Ms Matthews relied upon a neuropsychology report dated 20 July 2016 prepared by Alison Schokman.
The applicant had a history of physical and sexual abuse in her adolescent years and was removed from her family by child protection authorities at that time. She suffered from PTSD. Individuals suffering from PTSD often avoid distressing thoughts, memories and feelings associated with traumatic events, and this may explain the applicant’s difficulties with her memory of some of the events the subject of the charges against her. Her consumption of alcohol and use of cannabis may also have affected her memory.
(b)Ms Matthews’ observations about JR’s controlling behaviour
The applicant received a disability support pension and also earned income by mowing other people’s lawns roughly every fortnight. However, JR controlled her money. If she asked JR whether she could keep some of the money she earned, he would take his angry temper out on her, and she would go and hide somewhere in the house. She did so because JR ‘had a short fuse’. Although she worked on the family farm, the farm’s income was paid to Donald Rowan (JR’s father) and she did not receive any part of it. If she asked Donald any questions about the farm’s income, he would get angry at her and she felt afraid because ‘[Donald] has got a shorter fuse than [JR] has’. Donald never touched her, but he yelled at her and that made her sad and afraid.
The applicant required JR’s permission to spend money on household expenses, medication and clothing. JR did not allow her to have a driver’s licence. She depended upon him to drive her. ‘A lot of time [she] had to fight [JR] to take [her] into town [and she] had to get his permission to go to a doctor’s appointment or have an operation done, cause he manipulated [her]’. Because of the way JR used to treat her, she felt she was a disappointment to him. ‘He used to get everything his own way’.
JR did not permit the applicant to have friends or to visit neighbours. He controlled to whom she spoke. He warned her not to speak to local traders. He would ‘get upset and angry with [her] for talking to a certain person, frustrated with [her] and sometimes made [her] feel afraid’. She felt she was being watched and therefore could not run away from or leave the relationship with JR. She was not allowed to leave the farm without the permission of JR or Donald. JR would not leave her alone on the farm and was always watching her.
JR played mind games on the applicant. He had a short temper and mood swings. He would turn on ‘bad looks’, look down on her and point the finger at her, making her feel small. There were times when JR was angry and made out that it was her fault even though it was not. She would say sorry to him because she thought she had done something wrong. When JR was angry, it made her ‘feel sad and sometimes disappointed and most of all afraid’. JR never said sorry. ‘A lot of the time [she] used to cry.’
JR also taunted the applicant. He used to call her ‘bitch’, ‘slut’ and sometimes he called her a ‘bastard’. When he ‘had a short fuse’, he would not listen to her and ‘always made it that [she] was the liar’.
(c)Ms Matthews’ observations about JR’s physical and sexual abuse
The applicant did not always feel that JR would hurt her. ‘Things started to change after the birth of [Mary]’.[65]
[65]As discussed at [11] above, Mary was born on 16 June 2006.
JR treated the applicant as a sexual object. He did not permit her to wear a bra or underwear so that he ‘could have sexual access at any time he pleased’. She was not allowed to ‘wear [her] body the way [she] felt comfortable’. If she ‘did not wear [her] body the way he wanted it [she] would get into trouble, [JR] would … get frustrated, and that made [her] feel angry and sad because [JR] got what he wanted and [she] had to go along with what he said’. ‘Otherwise [JR] would get mad raise his voice, and [she felt] sad [and afraid] because his voice was frightening.’ If she bought underwear, she would have to hide it. If JR found her wearing underwear, he would say ‘You need to air out’. He would get angry and required her to take off the underwear. She gave in to him. She tried to make him happy ‘even though inside [she] felt afraid’.
There was an instance when the applicant and JR went to see a cow which was down in the old hay shed. JR put his hand inside the applicant and then put it in the cow’s mouth, but the cow was not interested. JR got frustrated with the cow. The applicant said sorry to him, because the cow would not do what he wanted it to do. She thought that she had done something wrong because JR ‘had one of his horrible mad looks on his face, [JR] pushed [her] hard towards the cow’. The applicant did not say no to JR because ‘[n]o is not in his category. He never listens to no.’
There was another instance involving sex with the family dog. One night, when the applicant and JR were in the bedroom, ‘he said get [the family dog] in and give me some sex and it was to the point [the dog] couldn’t do anything’. She did not agree to have sex with the dog but could not stop JR from bringing the dog in because ‘[n]o is not in his category’. She was afraid about having sex with the dog because JR ‘was going to yell at [her]’ and ‘made it that [she] felt like [she] disappointed him’. That was bad because JR did not get what he wanted. When JR did not get what he wanted, he made her frustrated. ‘He used to take his temper out on [her], a short fuse.’ When JR lost his temper, it made her cry. She cried about four times a week.
JR would say to the applicant that it was a good idea to have sex around the farm. He wanted to have sex with her on the machinery. On one occasion, he inserted a tractor gearstick into her vagina. She did not really want him to do so. She knew that it would hurt her pelvic bones. She felt afraid but was not able to stop him because ‘he was bigger than [her]. He is a big man.’ She was scared of him because ‘of the way he used to treat [her], and [she] used to feel [she] was a disappointment to him.’ He used to get everything his way. When he was disappointed in her, he would ‘yell and make [her] feel frustrated’. She let him penetrate her with the gearstick ‘[b]ecause he would not take no for an answer’. If she did not do what he said, he would ‘get mad’ and ‘he would use horrible faces, and he’d blackmail [her]’. He would say ‘if you don’t do what I ask I won’t take you into town’.
JR used to hit the applicant ‘every time [they] had sex’. That is why she is afraid of men. He hit her leg. Sometimes, he hit her with his hand ‘on the side on top of legs and on the side of [her] boobs’. He would slap her ‘on the tops of [her] shoulders when he felt like it’. It hurt because he had big hands. He would ‘slap on bum and side of legs, slap on shoulder’. It made her feel afraid. He gave her a ‘full on [whack]’ on the backside like a child. When he hit her, she thought ‘it was an everyday occurrence’. She thought ‘women were supposed to get’. He sometimes left bruises on her. That was ‘[t]hree months or so’. She was afraid of what he was telling her to do and afraid he was going to hit her.
Sex with JR ‘was really rough a lot of the time’. He made her ‘feel frustrated his way of sex, not [hers]’. She ‘could not say no’. He ‘would get really pissed off at [her], his way or the highway, he’d make it that he was the boss and [she] had to follow’. If she did not follow him, then ‘he’d start his mind games’. If she ‘didn’t do it his way [JR] would have a really disappointing voice’. His voice frightened her. He got angry at her when she said no. He ‘overrode it, and [she] used to feel frustrated afraid he was not listening to [her]’. If she pushed it, ‘[JR’s] short fuse would come out’ and she was ‘afraid of [what] might happen’. He hit her when he was angry and she would get afraid that he would ‘hit the girls’. She stood in front. She was afraid that JR would ‘lose his temper, hit the … two girls and hit [her]’.
JR brought a horsewhip to use on the applicant and caused her some pain. Her recollection was that he only used the horsewhip on her once.
On a couple of occasions, when JR had an argument, he slammed the door of the bedroom and the brackets holding the door came off.
When JR was mad, the applicant felt hurt inside because she did not want to do what he asked her to do. He would turn around and say sorry. He used to get what he wanted in the end.
The applicant left the farm with the children on two occasions around 2006 and 2007. She did not leave JR again because she ‘did not have anywhere else to go’ and did not ‘think anyone would believe [her about] what was going on’. She did not think anyone would listen to her. She knew that, if she left a third time, she ‘would struggle with the kids’. When JR was abusing the complainants, she did not feel that she could leave. That was because she ‘thought the Police would not believe [her] and [JR] made it no one would believe [her] because [she] was nothing’. He drummed into her that she was a liar.
The applicant tried to protest in those instances she could remember the complainants being sexually abused. Those protests, like her protests regarding her own wellbeing, were ignored by JR.
The Matthews 2019 report records her discussion with the applicant regarding her alleged offending against the complainants, as follows:
Was making [Paige] watch you having sex [JR’s] idea? ‘I tried to say no, but he made me. I just wanted him and me.’ What if you said no? ‘No is not in his category. He went ahead and did it. I try to fight him off. A lot of time I tried, but he is too big for me.’ So, what if you refuse, wouldn’t go to the bedroom. ‘He would not talk to me for two days.’ Why is that a problem? ‘Because he liked to be the boss, if I was the boss then he got frustrated, nothing would not go away.’ Why was that a problem? ‘With him mind games if he did not have control of things not going his way, he’d take it out on me.’ How? ‘He used to yell sometimes, ignore me and he used to make me feel like I was worth nothing.’ How did he do that? ‘His short fuse, he would do that all the time, If I did not have clean clothes ready, he would take it out on me if I did not do the washing.’
So, if you had not had sex with him in front of [Paige] what would have happened? ‘He used to yell, small, I’m afraid of him; he used to make me feel sad.’ Breast in her mouth? ‘I never did that.’ Grabbing breast? ‘I never did that’.
…
What made you think it was okay to have sex in front of [Paige]? ‘I had no idea, I only knew what I was told, it was not until that night [Paige] came to play with me. I did not know until that night.’
Why not leave? ‘When [JR] used to ask for sex, I’d say no, and he used to get angry. I tried to make it plain and clear to him, and if I did not want it, he would get angry. He would manipulate again mind games with me.’ Not talk to you? ‘Yes. If it came down to the point, he’d not talk to me for two days fine, get back on track. I used to get yelled at or bad looks when I said I did not want it.’ How did being yelled at and getting bad looks make you feel? ‘Worthless, afraid.’
Doing sex in front of [Alicia], I don’t understand you’re her mum why did you not stop it? ‘We [JR] and I. [JR] said I’ll be right back I did not know what he was doing when he came back, he had [Alicia] I said no [JR]. [JR] said [Alicia] stay in the room she is going to watch, and I said no, and he did not worry about that he got mad he did not listen to me and that’s where (felt) frustrated. I ended up shutting up. He was making it hard.’ How was he making it hard? ‘He wanted [Alicia] to stay in the room. I’ll not have any more sex with you ([applicant]) he said. Fine as far as I know [Alicia] got her stuff and went back to her room.’
‘Walked into the cabin looked at what we were doing, and did not stay, even though [JR] got frustrated with me, he told me to go out to the Cabin, and I walked back inside.’ Why not ring the Police. ‘Cause I did not know it was against the law at the time.’ Why blame you? ‘Cause he had a short fuse.’ What can you remember of that day? ‘I don’t remember what happened in the cabin. Something was said she walked inside and shut the bathroom door and had a shower. I went in and said what is wrong. She said mum why not stop it. I looked at her and basically walked out. I never touched her.’
Shaving and vibrator? ‘That was [JR’s] idea not mine. [JR] was a big bloke he had a short fuse if it did not go his way; it was his way basically he would get mad.’ Why so? ‘I got out of his road cause he was like a bulldozer, a short fuse, if something does not go his way, he would get angry.’ When he got angry how did you feel? ‘Afraid.’
‘She said help her legs open. I didn’t, I never touched her.’
Did you feel able to stop him abusing the girls? Have you there abusing the girls at the time? ‘At the time I said no to him, he said no I’m going to do it, he overrode me, he got his bad temper out, and if I felt afraid and ran away from him, he would take the kids off me. I could not leave the kids behind.’ Why? ‘Because he would try to get the custody of the kids off me …’
Sex in front of the girls why did you not stop it? ‘[Alicia] I never touched her.’ Sex in front of her? ‘I stopped, it was [JR’s] idea, [JR] used to get angry, and he turn angry at me when I used to say no, he overrode it, and I used to feel frustrated afraid, he was not listening to me.’ If you pushed it what happened? ‘[JR’s] short fuse would come out, and afraid of [what] might happen, angry on those occasions when he would hit, I would get afraid for the girls, afraid hit the girls. I stood in front. Afraid of [JR] he would lose his temper, hit the girls the two girls … hit me.’
(d)Ms Matthews’ opinion
Overall, the applicant’s ‘[psychological], emotional, social and cognitive functioning is limited, she does not have the capacity to reason as a normal adult woman but rather her capacity to reason is consistent with that of someone in the range of mid primary school to early high school’. Whilst ‘many normal functioning women would perhaps assert themselves with a dominating partner, [the applicant] is not a normal woman, she is a vulnerable intellectually disabled woman, who was unable to assert herself in a relationship which was highly controlling and dominating’.
The applicant ‘felt she could not impose an opinion or set a boundary within the relationship with [JR] and … felt coerced and or controlled in almost every aspect of her daily life’. The applicant ‘felt physically, intellectually and emotionally intimidated in that she felt physically stood over, belittled, and feared being hit or hurt’. That was in the context of a relationship in which JR ‘bought a horsewhip with which to hit her, forced her against her will into sex acts or practices, which overrode even her will to feel comfortable in her own body, and which caused pain or humiliation’. The applicant’s ‘fear of being harmed or the children being harmed if not complying with [JR’s] wishes was a reasonable one given the level of the abuse, she was subject to; even more so given [her] intellectual vulnerabilities’.
The applicant felt unable to escape from the relationship with JR, as she did not have access to her own money, had no friends and felt unable to cope on her own without support. She thought no one would believe her because JR drummed it into her that she was a liar and could not be believed. Given the amount of social isolation to which the applicant was subject, her intellectual disability and the degree of control asserted by JR over all aspects of her life, it was ‘reasonable for [the applicant] to feel trapped and to believe she was unable to escape’.
The applicant’s behaviour is consistent with battered woman syndrome, which can be described as ‘a learned helplessness process in which women who have been abused repeatedly within a relationship, they believe they cannot escape from, learn “good coping skills as a trade-off for escape.”’[66] Battered woman syndrome is a subset of PTSD.
[66]As we have already stated, Ms Matthews adopted the definition used by Lenore Walker, The Battered Woman Syndrome (Springer Publishing, 2017).
It is highly likely that the applicant’s ‘forgetting, suppression and repression of memories [of] her daughters’ abuse by [JR] given the severity of the abuse [the applicant] was also subject to, has also been part of a collection of psychological escape mechanisms … which has enabled [her] to numb her distress’. These coping strategies are consistent with the DSM-5 category C and D symptoms for PTSD, which are described as ‘persistent avoidance of stimuli associated with traumatic events … avoidance of or efforts to avoid distressing memories, thoughts or feelings about or closely associated with the traumatic event’.
The applicant meets the DSM-5 diagnostic criterion A1 for PTSD in that ‘she has directly experienced coerced sexual, physical and emotional abuse’. She also meets criterion B4 in that ‘during interview [she] when speaking of being intimidated by [JR] began to hyperventilate and cry, a clear indication of psychological distress in relation to a reminder of events that occurred within the relationship with [JR]’. The applicant meets criterion D2 in that she ‘evidences or did evidence persistent and exaggerated negative beliefs or expectations about herself or others [s]uch as apologising to [JR] for upsetting him even when she had done nothing wrong, her belief no one would believe her, and the self-belief she was a liar because she had been browbeaten into believing so’. Also, during her relationship with JR, the applicant ‘experienced persistent fear (D4), detachment or estrangement from others, feeling friendless (D6), reckless self‑destructive behaviour such as alcohol and marijuana abuse (E2) and hypervigilance (E3) in relation to location on the farm’.
Ms Matthews’ overall conclusion was as follows:
[The applicant] had reached a point in the relationship with [JR] that she felt trapped, unlistened to, that the abuse she was subject to, was normal in a relationship, and that she had no means of escape. Her self-esteem was so low she believed no one would listen to her and that she would be thought a liar solely because she believed others would believe him not her. Further [the applicant] a vulnerable intellectually disabled woman was so dependent, afraid, intimidated and coerced by [JR] that she had very little to no emotional, physical or psychological capacity to exercise power over events, including power to refuse whatever [JR] wanted or demanded, and she held a firm belief that if she did refuse that he would ignore that refusal.
Complainants’ evidence
The complainants’ evidence regarding the applicant’s offending has been summarised at [39]–[52] above. In support of ground 2, the applicant relied upon the italicised portions of that evidence. For convenience, we repeat those italicised statements below:
(a)During the first incident of alleged offending by the applicant involving Paige, JR said that he had talked the applicant into showing Paige what to do. He grabbed Paige and dragged her towards the applicant. He pushed Paige’s head into the applicant’s vagina and told Paige to lick the applicant.[67]
[67]See [39] above.
(b)During the third incident of alleged offending by the applicant involving Paige, in response to Paige saying ‘[i]t’s sore’ and that she did not want the applicant’s breast in her mouth, JR got really angry and told her to ‘stop it, just take it and get past the pain, it won’t be as bad and stop fighting’. After the incident, JR and the applicant got in a fight. The applicant said words to the effect that Paige was in pain and JR said ‘she always says it, she always cries to try and get out of it’.[68]
(c)Paige stated that JR was very hot-tempered and he would ‘just lose it’. He once smashed a baseball bat against the wall, causing Alicia’s hand to scar. He kept a belt hanging over his bedroom door which he would use to hit the children, making them cry and leaving marks on them. Paige would go along with the sexual abuse to avoid JR getting angry and hitting her. On one occasion when he was trying to sexually abuse her, he hit her because she was not doing what he wanted her to do and left a hand print on her. At that point, the applicant came in and said to JR something like ‘You shouldn’t hit them’. The applicant then brought ‘a cold face washer’ so that Paige could put it where JR had hit her. On another occasion, he hit her and held his hand over her mouth to stop her from yelling. He made her use dildos and vibrators, which she did not want to do, but she used them because she knew he was going to hit her if she did not. He threatened to kill her ‘a long time ago’ if she ever said anything about the sexual abuse. She did not know if he was being serious, but she was terrified. There was a time when the applicant took the children away. Paige thought they left because of JR’s physical abuse of Paige and her siblings.[69]
(d)On one occasion, JR made Paige watch pornography of people with animals. He penetrated her vagina with his penis and told her that, if she moved, he would hit her. He then made the family dog lick her vagina and again said that, if she moved, he would hit her. There was another occasion when he asked Paige if she wanted a ‘golden shower’. She said no and he then urinated on her.[70]
(e)In Paige’s handwritten notes made between her third and fourth VAREs, she did not document any allegations against the applicant, although she wrote that ‘to [her] knowledge “he” made “[the applicant]” do those things’. She confirmed during cross-examination that, to her knowledge, JR made the applicant ‘do stuff’.[71] Although before us the applicant did not expressly refer to it, we note that Paige made the following additional statement: At times, it did not look like the applicant’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.[72]
(f)During cross-examination, Paige said that the applicant was easily pushed around by everyone in the family, including the children.[73]
(g)During the incident of alleged offending by the applicant involving Alicia, Alicia had no idea why the applicant was there. When the applicant came into the room, she was not doing anything, she was just standing in the room and looking at Alicia. The applicant said ‘Why do I need to be in here?’ Shortly after the incident, the applicant told Alicia that it was JR’s idea. Alicia subsequently said that she did not think that the applicant said anything the entire time she was there.[74]
(h)Alicia stated that she did not know why the applicant would have been involved in the incident unless JR forced her.[75]
Tendency evidence notice
[68]See [41] above.
[69]See [43] above.
[70]See [44] above.
[71]See [46] above.
[72]See [46] above.
[73]See [48] above.
[74]See [49] above.
[75]See [50] above.
The tendency evidence notice sought to prove the following tendency by JR:
(a)To display towards all members of the family threats, intimidation, psychological violence, physical violence and family violence including economic; and
(b)For the purpose of control, coercion and domination of all family members.
The tendency evidence notice stated that the alleged tendency by JR was relevant to whether the applicant’s participation in the charged acts took place as a result of her will being overborne by JR.
The tendency evidence notice included a table which described: the conduct of JR which supported the alleged tendency, the date and place of the conduct, the circumstances in which the conduct occurred, and the person who saw, heard or otherwise perceived that conduct. The table is set out below with some modifications. The modifications include omission of the column relating to the place of the conduct, as all the conduct was alleged to have occurred at the farm.
CONDUCT DATE RELEVANT EVIDENCE WITNESS 1. Intimidation by overt displays of anger Nov 2009 – Sep 2011 He had a hot temper [JR] would just ‘lose it’. VARE 3 Q47–48, Q69–70 [Paige] 2. [JR] would inflict physical violence if [Paige] did not comply with direction during sex Nov 2009 – Sep 2011 [Paige] would be hit if she did not do what [JR] wanted while he was sexually abusing her. VARE 3 Q58–59 [Paige] 3. Intimidation of [Paige] Nov 2009 – Sep 2011 Compliance in order to avoid being a target of [JR’s] anger and being hit. VARE 3 Q103, Q115–116 [Paige] 4. Physical restraint Nov 2009 – Sep 2011 Physically restrained [Paige] to stop her crying and making noise. VARE 3 Q174 [Paige] 5. Threat to kill Jul 2011 – Nov 2015 Threat to kill if she told anyone. VARE 3 Q187–202, XXN [by JR’s counsel] p106 /12–14, P99/11–14 [Paige] 6. Threat of physical violence if failure to follow direction Nov 2009 – Sep 2014 [JR] forced [Paige] to use a dildo under threat of being hit. VARE 3 Q250 [Paige] 7. Display of physical violence Jul 2011 – Nov 2015 Grabbed a baseball bat in anger and smashed it lacerating [Alicia’s] hand. VARE 3 Q49–51
‘… he has a very bad temper and he would take it out on us (the whole family) eg. Once he smashed a baseball bat against a wall and it shattered’ [Paige’s] handwritten note[Paige] 8. [JR] Hit People with a belt 2009–2015 Hit with Belt hanging on the back of the door. VARE 3 Q52–56, VARE 4 Q461–464, ReXXN 197/14–19 [Paige] 9. [JR] talked [applicant] into doing it Nov 2009 – Sep 2014 [Paige] says [JR] talked [applicant] into doing it. VARE 3 Q511–512 [Paige] 10. [JR] Forced [Paige] to commit act Nov 2009 – Sep 2014 [JR] angrily compelled [Paige] to lick [applicant’s] vagina. VARE 3 Q516, Q519 [Paige] 11. Display of anger to compel conduct. Jul 2011– Nov 2015 Displayed anger during sex to compel [Paige] to continue. ‘Just take it’ VARE 4 Q199 [Paige] 12. Threatened physical violence during sex Jul 2011– Nov 2015 Precursor to … the [family] dog episode. VARE 4 Q327–331 [Paige] 13. Compelled golden shower 2014–2015 Compelled golden shower despite [Paige’s] protestations she did not want it. [Paige] 14. Domestic violence by [JR] in the past Approx 2005 [Applicant] had previously taken the kids and herself away. VARE 4 456–458 [Paige] 15. [Applicant] easily compelled 2009–2015 [Applicant] easily pushed around. XXN 248/12–13 [Paige] 16. Observation by [Paige] of [applicant’s] conduct 2009 He made [applicant] do these things.
XXN 307/1–5 Exhibit 2, ReXXN 318/15–25
[Paige] 17. Financial control by [JR] During the relationship He was in control of all household finances including [applicant’s] disability pension and mowing income. [Matthews 2019 report] page 4–5 [Applicant] 18. Sexual abuse based on intimidation and fear During the relationship Sexual abuse without consent. Gear stick, animals on the farm, horsewhip, The cow incident, … the [family] dog. Reason [applicant] acquiesced is He was bigger, ‘He would yell’, she was scared. [Matthews 2019 report] page 5–6 [Applicant] 19. [JR] controlled [applicant’s] dress by intimidation and fear During the relationship [Applicant not] permitted to wear a bra or underwear. If she did not comply he would get angry and this would make her feel ‘sad’ and ‘afraid on the inside’. [Matthews 2019 report] page 6–7 [Applicant] 20. Physical violence upon [applicant] During the relationship [JR] would hit [applicant]. [Applicant] thought this was normal that women were supposed to get hit. [Matthews 2019 report] page 7 [Applicant] 21. Physical violence upon the whole family During the relationship [JR] would hit the whole family. ‘He would hit us (family) once he hit me and [Michael] so hard it left marks’. [Paige’s] handwritten notes. [Paige] 22. Physical violence of [Alicia] [JR] had hit [Alicia] many times. VARE 3 Q117–119 [Alicia] 23. Display of physical violence in the presence of [applicant] During the relationship Smashing door in front of [applicant] when angry resulting it coming off its hinges. [Matthews 2019 report] page 8 [Applicant] 24. Intimidation and psychological violence [against applicant] During the relationship Derogatory taunts. ‘He used to call me a bitch, call me a slut and sometimes call me a bastard and a lot of the time.’
[Matthews 2019 report] page 8
This conduct is family violence aimed at demeaning and psychologically manipulating [applicant] [Matthews 2019 report][Applicant] 26. Control of [applicant’s] movements During the relationship [Applicant] was required to obtain permission from [JR] and [Donald] to leave the farm. [Matthews 2019 report] page 8 [Applicant] 27. [Applicant’s] compliance with demands from [JR] out of fear of domestic violence 2009–2015 Forced to have sex with [JR] in front of [Paige]. [T]his is relevant to [charge 1] and [uncharged conduct during incidents 1 and 2]. [Matthews 2019 report] page 10 [Applicant] 28. [JR] overrode [applicant] regarding … Charge [13] Jan 2015–May 2015 Shaving and vibrator? ‘That was [JR’s] idea not mine. [JR] was a big bloke he had a short fuse if it did not go his way; it was his way basically he would get mad. ‘I got out of his road cause he was like a bulldozer, a short fuse, if something does not go his way, he would get angry’. [Matthews 2019 report] page 11 [Applicant] 29. That [JR] compelled [applicant’s] participation Jan 2015–May 2015 Relating to the shaving incident (Charge [13]). Evidence that is capable of sustaining the inference that [applicant] was forced to participate:
· [Applicant] is heard by [Alicia] to ask why do I need to be here (VARE 3 Q222);
· [Alicia] has no idea why [applicant] is present (VARE 3 Q267);
· [Applicant] observed to be not talking throughout the event (VARE 3 Q222);
· [Applicant] just standing in the room and looking at [Alicia] (VARE 3 279–280);
· [Applicant did] not say anything (VARE 3 Q283).
[Alicia]
For the above reasons, we are of the opinion that it would have been open to the jury to conclude that there was a reasonable possibility that the applicant committed the offences against the complainants as a result of her will being overborne by the continuing or ever present threat of JR to which we have referred.
In relation to element (iii), the jury could find that there was a reasonable possibility that, as the threat was ongoing throughout the period of the offending, it was present and continuing, imminent and impending at the time each offence was committed. It must be remembered that the prosecution did not allege that the offences the subject of charges 1 and 3–12 were committed on a particular date, but pleaded that they were committed sometime during a period spanning many years. The prosecution similarly pleaded that the offending the subject of charge 13 was committed sometime during a period spanning several months. In these circumstances, it would be very difficult, if not impossible, for the applicant to seek to identify a threat being made at any particular time during the relevant periods.
For the above reasons, it would have been open to the jury to conclude that the prosecution had not proved beyond reasonable doubt that elements (i) and (iii) of the defence of duress were not established.
We now turn to element (ii), namely, whether the circumstances were such that a person of ordinary firmness of mind would have been likely to yield to JR’s continuing or ever present threat in the way the applicant did.
We reject the applicant’s submission that the concept of ‘maturity’ to which Hunt J referred in Abusafiah[121] is ‘broad’. In our opinion, Hunt J used the term as a substitute for age. We also reject the applicant’s submission that the approach of Cox J in Palazoff[122] is the preferable approach. In our opinion, the attribution of all of an accused’s personal characteristics (except perhaps strength of mind) to a person of ordinary firmness of mind, as suggested by Cox J, has the potential to unacceptably dilute the objective test encapsulated by element (ii).
[121]See [73], [138] above.
[122]See [73], [138] above.
A person of ‘ordinary firmness of mind’ in the present case would be a female domestic partner of JR who was of the applicant’s age and who has lived with JR in the same circumstances as the applicant and has endured the physical and sexual abuse that she has experienced. That person would also have the same isolated lifestyle as the applicant and possess her knowledge of JR’s personality and behaviour. However, that person would not have the applicant’s history of sexual abuse as an adolescent or her mild intellectual disability.
In our opinion, upon the basis of the evidence in the Matthews 2019 report, the complainants’ evidence and expert evidence on battered woman syndrome, it would have been open to the jury to conclude that there was a reasonable possibility that a person of ordinary firmness of mind having the characteristics described at [180] above would have been likely to:
(a)develop a battered woman syndrome with the consequence of learned helplessness, and yield to JR’s continuing or ever present threat in the way the applicant did; and
(b)not seek to escape the situation.
We will now briefly consider elements (iv), (v), (vii) and (viii). We will not consider element (vi), as the applicant was not charged with murder or any other crime that is incapable, as a matter of law, from being subject to the defence of duress.
In our opinion, if the jury found that there was a reasonable possibility that the applicant was subject to a continuing or ever present threat by JR that he would physically and sexually abuse her (including raping her) if she did not do what he demanded, then it would be open to the jury to also find that there was a reasonable possibility that elements (iv), (v), (vii) and (viii) were satisfied.
In relation to element (iv), the jury could find that there was a reasonable possibility that the applicant reasonably apprehended that the threat would be carried out based upon JR’s history of punishing her if she sought to disobey him.
In relation to element (v), the jury could find that there was a reasonable possibility that the applicant was induced by the continuing or ever present threat to commit the charged offences based upon our previous analysis regarding her will being overborne by that threat.
In relation to element (vii), the jury could find that there was a reasonable possibility that the applicant did not, by fault on her part when free from the duress, expose herself to its application. That is because the threat was a continuing or ever present threat and the jury could conclude that there was a reasonable possibility that the applicant was not free of the threat at any time during the period of the offending.
In relation to element (viii), the jury could find that there was a reasonable possibility that the applicant did not have the means, with safety to herself, of preventing the execution of the threat. That is because the jury could conclude that there was a reasonable possibility that the applicant’s battered woman syndrome rendered her incapable of escaping from her abusive relationship with JR.
It follows from the above discussion that there was a possibility that the jury might not unreasonably discover in the evidence to which we have referred enough to enable them to find a case of duress. This conclusion applies to charges 1 and 3–12, in respect of which the common law defence of duress applies. The conclusion also applies to charge 13, in respect of which the statutory defence applies. As appears from [61] and [78] above, there is considerable overlap in the elements of each form of defence.
It also follows that the judge’s exclusion of the defence of duress resulted in a substantial miscarriage of justice. This was not ‘an extreme case’ which warranted the ‘large step’ of the judge ‘[taking the] defence [of duress] away from the jury’s consideration’.[123]
[123]Martin (2010) 202 A Crim R 97, 104 [21]; [2010] VSCA 153. See [84] above.
Conclusion
For the reasons set out above, ground 2 is made out. Accordingly, the applicant will be granted leave to appeal against her convictions, the appeal will be allowed, the convictions will be set aside and a new trial will be ordered.
McLEISH JA:
I agree with Kyrou and Niall JJA that leave to appeal should be granted and the appeal allowed. My reasons are, however, somewhat different. I will express them as shortly as I can, assuming familiarity with the background helpfully set out in their reasons.
The issue is whether the judge’s duress ruling was in error, so as to cause a substantial miscarriage of justice.[124] It virtually goes without saying, if an available defence is withdrawn in error from the jury, that there will be a substantial miscarriage of justice,[125] and no issue has been taken with that aspect of the case. The argument addressed the correctness of the ruling.
[124]Criminal Procedure Act, s 276(1)(b).
[125]Baini v The Queen (2012) 246 CLR 469, 479 [25]–[26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); see, eg, Nguyen v The Queen (2008) 181 A Crim R 72, 81 [42]–[43] (Hodgson JA, Kirby J and Buddin J agreeing at 81 [46] and [47]); [2008] NSWCCA 22.
At the same time, this is not an appeal from the ruling, but an appeal against conviction. In my view, that means that it is not necessary to identify specific error in the reasoning of the judge. The only issue for determination is whether the ruling was incorrect in denying the availability of the defence of duress on the evidence proposed to be led. If so, there will have been an error in the trial that caused a substantial miscarriage of justice.
A necessary preliminary question in evaluating the availability of the defence was whether the proposed evidence would be admissible, or admissible for the purpose for which it was sought to be used. That question arises principally in relation to the second report of Ms Matthews, dated 13 May 2019. It also arises in respect of the use to which the tendency evidence might be put.
The admissibility question needs to be addressed for two reasons. First, it would be pointless for this Court to order a retrial on the basis of evidence that would not be admissible on that retrial or, in the case of the tendency evidence, if it could not be used in the manner proposed. Secondly, in the case of the 2019 Matthews report — but not the tendency evidence — the parties joined issue before the judge on the question of admissibility. As I explain below, I understood that issue to remain live in the proposed appeal as well.
In his ruling on duress, the judge did not address the admissibility of the 2019 Matthews report or the use to which the tendency evidence might be put.[126] He proceeded, however, on the evident assumption in favour of the defence that all the material relied on would be admissible and that tendency reasoning would be available. That was appropriate in circumstances where he considered that, even making those assumptions, the evidence fell short of raising the defence.
[126]The sixth particular of the ground of appeal is that the judge erred in considering the 2019 Matthews report to be inadmissible. That appears anomalous, however, and no argument was advanced to that effect.
In this Court, the respondent submitted orally that the statements of the applicant recorded by Ms Matthews had been sought to be admitted by the defence as the factual basis of her expert opinion, so as to be admissible under s 60 of the Evidence Act 2008. Senior counsel observed that, to the extent the statements were admissions, s 60(3) stood in the way of that submission. He conceded, however, that if the issue of admissibility had not been contested below, it should not be contested before us.
In written submissions filed by leave after the hearing, the respondent provided the transcript and written submissions containing the arguments before the trial judge in respect of the duress ruling. Those materials showed that, contrary to counsel’s previous understanding, issue had been squarely joined on the admissibility of the 2019 Matthews report.[127] In particular, the prosecutor had submitted that, until there was evidence of duress sufficient to raise the matter as an issue for the jury, there was no foundation for admitting the expert opinion of Ms Matthews as to the psychological state of the applicant. It would follow that there was no basis for admitting any of the contents of her 2019 report.
[127]In contrast, no issue was taken with the tendency notice (although the prosecutor’s written submissions indicated that he would do so ‘separately’).
The applicant submitted that the respondent should not be permitted to seek to sustain the judge’s ruling on a basis other than that advanced by the judge. I disagree. As explained, the issue before this Court is whether the ruling was incorrect. The proposed appeal is not a challenge to the reasoning of the judge but a challenge to the correctness of the result he reached.
Moreover, unlike Kyrou and Niall JJA, I took the respondent’s subsequent written submissions to indicate that the respondent was no longer conceding the question of admissibility of the 2019 Matthews report, once free of the misapprehension as to the course that had been taken at trial.
It is therefore desirable to say something more about the admissibility of the evidence, in line with the arguments of the parties as I have identified them.
Turning first to the 2019 Matthews report, there is in my view force in the submission made by the prosecutor to the judge, that an evidentiary foundation for a duress defence must exist before expert evidence going to the psychological condition and surrounding circumstances of the accused can become relevant. In other words, it is at least plausible that the evidence of the threat which is the essential foundation of any duress defence must come from direct testimony and not simply from the hearsay evidence of an expert. Still less can the opinion of an expert that an accused suffers from battered woman syndrome suffice to establish duress.[128] While such an opinion is relevant to other aspects of the defence of duress, that defence always depends on a threat having overborne the will of an accused so as to cause him or her to commit the act charged.[129]
[128]R v Lorenz (1998) 146 FLR 369, 375 (Crispin J) (‘Lorenz’); Coats v The Queen [2013] EWCA Crim 1472 [49]–[51] (Hallett LJ for the Court); see also Rice v McDonald (2000) 113 A Crim R 75, 87 [29]–[30] (Slicer J); [2000] TASSC 70 (‘Rice’)
[129]Lorenz (1998) 146 FLR 369, 376–7; Dawson v The Queen [1978] VR 536, 538 (Anderson J, Starke J agreeing at 544), 542 (Harris J); R v Z [2005] 2 AC 467, 491 [21](5) (Lord Bingham of Cornhill, Lord Steyn relevantly agreeing at 500 [43], Lord Rodger of Earlsferry agreeing at 508 [66], Lord Brown of Eaton-Under-Heywood agreeing at 512 [81]).
For the reasons I will explain, in my view there was direct evidence, putting to one side the 2019 Matthews report, from which such a threat could be inferred. This means, at the least, that the evidence of Ms Matthews as to the psychological condition and surrounding circumstances of the applicant would have become admissible, as going to the question whether the circumstances were such that a person of ordinary firmness would have been likely to yield to the threat.[130] On the view I take of the other evidence, it is not necessary to decide whether, and to what extent, hearsay evidence contained in the 2019 Matthews report might then be admissible under s 60 of the Evidence Act. (If admitted, such evidence might itself bear on the existence or nature of any threat, as Kyrou and Niall JJA demonstrate.)
[130]Runjanjic v The Queen (1991) 56 SASR 114, 119–20 (King CJ, Bollen J relevantly agreeing at 125) (‘Runjanjic’).
Secondly, no specific issue seems to have been taken with the tendency notice. After the ruling, of course, the notice fell away. But it was not suggested before us that there was not at least some scope for tendency reasoning to be employed by the defence along the lines identified in the notice. At the very least, it would seem plausible that tendency evidence might legitimately be led to prove a tendency of JR to use threats, intimidation and violence to coerce female members of his family to accede to his sexual desires.[131]
[131]See generally, Evidence Act 2008, ss 97, 101.
I therefore turn to the evidence on which the defence sought to rely to raise the defence of duress. As indicated above, in identifying evidence of a threat, I put aside the 2019 report of Ms Matthews.
The specific question for decision is whether by any possibility the jury might, not unreasonably, discover in the evidence enough to cause them to fail to be satisfied beyond reasonable doubt that the applicant was not acting under duress.[132] The respondent pointed out that s 14(1) of the Jury Directions Act2015 requires the judge to direct the jury as to duress unless there are ‘good reasons’ not to do so.[133] Consistently with that stipulation, it has been said that it is a ‘large step’ to take a defence away from the jury’s consideration, and that to do so requires an ‘extreme case’.[134]
[132]Martin v The Queen (2010) 202 A Crim R 97, 103 [14]–[16] (Ashley JA, Buchanan JA agreeing at 99 [1], Redlich JA agreeing at 116 [93]); [2010] VSCA 153 (‘Martin’); Taiapa v The Queen (2009) 240 CLR 95, 105–6 [29]–[30] (French CJ, Heydon, Crennan, Kiefel and Bell JJ).
[133]This submission was predicated on an assumption that the defence had sought a duress direction. That assumption appears to be incorrect. The relevant provisions of the Jury Directions Act apply after the close of evidence, by which point in the present case neither side sought a duress direction (because of the ruling that had previously been made). The applicant submitted that it had been the prosecutor who had sought the ruling after the defence raised duress in their disclosure notice. Nothing turns on the point.
[134]Martin (2010) 202 A Crim R 97, 104 [21] (Ashley JA).
As Kyrou and Niall JJA note, it is for the defence to show the existence of evidence establishing a basis for a claim of duress. If that is done, it is then for the prosecution to prove beyond reasonable doubt that the accused did not act under duress.[135]
[135]See, eg, Abusafiah v The Queen (1991) 24 NSWLR 531, 544–5 (Hunt J, Gleeson CJ agreeing at 532, Mahoney JA relevantly agreeing at 532); Rice (2000) 113 A Crim R 75, 87 [31] (Slicer J).
It is not necessary that the threat which underpins a defence of duress be the subject of direct evidence of the accused. There is no reason in principle why the requisite threat might not be found by a process of inference from other evidence. That inference may, in principle, be drawn from evidence about an ongoing course of conduct.[136] The threat may also be conveyed to the accused by implication rather than express words.[137] Naturally, the defence may very well be weaker in the absence of direct evidence from the accused; but that is not the only way it may be raised.
[136]See generally, Warren v The Queen (1996) 88 A Crim R 78; Runjanjic (1991) 56 SASR 114.
[137]Hurley v The Queen [1967] VR 526, 543 (Smith J) (‘Hurley’).
It is convenient to start with some of the general evidence Paige gave of her father’s conduct, as relied upon in the tendency notice. The purpose of doing so is to demonstrate an evidentiary foundation for concluding that JR had a tendency to use threats, intimidation and violence to cause female members of his family to accede to his sexual desires. (Although the tendency notice is more widely drawn, it covers that much ground at least.[138]) Much of the evidence is confronting and repellent, so I will refer to no more than is necessary.
[138]This approach does not involve impermissibly reformulating the tendency notice to incorporate additional elements; cf TL v The King [2022] HCA 35 [20], [33] (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ).
Early in the third VARE, Paige stated that ‘one time when he was trying to sexually abuse me, he hit me because I wasn’t doing what he wanted’, referring to having been bruised as a result. Later she said that she ‘knew not to fight ‘cause, like, if I fought I was just – just gunna get hit’. She elaborated by reference to an uncharged incident:
I know one time he was saying like, ‘Oh, you’re gunna have an orgasm. I’ll make you have an orgasm’, and all this, and I was just panicking so much. And he was saying, ‘You can panic as much as you want, you can fight as much as you want, you can pass out but I’ll keep going’.
On another occasion, Paige described ‘trying to fight’ her father off, in response to which he hit her and put his hand over her mouth to stop her from yelling, to the point where the applicant came into the room and told him to leave her alone because everyone was being woken by the noise.
Paige also described a collection of ‘dildos and vibrators’ which JR compelled her to use on herself, knowing that if she didn’t do so she would be hit.
Another egregious example that was not listed in the tendency notice, but which is of the same character, concerned a demand by JR ‘to do an orgasm’, which she told him she did not want to do. She said:
he just sort of kept going, and he said, ‘Fine, do you want me to come inside you and get you pregnant’ and I said, ‘No, no, no, no, no, no,’ and he was saying things like, ‘Either you have an orgasm or I come inside you and get you pregnant,’ and I didn’t really have a choice.[139]
[139]Strictly speaking, an amended tendency notice would be required in order to take this evidence into account in the way now under consideration. There is no reason why this could not have been done in the course of the trial. The evidence is not, in any case, decisive of the present issue.
Probably the most shocking example of evidence of this kind concerns the family dog. Paige described being required to watch pornography involving people and animals. Her father told her to ‘strip off’ so she could ‘watch porn in the nude with him’. He then told her to adopt a particular pose after which he penetrated her vagina with his penis. He withdrew his penis and told her that if she moved he would hit her. He then called the dog. She said she did not want the dog anywhere near her and he told her again not to move. He then tapped her vagina and got the dog to lick it, again threatening to hit her if she moved. Remembering having been hit before, she did as she was told. He then told her to adopt a position which she knew, from the video she had been shown, meant that he was going to get the dog ‘inside’ her. She said she didn’t want that to happen, and he said ‘Well, you’re going to’. Eventually he gave up and let the dog out. But he locked the doors and ‘went back inside’ her and ‘sort of pounded me … because I wasn’t doing as I was told’. It took him only a few motions before he withdrew and ejaculated, after which he asked her to ‘clean him up’, which she did.
This evidence, if accepted by the jury, painted a picture of a brutal man accustomed to using threats and violence to force his sexual desires upon others. By virtue of the tendency notice, this conclusion could bear on the jury’s assessment of the question whether JR threatened the applicant with serious physical harm, expressly or by implication, if she did not perform the acts with which she was charged.[140]
[140]Although the applicant also put a case based on a threat of purely psychological harm, we were not taken to authority supporting the availability of the defence of duress on that basis, and it is unnecessary to pursue the point. Argument otherwise proceeded along the lines that the issue was whether a threat of serious physical harm could be identified (see, eg, Palazoff v The Queen (1986) 43 SASR 99, 105 (Cox J)).
The above evidence fell to be evaluated along with the evidence concerning JR’s sexual interactions with the applicant, in particular the evidence of the acts charged against the applicant. As described below, that evidence is consistent with the picture just identified.
Paige’s account of the first incident (being charges 1, 3 and 4) begins by stating that her father had said that ‘he’d talked [the applicant] into [s]howing me, like, what to do’. Immediately there is therefore evidence of JR having persuaded the applicant, by some means, to engage in sexual activity involving JR and Paige. The parents then engaged in sexual intercourse in Paige’s presence (charge 1) and her father said that Paige had to ‘do that’ and ‘be like that’. He then forced her to lick the applicant’s vagina.[141] She knew she would get into trouble if she didn’t. He pushed her head into the applicant’s vagina and when Paige said she didn’t like the smell he told her to ‘get over it’. He had earlier dragged Paige towards the applicant while he was ‘fingering’ Paige (charge 3). He next licked the applicant’s vagina himself and told Paige to ‘keep playing’ with herself while he did so. He then penetrated both the applicant and Paige (charge 4) before continuing to give both of them instructions in the following circumstances:
then he pulled out of me just, like, as he was about to come and put it in [the applicant] and, like, finished with her and, like, he’d come in her and told me as he was coming in her to keep playing. And then he – then told me to keep playing once I had – once he had finished coming. He had sort of got tired and told me to get changed, get back in my clothes.
[141]Charge 2, on which the applicant was acquitted, alleged that this involved penetration, which was not clearly made out.
In my opinion this evidence raises the possibility that a jury acting reasonably, and in the light of the tendency evidence, might not be satisfied beyond reasonable doubt that the applicant’s involvement in these events was not procured by threats of serious physical harm. The whole event could be seen as one orchestrated by JR for his sexual pleasure. He is said to have talked the applicant into taking part, and an inference that he had done so using threats of the kind mentioned in the tendency evidence would not be wholly unreasonable. As indicated, it is not necessary to infer an explicit threat. It might be inferred that the general conduct of JR as revealed by the other evidence meant that when he talked the applicant into acceding to his desires there was an implicit threat of serious physical harm if she refused.
All the charged conduct involving Paige describes JR in apparent control of proceedings. In the second incident, he penetrated the applicant’s vagina with his penis, then did the same to the Paige (charge 5), before withdrawing and ejaculating in the applicant’s vagina, as in the first incident. He also penetrated Paige with a sex toy (charge 6) while the applicant played with Paige’s breasts. There is a general similarity to the first incident, as Paige describes JR as the lead actor in a series of events directed at his sexual gratification.
In the third incident, JR penetrated Paige’s vagina with a sex toy (charge 7) while simultaneously penetrating the applicant’s vagina with his penis, moving both in time with each other. For a time he then ‘switched’ and penetrated Paige’s vagina with his penis (charge 8) while the applicant used the sex toy on herself. After a brief interruption, he then again put his penis inside Paige’s vagina (charge 9) and moved it ‘really fast’ but withdrew before ejaculating, which (as before) he did in the applicant’s vagina. He then told Paige that she was ‘not done yet’ and would be having an orgasm. When she said she didn’t want one, he said ‘Too bad’, before penetrating her with the sex toy (charge 10). Paige said it was hurting and he said something to the applicant who then put her breast in Paige’s mouth. It could be inferred that in doing so the applicant acted at his direction.
Paige started her account of the fourth incident by recounting that JR had told her that the applicant was ‘gunna do it all to me, it’s gunna be [the applicant’s] night to do it to me’. He had grabbed Paige’s shoulders to push her close to the applicant so that the applicant could use a sex toy on her (charge 11). He ‘watched’ and said he was ‘getting horny on it’. As previously, he then penetrated each of them with his penis (charge 12), withdrawing from Paige’s vagina shortly before ejaculating into the vagina of the applicant.
In my opinion, this evidence, if accepted, collectively suffices to raise the possibility that the conduct alleged against the applicant, involving Paige, was induced by a threat of serious physical harm on the part of JR, which was present and continuing, imminent and impending, sufficient to satisfy elements (i) and (iii) of the test articulated in Hurley.[142] In each of the incidents, albeit less so in the second, Paige recounts an apparently preconceived scenario in which JR could be seen as having controlled her and the applicant so that they would yield to his sexual desires. In circumstances where other evidence confirms that JR threatened violence to Paige if she did not comply with those desires, in my view the possibility is raised that a jury could not unreasonably infer that there was at least an implicit threat of serious physical harm to the applicant if she did not likewise comply. It is relevant, too, that Paige stated in a handwritten note that was tendered, and which she confirmed in cross-examination, that ‘to my knowledge he made [the applicant] do those things’.
[142][1976] VR 526, 543 (Smith J).
The same conclusion applies in respect of the charge involving Alicia, which is governed by s 322O of the Crimes Act 1958. The threat required by that provision may, again, be established by inferential reasoning, and it has not been suggested that it may not be implicit rather than express. In this context, the threat need only be of ‘harm’, rather than serious physical harm.
Alicia described an incident in which JR told her he wanted to talk to her in the cabin. When they got there she saw that the window was covered and there was a can of shaving cream and a razor. JR told her to take off her skirt and underwear and sit on a table. He then went and got the applicant. When they returned he pulled Alicia along the table and she fell backwards and hit her head. JR told the applicant to help him shave her. He then shaved her. One of the adults then opened a drawer and Alicia felt something being inserted into her vagina and someone’s hand was on her knee. She had ‘no idea’ why the applicant was present, but JR had said he wanted help. At one point in the encounter JR had his hand over her mouth and she bit him. The applicant did not say anything the entire time. After they left, Alicia saw next to her a sex toy that JR had previously used on her.
Alicia gave evidence in her 3rd VARE to the effect that she didn’t understand why the applicant ‘would have been involved … unless [JR] forced her to and told her that if she didn’t do it, he’d do something to her’.[143]
[143]This evidence was relied on in the duress ruling but it appears was not ultimately tendered in the trial.
If accepted, Alicia’s overall evidence, taken with the tendency evidence, in my view raises the possibility that a jury may not unreasonably infer that JR had compelled the applicant to assist him in shaving and sexually abusing Alicia, and that this compulsion had involved an implicit threat of harm so as to satisfy that aspect of s 322O.
As already stated, it is unnecessary in the circumstances for me to reach any conclusion as to the admissibility of the hearsay contents of the 2019 Matthews report.
I agree with the reasons given by Kyrou and Niall JJA in respect of the other elements of the defence, both under common law and under s 322O.
It follows that, in my respectful opinion, there was sufficient material going to the defence of duress to permit that defence to be run at trial and to require that the jury be directed in relation to it. The preclusion of that defence by the ruling, and the consequent absence of evidence or directions going to duress, gave rise to a substantial miscarriage of justice. On a retrial, it will of course be a question for the jury whether, the defence having been raised by the evidence I have identified, the prosecution succeeds in excluding it beyond reasonable doubt, based on all the evidence that is ultimately adduced going to the issue.
I agree with the orders proposed by Kyrou and Niall JJA.
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