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Anna Rowan (a pseudonym) v The King

Anna Rowan (a pseudonym) v The King

Case [2022] VSCA 236 28 October 2022

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anna Rowan (a pseudonym) v The King

Details

AGLC: Rowan (a pseudonym) v The King [2022] VSCA 236
Case: [2022] VSCA 236
Decision Date: 28 October 2022

CaseChat Overview and Summary

In the matter of Anna Rowan, an appellant under a pseudonym, against The King, the Supreme Court of Victoria presided over an appeal against the appellant's conviction on one charge of an indecent act with a child under 16 and 11 charges of incest. The appellant, who was the mother of the two complainants, had argued that she acted under duress. The court was required to determine whether the defence of duress was correctly applied by the trial judge in assessing the appellant's actions.

The central legal issues before the court were the specific requirements of the common law defence of duress, including the necessity of a specific and overt threat, the nature of the threatened harm, and whether the threat needed to be both present and continuing or if an ever-present threat was sufficient. The court also examined the relevance of expert evidence regarding the battered woman syndrome and the attributes of a person of ordinary firmness. Additionally, the court considered the statutory defence of duress under the Crimes Act 1958 and the onus of proof for the defence of duress.

The court found that the trial judge erred in ruling that the evidence was insufficient for the defence of duress to be left to the jury. The court held that the judge had been influenced by the inconsistency between the defence's claim that the offending conduct did not take place and the reliance on duress to avoid criminal liability for that conduct. The court determined that this error led to a substantial miscarriage of justice. Consequently, the court allowed the appeal, set aside the convictions, and ordered a new trial. The ruling was grounded in the application of the Criminal Procedure Act 2009, section 276(1)(b).

Orders