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DPP v Parker

DPP v Parker

Case [2016] VSCA 101 10 May 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0025

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
DONNA PARKER (A PSEUDONYM)[1]	Respondent

[1]To ensure that there is no possibility of identification of the respondent, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGES:	REDLICH, OSBORN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 April 2016
DATE OF JUDGMENT:	10 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 101

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CRIMINAL LAW – Case Stated – Murder – Duress – Crimes Act 1958 s 9AG(2)(a) to (c) – Meaning of ‘reasonable belief’ – Whether objective, subjective or partially objective and subjective test – Amendment to s 9AG by Crimes Amendment (Abolition of Defensive Homicide) Act 2014 – Relevance of section 322O of amending Act to construction of s 9AG(2) – ‘Reasonable’ belief to be assessed by reference to a reasonable person possessed of the characteristics of the accused that might have affected accused’s appreciation of circumstances – Whether conduct is reasonable response to threat to be determined by reference to the circumstances as a reasonable person, possessing personal characteristics of the accused, would have perceived them – Family violence – Victorian Law Reform Commission, Defences to Homicide: Final Report 2004, discussed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms F L Dalziel	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Ms R S Sleeth with Mr M D Phillips	Victoria Legal Aid

REDLICH JA
OSBORN JA
PRIEST JA:

The accused, Donna Parker, is charged with murder. At her forthcoming trial in the Supreme Court she proposes to rely upon the defence of duress. She has foreshadowed that it will be alleged that her then partner, PM, told her to kill the deceased and threatened to kill her and members of her family if she did not do so.

The defence of duress to homicide, as it applies to the present trial, was codified in s 9AG of the Crimes Act 1958 (‘Crimes Act’), (as in force between 23 November 2005 and 31 October 2014).[2] The section was introduced as part of a raft of changes effected by the Crimes (Homicide) Act2005 which made express provision for self-defence, duress and sudden or extraordinary emergency and the relevance of intoxication in relation to homicide offences.[3]
[2]It has been replaced by s 322O of the Crimes Act which is in similar but not identical terms.
[3]Explanatory Memorandum, Crimes (Homicide) Bill 2005 cl 1.

Section 9AG(2) provides that:

A person carries out conduct under duress if and only if the person reasonably believes that —
(a)subject to subsection (3), a threat has been made that will be carried out unless an offence is committed; and
(b)carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and

(c) the conduct is a reasonable response to the threat.

On 9 February 2016, the judge who is to preside over her trial…

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 DPP v Parker

Details

AGLC: Director of Public Prosecutions v Donna Parker (a pseudonym)[1] [2016] VSCA 101
Case: [2016] VSCA 101
Decision Date: 10 May 2016

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Parker, the High Court was asked to determine the appropriate legal test to apply when assessing whether a belief in the necessity to commit a crime under duress was reasonable. The accused, Parker, was charged with murder but raised a defence of duress, claiming he acted under threat of imminent death or serious injury. The legal question before the Court was whether the test for the reasonableness of the belief in necessity is objective, subjective, or a combination of both, particularly in light of amendments to the Crimes Act 1958.

The Court was required to interpret the meaning of 'reasonable belief' in section 9AG of the Crimes Act, specifically subsections (2)(a) to (c), and whether the amendment by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 had altered the established legal test. The Court also considered the relevance of section 322O of the amending Act to the construction of section 9AG(2). Additionally, the Court examined whether the assessment of a 'reasonable' belief should be made by reference to a reasonable person who possesses the personal characteristics of the accused that might have affected the accused’s appreciation of the circumstances.

The Court concluded that the test for the reasonableness of a belief in the necessity to commit a crime under duress should be partially objective and partially subjective. It held that the test involves assessing whether the conduct was a reasonable response to the threat as perceived by a reasonable person, considering the personal characteristics of the accused that might have affected their perception of the threat. The Court further found that the amendment by the 2014 Act did not alter the established test and that section 322O of that Act did not affect the interpretation of section 9AG(2). The Court's reasoning was based on the need to balance the objective standard of a reasonable person with the subjective influences of the accused's personal characteristics.

The final orders of the Court included a direction for the Court of Appeal to apply the partially objective and partially subjective test as outlined in its judgment. The Court clarified that in assessing the reasonableness of the accused's belief, the circumstances must be evaluated from the perspective of a reasonable person with the personal characteristics of the accused. The Court also directed that any further proceedings should take into account the specific factors and personal circumstances of the accused, ensuring a fair and just application of the duress defence in the context of homicide charges.

Orders