DPP v Parker
[2016] VSCA 101
•10 May 2016
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 reserved two questions of law for determination by the Court of Appeal, pursuant to ss 302 and 305 of the Criminal Procedure Act 2009 (‘CPA’). The questions of law concern the belief of the accused as specified in s 9AG(2). The two questions reserved are:
1.In considering whether the accused had a ‘reasonable’ belief as to the matters set out in s 9AG(2)(a) to (c) of the Crimes Act 1958 (Vic) (as in force between 23 November 2005 and 31 October 2014) (‘Crimes Act’), is the court to consider the position from the point of view of:
a.The accused, taking into account any personal characteristics that might have affected his or her appreciation of the circumstances;
b.A sober person, of reasonable firmness of mind, sharing the following characteristics of the accused:
i.Age;
ii.Gender;
iii.Maturity;
iv.Any features arising by reason of s 9AH of the Crimes Act;
c.An ordinary person; or
d.Some other and, if so, what person?
2.In considering the matters set out in subsections (a) to (c) of s 9AG(2) of the Crimes Act, is the court to consider:
a.The circumstances as the accused perceived them to be; or
b.Some other, and if so, what circumstances?
Section 9AG(2) provides that a person carries out conduct under duress if he or she reasonably believes that a threat has been made which will be carried out unless an offence is committed; committing the offence is the only reasonable way that the threatened harm can be avoided; and the conduct is a reasonable response to the threat.[4] It is clear from the Case Stated[5] that both of the reserved questions raise the issue of whether the relevant belief requires an objective, subjective or some other test with respect to each of these matters.
[4]The definition of duress in s 9AG(2) is similar, although not identical, to s 10.2 of the Criminal Code (Cth).
[5]See [10] below.
It was not disputed by either party during oral argument that the terms of s 9AG provide for an overriding requirement that the person’s belief be objectively reasonable. The issue was whether, and if so, to what extent, the reasonableness of the belief also took account of factors personal to the accused. Whether the accused in fact held the belief is itself a subjective question, but for present purposes we are concerned only with whether the notion of ‘reasonably’ in the phrase ‘the person reasonably believes’ requires that regard also be given to factors personal to the accused.
The Director initially submitted that alternative 1(c) of the first reserved question best states the position in that the court is to consider the position from the point of view of a reasonable person. During oral argument the Director left open that it may be alternative 1(b) which was the position that had been taken by the Director before the trial judge. The Director’s answer to the second reserved question is that the court is to consider the circumstances as perceived by a reasonable person. The defendant submits that alternative 1(a) of the first reserved question correctly states the position. That is, the court is to take into account any personal characteristics of the accused that might have affected his or her appreciation of the circumstances but that the test is otherwise objective. The defendant similarly submits that alternative 2(a) best states the answer to the second reserved question in requiring the court is to consider the circumstances as an accused person perceived them to be.
For the reasons that follow, the first reserved question is to be answered by reference to a reasonable person possessing the personal characteristics of the accused that might have affected the accused’s appreciation of the circumstances. The second reserved question is to be answered by reference to the circumstances as a reasonable person, possessing the personal characteristics of the accused, would have perceived them to be.
The case stated
Section 302(2) of the CPA provides that where a question of law arises before or during a trial, the court may reserve the question for determination by the Court of Appeal if the court is satisfied that it is in the interests of justice to do so, and having regard to the various matters specified in ss 302(2)(a) and (b). It was not in issue that it was appropriate for the trial judge to reserve these questions for determination by this Court.
By virtue of ss 305(1) and (2), the court reserving the question of law ‘must state a case, setting out the question and the circumstances in which the question has arisen‘, and ‘must sign the case stated and transmit it within a reasonable time to the Court of Appeal’. The judge stated the case as follows:
Proposed circumstances and facts upon which the case stated pursuant to ss 302 and 305 of the Criminal Procedure Act 2009 (Vic) is to be determined.
1.The accused is charged with the common law murder of [JN] on 20 June 2014.
2.The accused does not deny killing [JN], by striking him multiple times with a mattock. She relies upon the defence of duress under s 9AG of the Crimes Act 1958 (Vic). Her case will be that her then partner, [PM], told her to kill [JN], and threatened to kill her and members of her family if she did not do so.
3.There is evidence which, if admitted and accepted, would establish that the accused:
a.Was less mature than her chronological age at the time (19 years old), and was naive and unassertive;
b.Has a childhood history of being subjected to abuse and trauma;
c.Was subjected to physical abuse, public humiliation, and sexual degradation by [PM]. [PM]’s criminal history includes charges of recklessly causing serious injury, assault, and possession of dangerous articles/weapons. There is evidence that [PM] was unpredictably aggressive;
d.Has a dependent, self-defeating, avoidant personality;
e.Has intellectual functioning in or around the borderline range for intellectual disability;
f.Has a history of mental instability, and has been diagnosed with several mental health conditions, including post-traumatic stress disorder and borderline personality disorder; and
g.Was suffering from anxiety and depression at the time of the offending.
4.The trial was originally listed for hearing in October 2015. That trial date was vacated when a question arose as to the accused’s capacity to stand trial. That issue having now been resolved, the trial has been relisted for hearing in the Morwell circuit, commencing on 30 May 2016.
5.Section 9AG of the Crimes Act 1958 (Vic) commenced operation on 23 November 2005, by virtue of the Crimes (Homicide) Act 2005 (Vic). Section 9AG made the defence of duress available for the crime of murder, and applies to this trial. (Section 9AG has since been repealed and replaced with a similar provision in s 322O of the Crimes Act.)
6.The reserved questions seek guidance as to whether the reference to ‘reasonably’ in s 9AH(2)[sic] imposes an objective or a subjective test. In particular, is reasonableness to be determined by reference to what the accused herself might reasonably have believed in the circumstances, taking into account some or all of the personal characteristics affecting her appreciation of and reaction to those circumstances? Or is it to be determined by reference to what an ordinary person would have believed in the objective circumstances in which the accused found herself? Or by reference to some other test?
8.The statutory provisions for this defence have not been considered in Victoria. They are similar, but not identical, to s 10.2 of the Criminal Code (Cth), which has been considered by Courts of Criminal Appeal in NSW and WA; those courts have not come to the same conclusion as each other in relation to the issues raised in the reserved questions.
9.The proper construction of s 9AG is a novel question of law, which has not previously fallen for judicial determination.
10.Having regard to the matters set out in s 302 of the Criminal Procedure Act 2009, it is in the interests of justice to refer the reserved questions of law specified in Annexure A for determination by the Court of Appeal.
Legislative background to the defence of duress
According to the Attorney-General of the day, the changes brought about by the introduction of the Crimes (Homicide) Act 2005, were intended to implement ‘key legislative recommendations’[6] made by the Victorian Law Reform Commission (‘VLRC’), in its 2004 Defences to Homicide: Final Report (the ‘VLRC Report’).[7]The terms of reference required the VLRC to report on ‘whether the existing defences and partial excuses to homicide should be changed.’[8] The report had a particular focus on the context of intimate partner violence and homicide in the context of ‘ongoing family violence.’[9]
[6]Victoria, Parliamentary Debates, Legislative Assembly, 6 October 2005, 1349 (Rob Hulls, Attorney-General).
[7]Victorian Law Reform Commission, Defences to Homicide: Final Report, Report No 94 (2004).
[8]Ibid 1.
[9]Ibid 3.
Chapter three of the VLRC Report noted that the test for duress proposed under the Model Criminal Code was an objective one and ‘that it is not sufficient to show the person subjectively believed he or she would be harmed if he or she did not commit the offence, if this belief is unreasonable’.[10]
[10]Ibid 116 [3.147].
The VLRC Report also referred to a 1977 report of the Law Commission for England and Wales,[11] which recommended that duress should only be available where the accused believed that:
the threat was one which the accused in all the circumstances of the case (including personal characteristics which affect the gravity of the threat) could not reasonably be expected to resist.[12]
[11]Ibid 119 [3.158].
[12]Ibid citing Law Commission for England and Wales, Criminal Law Report on Defences of General Application [Great Britain], Law Com No 83 (1977) [2.46].
Section 9AG reflects the recommendations made in the VLRC Report that both duress and necessity be expanded to apply in defence of a charge of murder.[13] When discussing whether a subjective or objective test ought apply to these statutory defences, the VLRC expressly envisaged that regard would be had to the position of the accused:
We also recommend that a reasonableness requirement should apply to these defences to murder. A person will only be able to rely on these defences if he or she subjectively believes the conduct is necessary to defend himself or herself or another person or as a reaction to an emergency, and if the conduct is an objectively reasonable response to the circumstances as the person perceives them. The latter requirement allows community standards of reasonableness to be taken into account in assessing the culpability of the accused.
We have taken this approach for two main reasons. First, where an accused relies on self-defence, the behaviour of the homicide victim is alleged to justify the killing. By contrast, if an accused relies on duress or extraordinary emergency, the homicide victim will usually have no responsibility for the circumstances which have brought about his or her death. Because these defences apply in cases where the victim is entirely innocent, the test for their application should reflect community standards of reasonableness.
Second, if the defences of duress and extraordinary emergency are to be extended to murder, stringent controls should be imposed on their applicability. Requiring the accused to meet objective tests of reasonableness will ensure these defences apply only in extreme situations, and prevent them from being raised too readily.[14]
[13]Ibid xlvii–xlviii.
[14]Ibid 120–121 [3.161]–[3.163] (emphasis added).
In turn, the VLRC recommended that expert evidence going to domestic violence considerations should be admissible to explain the circumstances and state of mind in which a particular accused acted as she did:
In Chapter 4 of this Report we recommend legislative changes to encourage the admission of expert evidence about the factors which commonly affect people in violent relationships. The new provision on evidence which we propose allows for the admission of evidence of the parties’ relationship to assist the jury in assessing whether the reaction of a woman who kills a third person, because of duress applied by her partner, is reasonable in the circumstances. It is intended that recommendations 25 and 34 relating to the admission of evidence should allow it to be admitted in the context of a defence of duress.[15]
[15]Ibid 121 [3.165] (citation omitted).
The recommendation of the VLRC was that the subjective belief of the accused should be taken into account but that the belief satisfy an objective test of reasonableness.
Duress in s 10.2 of the Criminal Code (Cth)
Although there is no authority on the meaning of the words ‘reasonably believes’ under the Crimes Act, the Director relies upon the construction given to s 10.2 of the Criminal Code (Cth) (‘the Code’) by the NSW Court of Criminal Appeal in R v Oblach.[16]
[16](2005) 65 NSWLR 75 (‘Oblach’).
Section 10.2 of the Code is relevantly in very similar terms to s 9AG of the Crimes Act.[17] It appears in ch 2, pt 2.3, div 10 of the Code, ‘Circumstances involving external factors’. Criminal responsibility arises under the Code from the combined effect of the presence of elements in pt 2.2 and the absence or failure to establish a defence under pt 2.3. This structure is different to s 9AG.
[17]Section 10.2 of the Code provides:
(1)A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.
(2)A person carries out conduct under duress if and only if he or she reasonably believes that:
(a)a threat has been made that will be carried out unless an offence is committed; and
(b)there is no reasonable way that the threat can be rendered ineffective; and
(c)the conduct is a reasonable response to the threat.
(3)This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.
In respect of the meaning of the words ‘reasonably believes’ in s 10.2 of the Code, Spigelman CJ observed in Oblach that a formulation such as ‘a reasonable person would believe’ was not adopted.[18] His Honour also noted that the test of ‘an ordinary person’ was rejected for s 10.3, ‘which in every relevant respect is identical to s 10.2’.[19] The Chief Justice extracted the following propositions from the text of s 10.2:
(1)Section 10.2 applies to negative criminal responsibility where a person ‘carries out conduct’ with a particular state of mind.
(2)That state of mind must constitute a belief in the mind of that person and, in that sense, is subjective.
(3)The qualification introduced by the word ‘reasonably’ introduces a determinative objective element that qualifies each of the succeeding paragraphs.
(4)Paragraph 10.2(2)(a) contains no internal objective element. Pursuant to it the ‘reasonable belief’ must attend both the fact that ‘a threat has been made’ and the fact that it ‘will be carried out’.
(5)Paragraphs 10.2(2)(b) and 10.2(2)(c) each adopt the word ‘reasonable’ to apply an objective test to the elements of necessity and proportionality of response, respectively.[20]
[18]Oblach (2005) 65 NSWLR 75, 84 [56].
[19]Ibid.
[20]Ibid 84 [55] (emphasis in original).
Spigelman CJ concluded that regard was not to be had to the ‘personal characteristics of the particular accused’ or ‘the circumstances as the accused perceived them to be’.[21] Spigelman CJ and Hulme J, who reached the same conclusion,[22] found it to be of considerable importance that the words ‘as he or she perceived them to be’ were expressly adopted in s 10.4(2) of the Code for self-defence, but were omitted from the defences of duress or necessity. It was accordingly ‘not appropriate to interpret the words ‘reasonably believes’ in either s 10.2 or s 10.3 to encompass a formulation which the very next section of the Code expressly deployed’.[23] Sully J also preferred the first of two different conceptual approaches, namely:
(1)as entailing an enquiry by the jury into the question whether each such requisite belief held in fact by the accused was held reasonably by him in the sense that each belief would have been held by any reasonable person in the then position of the accused; or
(2)as entailing an enquiry by the jury into the question whether each such requisite belief held in fact by the accused was held reasonably by him in the sense that each belief would have been held by any person in the then position of the accused and having all of the relevant personal characteristics of the accused.[24]
[21]Ibid 86 [66].
[22]Ibid 91 [94].
[23]Ibid 85 [60].
[24]Ibid 87 [74].
The construction given to s 10.2 of the Code in Orblach was referred to by the Western Australian Court of Appeal in Morris v The Queen.[25] Roberts-Smith JA said:
I presently agree that the focus of s 10.2 on the conduct and state of mind of the accused is not consistent with a ‘reasonable person’ test and that the test must be applied having regard to the accused's objective circumstances (per Spigelman CJ at [57]), that is to say, as entailing an inquiry whether each requisite belief in fact held by the accused was held reasonably in the sense that each belief would have been held by an ordinary person in the accused's then position (per Sully J at [74] and [81]). However, as the point was not argued before us, it is not appropriate to express any final view on it in this case, and I do not do so.[26]
[25](2006) 201 FLR 325.
[26]Ibid 342 [85].
McClure and Buss JJA declined to comment upon its correctness, as it had not been the subject of argument on the appeal, although McLure JA did say:
Further, leaving to one side broader contextual considerations, the words ‘reasonably believes’ in s 10.2(2) prima facie connote what an accused himself might reasonably believe in all the circumstances in which he found himself, having regard to the personal characteristics of the particular accused: Viro v The Queen (1978) 141 CLR 88 at 146 per Mason J; R v Conlon (1993) 69 A Crim R 92 at 98-99 per Hunt CJ.[27]
[27]Ibid 359 [139].
In any event, as counsel for the accused submitted, the contextual provisions in the Crimes Act differ from those in the Code and it is not necessary that s 9AG be given the same construction as s 10.2 of the Code.
Duress at Common Law
Both parties, in different ways, called in aid of the construction of s 9AG, the common law rules as to duress for lesser crimes than murder. The common law rule was that duress was not a defence to murder at common law, at least for the person who actually killed the victim.[28] The underlying rationale for the rule was explained by Lord Hailsham in R v Howe,[29] who said that the
overriding objects of the criminal law must be to protect innocent lives and to set a standard of conduct which ordinary men and women are expected to observe if they are to avoid criminal responsibility.[30]
[28]R v Hurley & Murray [1967] VR 526; R v Harding [1976] VR 129; R v Brown & Morley [1968] SASR 467; R v Darrington & McGauley [1980] VR 353; R v Howe [1987] AC 417; R v Japaljarri (2002) 134 A Crim R 261.
[29][1987] AC 417.
[30]Ibid 427.
The elements of the defence of duress at common law to charges other than murder were as set out by Smith J in R v Hurley & Murray[31] in a series of eight questions to be addressed by the jury, containing both subjective and objective considerations:
[31][1967] VR 526.
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 (as previously described) 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.[32]
[32]Ibid 543.
These questions form the basis of the conventional direction given to juries. Under the common law test, reasonableness was determined by reference to a person of the same sex and maturity as the accused in the circumstances in which he or she found himself or herself.[33] The prosecution bore the onus of proving that the accused did not act under duress.[34]
[33]R v Abusafiah (1991) 24 NSWLR 531, 544–546 (‘Abusafiah’).
[34]Ibid 541; R v Lanciana (1996) 84 A Crim R 268, 272.
For those offences in respect of which duress was a defence at common law, the jury was permitted to consider not only the sex and maturity of the accused, but the circumstances in which he or she was in, including issues relating to family violence.[35] The VLRC Report referred to situations where the common law allowed for consideration of the prior history of the parties in assessing the reasonableness of a person’s response to a threat.[36] It referred to Runjajic & Kontinnen v The Queen,[37] where two accused were permitted to rely on expert evidence as to ‘battered women’s syndrome’ to support their claim of duress. King CJ, (with whom Legoe and Bollen JJ agreed), in discussing the admissibility of the expert’s evidence on the defence of duress said:
The availability of the defence is subject to a condition that the accused has not failed to avail himself of an opportunity which was reasonably open to him to render the threat ineffective: Brown at 30; 293-294. There is therefore a subjective and an objective aspect of the test. There is the question whether the will of the accused was actually overborne. There is then the further question whether the will of a person of reasonable firmness in his situation would have been overborne.
The learned judge ruled the proffered evidence to be inadmissible on the ground that the test is objective and that expert evidence of the state of mind of the appellants was therefore irrelevant. I do not think that that is a sound basis for excluding the evidence. In the first place it ignores the subjective aspect of the test. Even if the evidence had no bearing on the objective aspect, it would be relevant to the question whether the wills of these appellants were in fact overborne. But it also misapprehends, in my opinion, an important thrust of the proffered evidence. It may be that the expert is in a position to express an opinion as to the condition of mind of these appellants, but the primary thrust of the evidence is to establish a pattern of responses commonly exhibited by battered women. The proffered evidence is concerned not so much with the particular responses of these appellants as with what would be expected of women generally, that is to say women of reasonable firmness, who should find themselves in a domestic situation such as that in which the appellants were. It is designed to assist the court in assessing whether women of reasonable firmness would succumb to the pressure to participate in the offences. It also serves to explain why even a woman of reasonable firmness would not escape the situation rather than participate in criminal activity. As such it is relevant.[38]
[35]See also Abusafiah (1991) 24 NSWLR 531; R v Hurst [1995] 1 Cr App R 82.
[36]VLRC Report 121 [3.164].
[37](1991) 53 A Crim R 362.
[38]Ibid 367–8 (emphasis added).
The Supreme Court of Canada approached the concept in this way in R v Ruzic:
The courts have to use an objective-subjective standard when appreciating the gravity of the threats and the existence of an avenue of escape. The test requires that the situation be examined from the point of view of a reasonable person, but similarly situated. The courts will take into consideration the particular circumstances where the accused found himself and the ability to perceive a reasonable alternative to committing a crime, with an awareness of his background and essential characteristics. The process involves a pragmatic assessment of the position of the accused, tempered by the need to avoid negating criminal liability on the basis of a purely subjective and unverifiable excuse. A similar approach is also to be used in the application of the defence of necessity.[39]
[39][2001] 1 SCR 687, 722–3 [61] (emphasis added); followed in R v Ryan [2013] 1 SCR 14.
The Director submits that if s 9AG contained a more subjective element as to the accused’s belief than the common law permitted, the test for duress as a defence to murder would be less stringent than the defence when raised at common law for a less grave offence. He submits that such an outcome was not intended. Rather, the legislative intention was to depart from the existing common law approach in respect of other offences by imposing a more onerous test than the common law. This was reflected in the following passage from the second reading speech for the Crimes (Homicide) Act 2005:
The provisions concerning duress and sudden or extraordinary emergency will also apply to other homicide offences, with appropriate modifications. The provisions apply narrowly to the offence of murder given the seriousness of that offence. For homicide offences other than murder, the provisions reflect the existing common-law approach.[40]
[40]Victoria, Parliamentary Debates, Legislative Assembly, 6 October 2005, 1352 (Rob Hulls, Attorney-General).
The real question however is whether the phrase ‘the person reasonably believes’ takes account of the personal characteristics and circumstances of an accused in the way that the common law did for offences other than murder.
Insofar as the above passage from the second reading speech is concerned, s 9AG applies to relevant offences as defined by s 9AB. It does not in fact differentiate between murder, manslaughter or defensive homicide.
Relationship between self-defence at common law and duress in s 9AG
Counsel for the accused drew upon the common law approach to self-defence and the requirement of a reasonable belief in that context. Within the context of self-defence, it has been held that a jury, in considering self-defence, should take into account any of the accused’s personal characteristics that might have affected the appreciation of the gravity of the threat which he or she faced and the reasonableness of his or her response to that danger.[41] She submitted that the policy underlying the common law in that regard is directly relevant to the concept of reasonable belief in respect of duress. She placed particular reliance upon the sense in which ‘reasonably believes’ was used by Mason J in Viro v The Queen:
(a)It is for the jury first to consider whether when the accused killed the deceased the accused reasonably believed that an unlawful attack which threatened him with death or serious bodily harm was being or was about to be made upon him.
(b)By the expression ‘reasonably believed’ is meant, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself.[42]
[41]Zecevic v DPP (1987) 162 CLR 645 (‘Zecevic’).
[42](1978) 141 CLR 88, 146. See also Zecevic (1987) 162 CLR 645, 661 (Wilson, Dawson and Toohey JJ).
In R v Conlan, Hunt CJ at CL said the test of belief in the context of self-defence was:
[A] mixture of the objective and the subjective; it was not completely objective, in the sense of what a reasonable person would have believed, but rather it was what the accused himself might reasonably have believed in all the circumstances in which he found himself.[43]
[43](1993) 69 A Crim R 92, 98.
Further, his Honour said:
The mixed objective and subjective nature of the assessment as to whether the accused’s belief was based on reasonable grounds means that account must be taken of those personal characteristics of this particular accused which might affect his appreciation of the gravity of the threat which he faced and as to the reasonableness of his response to that danger …[44]
[44]Ibid 99.
The accused submits that there is no principled basis to limit the consideration of subjective attributes relevant to a particular accused when assessing the reasonableness of their conduct when either duress or self-defence is raised.
As we have said, Spigelman CJ and Hulme J in Oblach[45] placed particular reliance upon the language of the self-defence provision under the Code which uses the notion of reasonable response in ‘the circumstances as he or she perceives them’, whilst s 10.2 uses the phrase ‘reasonably believes’. The Court in Oblach concluded that the common law principle of ‘reasonable belief’ for self-defence was of no direct assistance in determining the element of belief under s 10.2.
[45](2005) 65 NSWLR 75.
The construction of s 9AG is not, with respect, much assisted by either party’s emphasis upon the common law position with respect to duress or self-defence. The text of s 9AG differs markedly from the common law elements and reflects a divergence from the approach taken at common law to duress as a defence to lesser crimes than homicide.
What is perhaps of more importance is the way in which the raft of provisions introduced at the same time as s 9AG, namely s 9AC (‘Murder — “self-defence”’), s 9AD (‘Defensive homicide’) and s 9AE (‘Manslaughter — “self-defence”’) deal with the relevant elements of self-defence. Section 9AC requires only a belief that self-defence is necessary to constitute a defence to murder, whilst s 9AD provides that if the person did not have ‘reasonable grounds for the belief’, the person is guilty of defensive homicide. The term ‘reasonable grounds’ for the belief is also employed in s 9AE (‘Manslaughter — “self-defence”’). In both s 9AD and s 9AE a distinction is therefore made between the existence of the belief that self-defence is necessary, that being entirely subjective, and whether the person had reasonable grounds for that belief, which imports both an objective and subjective element.[46] Under s 9AH(1), family violence evidence may be relevant to the subjective belief that self-defence is necessary under s 9AC and whether a person has ‘reasonable grounds’ for the ‘belief’ under ss 9AD or 9AE. The dichotomy between ‘belief' and ‘reasonable grounds’ for that belief is not employed in s 9AG or under s 9AH(2)(c) when dealing with duress.
[46]The amendments to all of these provisions effected by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 removed that subjective element. See [49] below.
Admission of evidence of family violence in context of a duress defence
As can be seen from the Case Stated, the accused alleges that she was subjected to relevant ‘family violence’ by her partner, PM. Where available the common law defence of duress permitted the effects of domestic violence to be taken into account. Section 9AH is not substantially different from the position provided for by the common law in Runjajic & Kontinnen v The Queen.[47]Section 9AH provides for the admission of evidence of family violence that may be relevant in determining whether conduct was carried out under duress.
[47](1991) 53 A Crim R 362.
9AH Family violence
…
(2) Without limiting the evidence that may be adduced, in circumstances where family violence is alleged evidence of a kind referred to in subsection (3) may be relevant in determining whether—
…
(c) a person has carried out conduct under duress.
(3) Evidence of—
(a) the history of the relationship between the person and a family member, including violence by the family member towards the person or by the person towards the family member or by the family member or the person in relation to any other family member;
(b) the cumulative effect, including psychological effect, on the person or a family member of that violence;
(c) social, cultural or economic factors that impact on the person or a family member who has been affected by family violence;
(d) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;
(e) the psychological effect of violence on people who are or have been in a relationship affected by family violence;
(f) social or economic factors that impact on people who are or have been in a relationship affected by family violence.
(4) In this section—
child means a person who is under the age of 18 years;
family member, in relation to a person, includes—
(a) a person who is or has been married to the person; or
(b) a person who has or has had an intimate personal relationship with the person; or
(c) a person who is or has been the father, mother, step-father or step-mother of the person; or
(d) a child who normally or regularly resides with the person; or
(e) a guardian of the person; or
(f) another person who is or has been ordinarily a member of the household of the person;
family violence, in relation to a person, means violence against that person by a family member;
violence means—
(a) physical abuse;
(b) sexual abuse;
(c) psychological abuse (which need not involve actual or threatened physical or sexual abuse), including but not limited to—
(i) intimidation;
(ii) harassment;
(iii) damage to property;
(iv) threats of physical abuse, sexual abuse or psychological abuse;
(v) in relation to a child—
(A) causing or allowing the child to see or hear the physical, sexual or psychological abuse of a person by a family member; or
(B) putting the child, or allowing the child to be put, at real risk of seeing or hearing that abuse occurring.
(5) Without limiting the definition of violence in subsection (4)—
(a) a single act may amount to abuse for the purposes of that definition;
(b) a number of acts that form part of a pattern of behaviour may amount to abuse for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.
Section 9AH(2)(c) specifically contemplates that evidence of the type there referred to may be relevant in determining whether a person has carried out conduct under duress. The permissible evidence set out in s 9AH(3) may go to subjective belief or objective reasonableness and so be used in determining whether or not the actions taken by an accused were a reasonable response to the threat.
Part 6 of the Jury Directions Act 2015 (‘JDA’) also applies to criminal proceedings where duress in the context of family violence is in issue. That part provides:
55 Application of Part
This Part applies to a criminal proceeding in which self-defence or duress in the context of family violence is in issue.
56 Part 3 does not apply
Part 3 does not apply to this Part.
57 Definition
In this Part—
family violence has the same meaning as in section 322J(2) of the Crimes Act 1958.
58 Request for direction on family violence
(1) Defence counsel (or, if the accused is unrepresented, the accused) may request at any time that the trial judge direct the jury on family violence in accordance with section 59 and all or specified parts of section 60.
(2) The trial judge must give the jury a requested direction on family violence, including all or specified parts of section 60 if so requested, unless there are good reasons for not doing so.
(3) If the accused is unrepresented and does not request a direction on family violence, the trial judge may give the direction in accordance with this Part if the trial judge considers that it is in the interests of justice to do so.
(4) The trial judge—
(a) must give the direction as soon as practicable after the request is made; and
(b) may give the direction before any evidence is adduced in the trial.
(5) The trial judge may repeat a direction under this Part at any time in the trial.
(6) This Part does not limit any direction that the trial judge may give the jury in relation to evidence given by an expert witness.
59 Content of direction on family violence
In giving a direction under section 58, the trial judge must inform the jury that—
(a) self-defence or duress (as the case requires) is, or is likely to be, in issue in the trial; and
(b) as a matter of law, evidence of family violence may be relevant to determining whether the accused acted in self-defence or under duress (as the case requires); and
(c) in the case of self-defence, evidence in the trial is likely to include evidence of family violence committed by the victim against the accused or another person whom the accused was defending; and
(d) in the case of duress, evidence in the trial is likely to include evidence of family violence committed by another person against the accused or a third person.
60 Additional matters for direction on family violence
In giving a direction requested under section 58, the trial judge may include any of the following matters in the direction—
(a) that family violence—
(i) is not limited to physical abuse and may include sexual abuse and psychological abuse;
(ii) may involve intimidation, harassment and threats of abuse;
(iii) may consist of a single act;
(iv) may consist of separate acts that form part of a pattern of behaviour which can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial;
(b) if relevant, that experience shows that—
(i) people may react differently to family violence and there is no typical, proper or normal response to family violence;
(ii) it is not uncommon for a person who has been subjected to family violence—
(A) to stay with an abusive partner after the onset of family violence, or to leave and then return to the partner;
(B) not to report family violence to police or seek assistance to stop family violence;
(iii) decisions made by a person subjected to family violence about how to address, respond to or avoid family violence may be influenced by—
(A) family violence itself;
(B) cultural, social, economic and personal factors;
(c) that, as a matter of law, evidence that the accused assaulted the victim on a previous occasion does not mean that the accused could not have been acting in self-defence or under duress (as the case requires) in relation to the offence charged.
The provisions of the JDA arguably go even further than s 9AH in explaining how evidence of family violence may inform the subjective belief and bear upon the objective reasonableness of the response.
The Director submits that when read together, ss 9AG and 9AH support a wholly objective reasonable person test in s 9AG. He submits that s 9AH does not alter the objective test, but provides for a particular situation in which evidence of family violence may be taken into account in considering whether a person carried out conduct under duress. The Director contends that if the test under s 9AG allowed for personal characteristics of the person to be taken into account, there would be no need for s 9AH(2)(c).
This submission must be rejected. Section 9AH and Part 6 of the JDA could have no work to do if the words ‘reasonably believes’ in s 9AG did not contain a subjective element so that the effects of family violence could bear upon the person’s belief and its reasonableness. Once it is accepted that those words allow for a subjective element, those words cannot take on a different and narrower meaning when personal characteristics unconnected to family violence are said to bear upon the person’s belief. Moreover, if the Director’s argument were to prevail, a trial judge would be required to give a jury the confusing directions that the jury could take account of the personal characteristics of the accused in circumstances of family violence, but not otherwise when determining whether the accused ‘reasonably believes.’ The jury would have to be directed that if the jury were prepared to act upon the evidence of family violence, its effects could be taken into account as part of the personal characteristics of the person. If they did not accept the evidence of family violence, they were not to assess the reasonableness of the belief by reference to any other subjective factors. The statutory regime does not suggest that such a dichotomy was intended.
Further, the Director submits that the wording of s 9AJ supports the view that the assessment of reasonableness is wholly objective. Section 9AJ requires that where a defence relies upon a ‘reasonable response’ such as that stated under s 9AG(2)(c), ‘regard must be had to the standard of a reasonable person who is not intoxicated’. The Director submits that it would be inconsistent to assess the reasonableness of the response to the threat by reference to all of the accused’s personal circumstances if intoxication is not present, but by reference to the standard of a ‘reasonable person who is not intoxicated’ if there was evidence that the accused was intoxicated.
We do not accept that this is the effect of the provision. Section 9AJ(1) makes clear that regard must be had to the standard of a reasonable person who is not intoxicated. In other words, it excludes a particular characteristic that the accused may have at the time of offending. It would be unnecessary to include such a provision at all if the test of reasonable belief related entirely to the hypothetical reasonable person. The submission makes the assumption which is in issue, that the reasonable person is not to be invested with the personal characteristics of the accused.
Significance of Crimes Amendment (Abolition of Defensive Homicide) Act 2014
In 2014, the Crimes Amendment (Abolition of Defensive Homicide) Act 2014, was introduced to abolish the offence of defensive homicide, and, relevantly, to provide for self-defence, duress, sudden or extraordinary emergency and intoxication in relation to all offences.[48] This amendment replaced s 9AG with s 322O, which subject to one important difference, is in the same terms. It also abolished the defence of duress at common law.
[48]Explanatory Memorandum, Crimes Amendment (Abolition of Defensive Homicide) Bill 2014 1.
Section 322O provides:
(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.
(4)This section only applies in the case of murder if the person believes that the threat is to inflict death or really serious injury.
The enactment of the new provision in similar terms to the provision of the previous Act, but with one significant change, aids the construction of the former provision. Section 322O has now separated the requirement ‘that the conduct is a reasonable response to the threat’ (s 322O(2)(b)) from the requirements about which the accused must hold a reasonable belief, namely that ‘a threat has been made that will be carried out unless an offence is committed’ and ‘carrying out the conduct is the only reasonable way that the threatened harm can be avoided’ (ss 322O(2)(a)(i) & (ii)). This is a deliberate alteration to the previous enactment which provided that the person reasonably believed all of the foregoing requirements (ss 9AG(2)(a)-(c)). As the requirement that it be ‘a reasonable response’ is an independent element to the person’s belief, the reasonableness of the response is now an entirely objective assessment. That construction accords with the Explanatory Memorandum which stated:
New section 322O replicates the substance of current section 9AG of the Crimes Act 1958, but applies to all offences (unlike section 9AG which is limited to fatal offences). However, in contrast to section 9AG, new section 322O makes clear that the third element of duress (whether the accused’s conduct is a reasonable response to the threat) is objective. Requiring an accused’s conduct to have been an objectively reasonable response in the circumstances is designed to ensure that the defence only applies in appropriate cases (i.e. where there are objectively appropriate reasons to excuse such conduct).[49]
[49]Explanatory Memorandum, Crimes Amendment (Abolition of Defensive Homicide) Bill 2014 9 (emphasis added).
As a result of the 2014 amending Act, there is now a symmetry between the duress and the self-defence provisions. As we have said earlier, under the old regime, s 9AD and s 9AE separated the requirement of belief from the requirement that the response be reasonable. Under the 2014 regime, s 322K(2) (‘Self-Defence’) and s 322M(2) (‘Family Violence and Self-Defence’) maintain that distinction between ‘belief’ that the conduct is necessary (sub-s (a)), and the objective element that the response be reasonable (sub-s (b)). Section 322O is now structured in the same way (though it preserves the requirement that the belief must also be reasonable).
Section 322O cannot be explained as removing doubts about the elements in s 9AG(2). If the requirement under s 9AG(2) that the person ‘reasonably believes’ each of the matters set out in ss 9AG(2)(a)-(c) was entirely objective, it would have been unnecessary to separate the requirement of a ‘reasonable response’ in s 322O(2)(b) from the other elements set out in sub-s (2)(a) as had also been done under s 322K(2) or s 322M(2). A different amendment would have been necessary if each of the elements in sub-s (2) were to be construed as entirely objective.
The new provision, s 322O, thus supports the construction of the elements set out in ss 9AG(2)(a)-(c) as each containing a subjective component.
Following the 2014 amendments, evidence of family violence is now made relevant to duress under s 322P which replaces s 9AH(2)(c). Section 322J sets out what evidence of family violence may include and replicates ss 9AH(3) and (4). Thus, evidence of family violence remains relevant to whether conduct was carried out under duress, save that it will not bear upon the whether the response was reasonable.
Conclusion
The defence of duress operates to excuse, in the eyes of the law, a person who acts under some form of compulsion. The expansion of the defence at common law under the Crimes (Homicide) Act 2005, to include the availability of the defence to offences of homicide, is in keeping with the recognition that persons who are subjected to threats, violence and coercion in situations of family violence, may potentially be compelled thereby to kill.[50]
[50]See Elizabeth Sheehy, Julie Stubbs and Julia Tolmie, ‘When Self-Defence Fails’, in Kate Fitz-Gibbon and Arie Frieberg (eds) Homicide Law Reform in Victoria: Retrospect and Prospects (The Federation Press, 2016) 110, 120.
As the parties accepted, it is plain that the statutory defence of duress has an objective component.
Many of the provisions of the Crimes (Homicide) Act 2005, were introduced to give a voice to people, disproportionately a majority of whom were women, who had committed an act of homicide due to family violence. The circumstances in s 9AH of the Crimes Act and pt 6 of the JDA, which are also intended to apply to duress, reflect as much. The effect of s 9AH is to provide a framework in which factors personal to the accused, in the context of family violence, may be relevant to the homicidal actions of such an accused.
Personal characteristics of an accused including those set out in s 9AH of the Crimes Act and pt 6 of the JDA are calculated to influence the process of the formation of beliefs. The provision does not contemplate that a distinction should be drawn between the accused’s perception of the relevant circumstances referred to s 9AG(2) and the characteristics of the accused which influenced that perception. The influence of those personal characteristics in the formation of any belief bear upon the conclusion whether the accused ‘reasonably believes’ that the conduct is the only reasonable way that the threatened harm can be avoided; and whether the conduct is a reasonable response. Regard to general characteristics reflects community standards of reasonableness.
The phrase ‘the person reasonably believes’ in its natural meaning requires regard be had to the characteristics of the accused. The words connote what an accused might reasonably believe in the circumstances in which the accused found himself or herself having regard to the personal characteristics of the accused. They encompass the subjective belief of the accused, informed by the personal characteristics of the accused with an objective overlay in the form of reasonableness which allows community standards to be taken into account when assessing the culpability of an accused.
The requirement that the accused ‘reasonably believes’ the matters enumerated in s 9AG(2) will be satisfied where a reasonable person possessing the personal characteristics of the accused that might have affected the person’s appreciation of the circumstances, might have held that belief. The first reserved question is to be answered in accordance with alternative (d), namely a reasonable person possessing any personal characteristics of the accused that might have affected the accused’s appreciation of the circumstances. The second reserved question is to be answered by reference to the circumstances as a reasonable person, possessing the personal characteristics of the accused, would have perceived them to be.
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