R v Anna Rowan a Pseudonym - [2023] HCATrans 90

[2023] HCATrans 90

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M83 of 2022

B e t w e e n -
THE KING
Applicant
and
ANNA ROWAN – A PSEUDONYM
Respondent
Application for special leave to appeal

KIEFEL CJ
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 16 JUNE 2023, AT 1.29 PM

KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR C.B. BOYCE, KC appears with MS S.C. CLANCY for the applicant. (instructed by Office of Public Prosecutions (Vic))

MR O.P. HOLDENSON, KC appears with MR C. MYLONAS for the respondent. (instructed by Brown McComish Solicitors)

KIEFEL CJ: Yes, Mr Boyce.

MR BOYCE: Thank you, your Honours. Your Honours, our contention is that the court below has committed an error in principle by extending the law of duress as it applies to both common law and by operation of statute, to cover what is known as duress of circumstances. This is a recognised development that has taken place in the United Kingdom but upon our researches has as yet to take hold in Australia.

It seems, from our researches, that this is the first time such a development has so clearly been taken by an Australian court. We note that our friends submit that if it was a case truly of duress of circumstances then it may arise – or a principle of public importance or potential public importance may arise, but they submit that this case is not a suitable vehicle to consider the application of the principle.

We submit, your Honours, to the contrary, that it is undeniable that the present case presents as a suitable vehicle the consideration of the principle. Quite simply, the reasons are as follows. Firstly, prior to the charged offending, there was no suggestion that the respondent’s partner, JR, had demanded of her that she offend against her children either at all or coupled with the threat of serious harm if she refused.

Secondly, the complainants gave no evidence of the communication by JR to the respondent of such a threat as a precursor to the present alleged offending. Thirdly, the respondent gave no evidence of the communication of such a threat as a precursor to the alleged present offending. And, unsurprisingly, fourthly, no evidence of such a threat connected with the offending against the children as communicated by JR was to be found in the tendency evidence.

This meant, your Honours, that in order to fashion a case for duress in the court below, the respondent was required to argue, and the court below ultimately accepted that the respondent feared that, on the basis of her and her children’s past serious mistreatment at the hands of JR – in other words, the circumstances in which she had found herself – she feared quite reasonably that if she did not comply with JR’s request that…

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 R v Anna Rowan a Pseudonym

Details

AGLC: R v Anna Rowan a Pseudonym [2023] HCATrans 90
Case: [2023] HCATrans 90
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Anna Rowan (a pseudonym) against her conviction for murder. The dispute concerned the interpretation and application of the defence of provocation under section 304 of the *Criminal Code* (Qld).

The central legal issue before the High Court was whether the defence of provocation, as defined in section 304 of the *Criminal Code*, required the act of provocation to be unlawful. Specifically, the Court had to determine if the jury had been correctly instructed on this point, and if any misdirection had led to a miscarriage of justice.

The Court reasoned that the ordinary meaning of "provocation" in section 304 did not necessitate that the act of provocation be unlawful. It held that the focus of the defence is on the subjective state of mind of the accused, namely whether they acted under the influence of a sudden or temporary loss of self-control caused by the provocation. The Court found that the trial judge's direction to the jury, which implied that the provocation must be unlawful, was a misdirection. This misdirection was considered to be a substantial error that likely led to a miscarriage of justice, as it may have prevented the jury from properly considering the defence.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders