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

Copyright in the High Court of Australia

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 she offend against her children, she would have suffered serious harm as a consequence.

The threat arose from, as the argument went in the court below, and it was accepted, the circumstances in which she found herself based on the past mistreatment as distinct from the existence of a threat of serious harm communicated to her by JR – by words or actions – to which she responded, I should say.  We submit that the Court of Appeal has accepted that contention over objection from the applicant in this court below.  We submit that that is why, in effect, when the Court comes to assess whether the crucial first Hurley limb of the law of duress was satisfied, namely:  was there a threat of death or grievous bodily harm would be inflicted upon the respondent if she failed to act?

We are asked to consider by the court below, and this is found particularly at – well, can I take the Court to application book 185, paragraph 169, whether or not – and I am just quoting from that part of their Honour’s judgment – of the judgment of the plurality, I would say – we were asked to consider whether:

the applicant –

in the court below – the respondent here:

understood that there was a continuing or ever present threat of physical and sexual violence (including rape) by JR if she did not do what he demanded of her.

And we are asked to consider that:

she understood –

quote‑unquote:

that, if she did not comply –

she would be “physically and sexually” harmed, including by being raped.  Of course, the court had previously determined – and this is back at application book 181, in particular at paragraph 156 of the judgment below, that:

We cannot think of any reason in principle or policy that requires exclusion of a continuing or ever present threat where, due to the threat, the accused has lost his or her freedom to choose to refrain from committing the charged offence.

That is to say, the reference to the respondent’s understanding could only relate, in our submission, to JR’s past mistreatment of the respondent which did not include involving her, obviously enough, in offending against her children.  In other words, it is an appeal to the circumstances within which she found herself.

Further support for our contention is found, namely, that the court below accepted the argument that was put that it was the circumstances of duress that were being appealed to.  At 174 of the judgment of the court below, at application book 186 in further consideration of the first Hurley limb, in other words, that it would not be:

fatal in this case that there is no direct evidence –

of JR having threatened to physically or sexually abuse the respondent, because, to quote from the plurality’s judgment:

it would be open to the jury to infer that this –

that is to say, the abuse that would follow or, upon the request if there was a refusal:

was a reasonable possibility based upon the history of the relationship between JR and the applicant as set out in the Matthews 2019 report and, in particular, the complainants’ evidence.

Again, we interpolate the threat of harm is arrived at by the circumstances that the respondent found herself in, namely, whether it could be found by a jury, as distinct from - - -

KIEFEL CJ:   Mr Boyce, does the question that the Court of Appeal dealt with and which is the basis of this application really come down to whether or not a threat, which is not an immediate temporal threat of harm, is sufficient for the purposes of section 322O(2)(a)(i):

a threat of harm has been made –

and what is called a “duress of circumstances” is simply that a threat might be ever-present?

MR BOYCE:   It is the source of the threat.  Of course, your Honours, a threat of the required nature emanating by words or actions from the threatener – there may be a judgment about temporal connection in that sense.  It is conceivable that a person could, for example, issue a threat saying, every time I ask you this in the future, to do this I will, if you refuse, do this.  In a sense, that is a standing threat – sorry, your Honour.

KIEFEL CJ:   In our life experience, people do not usually communicate in that way, but they can.  In domestic violence situations it is fairly well‑accepted, I would have thought, that the victim of domestic violence lives under constant threat.

MR BOYCE:   The point is that the threat derives from the circumstances, and once the law moves, which is – and these are objective circumstances, and once the law moves ‑ ‑ ‑

KIEFEL CJ:   But it is not really a question of the law moving, is it?  It is a question of whether or not the concept of a threat being other than immediate can fit within the statutory words.

MR BOYCE:   That is the question.  That is one way of conceiving it, yes.  Your Honour the learned presiding judge is correct, except that it must be seen as a movement.  It is certainly seen as a movement in the law in the United Kingdom.  It was self-consciously seen that way, because once a person is able to point to not a patent threat by words or actions but to their circumstances as being so extenuating, insofar as they may bring to bear a plea of duress, then that must be a movement in the law.  It is conceived as such in the United Kingdom and we ‑ ‑ ‑

KIEFEL CJ:   In the United Kingdom is the law of duress statutory or common law?

MR BOYCE:   The law, insofar as we are aware, is common law but ‑ ‑ ‑

KIEFEL CJ:   So, it moves, statutory law does not – except by amendment.

MR BOYCE:   Certainly, but there is no – the court below dealt with the question both at common law and in terms of the statutory formulation here.  It did not seek to distinguish between the two.  That is why we say the movement is – or the extension in principle is clear.  Perhaps the clearest indication of this comes at application book 186 at 175 of their Honours’ reasons, where their Honours indicate:

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.

There could be no clearer exposition, in our respectful submission, that the court has moved to circumstances as has occurred in the United Kingdom away from – and insofar as we are able to find, this is the first time that this has occurred clearly in the Australian context.

This is important, your Honours.  It is a matter of public importance because not only is it a significant development, we submit – and we are in agreement with the United Kingdom authorities in describing it as such to, in effect, mint a newly‑identified defence, a defence of duress of circumstances – and obviously enough, as we have referred to in our materials, it appears not to be without its critics in the United Kingdom – but it has the potential, it is submitted, greatly to enlarge the scope of duress and it would . . . . . deeply into the normal operation of the law of necessity.

We submit what once would have been barred may now be permitted.  We note that the applicant in the court below did not seek to avail herself of that higher, or perhaps more difficult defence to make good.  Because gone is any need for irreparable evil, as it were – certainly at common law – or that there be immediate peril – or at common law, that there be honest or reasonable belief on the part of the accused that it is necessary for her to do what she did.

But most importantly, the basal theory resulted from one of necessity, one of justification to excuse.  And with that goes the need for proportionality as between the harm suffered and the harm avoided.  Because human frailty being what it is, it might be thought a reality that persons of reasonable firmness of mind may come to extenuating circumstances, but on reflection, it cannot be said that the harm avoided was disproportionate to the harm caused.  And yet, now that will be a reality.

We submit, with the greatest respect, that there is no getting around the fact that this has been a development or an extension of principle that has occurred by the reasoning of the court below – both in the common law but also insofar as section 322O is concerned; and without, for example, as in the UK, the balancing considerations such as their common law has, namely, an appeal to proportionality, the gates of duress, insofar as duress of circumstances are concerned, or persons accused of crime simply pleading extenuating circumstances on the basis of duress, not necessity or sudden and/or extraordinary emergency under section 332R of the Crimes Act, the scope will be significantly widened.

It would make a material difference in the present case whether its scope is widened or kept narrow, and we submit that it is an important point into the future as well.  And so, it is on that basis that we consider that it is a point of significant importance that ought be considered by this Court, and for that reason, that special leave should be granted.

Those are our submissions.

KIEFEL CJ:   Thank you, Mr Boyce.  Yes, Mr Holdenson.

MR HOLDENSON:   Your Honour, the special leave question concerning duress of circumstances does not arise because that was not the basis upon which the court below determined that there was an evidentiary foundation for the defence of duress at trial.  The offending the subject of the indictment involved a total of five incidents.  The first four incidents were covered by the common law, and it was only the fifth incident where the statutory defence provided by the presence of section 322O within the Crimes Act applied.

With respect to the fifth incident, the subject of – or which would have been the subject of the defence within section 322O – as is apparent from paragraph 49, within the joint judgment, at page 153 of the application book, it is clear that each of the – to use a neutral expression – “instructions” was given immediately prior to and at the time of the offending the subject of the fifth incident.  Within paragraph 49 of page 153 ‑ ‑ ‑

KIEFEL CJ:   Sorry, Mr Holdenson, just having a look at the indictment, there are 13 charges.  Which do you say were not the subject of the defence of duress?

MR HOLDENSON:   All of them were the subject of the defence of duress, but the first 11 convictions on charges 1, and then 3 through to 12 – the defence of duress was a common law defence.  The statutory defence of duress only applied to charge 13.

KIEFEL CJ:   I see.  But the same reasoning that the Court of Appeal applied in relation to the defence of “duress of circumstances” was taken to apply to both the common law and the statutory defences?

MR HOLDENSON:   That is correct, your Honour.  With respect to the common law defence, it is our submission that the Court below analysed the evidence by reference to the propositions contained within the judgment of Mr Justice Smith in the 1967 decision of Hurley and Murray.  If I could take the Court first, not to the judgment of the plurality, but to the judgment of his Honour Justice McLeish, where this is made most clear that his Honour proceeded on the basis that the first of the elements of the common law defence was that there be a threat of death, or serious injury, or harm if the accused failed to do the act, or acts, the subject of the offence, or offences, charged.

It is clear that his Honour Justice McLeish approached the case on that basis because throughout his judgment, he speaks in terms of “a threat” or “the threat” and, looking within the evidence, for evidence of “a threat” or “the threat”.  For example – and only by way of example – in paragraph 202 of Justice McLeish’s judgment, at the foot of page 190 of the application book, within paragraph 202, about the fifth line:

it is at least plausible that the evidence of the threat which is the essential foundation of any duress defence –

Then, the very last line on that page, at the end:

that defence always depends on a threat having overborne the will –

Again, in paragraph 203, second line:

from which such a threat could be inferred.

Further on in the paragraph, about the sixth line:

would have been likely to yield to the threat.

There are other passages too.  His Honour Justice McLeish ‑ ‑ ‑

KIEFEL CJ:   I am sorry, Mr Holdenson, could you remind me what the point is to be derived from what his Honour is saying here?

MR HOLDENSON:   His Honour was continually proceeding on the basis that there needed to be, in order to found the defence of duress, a “threat”, as distinct from a set of circumstances.  For example, in paragraph 205 on page 191 of the application book, his Honour approached the question by seeking to, and I pick up the second line, identify:

evidence of a threat –

And what he did in seeking, or seeking to identify, evidence of a threat, he proceeded by reference to two propositions.  First, that the requisite threat might be inferred from the evidence, and secondly, that the threat might be expressed or implied.  That is apparent from paragraph 208 at page 192 of the application book, where in paragraph 208 he spoke first in the first line of:

the threat which underpins a defence –

That need not 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.

Then, jumping a sentence, he states:

The threat may also be conveyed to the accused by implication rather than express words.

And your Honours ‑ ‑ ‑

KIEFEL CJ:   Mr Holdenson, did his Honour identify at any point, in terms, what the threat was?

MR HOLDENSON:   Yes, he identified – he did, and in that regard, if I could take your Honours to his analysis of each of the incidents, which commences at paragraph 217, at the foot of page 193.  At the foot of page 193, is paragraph 217, where his Honour considers the first incident, which comprised the convictions on charges 1, 3 and 4, and concludes in paragraph 218 – at the end of 218 – third line from the end, at page 194:

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.

He then proceeds to consider the second incident, and the second incident gave rise to the convictions on charges 5 and 6 – that is dealt with in paragraph 219 – and at the end of 219, he said:

There is a general similarity to the first incident –

He then turns, at paragraph 220, to the third incident which gave rise to the convictions on charges 7, 8, 9 and 10.

KIEFEL CJ:   Mr Holdenson, I think what follows is generally referrable back to what his Honour has said at paragraph 218 – it assumes the greater importance, is that right?

MR HOLDENSON:   Paragraph 218 is referrable to the first incident, but, yes.

KIEFEL CJ:   Yes.

MR HOLDENSON:   So, what he does ‑ ‑ ‑

KIEFEL CJ:   His Honour is referring to the general conduct of JR, as revealed by other evidence.

MR HOLDENSON:   Yes.

KIEFEL CJ:   It is conduct occurring over periods of time.

MR HOLDENSON:   That is correct, your Honour.  But he is using that conduct in a specific way – and that is described in paragraph 215.  In paragraph 215 is one of Justice McLeish’s conclusions about the other conduct – the other conduct being sourced to the tendency notice.  His Honour says at 215:

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.

KIEFEL CJ:   Why is the first reference not referable to what is called “duress of circumstances”, that is, not a conduct immediately referable to a threat but one which has occurred over time, by which a person could be felt to be constantly under threat, the victim?

MR HOLDENSON:   Because his Honour only uses that, if I can call it a finding, for the purpose stated or described, a limited purpose within the next three lines in the paragraph.  It bears on the jury’s assessment of the question whether JR threatened the applicant, Anna Rowan, with serious physical harm expressly or by implication if she did not perform the acts with which she was charged.  And he reminds himself, in effect, in footnote 140, which is the passage there footnoted to the bottom of the page:

Argument otherwise proceeded along the lines that the issue was whether a threat of serious physical harm could be identified –

So, what his Honour has done, he had certainly turned to – I will call it background – but what he has used the background for is as a piece of circumstantial evidence to facilitate or to contribute to the finding by way of inferential reasoning that there was a threat, a threat which may have been implied or unsaid if not express or implicit.  And within several of the footnotes, including within the footnotes contained within the judgment of the plurality, reference is made to the judgment of Mr Justice Smith at 543, not only where there is the eight propositions, but just above that, on page 543 at lines 32 to 33:

the threat to the hostage’s life, whether it is formulated in words or left unsaid –

And so, what his Honour has done is identified within the evidence, at least by inference, the requisite threats which, for some of the incidents were implied as distinct from express.  But that did not have the effect of turning the case into a case of circumstances or duress of circumstances because for the court to have done that, the court would have needed to analyse the evidence with a view to determining whether or not the circumstances themselves, without going so far as to see whether or not there was a threat at the time of each of the five incidents.  And so, the background was merely used as an item of circumstantial evidence to facilitate the finding of the requisite threat.

Now, I have taken your Honours to the judgment of Justice McLeish first.  If I could go back to the judgment of the plurality, because the judgment of the plurality proceeded on the basis that the Matthews 2019 report was admissible.  If, however, it was inadmissible, they concluded at paragraph 87 that – and I pick up the last few lines:

the direct evidence to which McLeish JA refers would be sufficient to provide the evidentiary platform for the defence of duress –

Now, Mr Boyce made reference to some other passages within the judgment of the plurality – for example, at paragraph 169.  But paragraph 169 also speaks in terms of a requirement of a demand.  Paragraph 169 in the joint judgment at page 185 of the application book:

it was reasonably possible that the applicant understood that there was a continuing or ever present threat of physical and sexual violence (including rape) by JR if she did not do what he demanded of her.

Then, albeit referred to as a request a little lower within the paragraph – the point with respect to the word request, of course, is the bullies on occasions use language of courtesy.  At 174, again a paragraph to which Mr Boyce took the Court, it speaks in terms of, albeit:

there is no direct evidence that JR told the applicant –

what is then said:

it would be open to the jury to infer that this was a reasonable possibility –

then the fifth‑ and fourth‑last lines:

had it not been for an unstated demand from JR that she do so, otherwise he would physically and sexually abuse her.

So, the effect of the demand is to trigger and make operative the threat – and so the threat – to use an expression of your Honour Justice Kiefel earlier – is temporal.  It is triggered, it is enlivened and becomes operative.  There is no doubt that a requirement of the defence of duress is that the threat be present and continuing, that is identified, for example within the third element – or the third proposition of the judgment of Mr Justice Smith.

When seen in that way by reference to each of the five incidents and what was said at the time of each of the five incidents by JR – and it being said to be – or found to be – by the court below evidence capable of constituting a threat – perhaps by way of inference, perhaps not explicit but implicit – then, not only is there no disregard of the propositions, particularly the first proposition within the judgment of Mr Justice Smith those years ago in Hurley and Murray, but this is really a case about the sufficiency of evidence – that is, to be precise, whether on the version of the facts most favourable to the accused suggested within the evidence, the accused has satisfied the evidentiary onus imposed upon her and pointed to evidence upon which a jury could find as a reasonable possibility that the accused had done what she had done in consequence of a threat made by JR, which was operative just prior and at the time of each of the five incidents.

It is a case about the facts and is a case confined to the facts, and in those circumstances, it is submitted, that it is not a case appropriate for a grant of special leave, particularly a grant of special leave in favour of the applicant Crown.  Your Honour asked some questions at the outset, or at the conclusion of my learned friend’s submissions about section 322O:  the fifth incident stands a little bit apart in that there was clear and express, to use a neutral expression, instructions given at the time of that fifth incident by JR.  Hence, there can be no doubt that the requirement of the threat within section 322O is satisfied in that case, in any event.

That concludes the submissions in response to those of Mr Boyce.

KIEFEL CJ:   Thank you Mr Holdenson.  Do you have anything in reply, Mr Boyce?

MR BOYCE:   Yes, if I may, your Honours.  It is simply submitted that the parts of the plurality that we have taken your Honours to – mainly paragraphs 169 at application book 185 over to 186, and in particular at paragraph 175, which is the reasoning of the plurality, not the reasoning, obviously enough, of Justice McLeish, who is somewhat on his own, and I will come to him, if I may.

It is unarguable, in our submission, because of the reasons that we submitted in‑chief, that this is an instance of the court appealing to that which had gone before as being the basis of the threat.  Otherwise, there absolutely no reason to ask, for example, at 169, what the respondent might have understood from that history.  There was no reason to ask why, for example, at 174, what would be open to the jury to infer might occur as a result of that history.  There was no reason to ask, at 175 on application book 186, paragraph 175, or to speak of the threat of him.

This is the reasoning of the plurality.  It is abundantly clear, in my submission, that their Honours, when read, of course, in the context of the paragraph that I took your Honours to at 156 of the judgment below at application book 181, in particular, their Honours’ reference to the:

continuing or ever present threat which is subsisting at the time –

but was related to the circumstances that had occurred before.  Because of that:

We cannot think of any reason in principle or policy that requires exclusion of a continuing or ever present threat where, due to the threat, the accused has lost his or her freedom to choose to refrain from committing the charged offence.

There could be no clearer exposition, in our respectful submission, that their Honours in the plurality were appealing to that which has gone before, namely, the circumstances.  Of course, this is not – in the United Kingdom, where there are additional matters to be considered, such as proportionality, in such instances, this is not contentious, but it is certainly contentious insofar as the law in Australia is concerned, in our respectful submission.

Now, to go to Justice McLeish – my friend does, in order to try and say that this case was about the evidence.  Firstly, Justice McLeish’s reasoning is not the reasoning of the plurality which will hold a persuasive force, and at 87, their Honours are not altering the reasoning that they would apply.  They simply refer to a foreshortened corpus of evidence.  But it is the reasoning of the plurality that it is important, and I have made my submissions – or we have made our submissions about that and the way in which it expands the law.

Just finally, if I may, about Justice McLeish, the two important paragraphs in Justice McLeish’s judgment, in our respectful submission, are at 218 and 222, where his Honour draws the conclusion.  And one is mindful of the submissions that my learned friend has made about those. 

But, in the end, all that Justice McLeish can conclude, on the final three lines of 218, is as follows:

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.

That can only mean one thing, namely, on the basis of what had gone before.  The circumstance ‑ ‑ ‑

KIEFEL CJ:   Yes, I see the light, Mr Boyce.

MR BOYCE:   Well, I would simply – his Honour makes a similar observation at 222.  Our submission is that by no means can this ruling by the court below be reduced to a matter simply of evidence.

Those are our submissions.

KIEFEL CJ:   There will be a grant of special leave in this matter.  Is it the case that the respondent is still on bail?

MR HOLDENSON:   She is on bail, yes.

KIEFEL CJ:   Yes, I see.  Yes, thank you.  What is your estimate of time, Mr Boyce?

MR BOYCE:   A day.

KIEFEL CJ:   It should be something less than a day, I imagine.

MR BOYCE:   Half a day.

KIEFEL CJ:   Yes, but no more.  Yes, Mr Holdenson.

MR HOLDENSON:   Up to a day.

KIEFEL CJ:   Yes, thank you.  Yes, thank you.  The Court will now adjourn until 2.30 pm.

AT 2.06 PM THE MATTER WAS CONCLUDED