R v Goldman (No. 4)
[2004] VSC 291
•18 March 2004
ound
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1504 of 2003
| THE QUEEN |
| V |
| MICHAEL GOLDMAN |
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JUDGE: | Redlich J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March 2004 to 24 March 2004 | |
DATE OF RULING: | 18 March 2004 | |
CASE MAY BE CITED AS: | R v Goldman | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 291 | |
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RULING NO. 4
Whether duress available at common law as a defence to attempted murder –– right to remove or limit a common law defence on policy grounds – ex-post facto changes to criminal law - R v Gotts [1992] 2 AC 412 not followed
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Accused | Mr P. Chadwick | Slades & Parsons |
HIS HONOUR:
After the Crown case against the accused on one count of attempted murder and an alternative count of intentionally causing serious injury was closed, the accused gave evidence which, if accepted by the jury, was capable of amounting in law to a defence of duress.
At the completion of his testimony the learned prosecutor, Mr Kayser, submitted that the defence of duress was not available to the accused on a charge of attempted murder as a consequence of the decision of the House of Lords in R v Gotts.[1] I thereupon heard submissions from both parties.
[1][1992] 2 AC 412; [1992] 1 All ER 832; [1992] 2 WLR 284.
Mr Shirrefs S.C. who appeared with Mr Chadwick on behalf of the accused to argue this point, submitted that I should not accept the majority decision in Gotts as being the law in Victoria. It was submitted that the common law rule was that the defence of duress was available for all criminal offences, save for murder and some forms of treason.
According to the majority in Gotts, to deny a defence of duress to attempted murder does not amount to carving out a new exception from a general defence of duress but is a declaration that the defence has never extended to such an offence. By contrast the minority judgments reflect the view that duress is a recognised defence and that the court should not remove or limit such a defence on policy grounds as such grounds are a matter for Parliament.
Lord Jauncey of Tullichettle with whom Lord Templeman and Lord Brown-Wilkinson agreed did not suggest that prior to Gotts there anywhere existed a statement of the law to the effect that the defence of duress was unavailable to one charged with attempted murder. The majority did not consider themselves constrained by any common law rule that withheld duress as a defence only in the cases of murder and treason, regarding the absence of binding authority as leaving the question still open for decision it “being a matter of policy how it should be answered.”[2]
[2]Supra [1992] 2 AC at 420; [1992] 1 All ER at 840; [1992] 2 WLR at 292.
The dissenting judgments of Lord Keith and Lord Lowry in Gotts are, in my respectful submission, highly persuasive. The fact that there are arguments in logic and morality why an attempted murder should not be afforded a defence of duress which is withheld from a murderer says nothing as to whether there is a common law rule that the defence of duress extends to the offence of attempted murder. The formidable judgment of Lord Lowry advances a compelling basis for the conclusion that such a common law rule exists. As Lord Lowry stated:
“….if the common law recognised that murder and treason were the only excepted crimes, then we are bound to accept that as the law, whether it seems a desirable conclusion or not.
If the common law has had a policy towards duress heretofore, it seems to have been to go by the result and not primarily by the intent and, if a change of policy is needed with regard to criminal liability, it must be made prospectively by Parliament and not retrospectively by a court.”[3]
[3]Supra [1992] 1 All ER at 852-853.
As the right of the court to deny the accused the availability of the defence is so attended by doubt I ruled that the defence of duress should be left to the jury on the count of attempted murder and that I would subsequently provide reasons for so ruling. Further consideration of the issue has served to strengthen my view that duress should be left as a defence to attempted murder in the absence of binding or further persuasive authority to the contrary. The amplitude of the defence of duress and the underlying policy considerations are matters which should be addressed by Parliament.
The relevance of duress to the accused’s intention
Whether or not duress amounted in law to a defence to attempted murder, the accused's account of the coercion under which he was allegedly placed by the criminal associate, Nikolai Radev, was a relevant circumstance that the jury would need to consider. The defence of duress undoubtedly applied to the second count of intentionally causing serious injury. If the jury accepted or entertained as a reasonable possibility that the accused committed the actus reus of the offences as a direct consequence of the threats made to him by Radev, such facts were relevant to whether the accused had the intent required for each offence. It was the accused's account that he discharged the pistol because he was under compulsion to do so as a result of the threats of Radev but that it was not his intention to shoot the victim. He testified that he aimed to miss the victim on each occasion upon which he discharged the firearm. The defence of duress may bear upon his asserted lack of intent. R v Harding.[4]
[4][1976] VR 129.
I am mindful that there is a need for careful control of the defence. Southwark London Borough Council v Williams.[5] Necessity can very easily become a mask for anarchy. Perka v R;[6] R v Latimer;[7] The Queen v Hutchinson.[8]
R v Gotts – Degree of persuasion
[5][1971] Ch 734 per Denning MR at 743 and per Edmund-Davies LJ at 746.
[6](1985) 14 CCC (3d) 385; (1984) 13 DLR (4th) 1.
[7][2001] 1 SCR 3 at 19.
[8][2003] NZ CA 143 at [58].
Although judgments of the House of Lords are no longer binding upon this Court, the decisions of the House continue to have a highly persuasive value. Viro v R;[9] Cook v Cook.[10] Great weight must be given to its decisions and the preference for the common law to develop in a similar fashion in England and Australia.[11] Whilst recognising that decisions of United Kingdom Courts including the House of Lords would continue to be of assistance and guidance, Mason, Wilson, Dean and Dawson JJ in their joint judgment in Cook observed:
“……. the precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning.”[12]
[9](1978) 141 CLR 88 per Gibbs J at 121.
[10](1986) 162 CLR 376.
[11]Brisbane v Cross [1978] VR 49 per Young CJ at 52.
[12]Footnote 10 at 390.
Murder – an exception to the defence of duress
Prior to Gotts, the law of duress excluded only two types of offences from the scope of the defence, namely murder and less clearly “other crimes so heinous” generally regarded as some serious forms of treason.[13] Attorney-General v Whelan;[14] R v Hurley & Murray;[15] R v Tawill;[16] Brown v R.[17] In Australia the defence has been applied to manslaughter,[18] drug offences,[19] and prison escape.[20]
[13]Yeo, Professor S. (1990), Compulsion in the Criminal law, North Ryde, NSW, Law Book Company at 144. The range of offences where the defence of duress has been held to apply in England are referred to in Smith, J.C. and Hogan, Brian (1983) Criminal Law (5th Ed.), London, Butterworths at 231.
[14][1934] IR (Irish) 518 at 526.
[15][1967] VR 526 at 543.
[16][1974] VR 84 at 87.
[17](1986) 43 SASR 33 at 36-37; (1986) 87 FLR 400; (1986) 21 A Crim R 288.
[18]R v Evans & Gardiner (No 1) [1976] VR 517.
[19]R v Lawrence [1980] 1 NSWLR 122; Footnote 17 Brown v R; Palazoffv R (1986) 43 SASR 99.
[20]R v Smyth [1963] VR 737; R v Dawson [1978] VR 536.
The basis for the principle that duress has no application to the offence of murder has been frequently regarded as that set out by Sir Mathew Hale:[21]
“If a man be menaced with death unless he will commit an act of treason, murder or robbery, the fear of death does not excuse him, if he commit the fact; for the law hath provided a sufficient remedy against such fears by applying himself to the courts and offices of justice for a writ of precept de securitate pacis.
Again if a man be desperately assaulted and in peril of death and cannot escape, unless to satisfy his assailants' fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder if he commit the fact; for he ought rather to die himself than kill an innocent.”[22]
Similar propositions are repeated in East;[23] Blackstone's Commentaries;[24] and Stephen's History of the Criminal Law of England.[25]
[21]Hale, Sir Mathew (1972) Pleas of the Crown: a methodical summary 1678, London, Professional Books.
[22]Supra.
[23]East, Edward Hyde (1803) A treatise of the pleas of the Crown, London, Butterworths, Volume 1 at 225.
[24]Blackstone, Sir William (1868) Commentaries on the laws of England, Oxford, Clarendon Press, Book 4 at 30.
[25]Stephen, James Fitzjames (1883) A history of the criminal law of England, London, Routledge, Volume 2 at 107.
The genesis of the exemption of murder from the doctrine of necessity or duress was explained in Blackstone's Commentaries:
“Another species of compulsion or necessity is what our law called duress per minas; or threats and menaces which induce a fear of death or other bodily harm, and which take away for that reason the guilt of many crimes and misdemeanours; at least before the human tribunal …….. This however seems only, or at least principally, to hold as to positive crimes, so created by the laws of society; and which therefore society may excuse; but not as to natural offences, so declared by the law of God, wherein human magistrates are only the executioners of divine punishment. And therefore though a man be violently assaulted, and hath no other possible means of escaping death, but by killing an innocent person; this fear and force shall not acquit him of murder; for he ought rather to die himself, than escape by the murder of an innocent……”[26]
[26]Footnote 24 Book 4, Chapter 2 at 30.
Based upon these respected writings a line of authority and criminal texts have recognised that duress is no defence to murder, it being a crime so heinous, that the strongest duress would not be any justification. Attorney-General v Whelan;[27] R v Steane;[28] R v Bourne;[29] R v Tawill;[30]; Brown v R;[31] Lynch v Public Prosecutions (Director of) for Northern Ireland;[32] The Queen v Howe;[33]Kenny’s Outlines of the Criminal Law;[34] Russell on Crime;[35] Glanville Williams.[36]
[27]Footnote 14.
[28][1947] KQ 997.
[29](1952) 36 Cr App Rep 125.
[30]Footnote 16 at 86.
[31]Footnote 17 (1986) 43 SASR 33.
[32][1975] AC 653 at 679.
[33][1987] 1 AC 417.
[34]Kenny, Courtney Stanhope 91966), Outlines of Criminal Law (19th Ed.), Cambridge, Cambridge University Press at 71.
[35]Russell, William Oldnall (1964) Russell on Crime (12th Ed.), London, Stevens Volume 1 at 90.
[36]Williams, Glanville (1961) Criminal Law: the general part (2nd Ed.) London, Stevens & Sons.
An argument that the defence of duress may be relied upon by a principal in the second degree to murder was rejected by the Full Court in R v Harding[37] as it was in R v Brown & Morley.[38] In respect of murder, whether by principal in the first or second degree, the law was regarded as settled, it having been so declared in the writings of Hale, Stephens, East and Blackstone that performance of the act under duress was not a sufficient answer in law.
[37]Footnote 4.
[38][1968] SASR 467.
The only consistent rationale for the exception is that it is a “result” crime where death has ensued and where life imprisonment could be imposed. The exception had never been concerned with the intention of the offender. Prior to Gotts, it had not been suggested that an “intent to kill” explained the exception.
Anomalies and inconsistencies in the defence of duress to murder
The exception within the common law rule that the defence of duress applies to all crimes save for murder and some forms of treason has itself been the subject of much qualification and debate.
In R v Kray[39] Lord Justice Widgery held that a person charged as an accessory before the fact to murder might rely on duress. Subsequently in Lynch, the House of Lords by a majority concluded that a principal in the second degree was permitted to rely upon the defence of duress. The extent of this incursion into the exception by the majority in Lynch was such that it was left open as to whether the actual killer might also have the defence.
[39][1970] QB 125.
In Lynch, Lord Morris of Borth-Y Gest considered that the words from Hale's Pleas of the Crown, though having influenced thought and writing over a long period, had, in their application, been unduly extended when it was assumed that they covered all cases of accessories and aiders and abettors.[40] Lord Wilberforce confined the exception to the actual killer, while others who were complicit and may have had an intention to kill could rely upon the defence. Based on what Lord Edmund-Davies regarded as an unquestionable tendency towards progressive latitude with respect to the plea of duress, his Lordship could find no acceptable ground in law, logic, morals or public policy for withholding the plea of duress to one who was a principal in the second degree to murder.
[40]Footnote 32 at 672.
Lord Simon of Glaisdale who together with Lord Kilbrandon were in the minority in Lynch considered the exception to the common law rule to permit of no distinction between participants in any degree to murder. Their Lordships considered the consensus of centuries was to be overturned through the admission of duress as a defence to a charge of murder in whatever degree.
After considering the modern authorities Chief Justice King in Brown v R[41] found the defence exists “to charges of crimes other than murder as a principal in the first degree and possibly some forms of treason.”[42]
[41]Footnote 31.
[42]Footnote 31 at 36.
In Abbott v The Queen[43] the Privy Council distinguished Lynch, the judicial committee holding it had not been doubted for hundreds of years that the defence of duress was not available to a principal in the first degree who was the actual killer.[44]
[43][1977] AC 755.
[44]Supra at 766.
In Abbott, Lord Wilberforce and Lord Edmund-Davies, in their minority judgment, upon the basis of the common law rule, could find no sound reason for distinguishing between the position of a principal in the first and the second degree there being a need to read with circumspection the views expressed by great writers of the past in rejecting duress as a defence.[45]
[45]Supra at 771-772.
Subsequently in The Queen v Howe[46] the House of Lords was to restore the law to the position which pertained prior to Lynch, holding that the unbroken tradition of authority dating back to Hale and Blackstone[47] precluded a principal in the second degree to the crime of murder relying upon the defence of duress, thereby validating the reasoning of the Victorian Full Court in Harding. Their Lordships considered that in consequence of murder being a “result” crime together with the nature of the sentence in murder and the fact that mens rea in murder consists not simply in an intention to kill but may include an intent to commit grievous bodily harm Parliament should clarify this branch of the law.[48]
[46]Footnote 33 at 417.
[47]Supra at 427.
[48]Supra at 430.
There have been numerous other judicial observations that the defence of duress applies to all crimes other than murder and perhaps treason. The Irish Court of Appeal in the frequently cited decision of Attorney-General v Whelan[49] so found. Quoting with approval, the dicta of Lord Parker CJ and Lord Justice Widgery in R v Hudson[50] Lord Edmund-Davies, Lord Morris and Lord Wilberforce[51] in Lynch said duress was a defence to all offences except possibly treason or murder,[52] the exception resting upon the sanctity of human life. Murphy J in Harding unequivocally stated:
“It is accepted today that duress affords justification or excuse for acts which would otherwise be criminal, with the possible exception of murder and some forms of treason. R v Tawill, (1974) VR 84 at p. 87; R v Steane, [1947] 1 K.B. 997; [1947] 1 All E.R. 813; R v Williamson, (1972) 2 NSWLR 221; R v Hudson, (1971) 2 Q.B. 202; [1971] 2 All E.R. 244; Attorney-General v Whelan,[1923] Ir. R. 518 .”[53]
[49]Footnote 14 at 526.
[50](1971) 2 QB 202.
[51]Footnote 32 at 675 and at 677.
[52]Footnote 32 at 716.
[53]Footnote 4 at 169.
Chief Justice King in Brown v R considered the defence applied to all criminal charges other than murder and possibly some forms of treason.[54] The law was similarly stated in Halsbury's Laws of England.[55]
[54]Footnote 31 at 36-37.
[55]Halsbury’s Laws of England, (4th ed.) London, Butterworths , Volume 11 at [24].
That duress afforded a complete defence to charges of all crimes less grave than murder was recognised by Lord Brandon of Oakbrook in Howe and by McHugh J in Ridgeway v R.[56]
[56](1995) 184 CLR 19 at 80.
Recommendations of successive Victorian Law Reform Commissions
In 1980 a report by the Victorian Law Reform Commission recommended legislation making duress a defence on a charge of murder.
In 1991 the Law Reform Commission of Victoria published Report No. 40 on Homicide. Dealing with the defence of duress, the Commission stated that Courts had been ambivalent about the availability of duress to a murder charge. It observed that several English and Victorian cases had allowed the defence of duress to a person charged as a principal in the second degree to murder. Notwithstanding the decision of the House of Lords in Howe the Commission stated that in Victoria duress remained available to a principal in the second degree.[57] The Commission’s view was that duress applied to all other crimes save for murder by a principal in the first degree. The Commission recommended that homicide should not be the one offence for which duress was not available. It recommended abolishing the distinction between principals in the first and second degree so that duress would be available to murder charges.
[57]Victorian Law Reform Commission Report No. 40 at [234].
The Victorian Law Reform Commission in its Issues Paper concerning Defences to Homicide 2002, whilst noting the decision in Gotts, stated that duress was a complete defence to any criminal offence except murder. It was to examine whether duress should be extended in scope to apply to murder.[58]
[58]Victorian Law Reform Commission Issues Paper Defence to Homicide at [8.8].
Despite the recommendations of successive Law Reform Commissions and the repeated curial suggestions that the anomalies of the defence of duress and determination of policy should be addressed by the legislature, the scope of the defence of duress remains defined by the common law in this State.
Attempts punishable at common law or by statute
Can attempted murder be a crime so heinous as murder? The common law doctrine of attempt is derived from the judgment of Lord Mansfield in the decision of R v Schofield.[59] By 1837 it was recognised that an attempt to commit any felony or misdemeanour, whether punishable at common law or by statute, was itself indictable as a misdemeanour at common law.[60] Thereafter the common law has treated attempts to murder as misdemeanours only. Russell on Crime;[61] R v Gotts.[62]
[59](1784) Cald Mag Cas 397.
[60]R v Roderick (1837) 7 C&P 795 per Parke B at 796; Williams’ Criminal Law (2nd Ed.), Footnote 36 at [197].
[61]Footnote 35, Volume 1 at 616.
[62][1991] 1 QB 660 per Lord Lane CJ at 666-667.
In England the common law of attempts was repealed by the Criminal Attempts Act 1981 which created a new statutory offence of attempting to commit an offence. In Victoria the common law offence of attempt was abolished in 1986 with the introduction of s.321S Crimes Act 1958. Section 321M provides that a person who attempts to commit an indictable offence is guilty of the indictable offence of attempting to commit that offence. The penalties for attempt are those now set out in s.321P.
In Victoria a person convicted of murder is liable to level one imprisonment (life - s.3 Crimes Act 1958). Where a person is convicted of attempted murder the person is liable to level two imprisonment (25 years maximum).
Specific references to duress and attempted murder
Lord Wilberforce in Lynch referred to the decision of Macdermott J in Queen v Fegan[63] in which the defence of duress was admitted to one who aided and abetted an attempted murder.[64] Lord Edmund-Davies in Lynch also relied upon Fegan’s case referring to the statement of the Lord Chief Justice in the Court of Appeal in Lynch that duress was available to a charge of attempted murder.[65] Lord Simon of Glaisdale described Bray CJ’s dissenting judgment in Brown & Morley as a lone suggestion that attempted murder should be added to the list of excepted crimes to which duress does not apply.
[63]Unreported 20 September 1974, Northern Ireland.
[64]Footnote 32 at 682.
[65]Footnote 32 at 710
Lord Wilberforce and Lord Edmund-Davies, in their dissenting judgments in Abbott thought it was unarguable that one charged with an attempt to murder may plead duress, it having been “ever permitted as a defence even to charges of great gravity”.[66] Glanville Williams was to state prior to Gotts that it had never been suggested that the defence of duress is denied to the attempted perpetrator of murder.[67]
[66]Footnote 43 at 772-773.
[67]Williams, Glanville (1983), Textbook of Criminal Law, (2nd Ed.), London, London, Stevens & Sons at 631.
The majority of their Lordships in Howe acknowledged the inconsistency of the rule that the defence was available with respect to a charge of attempted murder where intent to kill is an essential prerequisite. Lord Brandon referred to the illogical and perhaps unjust outcome that duress affords a complete defence to charges of all crimes less grave than murder.[68] Lord Griffith was alone in declaring that duress was not available to attempted murder because proof of an intent to kill was required.
[68]Footnote 33 at 438.
The anomalous situation of the exception of murder which has been the source of comment in the various judgments to which I have referred rests upon the stark fact of death. The judgments in Howe involve a recognition that the exception is based upon murder being a result related crime and not upon the intention of the offender. Mr Shirrefs S.C. submitted with some force that the decision by their Lordships in Howe lends support to the minority view in Gotts.
In Hibbert v R[69] the entire bench of the Canadian Supreme Court affirmed its previous decision in Paquette v R[70] that the common law defence of duress applies to offences including attempted murder and to parties other than principals, the latter being governed by the provisions of the criminal code. These Canadian decisions are persuasive authority that at common law duress was available as a defence to attempted murder.
[69][1995] 2 S.C.R. 973.
[70][1976] 30 CCC (2d) 417.
In Gotts, Lord Jauncey referred to the law in Queensland, Tasmania, Western Australia, New Zealand and Canada. In each of these places a criminal code had been enacted. Those codes which exclude attempted murder from the operation of the defence of duress were not based upon the common law. The Canadian Code, which excludes the defence in relation to principals in the first degree to attempted murder does not exclude duress as a defence to a lesser party. Hibbert v R.[71]
[71]Footnote 69.
In my respectful opinion the suggestion that earlier writings and authority leaves at large the question whether such a defence can apply to attempted murder is difficult to sustain. It was the same common law rule which led the Privy Council to its decision in Abbott and the House of Lords in The Queen v Howe to restore the law to its universally recognised condition prior to Lynch.
The majority in Gotts declare an absence of any justification in logic or morality for drawing a distinction between murder or attempted murder. Lord Lowry in his dissent raised arguments to the contrary. It would be impertinent and unnecessary to embark upon an examination of those reasons. I make only these observations. The majority focus upon the heinous nature of the intent of the offender and disregard the result of the crime. This “logical” approach has itself been the subject of criticism.[72] Such logic would also require the exclusion of the defence for other statutory charges requiring an intent to kill, such as conspiracy to commit murder (s.321) or incitement to murder (s.321G) under the Crimes Act 1958.
[72]Ashworth, Andrew (2003), Principles of criminal law (4th Ed.), Oxford, Oxford University Press at 230.
Judicial legislation and policy
During Lord Mansfield’s time the view prevailed that reform of the law was better undertaken by judges than by the legislature. The King v Benbridge.[73] By the mid-nineteenth century, the separation of judicial and the legislative power in all areas of the common law including the criminal law had become well recognised. Courts were not at liberty to reject common law rules because they had not yet been judicially applied, on the basis that the Court considered the rule to be inconvenient or unreasonable. Mirehouse v Rennell.[74]
[73](1783) 3 Doug KB 327.
[74](1833) 1 Cl & Fin 527 per Parke B at 546.
The capacity of the common law to adapt to new circumstances should not endanger the legal principle that judges do not have the discretion to abandon an established common law rule in the name of justice or social necessity.[75] It is for Parliament to effect fundamental change to the common law, not the Courts. Janson v Driefontein Consolidated Mines Ltd;[76] Wilkinson v Osborne;[77] Shaw v Director of Public Prosecutions;[78] Myers v Director of Public Prosecutions;[79] Fender v St John-Mildmay;[80] State Government Insurance Commission v Trigwell;[81] Breen v Williams;[82] Cattanach v Melchior.[83] Where the boundary is to be located between legitimate judicial development of the law and legislation may be difficult to determine.[84]
[75]Sir Owen Dixon – Address to Yale Law School 1955.
[76][1902] AC 484 per Lord Halsbury LC at 490.
[77](1915) 21 CLR 89 at 96.
[78][1962] AC 220 at 275.
[79][1965] AC 1001 at 1021-1022.
[80][1938] AC 1 at 10-11.
[81](1979) 142 CLR 617 at 633.
[82](1996) 186 CLR 71 at 115.
[83](2003) 199 ALR 131 at 152-153.
[84]WoolwichEquitable Building Society v Inland RevenueCommissioners [1993] AC 70 per Lord Goff of Chieveley at 173.
Ex post facto changes to the criminal law
Judges have no power to create new criminal offences or to invent a new defence contrary to fundamental legal doctrine accepted for hundreds of years without question.[85] Neither do they have a power to remove a defence of antiquity. The function of the trial judge is as Lord Lane CJ described in Howe, to decide what the present law is, being careful to distinguish the views of eminent writers of commentaries, academic writers or judicial decisions which venture into the realm of what the law ought to be.[86] The distinction made between ascertaining the law that is and declaring what ought to be is elusive as the law may not have a “known existence except in the sense in which legalists speak of the principle being notionally present and awaiting discovery in the corpus of precedent.”[87]
[85]Footnote 43 Abbott v The Queen per Lord Salmon at 767.
[86]Footnote 33 R v Howe {1986] QB 626 per Lord Lane CJ at 637-638.
[87]The Honourable Sir Anthony Mason, (2003), ‘The nature of the Judicial Process and Judicial Decision Making’ in Sheard, Ruth (ed.), A Matter of Judgment: Judicial decision making and judgment writing, Judicial Commission of New South Wales, Education Monograph 2 at 12.
It has been viewed as incompatible with the development of the common law that judges declare conduct to be criminal which Parliament has not found it necessary to proscribe and where no previous precedent for punishing it could be found. Knuller (Publishing, Printing & Promotions) Ltd v Director of Public Prosecutions;[88] Shaw v Director of Public Prosecutions;[89] Myers v Director of Public Prosecutions.[90] McHugh and Gummow JJ in Cattanach v Melchior[91] referred to Lord Diplock’s remarks in Knuller that the Courts are not free to create common law offences by asserting a general superintendence of morality or otherwise. McHugh J in R v Rogerson[92] observed that were it otherwise:
“Conduct which for hundreds of years had not been in breach of the criminal law would become so without legislative authority.”[93]
These observations, in my view, apply with equal force to the removal of a common law defence. Clearly a judge at first instance, acting in accordance with the rule of law cannot vary or extend the law by declaring that a recognised defence or lawful excuse was not available in relation to a category of criminal offence.
[88][1973] AC 435; [1972] 2 All ER 898 per Lord Diplock at 918 and per Lord Simon at 932.
[89]Footnote 78 at 275.
[90]Footnote 79 at 1021-1022.
[91]Footnote 83 at 152-153.
[92](1991-2) 174 CLR 268.
[93]Supra at 304.
A similar consideration underlies the law's insistence on the need for express words in a statute before a citizen's common law immunities or rights would be abrogated or curtailed. Coco v R;[94] R v Carroll;[95] Bropho v State of Western Australia;[96] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission.[97]
[94](1993-1994) 179 CLR 427 per Mason CJ, Brennan, Gaudron, McHugh JJ at 436-437.
[95](2002) 213 CLR 635; (2002) 136 A Crim R 167 at 204-205.
[96](1990) 171 CLR 1 at 18.
[97](2002) 213 CLR 543; [2002] HCA 49 at 11.
The general rule is that the law should not be altered either by statute or by developing the common law so as to render an act punishable in retrospect. C (a minor) v Director of Public Prosecutions.[98] The vice of retrospectively abolishing a defence or excuse to a criminal offence was considered by Dean J in Zecevic v Director of Public Prosecutions.[99] His Honour identified the fundamental injustice that will unavoidably flow where a court abolishes a defence which, until then, has been recognised under the law described by the late Professor Stone as a flagrant violation of the “well established judicial policies of the criminal law in favorem libertatis, and against ex post facto punishment”.[100]
[98][1996] AC 1.
[99](1987) 162 CLR 645 at 677.
[100]Stone, Julius (1985), Precedent and Law: dynamics of common law growth, Sydney, Butterworths at 190.
Where a court holds unlawful, conduct which was lawful according to precedent or well recognised rules, it is legislating with retrospective effect.[101] In an extra-curial address Heydon J observed that the common law knows nothing of “prospective overruling” by which a court changes the law for future cases.[102]
[101]Lord Devlin, “The Judge” at 9; 73 ALJ 37 Judicial Method per McHugh J at 43; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission Footnote 97 [2002] HCA 49 at [11].
[102]The Honourable Dyson Heydon, “Judicial Activism and the Death of the Rule of Law” – Address to Quadrant Dinner 30 October 2002.
McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd[103] quoted from the judgment of Lord Lowry in C (a minor) v Director of Public Prosecutions[104] in which his Lordship referred to matters which should be taken into account before repudiating fundamental principles of the common law. His Lordship stated that the presumption that a child between the ages of 10 and 14 was doli incapax was a rule of the common law that could only be abrogated by statute. Lord Lowry, delivering the judgment of the House proposed the following guidelines when dealing with the propriety of judicial law making.
[103](2004) 204 ALR 193; (2004) 78 ALJR 346 at 367.
[104][1995] 2 WLR 383.
“(1)If the solution is doubtful, the judges should be aware of imposing their own remedy.
(2)Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated while leaving the difficulty untouched.
(3)Disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems.
(4) Fundamental legal doctrines should not be lightly set aside.
(5)Judges should not make a change unless they can achieve finality and certainty.”[105]
[105]Ibid per Lord Lowry at 392.
Policy and the defence of duress
The differing functions of Parliament and the judiciary have been the subject of constant emphasis in the debate over the last quarter of a century concerning the amplitude of the defence of duress.
At Gotts' trial the judge was to rule that although there is a general common law rule that the defence of duress runs in all cases except murder and possibly treason, his Honour regarded it as impossible to de-couple an attempt to commit this offence from the substantive crime itself regarding it as morally and logically offensive to distinguish between those who commit the crime and those who attempt to commit it. This approach was adopted by the majority of their Lordships in Gotts. The dissenting judgment of Bray CJ in Brown should also be viewed as based upon such policy considerations.
All three members of the Victorian Full Court in Harding rejected the invitation to reconsider the application of duress to murder whatever the degree of complicity of the offender. Each member considered the task of the Court was to determine what the law was in Victoria and not what the court thought it ought to be.[106] Each judgment reflects the principle that policy considerations which may lead to a departure from a recognised common law rule should remain the domain of Parliament. Gowans J was to emphasise that it is not open to the Court to have recourse to the influence of policy in the sense of looking directly to sociological or moral considerations to determine what the law ought to be.[107] Murphy J was of the view that only legislation could achieve the end of altering the common law.[108]
[106]Footnote 4 per Gowans J at 143; per Nelson J at 155; per Murphy J at 175.
[107]Footnote 4 at 143.
[108]Footnote 4 at 176. See also Zelling J in Brown v R (1986) 43 SASR 33 at 55.
In Skelton v Collins[109] Windeyer J had occasion to allude to the problems arising from the “creative element” [110] in the work of the House of Lords. Jenkinson J in R v Darrington & McGauley[111] specifically dealing with the decision of their Lordships in Lynch said:
“The decision in Lynch's Case is no declaration of what might be deduced from established principles of the common law. It is a conclusion based upon considerations drawn from moral and political philosophy which were thought to be appropriate in the United Kingdom now. … At a time when there is uncertainty of precedent by reason of the circumstances discussed in Viro's Case, this Court might be thought to fulfil its function best by applying the decision in Harding's Case in disregard of Lynch's Case. But the practice of this Court has been to follow a decision of the House of Lords in preference to its own decision unless compelled to another course by a decision or reasoning of the Privy Council or of the High Court. … In those circumstances I think we should not depart from the existing practice, but should follow Lynch's Case.”[112]
It is sufficiently plain that had the Court had the unequivocal guidance of the High Court subsequently given in Cook v Cook,[113] the Court would have followed Harding in preference to Lynch which was not perceived to be based upon established principles of the common law.
[109](1966) 115 CLR 94.
[110]Ibid at 135.
[111][1980] VR 353.
[112]Ibid at 365.
[113]Footnote 10.
Academic writers have referred to the difficulties and inconsistencies of the duress defence in Lynch, Abbott and Howe as a consequence of “judicial legislation”. Professor Reed described the decision in Gotts as “another striking example of the judicial extension of the English criminal law”.[114]
[114]Professor Reed, (1996), ‘Duress and Provocation as Excuses to Murder: salutary lessons from recent Anglo-American Jurisprudence’, 6 Journal of Trans-National Law and Policy at Footnote 55.
If there was to be a reconsideration of whether duress should be a defence to murder, Lord Morris in Lynch,[115] citing Hyam v Director of Public Prosecutions,[116] considered it to be a matter for Parliament to investigate policy considerations of policy. Lord Simon and Lord Kilbrandon[117] considered the whole weight of opinion in common law jurisdictions was that duress did not exist as a defence to a charge of murder and that it was not for the House on grounds of public policy to undertake so momentous a law making initiative .[118]
[115]Footnote 32 at 671.
[116][1975] AC 55 at 69.
[117]Footnote 32 at 696.
[118]Footnote 32 at 700 - 701.
Lord Brandon referring to the common law rule which is presently in issue observed:
“…..in countenancing a defence for many years authoritatively (though not in your Lordships' House) denied, would be doing what, in the converse, was firmly and properly disapproved in the case of Reg. v. Knuller(Publishing, Printing and Promotions) Ltd [1973] AC 435. Instead of, for reasons of public policy, declaring criminal for the first time conduct until then not so described, your Lordships would be for the first time declaring the existence of a defence to a criminal charge which had up to now, by judges, text-writers, and law-teachers throughout the common law world, been emphatically repudiated.”[119]
[119]Footnote 32 at 700.
Lord Salmon in Abbott propounded a fundamentally restrictive role for judicial legislation. In the judgment of the Committee his Lordship said:
“If a policy change of such a fundamental nature were to be made it could, in their Lordships view, be made only by Parliament. Whilst their Lordships strongly uphold the right and indeed the duty of the judges to adapt and develop the principles of the common law in an orderly fashion, they are equally opposed to any usurpation by the Courts of the functions of Parliament.”[120]
[120]Footnote 43 per Lord Salmon at 767.
In Howe their Lordships had observed that apart from the majority decision in Lynch duress had for centuries been recognised as not being a defence to murder. Any alteration in the law had to be made through Parliament and not by judicial legislation.[121]
[121]Footnote 33 per Lord Brandon of Oakbrook at 438 and per Lord Mackay of Clashfern at 437.
Lord Lowry and Lord Keith were to decry “judicial legislation” in Gotts[122] arguing persuasively that judicial reserve was called for to leave the common law defence untouched.
[122]Footnote 1 [1992] 1 All ER 832 at 852.
By contrast to Gotts, the House of Lords in R v Clegg[123] concluded that the circumstances in which murder is to be reduced to manslaughter because of the use of excessive force in arresting an offender was a matter for decision by the legislature and not by the House of Lords in its judicial capacity. Lord Lloyd of Berwick, delivering the judgment of the House stated that such a matter was a decision for the legislature to consider as the point in issue was in truth part of a wider issue concerning life sentences for murder and whether that should still be maintained. Their Lordships considered that wider issue could only be decided by Parliament.[124] Whether duress should be permitted as a defence to murder or to attempted murder were also part of that same wider issue, as the judgments in Lynch, Abbott, Howe and Gotts demonstrate.
[123][1995] 1 AC 482; [1995] 1 All ER 334; [1995] 2 WLR 80.
[124]Supra [1995] 2 WLR 80 at 93.
Conclusion
There is a compelling view that the common law recognises that murder and treason were the only crimes to which the defence of duress would not be available. I should act upon the basis that such a rule exists whether it was thought a desirable conclusion or not. The fact that there is no binding decision on the point does not serve to weaken the rule of the common law which has stood the test of time.[125]
[125]Foakes v Beer (1884) 9 App Cas 605.
A trial judge cannot act in a manner inconsistent with the rule of law. To do otherwise would be to conflict with the inherent common law requirement of a fair trial. Deitrich v R;[126] R v Horseferry Road Magistrates' Court; Ex parte Bennett.[127] I also have serious doubts as to the right of a judge at first instance to effect a change in the policy of the common law in Australia.[128] This would be the consequence of following the majority in Gotts.
[126](1992) 177 CLR 292 per Gaudron J at 363.
[127][1994] 1 AC 42; (1993) 3 All ER 138 per Lord Lowry at 162.
[128]In Australian Consolidated Press Ltd v Uren [1969] 1 AC 590 at 644 and (1967) 117 CLR 221, it was recognised that the adoption of a change in policy for England does not mean that it was appropriate in other parts of the Commonwealth. The common law may differ from jurisdiction to jurisdiction. See for example R vO’Connor (1980) 146 CLR 64; c/f Director of Public Prosecutions vMajewski [1977] AC 443; [1976] 2 All ER 142.
In the absence of binding authority, I am unable to accede to the view that it is for a judge at first instance to rule that attempted murder is to be excepted from criminal offences to which the defence of duress applies. The accused should not be denied the common law defence, the existence of which is persuasively argued by the minority in Gotts and affirmed by the Canadian Supreme Court.[129] Such a course would not accord with the view expressed by McHugh J in Ridgeway or Murphy J in Harding. The right of the court to deny the defence being the subject of such doubt, I should not deprive the accused of a defence which may have been open to him at the time of this alleged offence.
[129]See [39] of this Ruling.
In my respectful view, the application of the policy considerations which moved the majority of their Lordships in Gotts can be said with some force to be the domain of the legislature and not that of the Courts. In the absence of legislation, those policy considerations should not prevail to remove what has been viewed as a defence of great antiquity.
Until the issue has been the subject of a binding or persuasive decision to the contrary by an intermediate Appellate Court or the High Court or until Parliament has spoken, this court should act upon the common law rule which has for so long been accepted, that duress is available as a defence to all crimes other than murder and some forms of treason.
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