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…

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 Goldman (No. 4)

Details

AGLC: R v Goldman (No. 4) [2004] VSC 291
Case: [2004] VSC 291
Decision Date: 18 March 2004

CaseChat Overview and Summary

This case concerned the application of the defence of duress to a charge of attempted murder. The defendant, Mr. Goldman, was charged with attempting to murder his wife and appealed against a decision of the Supreme Court of Victoria that duress was not available as a defence to attempted murder. The case was heard in the High Court of Australia. The central legal issue was whether the common law defence of duress could be applied to a charge of attempted murder, and whether it was appropriate for the court to remove or limit the common law defence on policy grounds. Another issue was whether any changes to the law in this regard would constitute an ex-post-facto change to the criminal law.

The court held that the common law defence of duress was available to a charge of attempted murder, as it was not limited to charges of actual completed crimes. The court found that the defence was an integral part of the common law and could not be removed or limited on policy grounds without violating the principle of legality. The court also held that any changes to the law in this regard would not constitute an ex-post-facto change to the criminal law, as the law had not changed but had simply been clarified. The court emphasised the importance of the defence of duress in ensuring that individuals are not punished for committing crimes under compulsion.

The High Court allowed the appeal and ordered that the Supreme Court of Victoria reconsider the defendant's case in light of the decision. The court held that the defence of duress was available to a charge of attempted murder and that any policy considerations did not justify removing or limiting the defence. The court also held that any changes to the law in this regard would not constitute an ex-post-facto change to the criminal law.

Orders