R v Goldman (No. 5)
[2004] VSC 292
•18 March 2004
| 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 and 24 March 2004 | |
DATE OF RULING: | 18 March 2004 | |
CASE MAY BE CITED AS: | R v Goldman | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 292 | |
RULING No. 5
Directions as to the defence of duress – Whether reasonable opportunity to escape
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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:
Direction as to reasonable opportunity to escape
The accused by his testimony raised the defence of duress. At the conclusion of all the evidence I ruled that I should give the jury an additional direction of law to those normally given as to whether the accused had means, with safety to himself, of preventing the execution of the threat.
In R v Hurley & Murray[1] Smith J set out the following affirmative propositions generally accepted in this State as constituting the defence of duress:
[1]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…….."[2]
Such propositions have been used as a basis for directions to juries for over 30 years. Darrington & McGauley[3]; R v Zaharias[4]; R v Lawrence[5]; R v Abusafiah[6].
[2]Supra at 543.
[3]1980 VR 353.
[4](2001) 122 A Crim R 586; [2001] VSCA 168 per Winneke P at [6].
[5](1980) 1 NSWLR 122.
[6](1991) 24 NSW LR 531; (1991) 56 A Crim R 424 at 433.
Proposition 8 concerns the question of whether the accused had the means to extricate himself with safety from the execution of the threat.
In Hibbert v R[7] the Full Bench of the Canadian Supreme Court held that an accused person cannot rely on the common law defence of duress if he had an opportunity to extricate himself safely from the situation of duress. The rationale for the safe avenue of escape rule is simply that in such circumstances the condition of "normative involuntariness" that provides the theoretical basis for the defences of both duress and necessity is absent. Indeed, if the accused had the chance to take action that would have allowed him to avoid committing an offence, it cannot be said that he had no real choice when deciding whether or not to break the law:
"The rule that the defence of duress is unavailable if a 'safe avenue of escape' was open to the accused is simply a specific instance of this general requirement – if the accused could have escaped without undue danger, the decision to commit an offence becomes, as Dickson J observed in the context of necessity, 'a voluntary one', impelled by some consideration beyond the dictates of' 'necessity' and human instincts."[8]
[7][1995] 2 SCR 973.
[8]Supra per Lamer CJ at 1018.
The question of whether or not a safe avenue of escape existed is to be determined according to an objective standard. When considering the perceptions of a reasonable person, the circumstances in which the accused found himself are relevant and should be taken into account. R v Besim[9].
[9][2004] VSC 168.
In formulating a further direction I have drawn upon some of the views expressed in R v Hudson[10]; R v Williamson[11]; R v Emery[12]; R v Sharp[13]; R v Lorenz[14]; R v Browne[15]; R v Abusafiah[16]; R v Z[17]. Counsel for both parties have agreed that a direction in the following form is appropriate:
[10]1971 2 QB 202 at 207.
[11]1972 2 NSWLR 281 per Kerr CJ at 282-284 and per Lee J at 298-300.
[12](1978) 18 A Crim R 49.
[13](1987) 3 All ER 103 at 105.
[14](1998) 146 FLR 369 at 376.
[15](1986) 43 SASR 33 per King CJ at 37-39.
[16](1991) 24 NSWLR 531 at 538.
[17][2003] EWCA Crim 191; [2003] 1 WLR 1489 at 1502.
"You will recall the sixth question was whether the accused had no means with safety to himself to extricate himself from the situation and prevent the carrying out of the threat. That requirement is present because the law says that a person who is threatened with death or grievous bodily harm, if he refuses to perform a criminal act, should not unreasonably yield to such a threat if there is an opportunity reasonably open to that person to render such threat ineffective. When a person fails to take advantage of such an opportunity, then they are precluded from relying upon the defence of duress. It is necessary for you to consider whether the Crown has proved that the accused failed to avail himself of some opportunity which was reasonably open to him to render the threat ineffective. In deciding whether such an opportunity was reasonably open to the accused, you should have regard to all of the circumstances and any risks associated with any course of action which would render the threat to him ineffective. You would consider whether such a course of action was reasonably safe or whether it was likely to expose the accused to the very danger from which he was seeking to escape. If you are considering the question of whether the accused had means with safety to himself of preventing the execution of a threat, there are at least two factual matters that you would need to consider: the first is that the accused, by his own admission, had possession of a firearm and you must determine whether there are circumstances in which the firearm could have been used as a means of defence to render the threat ineffective; the second consideration is whether the accused, upon leaving his apartment, was bound to follow Mr Kudryavstev onto the street or whether it was reasonably open to the accused to decamp from the scene by either leaving the apartment to the rear or, if he went in the direction of Highett Road, turn to the right and go around the building away from the window where he says Mr Radev was standing. In considering whether such opportunities were reasonably open to the accused, you will, as I have directed you, have regard to all of the circumstances including the risks associated with such a course of action. In deciding whether a reasonable person in the accused's position would have availed themselves of such an opportunity, you will take into account that the circumstances did not provide the accused with time to give calm and measured consideration to the course of conduct that was open to him. The question for you to determine, if you are considering this issue, is whether a person in the accused's circumstances and acting reasonably would have taken one of those opportunities available to render the threat ineffective."
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