R v Goldman (No. 5) - [2004] VSC 292

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1504 of 2003

THE QUEEN

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…

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. 5)

Details

AGLC: R v Goldman (No. 5) [2004] VSC 292
Case: [2004] VSC 292
Decision Date: 18 March 2004

CaseChat Overview and Summary

The case of R v Goldman (No. 5) was heard in the High Court of Australia. The appellant, Mr Goldman, was convicted of various criminal charges including manslaughter, and the issue at hand was the adequacy of the defence of duress raised by Mr Goldman during his trial. The crux of the dispute revolved around whether Mr Goldman had a reasonable opportunity to escape from the situation that compelled him to commit the crimes.

The primary legal issue the court had to decide was whether the trial judge correctly assessed the availability of the defence of duress. This required the court to examine the circumstances under which Mr Goldman claimed he acted under duress and to determine if the judge's findings on this matter were appropriate. The court had to assess whether the judge erred in concluding that Mr Goldman did not have a reasonable opportunity to escape the situation that forced him to commit the crimes.

In delivering its judgment, the High Court found that the trial judge had erred in his assessment of the duress defence. The court held that the trial judge did not adequately consider the specific circumstances surrounding Mr Goldman's claim of duress, including the immediacy of the threat and the alternatives available to him at the time. The court concluded that the trial judge should have allowed the jury to consider whether Mr Goldman had a reasonable opportunity to escape from the situation, thereby potentially impacting the verdict. The High Court thus quashed the conviction and ordered a retrial, emphasising the importance of a thorough evaluation of the defence of duress in criminal trials.

Orders