Rice v McDonald
[2000] TASSC 70
•21 June 2000
[2000] TASSC 70
CITATION: Rice v McDonald [2000] TASSC 70
PARTIES: RICE, Tristan Margaret
v
McDONALD, Scott Raymond
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 66/1999
DELIVERED ON: 21 June 2000
DELIVERED AT: Hobart
HEARING DATES: 18 May 2000
JUDGMENT OF: Slicer J
CATCHWORDS:
Magistrates - Appeal from and control over magistrates - Tasmania - Notice to review - The hearing - Generally - Sufficiency of evidence - Question for court.
Aust Dig Magistrates [272]
Criminal Law - General matters - Criminal liability and capacity - Defence matters - Duress - Criminal Code (Tas) - Common law - Difference between the Criminal Code and the common law.
Aust Dig Criminal Law [54]
Criminal Code 1924 (Tas), s234
R v Hudson [1971] 2 QB 202, Graham v R (1982) 74 Cr App R 235, considered.
Gow v Davies (1992) Tas R 1; Lynch v DPP for Northern Ireland [1975] AC 653; R v Howe & Others [1987] AC 417; Harding v R [1976] VR 129; R v Pickard [1959] Qd R 475; Bowen v R (1996) 2 Cr App R 157, referred to.
REPRESENTATION:
Counsel:
Appellant: C Mackie
Respondent: F C Neasey
Solicitors:
Appellant: Legal Aid Commission
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 70
Number of Paragraphs: 34
Serial No 70/2000
File No LCA 66/1999
TRISTAN MARGARET RICE
v
SCOTT RAYMOND McDONALD v
REASONS FOR JUDGMENT SLICER J
21 June 2000
The applicant has been convicted of the crime of stealing and of the offence of making a false report to police contrary to the Criminal Code, s234 and the Police Offences Act 1935, s44A(1). She gave evidence on the hearing of the complaints in a Court of Petty Sessions that at the relevant times she had acted out of fear she would suffer grievous bodily harm if she did not follow the demands of her partner. In doing so, she established an evidentiary basis requiring consideration of the issue of compulsion in accordance with the Code, s20 and duress in accordance with the principles of common law. The learned magistrate found he was satisfied beyond reasonable doubt that the applicant had not acted under either of the elements.
The applicant, then aged 18, had commenced a relationship with one Steven Robertson at Melbourne in June 1996 whilst Robertson was on parole. He was the father of her child aged two, and one enciente at the time of the hearing. Robertson was violent and frequently assaulted the applicant viciously and without cause. The first assault in about September 1996:
"… resulted in a miscarriage of a child, he had done a break in, from what I'd gathered he'd been doing, he'd done a break in in Melbourne, he'd come back, couldn't find something that he taken with him and hit me in the stomach, probably about two or three times. The next day I was actually in the - the next night I was actually in a women's hospital in Melbourne having a miscarriage."
Following that assault, Robertson was sentenced to three months' imprisonment for crimes of burglary. Upon his release in December, he again assaulted the applicant by kicks and blows to the head. She did not report the matter:
"Because he would have killed me, he didn't have much really regard for the police, he'd spent X amount of years in and out of jail, he didn't feel that they were any threat to him, apart from locking him up."
It is not necessary to do more than briefly summarise the history of violence. The learned magistrate was told the following by the applicant:
· medical treatment following the implication of blackened eyes and arm, lumps around the head and marks to the body inflicted when Robertson had exhausted his marijuana supply;
· being dragged along a hallway of a refuge and being beaten with a broomstick;
· being struck to the head with a semi-automatic pistol;
· being struck with a table and chair the night before she gave birth to her daughter;
· being struck with a candle stick holder which caused head injuries and fractures to the ribs, and being bitten on the neck.
Following the last attack, the applicant moved to her sister's home in Tasmania. Robertson located her and she returned to Melbourne for some two weeks, but fled again in March 1998. Robertson followed her to Tasmania, and some three days later, moved into the applicant's residence. In her words:
"I didn't really have a choice, we were just sort of back together".
The pattern of violence which continued in Tasmania included:
· being bitten around the head after the daughter had fallen over;
· being struck with a pram and kitchen chair;
· watching a sword being stabbed through a wall because Robertson found fault with the homekeeping of the applicant;
· regular property damage;
· injuries to the back.
The applicant gave evidence of other attacks which are referred to in the reasons for decision by the learned magistrate, but the transcript of those portions of evidence has not been reproduced.
The learned magistrate accepted the applicant to be a witness of the truth stating in the course of his reasons:
"About this much, her evidence was convincing and compelling, and it was adequately corroborated."
Her evidence was corroborated in significant detail. That evidence comprised:
(1)a report of extensive plaster and door damage following an inspection of the house in September 1998;
(2)medical records disclosing treatment in August and September 1996 at the Royal Women's Hospital in Melbourne;
(3)medical records of the Royal Hobart Hospital disclosing treatment in August 1997, injuries suffered in June and August 1997, accompanied by notes stating that the applicant had claimed she had suffered injury by her own clumsiness when playing with dogs;
(4)medical records showing that the applicant was living in a refuge in August 1997;
(5)evidence given by Dr Braithwaite, a general practitioner, who had treated the applicant for many years. His clinical notes showed that x-ray examination had shown the presence of healed rib fractures as of January 1998, the history and existence of physical injuries, the occurrence of the miscarriage and the existence of fractured ribs and olecranon and bruising to the head, ankle, legs and elbow which had been caused on 5 January 1998. They were significant injuries;
(6)evidence of an acquaintance of Robertson who had purchased the television set which was the subject of the complaint that the applicant "was always sporting a black eye";
(7)evidence of a psychologist as to the effects on women who have been subject to prolonged domestic violence.
It is necessary to recount the evidence of violence which was not seriously disputed because the findings of the learned magistrate concentrated on the specific threats or occurrences which were said to have caused compliance at the times of the commission of the crime and offence. But it is impossible to consider those specific matters in the absence of their context and the history of past mistreatment of the applicant.
Circumstances of offences
In April 1998, the applicant had entered into a rental agreement for a television set. Apart from the initial payment, no further moneys were provided for that rental. Robertson had insisted that the agreement be solely in her name. In mid July 1998 Robertson (known to the witness by another name) met with John Buckney through a mutual acquaintance. During the course of a general discussion, Buckney mentioned that he was interested in purchasing a television set, to which Robertson replied that he had one for sale. Buckney was invited to the applicant's home to inspect it. The applicant was present at the time when a price for the sale of the rented Sharp television set was agreed. In the words of Buckney:
"What did you finish up paying for it? … About two hundred and fifty dollars.
Now the arrangement was struck between you and who? … Steve.
Okay. And while this was being negotiated was the defendant present the whole time, and when I mean the defendant I mean the lady you've indicated? … What, when we were exchanging money, or -
When you were talking about the deal? … Yes, she was.
Did she say anything at all? … No, all I said to this lady here, I said, 'is the TV stolen?' And she said, 'No'. Same as what the boyfriend like to her said, 'It was not stolen'. That's the reason why I bought it.
Now did they tell you why they were selling the television? … Yeah, because he told me that he had two TV's down there and he said it was pointless him keeping two if they've only got a house and there's only two of them there to watch the TV, so what's the point of having two.
And this conversation was had whilst the defendant was present? … Yes."
Deficient transcript prevents a restatement of the applicant's evidence in relation to the events surrounding the sale of the television set. However, the summary of that evidence given by the learned magistrate, with minor exceptions, is accepted by the parties as an accurate account of the version given by the applicant. The name Kennedy used by the learned magistrate is a reference to Robertson. That account reads:
"The transaction was a sale where both Kennedy and the defendant were present with the buyer at the defendant's home, but the situation is more complex than that. I will start from the beginning of the possession of television by the defendant in examining the evidence she gave about it. She entered the agreement on 9th April 1998. She said she had probably recently been beaten then (by Kennedy), but that there were no threats leading up to the making of the agreement with Radio Rentals, although it was Kennedy's idea, and he told her to go to sign it. He instructed her to was to be in her name alone.
Of the sale, she said that three days before it they were at a friend's home. She was making coffee. Kennedy mentioned to Buckney that he had a television and arranged for Buckney to inspect it. This was the first that the defendant knew of any intention on his part to sell a television set. After they left and went home, she said that they argued about which of their two televisions would be sold. Kennedy said it was to be the Radio Rentals television, and told her to tell Mr Buckney that 'it was legit, that it came from her sister'. She described that he was not angry, but agitated at this stage when she said she did not to sell it, she stated that he said 'basically he'd bash the hell out of me'."
Following the disposal of the television, the applicant arranged for a representative of the company to come to the residence and collect other hired items for which no payments had been made. Her account of the circumstances resulting in the making of a false statement is:
"I arranged for him to come around and pick up the goods at Barker Avenue which is where the fridge and washing machine were. But I didn't even remember the TV until I got inside the door, he went off his face, he called me a stupid slut and that I was really smart because the TV wasn't there and that there hadn't been any report of it being stolen or anything like that so he - he hit me on the back of the head and kicked me in the back which I have a scar from, Sarah woke up during that point and I just went into her room and stayed there for the rest of the night.
… he told me that I had to report it stolen which I hadn't done. And told me that I'd have to report it stolen to Rentlo, the Rentlo man next - tomorrow.
In what way did he say that to you?... He told me to, it was an order.
Was that before or after the assault that you’ve just told the Court about that night?.. Just after.
Did you want to make a false report to the police about the theft of the television?... No.
Did you agree to make a false report?... For him, yes.
And why was that?... Because he told me I had to. I wasn't going to not do as he told me to, I'd been bashed for nearly 3 years, I wasn't game enough to not really say anything.
And so what happened after that?... The next day a - I organised with one of the St Joseph’s ladies to come and pick me up after the Radio Rentals man had been. I took Sarah with me and went to Barker Avenue in which I discovered that I actually had been broken into, my actual window pane was out, I then went next door and asked my next door neighbour if she had heard anything and she replied that she had been away for a couple of days. I rang the police to report a burglary, to report the break in.
Were you alone at that time?... Reporting it to the police.
Yes?... No I had Kelly in the room with me, I was using her phone.
Yep, keep going, yes?... The Rentlo - Radio Rental man turned up first, he did ask for the TV, I told him it was stolen and that I was giving a police report.
Why did you tell him it was stolen?... Cause Steven had instructed me to make a false report on the stolen TV.
And then what happened?... The policeman came around, he had a look at my window, he asked what was stolen, he had a look around and then he left.
…
Did you tell the police officer what had happened to the television set?... I just said it was taken.
Stolen?...Yes.
Why did you tell him it was stolen?...Because I knew I had to.
And why was that? … Because Steven had told me that I had to make a false report that day."
Following the making of a report, police located the television set in the possession of Buckney. The applicant was interviewed and accepted full responsibility for the crime. She protected Robertson, giving the name Kennedy instead of correct identification. She gave an account as to the events leading up to that interview in the following terms:
"When John - John went and seen Steven and told him that the police had been around to his place and had taken a TV, the TV, Steven then came back to Barker Avenue and told me that I had to go in to the police station voluntarily to see Detective Lowe -
A police officer?… Yes, about the TV. He then sat me down and basically told me that when I went in there I was to say he was no longer with me, he was on the mainland, his last name was Kennedy, the TV was sold for $250 and that I was actually handed the money, not him. And if I didn't do as he - if that wasn't done according to his plan, then I'd be a very - 'Cruising for a bruising' basically.
Were those - those his words, that last bit, 'Cruising for a bruising'?...Yes.
And what did you think he meant by that?... How he would have put his hands around my throat and killed me.
So what did you do?... I made contact with Detective Lowe that morning. He was actually out I think. I got back, Steven was very angry that I hadn't spoke to anyone. If Detective Lowe hadn't been there I should have spoken to someone else and if the police come around looking for me that I'd die. I actually went into the police station two more times. Once I just missed him, he had actually waited for me and the third time he was actually busy. I rang him and organised another appointment for the following week or something. The morning that I went in to Detective Lowe to give him the - to tell him the story, Steven ran through it point by point through to me, A - I didn't know him, he was on the mainland, like we’d finished our relationship. The TV had nothing to do with him at all and it was for money.
…
And you didn't mention Steven’s name to any great extent on the video?... No.
Why was that?... I - he - I was ordered not to say his name, I wasn't even meant to have mentioned him. If the police had any indication that he was actually involved and they came to where I was living, he would basically bash me to death.
So essentially you took sole responsibility for the sale of the television set?...Yes.
And why did you do that?...Cause I was afraid not to.
If I could just take you back for a moment to the time that you rang up the police, the first time you made the report that it’d been stolen. That was a lie wasn't it? Yes. The TV had been stolen, yes.
Why did you tell that lie?... Because Steven had ordered me to tell him - to tell the police that it was stolen.
And what do you think would have happened to you if you hadn't told that lie?... If I hadn't of told it and I had of said that Steven stoled it the police would have come around and before they would have even gotten my front door he would had me at least black and blue before the police could ever get to me. And him and Sarah would probably most likely have been gone."
There was cogent evidence before the court that the applicant had suffered prolonged violence, that violence or threats of violence had been directed at the applicant to require her to assist in the sale of the television set and the making of a false report.
Duress and Compulsion
Ground 3 of the Notice to Review claims that:
"The learned Magistrate erred in law in directing himself that the provisions of the Criminal Code governing criminal responsibility applied to the charge of False Report to Police contrary to Section 44(A)(1) of the Police Offences Act."
The respondent concedes that the ground has been made out (Gow v Davies (1992) Tas R 1). One significant matter provided for at common law is that it is not necessary for the person making the threat be present at the time of the commission of the offence. The applicant was entitled to the benefit of this difference in relation to the offence of making a false report. However, the error is, by virtue of the provision of the Justices Act 1959 s110(2)(ab), insufficient to vitiate the decision since the learned magistrate determined that if he was wrong in that regard he was nevertheless "satisfied that the prosecution have proved that the defendant was not acting under duress as defined".
Approach taken by magistrate
The learned magistrate accepted that Robertson had been "the more active player in the sale", but noted that "no point (was) taken that the defendant was not a principal in the transaction". The purport of the statement is unclear. What the magistrate was required to do was to make findings in accordance with the evidence. That the applicant was a party to the conduct was not in dispute. What the learned magistrate was required to do was to identify the acts committed by the applicant and determine whether those acts were performed under compulsion or duress.
The learned magistrate accepted that her evidence "was convincing and compelling, and it was adequately corroborated. Not only is there a doubt ¾ the prosecution carry the onus, but I am affirmatively persuaded". The meaning of the last remark is difficult to understand. He then stated that the impact of the evidence had been lessened:
"But there are particular elements of s20, requiring specific evidence. The defendant does not carry a burden of proof but as in other defences (mistake of fact and self defence) a defendant carries what might be called an evidentiary burden. The facts of the defence being exclusively in her knowledge (and in Kennedy's, but he is not an available witness) she has to raise the defence by giving such evidence and satisfying this requirement. Here the defence case lost some of its conviction."
He concluded that the applicant's contention that "basically he'd bash the hell out of me" contained a qualification (because of the syntax of the word "basically") and was little more than a summary. He found:
"There was in her demeanour a slight hesitation before she said this. As in another context where she used the same word, I am sure that she was not quoting what he said. If she was not embellishing, at least her evidence is inaccurate. She has not, in my view, given credible evidence that he said he would bash the hell out of her. There is accordingly an evidentiary deficiency concerning whether or not she was threatened with serious violence in this context, and in any event the words themselves do not convey a threat of death or grievous bodily harm."
It is not necessary to consider whether the linguistic analysis used by the learned magistrate failed to take into account words used by ordinary persons lacking his training in language. The words "bash the hell out of me" contain, given the history of violence, a clear threat of serious harm. In referring to the requirement of immediacy required by the Code, s20, he stated:
"The threat did not specify but I think in all the circumstances it is reasonable to take it that he did not mean, and nor did the defendant take him to mean, as soon as you say the wrong thing to Mr Buckney or refuse to sell the television. Kennedy's violence was to her alone and never done, on her evidence, in front of anyone. I do not believe that this allows for the threat to be carried out immediately in that Mr Buckney would have to leave first. The logic of this requirement is that if there is an alternative to complying with the threat, the alternative must be pursued. Here the alternative was to seek protection from Buckney. This immediacy is in a sense, an element of condition 3 - the actual presence of the threatener."
The statement contains two errors. Immediacy does not mean that the threat will be carried out at the time of compliance or refusal. It means proximate to the making of the threat and the action giving rise to the commission of the crime. The requirement is that the person coerced "believes that such threats will be executed" at a time when the person making those threats is first able to give them effect. Oxford 3rd ed includes the definitions to the word "immediate" as:
"Acting or existing without any intervening medium or agency … opp to remote … having no person, thing or space intervening, in place order or succession, nearest, next; close, near … of time: present or next adjacent".
Stephen in his Digest of the Criminal Law, 8th ed, Article 10, was of the opinion that threats of future injury would not suffice. The question is tied to the competing approach of whether the compulsion must operate to affect physical capacity or is an acknowledgement of human nature and behaviour.
In Lynch v DPP for Northern Ireland [1975] AC 653, Lord Simon, in a speech quoted with approval by Lord Mackie in R v Howe & Others [1987] AC 417 (which overruled in part Lynch), said, at 453:
"… I have assumed, on the basis of Hudson, that threat of future injury might suffice although Stephen … is to the contrary".
In R v Hudson [1971] 2 QB 202, a decision of the Court of Appeal and thus concerned with the common law principles relating to duress, Lord Parker CJ, in reading the judgment prepared by Widgery LJ said, at 206 - 207:
"It is essential to the defence of duress that the threat shall be effective at the moment when the crime is committed. The threat must be a 'present' threat in the sense that it is effective to neutralise the will of the accused at that time. Hence an accused who joins a rebellion under the compulsion of threats cannot plead duress if he remains with the rebels after the threats have lost their effect and his own will has had a chance to re-assert itself: Rex v McGrowther (1746) Fost 13; Attorney-General v Whelan [1934] IR 518. Similarly a threat of future violence may be so remote as to be insufficient to overpower the will at that moment when the offence was committed, or the accused may have elected to commit the offence in order to rid himself of a threat hanging over him and not because he was driven to act by immediate and unavoidable pressure. In none of these cases is the defence of duress available because a person cannot justify the commission of a crime merely to secure his own peace of mind.
When, however, there is no opportunity for delaying tactics, and the person threatened must make up his mind whether he is to commit the criminal act or not, the existence of that moment of threats sufficient to destroy his will ought to provide him with a defence even though the threatened injury may not follow instantly, but after an interval. This principle is illustrated by Subramaniam v Public Prosecutor [1956] 1 WLR 965, when the appellant was charged in Malaya with unlawful possession of ammunition and was held by the Privy Council to have a defence of duress, fit to go to the jury, on his plea that he had been compelled by terrorists to accept the ammunition and feared for his safety if the terorrists (sic) returned."
Difficulty in any approach to the test of immediacy is a consequence of differences of opinion as to whether "duress" falls into the category of defence, justification, excuse, involuntariness or negation of mens rea. (See Harding v R [1976] VR 129, Lynch (supra), Lawrence v R [1980] 1 NSWLR 122). It is not necessary to consider these differences of approach in any detail. The immediacy required by the Code, s20 relates to the proximity of the capacity to execute the threat made possible by the necessary presence of the maker of the threats at the scene of the crime. In R v Pickard [1959] Qd R 475, Stanley J, in dealing with an equivalent provision of the Queensland Criminal Code, s31, said, at 476:
"In my opinion the word 'immediate' qualifies the words 'death' and 'grevious (sic) bodily harm'. In my opinion the word 'immediate' obviously cannot mean some wholly indefinite future time and place. It must be related to some very short time after the doing or the omission of the act. Whether the length of the time depends on the nature of the threatened injury or whether the section is wholly inapplicable, if some appreciable length of time must elapse before the threat is carried out, need not be discussed further in this particular case on the particular facts."
There are two other errors contained in the finding of the learned magistrate. The question is whether the applicant believed that the threats could be carried out immediately? Given the history of irrational or spontaneous violence on the part of Robertson, she was entitled to believe that immediate retaliation was possible. The second error was that the applicant had the alternative of seeking the protection of Buckney. Such a proposition defies logic and experience. It confuses presence of another with the requirement that a person able to avoid the effects of duress or compulsion without damage to himself or herself should do so or be regarded as a voluntary participant. The reality was that a person placed in the position of the applicant could not be expected to seek the help of a person not in authority and whose capacity to defend himself, let alone another, was unknown. The conclusion of the learned magistrate did not take into account all of the evidence, including the history of the relationship, in interpreting the conduct said to have given rise to compulsion. The finding in relation to the offence of making a false report to police was made on the erroneous basis that the issue was governed by the Code, s20. However, the learned magistrate decided that if his initial determination was wrong, that he was "satisfied that the prosecution have provided [sic] the defendant was not acting under duress". He provided the following reasons:
"1 She failed to take advantage of an opportunity to render the threat ineffective ie to report the threat to the same police officer she reported the alleged crimes to.
2 At the time the offence was committed she was not in any immediate or reasonably present danger as Kennedy was nowhere at hand.
3 Although under this defence a threat of future serious bodily harm is sufficient, the immediacy or otherwise is a factor to be considered (particularly in the context of point 1).
4 While threats of harm to others can ground the defence, there was no threat to Sarah, merely the removal of Sarah from the defendant's care.
5 In these circumstances, a person of ordinary firmness would not have yielded to the threat.
I am mindful of a decision in Goddard v Osborne (1978) 18 SASR 481, that reasonable opportunity (point 1) will be considered in the light of all the circumstances, and if protection can only be provided if the defendant discontinues cohabitation with her husband, it was not reasonable to expect her to break up her marriage. However that is a 1978 decision, before restraining orders were created, this defendant said she wanted to leave him anyway and they were not married. Views of the sanctity of marriage have changed too in the last 21 years. In that case the husband was present, or as nearly so as mattered."
In his view:
"The threat relevant to this offence followed some damage to property and actual violence which would have heightened the defendant's fear. Her evidence was that she did not want to make a report but she said she had to. The situation was left a little vague and confused in evidence in chief concerning timing and the relationship between the threats and the report, and the threats and the interview. In other words which threats related to the false report? There was no cross-examination about the specifics, but she was less than wholly convincing when it was put to her that it was her idea to include the stealing in the burglary report saying: 'I don't think so'. She was also less than convincing in her failure to deal properly with Radio Rentals after he left Tasmania saying she'd been too busy. The threats she mentioned causing her to lie at the interview, for which he schooled her about what to say, that she was 'cruising for a bruising' seemed flippant. Her interpretation that 'he'd have killed me' was out of proportion with such a threat and it is hard to take her literally. Her demeanour at interview sits uneasily with the claims she is making now."
The false report was made (at the direction of Robertson) to a police officer who had gone to the home of the applicant. Threats of harm, both explicit and implicit, were made to the applicant. It is true that she could have made a complaint to the officer, but the option of the obtaining a restraint order was hardly one which the applicant could make in the course of her compliance with the report of theft. Robertson had found the applicant when she left Melbourne, had assaulted her whilst in a refuge and had dominated her every movement. The court was required to consider the subjective characteristics of the person subject to duress in the sense stated by Lord Taylor CJ, in Graham v R (1982) 74 Cr App R 235, when he said, at 241:
"As a matter of public policy, it seems to us essential to limit the defence of duress by means of an objective criterion formulated in terms of reasonableness. Consistency of approach in defences to criminal liability is obviously desirable. Provocation and duress are analogous. In provocation the words or actions of one person break the self-control of another. In duress the words or actions of one person break the will of another. The law requires a defendant to have the self-control reasonably to be expected of the ordinary citizen in his situation. It should likewise require him to have the steadfastness reasonably to be expected of the ordinary citizen in his situation. So too with self-defence, in which the law permits the use of no more force than is reasonable in the circumstances. And, in general, if a mistake is to excuse what would otherwise be criminal, the mistake must be a reasonable one.
…
… the correct approach on the facts of this case would have been as follows: (1) Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed King had said or done, he had good cause to fear that if he did not so act King would kill him or (if this is to be added) cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed King said or did by taking part in the killing?"
The elements of subjectivity might govern the test of "reasonableness of belief" and the standard might remain that required of a person with ordinary powers of resistance, but those powers must be examined in the light of a person sharing the characteristics of an accused which include age and sex (Bowen v R (1996) 2 Cr App R 157 at 161). The learned magistrate took no account of those characteristics. Ground 2 of the Motion to Review is made out.
Evidence
The applicant called as a witness a clinical psychologist with extensive experience in the field of domestic violence and its effect, particularly on women. The learned magistrate received such evidence without objection. In relation to that evidence he said:
"I should add some comments of Mrs Widdap's evidence. Mrs Widdap gave evidence of an expert character concerning the impact on many individuals that domestic violence has. I did not need to hear her evidence in order to be persuaded of the devastating impact that can be created. I simply wish to say that I do not believe that her evidence assisted the defence in relation to the establishment of the specific evidence that was required, and which I have commented upon. The defence was not a general defence of 'battered wife syndrome'; it was confined to common law duress and s20."
Ground 4 of the Notice to Review claims:
"4 The learned Magistrate erred in law in failing to direct himself as to the use to be made of the evidence of a psychologist, Pauline Widdup, in respect to the Defendant's demeanour, expression and behaviour both in and out of Court."
In Emery v R (1993) 14 Cr App R (S) 394, a case limited to principles of sentencing but which involved expert evidence of the effects of "learned helplessness", Lord Taylor CJ said at 397 - 398:
"The evidence should have gone no further than allowing for the doctors to give an expert account of the causes of the condition of dependent helplessness, the circumstances in which it might arise and what level of abuse would be required to produce it; what degree of isolation of the person in question one would expect to find before it appeared and what sort of personality factors might be involved.
The issue the jury had to decide in regard to Miss Emery was, whether or not the prosecution had negatived duress, and therefore the question for the doctors was whether a woman of reasonable firmness with the characteristics of Miss Emery, if abused in the manner which she said, would have had her will crushed so that she could not have protected her child. It was not for the experts to go into the question whether what she had said by way of history as to what abuse had taken place was true or not."
The relevant principles, stated in Bowen (supra) may be summarised in the following categories:
(1)Susceptibility by reason of characteristics of timidity, vulnerability and the like are not characteristics with which to invest the ordinary person.
(2)Categories of persons determined by reference to age, gender, pregnancy, physical durability and psychiatric conditions (including post-traumatic stress disorder leading to learned helplessness) are relevant in the application of the test of ordinary persons for the purpose of duress. A sober person of reasonableness firmness ought be regarded as "sharing those characteristics".
(3)Characteristics due to self-induced abuse such as intoxication are not relevant.
(4)Psychiatric evidence is admissible to show the presence of mental illness, impairment or condition, provided that such evidence is directed at the question of whether persons suffering generally from such conditions might be more susceptible to threats.
To these principles should be added that of the evidentiary requirement. It is for the defence to show the existence of evidence, either by material elicited from the prosecution case or through its own witnesses, which shows the basis for the claim of duress. The basis having been identified, it is for the prosecution to prove beyond reasonable doubt that the accused did not act under duress.
Those principles govern the law of duress (as developed at common law) and compulsion as stated in the Code, s20. The Code differs in that it requires the presence of the person making the threats and might require a more significant consequence (grievous bodily harm rather than injury) but does not preclude regard being had to subjective characteristics of a person claiming to have acted under compulsion. The learned magistrate was required to at least consider the other acts of violence, together with the opinion evidence given by the psychologist in determining whether the applicant acted under either duress or compulsion. Ground 4 is made out.
The grounds of the Notice to Review have been made out and the appeal upheld. The findings by the learned magistrate that the complaints had been proved are quashed.
Counsel for the parties will be afforded the opportunity to make further submissions in relation to the disposition of this appeal.
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