The King v Anna Rowan – a Pseudonym

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HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, JAGOT AND BEECH‑JONES JJ

THE KING  APPELLANT

AND

ANNA ROWAN – A PSEUDONYM  RESPONDENT

The King v Anna Rowan – A Pseudonym

[2024] HCA 9

Date of Hearing: 14 November 2023
Date of Judgment: 13 March 2024

M47/2023

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Victoria

Representation

C B Boyce KC with S C Clancy for the appellant (instructed by Solicitor for Public Prosecutions (Vic))

P J Morrissey SC with C Mylonas for the respondent (instructed by Brown McComish Solicitors)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GAGELER CJ, GORDON, JAGOT AND BEECH-JONES JJ. The principal issue in this appeal is whether the Court of Appeal of the Victorian Supreme Court erred in concluding that the evidence adduced before a trial judge on a voir-dire was sufficient to raise a "defence" of duress both at common law and under s 322O of the Crimes Act 1958 (Vic).[1] 

    [1]As in force from 1 November 2014.

  2. It was common ground that one of the elements of the defence of duress is that, when the accused committed the acts that constitute the offence charged, they were subject to a threat of the relevant form of harm (such as death or grievous bodily harm) if they failed to undertake those acts.[2] The appellant contended that the Court of Appeal ignored or misapplied this element and instead implicitly adopted the doctrine developed in England and Wales known as "duress of circumstances". Under that doctrine, duress can be established by objective circumstances that caused an accused to commit the acts that constituted a crime in order to avoid death or serious injury, provided their response was reasonable and proportionate.[3] The doctrine does not require evidence of any threat to inflict the relevant form of harm if the accused failed to undertake those acts.

    [2]See R v Hurley [1967] VR 526 at 543 per Smith J.

    [3]R v Martin [1989] 1 All ER 652 at 653 per Simon Brown J; R v Abdul-Hussain [1998] EWCA Crim 3528 at 12-13 per Rose LJ.

  3. For the reasons that follow, the Court of Appeal did not adopt or apply the doctrine of "duress of circumstances", but instead applied the accepted understanding in this country of the form of threat necessary to establish duress at common law. This understanding derives from the dissenting judgment of Smith J in R v Hurley.[4] In those circumstances, the occasion does not arise for this Court to consider whether the common law of Australia concerning duress as a defence to a criminal charge should be extended in the manner that has occurred in England and Wales or in any other respect. Accordingly, the appeal should be dismissed.

    [4][1967] VR 526.

    Background

  4. The respondent was born in 1974. According to the report of a forensic psychologist, Ms Pamela Matthews, tendered on the voir-dire, the respondent has a full-scale…

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Details
Case
[2024] HCA 9
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal from the Court of Appeal of the Supreme Court of Victoria concerning the defence of duress. The respondent, Anna Rowan (a pseudonym), was charged with sexual offences against her daughters, allegedly committed in the presence of her partner, JR. The central dispute revolved around whether the trial judge erred in ruling that there was no factual basis for the respondent to raise the defence of duress, leading to the defence not being put to the jury and her subsequent conviction.

The legal issues before the High Court were whether the Court of Appeal had implicitly adopted the doctrine of "duress of circumstances" rather than the established common law requirement of a threat to inflict harm if the accused failed to commit the charged acts. Furthermore, the Court had to determine if the Court of Appeal was correct in concluding that the evidence presented was sufficient to raise the defence of duress at common law and under section 322O of the *Crimes Act 1958* (Vic).

The High Court held that the Court of Appeal did not adopt or apply the doctrine of "duress of circumstances." Instead, it applied the accepted understanding in Australia of the form of threat necessary for duress at common law, which derives from the dissenting judgment in *R v Hurley*. The Court found that there was a sufficient evidentiary foundation for the defence of duress to be left to the jury, both at common law and under section 322O of the *Crimes Act 1958* (Vic), based on threats of serious bodily harm by JR. The Court noted that section 322O(2) requires a threat of harm but does not necessitate an express or implied demand to commit the charged act.

The appeal was dismissed. The High Court concluded that there were no "good reasons" for the trial judge not to have provided a direction to the jury concerning the defence of duress, given the evidence presented.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

For the reasons that follow, the Court of Appeal did not adopt or apply the doctrine of "duress of circumstances", but instead applied the accepted understanding in this country of the form of threat necessary to establish duress at common law. This understanding derives from the dissenting judgment of Smith J in R v Hurley.[4] In those circumstances, the occasion does not arise for this Court to consider whether the common law of Australia concerning duress as a defence to a criminal charge should be extended in the manner that has occurred in England and Wales or in any other respect. Accordingly, the appeal should be dismissed. [4][1967] VR 526.Background The respondent was born in 1974. According to the report of a forensic psychologist, Ms Pamela Matthews, tendered on the voir-dire, the respondent has a full-scale IQ of 70 and a mild intellectual disability, with her abstract reasoning, vocabulary and general knowledge in the bottom 0.5% of the population. The respondent's partner, JR, was born in 1971.[5] The respondent and JR commenced a relationship in 1992. Throughout their relationship, the respondent lived with JR on a farm in rural Victoria. Their first child, Paige, was born in November 1999 and their second child, Alicia, was born in June 2001. They had two more children. The evidence at the trial reveals extreme family dysfunction. JR was violent and controlling toward the respondent and their children. The respondent was financially and socially dependent on JR.[6] [5]All of the names in this judgment are pseudonyms. The initials of the respondent's partner are not "JR".[6]Anna Rowan (a pseudonym) v The King [2022] VSCA 236 ("Rowan") at [10] per Kyrou and Niall JJA. In November 2015, JR was arrested and charged with committing sexual offences against Paige and Alicia. In September 2016, the respondent was arrested and charged. JR and the respondent were initially arraigned on a single indictment that contained 13 joint counts and numerous separate counts against JR. After a joint trial in the County Court of Victoria in early 2019, JR was found guilty on 26 separate counts on the indictment. However, the jury was unable to return verdicts on the 13 joint counts and was discharged. The voir-dire was conducted just prior to the date fixed for the retrial of JR and the respondent on the joint counts. The trial judge ruled that there was no factual basis for the respondent to rely on duress. JR then applied for and obtained a separate trial on the joint counts, after which the appellant decided not to prosecute him further. He was later sentenced to a lengthy term of imprisonment for the 26 offences of which he was convicted.[7][7]DPP v Rowan (a pseudonym) [2020] VCC 360 at [32]-[33] per Judge Lyon. In June 2021, the respondent stood trial on the 13 joint counts. Consistent with the trial judge's ruling, the jury was not instructed on duress. On 30 June 2021, the jury found the respondent guilty of counts 1 and 3 to 13, and not guilty of count 2. On 13 August 2021, the respondent was sentenced to terms of imprisonment for each count. The effective term of imprisonment imposed was seven years and five months with a non-parole period of four years and 11 months.[8] [8]DPP v Rowan (a pseudonym) [2021] VCC 1135 at [68] per Judge Lyon.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GAGELER CJ, GORDON, JAGOT AND BEECH-JONES JJ (dissent) EDELMAN J
Perhaps with an eye to the potential absurdities in insisting upon a requirement that a human threat be accompanied by a demand or direction to perform the particular charged act, s 322O(2) requires a human threat of harm but contains no requirement of any express or implied demand or direction that the charged act must be committed in order to avoid the harm. The offender must reasonably believe that the threat of harm "will be carried out unless an offence is committed" but nothing in the text or purpose of s 322O(2) requires that the threat itself must be accompanied by a demand or direction to carry out the offence. For instance, if driving a car recklessly is the only reasonable way to avoid another's threat to kill the driver then s 322O(2) will be satisfied if the driver reasonably believes that they will be killed unless they drive recklessly. Neither the text nor the purpose of s 322O(2) supports any implication of an anomalous requirement in those circumstances that the threat of death be accompanied by a demand or direction to drive recklessly.Conclusion At common law, an accused bears the evidentiary onus of establishing a foundation upon which it would be open for the jury to accept an excuse of duress, following which the Crown must negate that excuse beyond reasonable doubt.[135] The same is true for the excuse of duress under s 322O of the Crimes Act.[136] [135]Taiapa v The Queen (2009) 240 CLR 95 at 109 [39]. See also Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 at 668; R v Z [2005] 2 AC 467 at 489 [20].[136]See Crimes Act 1958 (Vic), s 322I. There was a foundation in the evidence of Paige and Alicia that was sufficient for the excuse of duress to be left to the jury as a common law defence and, in relation to count 13, as a defence under s 322O. In particular, there was an evidentiary foundation of threats by JR of serious bodily harm. It can be accepted that there was no clear evidentiary foundation in respect of some counts for an implied demand or direction by JR that Ms Rowan commit the acts with which she was charged. But when the role of a demand or direction is understood, there was a sufficient evidentiary foundation for the jury to be required to consider whether the Crown had established that Ms Rowan had a reasonable alternative that was expected of her or whether, in the language of s 322O, carrying out the charged acts was not the only reasonable way for Ms Rowan to avoid the threats. For these reasons, having regard to the evidence raised at the trial and the manner in which the Crown and Ms Rowan conducted their cases, there were no "good reasons" for the trial judge not to give a direction to the jury concerning the excuse of duress.[137] [137]Jury Directions Act 2015 (Vic), s 14(2). The appeal should be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: EDELMAN J

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