R v Anna Rowan - A Pseudonym [2023] HCATrans 159 (14 November 2023)

Last Updated: 14 November 2023

[2023] HCATrans 159

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M47 of 2023

B e t w e e n -

THE KING

Appellant

and

ANNA ROWAN – A PSEUDONYM

Respondent

GAGELER CJ
GORDON J
EDELMAN J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 14 NOVEMBER 2023, AT 10.00 AM

Copyright in the High Court of Australia
MR C.B. BOYCE, KC: If the Court pleases, I appear with MS S.C. CLANCY for the appellant. (instructed by Solicitor for Public Prosecutions (Vic))

MR P.J. MORRISSEY, SC: If the Court pleases, I appear for the respondent with MR C. MYLONAS. (instructed by Brown McComish Solicitors)

GAGELER CJ: Mr Boyce.

MR BOYCE: Your Honours, when it came to the collection of evidence relied upon by the respondent at trial to establish her case of duress, the evidence did not conclude any evidence from the complainants, respondent, nor in the form of tendency evidence that suggested that, prior to the respondent’s relevant offending, JR issued to the respondent – either expressly or impliedly – a purposefully coercive threat to the effect that unless she offend sexually against her children, she would suffer death, serious harm, or harm. Thus, we contend the plurality in the court below, in satisfaction of the first Hurley condition, had to invoke the notion of a “continuing or ever present threat of physical and sexual violence”.

JAGOT J: Could I get you to speak up a bit, please?

MR BOYCE: I am sorry, your Honour, I will – “continuing or ever present threat of physical or sexual violence”. One finds reference to that in the judgment below at paragraph 156 in the core appeal book at 181; judgment below at paragraph 169, core appeal book 185; at judgment below at paragraph 173, core appeal book 185.

This was thus a threat obviously enough derived, we would submit, from the circumstances of JR’s past and his treatment of the respondent and her children, which had not included in the past any instance of JR having prevailed upon the respondent to sexually offend against those children. Thus, we submit, the continuing or ever present threat of physical and sexual violence invoked by the plurality below was a threat that had to be inferred from the objective circumstances in which the respondent found herself.

As such, it was something the existence of which, as the plurality noted below, might have to have been or was understood by the respondent. One finds reference to that in the judgment below at paragraph 169, core appeal book – I will get that reference in a moment, if I may – or, if it could be inferred by the jury from past evidence as a reasonable possibility. One sees reference to that in the judgment below, paragraph 174, core appeal book 186.

Importantly, it was ultimately, we would submit, understood by the plurality to be not a threat by JR as such, but a threat of JR. That is important, because one finds that in the judgment below at paragraph 175, core appeal book 186.

This continuing or ever present threat of physical and sexual violence lay at the heart – so the plurality below found – was the primary error committed by the primary judge, because the trial judge or primary judge had, it seems, according to the plurality, confined himself to locating a purposively coercive threat of death, serious harm or harm intentionally issued by JR to the respondent, either expressly or by implication, where the only avenue on offer was the escaping of such harm by doing a criminal act. That is, it was tied to the criminal act, but it failed to find such a threat. His Honour not having found a threat, as it were, by JR, had failed to go on and consider – so the plurality would have held – the objective or circumstantial threat of him.

EDELMAN J: Mr Boyce, I do not quite understand your distinction between a threat “by” JR and a threat “of” JR.

MR BOYCE: Yes. When I mean “by”, issued by him – purposefully, coercively issued by him to the respondent, saying, do this or else this will follow, either expressly or impliedly, but issued by him purposefully, as distinct from him presenting an objective threat, no matter what might have been in his mind or his calculation. That is the distinction that ‑ ‑ ‑

EDELMAN J: I see. So, your point is that the defence of duress does depend upon the state of mind of the perpetrator of the duress.

MR BOYCE: Yes, we make that – yes, it must be purposefully issued. When the first Hurley condition speaks of a threat of death or grievous bodily harm – to use the old terminology – that may be carried out, then this is a purposefully coercive threat issued by one person to another.

EDELMAN J: A masked gunman puts a gun to my head and demands that I perform an act will not be duress ‑ ‑ ‑

MR BOYCE: Yes, it will.

EDELMAN J: ‑ ‑ ‑ if the masked gunman had a subjective purpose of performing a practical joke.

MR BOYCE: That would follow, yes. Duress, as traditionally understood, is that the threat is issued – well, it may not be that – sorry, if I can step back, it may not be dependent upon the state of mind, but the threat is certainly issued to that effect. There is a threat issued for that purpose. If I could step back and withdraw the answer that I gave earlier to your Honour, but one thing is clear, that in such the circumstance the threat is issued and tied to the criminal act that is sought to be brought about by the threat. So, if I could change my answer to your Honour. I apologise.

BEECH‑JONES J: Mr Boyce, could you look at paragraph 174 of the Court of Appeal’s judgment, page 186 of the book. The second‑last sentence contains a conclusion that it was open to infer:

a reasonable possibility that . . . had it not been for an unstated demand from JR –

Now, if that word “unstated” had been implied demand, would you say that there was still an error of principle on that? Leaving aside the question of whether the evidence supported it.

MR BOYCE: No. Justice Smith in Hurley was careful to speak in that instance of what an “unstated demand” might amount to. It was an implicit threat in the sense that a gun was being held to the hostage, and the person was being asked to further the criminal’s fortunes. In that sense, it was implicit, it was not express – but it was a coercive demand tied to criminal activity.

BEECH‑JONES J: But do you accept that that finding meets the law, regardless of whether it was supported by the evidence – putting that aside – that meets the law as you contend it should be in 174?

MR BOYCE: I think I stated it either explicitly or implicitly, because I have to contend with the manner in which Justice Smith approached that state of facts in – but, ultimately, what we have at 175 is the continuing and ever present threat of JR referred back to or based upon what, back at 169, was said to be an inference that the jury – it was open to the jury to draw from or to give rise to a continuing or ever present threat, that must be a threat based upon past activity inferred by the jury as an objective fact.

That is why we submit that, truly speaking, the plurality’s reasoning taken in its terms has carried the law over from that which was conventionally understood into what we would call – or what has been come to be known, certainly in the United Kingdom, as duress of circumstances, or in the United States as situational duress.

GORDON J: Paragraph 174 is not in those terms, though – the passage that Justice Beech‑Jones took you to.

MR BOYCE: Well, taken out of context, perhaps not, but if we read it in context we have to refer back up to their Honours speaking of the fact that it is not fatal that there was no direct evidence that JR told the applicant shortly prior to each – the then‑applicant in each offence.

GORDON J: Would you mind speaking up please, Mr Boyce? I am having trouble hearing you.

MR BOYCE: Of course, I am sorry. That is because at 174 it would be open to the jury to infer that this was a reasonable possibility based upon the history of the relationship between JR and the applicant as set out in the Matthews 2019 report, and in particular the complainant’s evidence, and then at 175, the “continuing or ever present threat” of him. Now, our submission is that when one reads in context 169 through to 175 and further in the context of 156, where their Honours find the first error and perhaps the most important error that their Honours would say occurred in the hands of the trial judge, at 154:

The first error is the judge’s implicit acceptance that element (i) of the defence of duress requires a specific, overt threat in close temporal proximity to the offending and that a continuing or ever present threat is not sufficient.

At 156:

In our opinion, a continuing or ever present threat which is subsisting at the time –

So, “continuing”, “ever present”, so it must have continued from the past and into the present:

which is subsisting at the time an accused committed the charged offence can suffice if, in all other respects, the defence of duress can be made out. We cannot think any reason in principle or policy that requires exclusion of a continuing or ever present threat where, due to the threat, the accused has lost his or her freedom to choose to refrain from committing the charged offence. In this context, it is relevant to note the additional limiting factors identified in element (iii) which requires that the threat be present and continuing, imminent and impending at the time each offence is committed.

Now, if your Honours are to be taken at their word, which – and in the context of the error that is said to be found on the part of the trial judge – what their Honours would seem – it would be reasonable to interpret what their Honours to be referring to is that which has gone before; remembering that there had never before been any prevailing upon the respondent by JR to commit sexual offences against her children, prevailing before “continuing and ever present threat” that she was under, that endured at the time.

But it is non-specific. It is not, to use their Honours’ term, “specific, overt threat in close temporal proximity” – either express or implied, related to the criminal activity that the threat said would excuse or would provide the avenue of escape.

BEECH-JONES J: If you have an “ever present threat” of violence generally, and then – we will call them the principal offender, says, do this act now – does not the “ever present threat” of violence carry over into the implication, do this threat now or else? Is not that what that passage is saying?

MR BOYCE: No, because this was not a case of that. This was a case where the highest it got on the evidence was that there was a request that, in our submission, she abuse her children; the children said it looked like he might have talked her into it, and that it was not voluntary, but that was as high as it got. It was not a threat that could be tied to the criminal act specifically whereby the criminal act would provide the avenue of escape from it, which is, in our submission, how traditionally duress has been understood.

What has, we submit, been jettisoned, certainly in the United Kingdom in the series of cases that Lord Justice Brooke refers in the Conjoined Twins Case, whereby the ‑ ‑ ‑

GORDON J: Mr Boyce, can I just ask one aspect about that, following on from what Justice Beech‑Jones just asked you. I know you are dealing with the plurality judgment and not Justice McLeish, but at 218 Justice McLeish in effect, I think, concludes that which Justice Beech‑Jones just put to you by saying:

It might be inferred that the general conduct of JR as revealed by the other evidence meant that when he talked the applicant into acceding to his desires there was an implicit threat of serious physical harm if she refused.

And that is not outside the realms of the current state of the law, is it?

MR BOYCE: No, we submit that it is. As indicated, it is not necessary – if I might say – it is a very explicit threat. It might be inferred that the general conduct of JR, as revealed by the other evidence – we are looking back to his general conduct in other evidence – meant that when he talked the applicant into acceding to his desires there was an implicit threat, again, “of” him, of serious – because of ‑ ‑ ‑

GORDON J: I am sorry, I have probably been unfair to you. I should say that follows on from Justice McLeish’s analysis of each of the charges, where he identifies conduct particular to each charge, at least. I unfairly did not put that to you.

MR BOYCE: No, no, no. It is quite okay, your Honour. Of course, his Honour refers back to the offending. Much of it took place in the absence, I might say, of the respondent against – the corpus of evidence upon which Justice McLeish relied was, of course, much more confined than the plurality because he did not have reference to the Matthews 2019 report. But much of it is evidence pertaining to one or other of the complainants, committed in large part in the absence of the respondent’s presence, apart from the one time, I think, when – in 211:

On another occasion, Paige described ‘trying to fight’ her father off, in response to which he hit her and put his hand over her mouth to stop her from yelling, to the point where the applicant came into the room and told him to leave her alone because everyone was being woken by the noise.

But the evidential matrix upon which Justice McLeish is asking or is speaking – including, of course, activity or threatened activity in the absence of the respondent – when his Honour speaks of an “implicit threat”, it is hard to understand his Honour as really departing in any way, apart from the corpus of evidence upon which the finding was based, from the way in which, we submit, the plurality would reasonably be understood.

GAGELER CJ: Is one way of putting your argument that you say there must be a communication to the effect that harm will be inflicted if the criminal act is not performed?

MR BOYCE: Yes.

GAGELER CJ: The communication can be express or implied, and it can be implied from conduct, but what is critical is the communication.

MR BOYCE: Yes, that is – I am indebted to your Honour. Yes. And the movement away from that is, in our submission, an extinction of the law of duress ‑ ‑ ‑

EDELMAN J: Why, as a matter of principle, does it make a difference whether a person exerting duress communicates a specific demand accompanying the threat, or the person exerting the duress makes a threat in circumstances in which there is no choice other than to perform a particular act, if the threat is to be avoided?

MR BOYCE: Yes, you would ‑ ‑ ‑

EDELMAN J: What, as a matter of principle, is the difference between those scenarios?

MR BOYCE: Well, there may not be much in those scenarios, but they are not the scenario here. I mean, in your Honour’s second scenario, there is a threat implicit. On your Honour’s factual scenario, implicit in that threat, as we all know, the only way out of this is for you to do X or Y. It is not this case. It is not this case at all.

EDELMAN J: But that is the jury question, is it not – no reasonable alternative?

MR BOYCE: Unless it is extended, which we submit patently has occurred here, by reference to the reasoning of the plurality and indeed Justice McLeish. The only reasonable way, in our respectful submission, in which the reasoning of the plurality – well, a reasonable way of understanding the reasoning of the plurality is that it would be other than fell from the learned presiding judge, which is our case. That is to say, an objective threat posed by him – of him – that the respondent intuited, perhaps on reasonable grounds, but not a threat tied to the commission of the criminal act and saying, your only avenue out of this threat is to commit the criminal act.

This, in one sense, is not new because – as we make clear in our materials and certainly in our outline of submissions – much the same conundrum confronted the old Full Court in Victoria in Dawson’s Case – we refer to these in our outline. Dawson is cited at [1978] VicRp 51; [1978] VR 536. This was an escape case – that is to say, from prison.

GAGELER CJ: Are you asking us to turn to this case?

MR BOYCE: I can just make references to it insofar as our outline of argument is concerned. If one was to turn to the authority – but I think we adequately contain the holding of their Honours, Justices Anderson, Starke and Harris – it is 7.12 of our outline, page 9.

JAGOT J: Sorry, what page of Dawson?

MR BOYCE: Page 9. I will find Dawson for your Honour.

GORDON J: It is tab 26.

MR BOYCE: For example, Justice Anderson in Dawson at page 538 – we basically state this scenario in our submissions – this was a case where a person pleaded duress – threats that he said he had incurred whilst in custody, insofar as his escape from custody was concerned. What his Honour says at 538, about three‑quarters of the way down the page – page 414 of the joint book of authorities – is as follows:

It is, however, unnecessary at this time to analyse in detail the principles involved in the defence of duress because of the absence in this present case of a further necessary element. In all the cases relating to duress of which I am aware, the offence which the accused person has been constrained to commit has been a particular offence nominated by the person making the threats.

EDELMAN J: That is simply to say that one common – maybe almost universal – circumstance in which duress occurs is where the threat is tied to the particular offence, but it is not to say that there is a reason of principle that that is an element of the defence of duress. So, on the facts of this case, there is an obvious answer, which is that there were other alternatives: reporting it to the authorities, asking for segregation – things like that.

MR BOYCE: Before I read on, your Honour, if I can answer your Honour’s observation in this way. Our submission is that – if I can speak at a level of principle to your Honour – once you take away that threat, either explicit or implicit, tied to a criminal act, the state of affairs is qualitatively – and this will be explained further on – different in the sense the issuing of the threat tied to the criminal act acts as its own form of, as it were, proportionality. You know, taking the case of duress at its highest, as night follows day, if this is not done, this will follow. Whereas if that is not the case, once you take that away, what may follow, or precisely what will follow and how it will follow, is far more amorphous.

EDELMAN J: It becomes governed by whether there is a reasonable alternative to a person in those circumstances.

MR BOYCE: Not necessarily. It is governed partly by that, in my respectful submission. A person is, as it were, in that state positioned – if a person must act, it is reasonable then to say, well, given what was facing the person and how they acted, was it proportionate, but that finds no expression in the Hurley criteria, which is tied to the person of reasonable firmness suffused with those subjective features that we all know can come in. So, we do submit – if I may read on, I am not sure anything I read from Justice Anderson will sit at odds with what your Honour observed, but his Honour went on to say:

In the present case the threats, made to the accused, if they were made, were not made on the basis that if he did not commit a crime he would be violently dealt with. It was the accused who chose to commit the offence of which he was subsequently convicted. There was no coercion upon him to commit the offence of escaping: it was he who availed himself of an opportunity which fortuitously presented itself to him and of which it would be reasonable to say the persons making the threats were in no way aware that the opportunity would exist.

GORDON J: Do you accept that the first sentence you just read there is, in effect, we are a long way from that in this case, given the findings made by both the plurality and Justice McLeish?

MR BOYCE: Well, no ‑ ‑ ‑

GORDON J: I mean, here there was a disconnect between the threat and the crime. The facts here are very different.

MR BOYCE: Well, in answer to – probably by reference to our outline of submissions, the facts – we do not perceive Justice Crispin in Lorenz’s decision, which we refer to in our outline of submissions and summarise at some length – Lorenz is cited at (1998) 146 FLR 369 and we begin our summary of that – this will save us having to go to the report directly – from 7.7 of the outline of submissions over through to 7.11. I am sorry, your Honours, not the outline, the appellant’s submissions ‑ ‑ ‑

GORDON J: Yes, thank you.

MR BOYCE: The written submissions. I am sorry.

GORDON J: Thank you. That is all right.

MR BOYCE: If one reads the summary of Lorenz from 7.7 of our submissions onwards, we see a factual scenario that was as close to this case as could almost be found. In fact, when it came to the notion of a threat related to a criminal act, it was, we would submit, probably stronger. I do not want to read out everything from 7.7 through to 7.11, but if ‑ ‑ ‑

GAGELER CJ: Why are we going to this? Is it for a point of principle?

MR BOYCE: Yes. I am sorry, I am attempting to answer Justice Gordon’s observation as to the facts in Dawson being so different that the statement of principle that we extract from that is not applicable. All I am suggesting to the Court is that when one goes to Lorenz we see almost – and we extract this at 7.11 – the same statement of principle by reference to the set of facts that is almost ad idem if not stronger than in this case.

Our contention is that it matters not what – because the reason given for a case in Lorenz, which was a domestic violence case, a case of battered wife syndrome; a case where the assailant had said to the unfortunate accused, I need $500, if you do not get it, I am going to belt you, or words to that effect. But he had not said, commit this criminal act ‑ ‑ ‑

BEECH-JONES J: Mr Boyce, in this case, as I understand it, or at least some of the accounts, the statement from James Rowan to the respondent to participate was made as James Rowan was committing the principal sexual offences.

MR BOYCE: Yes.

BEECH-JONES J: In these cases, the person making the threat, the fellow prisoners were not escaping themselves and, in this case, the person demanding the money was not in the act of robbing. So, is there not a stronger basis, at least in this case, for saying where the person who made the threat is committing the offence and invites the accused to participate against a background of violence, that there is an implicit demand: commit the act or violence will be inflicted?

MR BOYCE: Your Honour is obviously correct. The facts are different, but the situation that presents itself to the respondent, when it comes to, do this crime or else, is one which you must intuit from the objective circumstances that present themselves. At that point in time, our submission is that you are outside duress – you are in duress of circumstances, whether that be – when one comes to the cases that are referred to by Lord Justice Brooke in Re A, you are into circumstances that, of course, may be pressured and are certainly – obviously enough – difficult, but we can think up any number of coercive situations or objectively coercive situations that a person in the law traditionally, as we would submit, has dealt with those by means of the defence of necessity, not duress.

EDELMAN J: Even assuming that you are correct that there is this need for a specific demand, express or implied, that links the threat to the crime committed, is not the question of whether we are in Lorenz‑type facts or we are in facts where there is such a specific demand a jury question? Other than in the very clear cases like Lorenz, where you might say at the outset, well, we do not even let this go to the jury, is not the question of inferences to be drawn from the circumstances, as Justice Beech‑Jones has put to you – is that not a jury question?

MR BOYCE: There must be some principle. In our respectful submission, it cannot be, as some of the commentators have said, the law of necessity might devolve to. That is, a fact‑by‑fact circumstance devoid of principle, but what we submit is the factual circumstances may be many and varied. If the statements of principle that we contend for are correct – that is, that there is a threat tied to the criminal act through this or else – and this is the avenue, then it depends on whether your defence is duress or necessity. It is important.

EDELMAN J: Yes, but accepting that, accepting that there is that requirement for the moment, why is not the question of whether, on the facts themselves, there was an implied demand, a question for the jury to determine?

MR BOYCE: If there was evidence to support it, then yes. The difficulty – perhaps one of the reasons why we are in this Court is that, we submit, the reasoning of both the plurality and Justice McLeish makes a – is not to that, is not simply – is an extension of principle, not simply saying on these facts or on these facts, but the plurality knew, or is fairly self‑conscious in the idea that they are striking into territory that, in their Honours’ view, had yet to be trod. That is why we find there is no reason in principle or policy why this certain fact should not – this principle should not, we would submit, be extended to these facts of this nature, and so it simply – certainly, if and only for the precedential value of this decision – cannot be avoided by simply saying it is merely a question of evidence. We submit, with respect, that almost self‑consciously the plurality has stated that there must be an extension of principle.

As it happens, on our argument, we see that this has occurred before, has occurred in England, has been developed – duress of circumstances. As we are aware, yet to be adopted, certainly in terms, in this country but, as we submit in the outline of submissions, the shorter document, when one goes to the British cases that deal with duress of circumstances, certainly since the decision of Martin which is though to be a watershed decision – the English Martin [1988] EWCA Crim 2; [1989] 1 All ER 652. But from Martin onwards and, as we suggest, in Shayler [2001] EWCA Crim 1977; [2001] 1 WLR 2206 and in the Abdul‑Hussain decision which was referred to by Lord Justice Brooke in the Conjoined Twins decision, you find reference to proportionality in a duress of circumstances case.

BEECH-JONES J: What do you mean – was the response proportionate?

MR BOYCE: Yes, as an example in the Hussain decision, which begins at 369 of the joint book of authorities, Hussain was a decision of ‑ ‑ ‑

BEECH-JONES J: The second element in Murray is:

the circumstances were such a person of ordinary firmness would have been likely to yield to a threat in the way the accused did –

Is that not a proportional response?

MR BOYCE: No, it cannot satisfy the same thing because, as we know, the person of reasonable firmness is suffused with so much that is subjective – it might be battered wife syndrome, it might be PTSD – it will not provide the limiting factors that removal of the threat connected to the criminal act will open up. As we perceive the authorities – to be hopefully not too blunt about it, certainly the English authorities – is that once that has been removed, once what we submit is, by principle, that which must be contained in duress is removed and we move into duress of circumstances. We see from the English Martin onwards in the English cases not only reasonableness but proportionality as well, and one can understand why that would be so. It is, as it were, we would submit, necessity by another name.

The law is traditionally, it would seem, when one reads through the authorities and the history – and it was no different in the court below – distinguished between duress and necessity. Duress is an excuse. Necessity is justification based on proportionality. You only have to read about four academic articles concerning this area for holes to be punctured in that, as if to say that there is no watertight distinction between those two theoretical underpinnings. But what the law has done, would be our submission, in Australia, certainly in Victoria, hitherto is to keep them separate.

Duress, as we would apprehend, should be necessity, on the other hand, we see in England a self‑conscious blurring of the principles – the blurring is referred to in the Shayler decision – and then in the duress of circumstances cases going on, a requirement of proportionality, which it would seem, in our respectful submission, to be a rational requirement if the test is going to be changed in the way in which we say it has been in this case.

And it is because of that – and it is because of, really, not only in this case but because of the precedential value of the decision in the court below and its ability to expand “duress”, we would submit, quite remarkably, really, that we are here. Because if indeed it is correct, if there is proportionality built into the test, you will have – all I can submit is that “duress” will become far more common than hitherto it has been.

GAGELER CJ: Am I right in understanding that the whole of your argument is focused on the way in which the court below dealt with element (i) of the Hurley test?

MR BOYCE: Yes, yes. And we have attempted in our submissions to trace or make reference to those older English decisions, the decisions of Lynch and Howe, and so forth; perhaps most recently in Z, Lord Bingham of Cornhill, have spoken about what they would say is the staged relaxation of “duress” as a defence since the second law. And it is difficult not to see, when one reads Lord Justice Brooke in the Conjoined Twins Case when he deals with duress of circumstances, that is not – has that been anything, other than another iteration that has occurred, certainly in the United Kingdom.

We would submit, now, by reference to Australian law – certainly Victorian law – when it comes to duress, our submission is that, at principle, duress should be kept within its conventional limits, as indeed even understood by the Victorian Law Reform Commission in 1980 ‑ Report No. 9 – we make reference of this in our submissions, no duress where there is a threat not connected with a demand for criminal action. The Law Reform Commission in 1980 – we have referred to that in our submissions. I can tell your Honours ‑ ‑ ‑

GAGELER CJ: You are not saying that the connection needs to be “temporal coincidence”?

MR BOYCE: No, no, but there must be a connection, this provides the way out from reliance of the threat.

EDELMAN J: Then, not that there must be a connection, because there almost always will be a causal connection. You are saying there must be a communicated connection.

MR BOYCE: Yes, yes.

BEECH-JONES J: But at least, in Victoria, do you not say that is what is in the statute now, looking at section 322O(2)(a)(i) – which I have the ‑ ‑ ‑

MR BOYCE: Yes, as we understand – we have said a bit about this in our outline of submissions – but our case is that section 322O, even looked at in the context of 322P and the like, was understood by the legislature to be a codification of the common law that had pre-existed. So, if your Honour is correct about that, then perhaps more strength to our argument in terms of your Honour’s observation. Obviously enough, the level of harm has been reduced, but sensibly to say, the reason is that a threat of harm was being made that will be carried out unless an offence is committed.

EDELMAN J: Although your submission is, unless the offence is committed.

MR BOYCE: Yes.

EDELMAN J: Your submission on the common law is that it is not enough that it would be “an” offence, your submission is it has to be “the” offence.

MR BOYCE: Offence related to the threat, yes. So, we do not take the legislature to have been doing anything other than seeking to reflect the common law at 322O – obviously, though, reducing the level of harm required. We have traced the history of how 322O came to be brought in, in Victoria, in the outline of the submissions. The first statutory formulation of duress came as part of the introduction of defensive homicide – I think back in 2005, it was applied to murder.

Common law duress continued for all other non‑fatal offences. In 2014, the legislature thought better of its introduction of defensive homicide and removed it, maintained duress, but because of duress being partly common law and partly statute‑based it was thought proper to make it entirely statute‑based and for the defence at common law pursuant to 322Q to be abolished. But we do not contend – at least insofar that it is thought – that it is reflective of the common law. We do not take issue with that. The issue we put – or the question we raise is certainly the plurality but even Justice McLeish below can only be taken or understood below, to have extended the common law in the manner in which we have described.

GORDON J: Can I just ask you at some point to address section 14(1) of the Jury Directions Act and the impact it has on the threshold at which this issue is then left to the jury?

MR BOYCE: Yes, certainly – perhaps if I can take it on notice for a moment. Excuse me, your Honours. Thank you, if I can take it on notice. I think I have put before the Court the heart of our argument, unless there is anything further, your Honours.

GAGELER CJ: Yes, you can come back to that point.

MR BOYCE: Thank you.

BEECH‑JONES J: Mr Boyce, can I just ask you one quick question before you sit down?

MR BOYCE: Certainly.

BEECH‑JONES J: There was a debate before the trial judge and the Court of Appeal about the admissibility of Ms Matthews’ reports. Do you not take any issue with that?

MR BOYCE: In this Court, there is no ‑ ‑ ‑

BEECH‑JONES J: Right. So, the question of whether the trial judge erred and the Court of Appeal erred can be addressed on the basis of what was in her report as well?

MR BOYCE: Yes.

BEECH‑JONES J: Thank you.

MR BOYCE: Thank you, your Honours.

GAGELER CJ: Mr Morrissey.

MR MORRISSEY: Thank you, your Honour. May it please the Court. Your Honours, it seems that the issues are refined in this appeal now. We are grateful to our friend for the indication in the speaking notes that we received and as indicated to the Court. The issue now seems to have refined itself down to the requirement that the perpetrator have a particular intention or state of mind at the time of issuing the threat. I will take you in a moment to part (i) of Hurley, but we concede that for the purposes of Hurley (i), it is not a question of conceding. It is plain on the test that there must be two things: a requirement and a threat, in each case. That must exist. We submit that the court did not err, the court did not abolish or temper either of those requirements.

May I just briefly take the Court to the statement of principle. It is at 497 of the joint book of authorities, and this is the passage from 543 of Justice Smith in Hurley. It is conceivable the Court may have this by heart now, but in any event, it bears reading because the formulation, which starts at line 39 on page 497 of the book, is that:

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 –

And it moves on from there. That is why I say that there is a requirement – there is a need, stipulation that there be a requirement, because Justice Smith says so in the preamble, and that it has to be under a threat. There is no reference there to any particular state of mind in the threatener or the requirer.

GAGELER CJ: Do you accept that the threat has to be communicated expressly or impliedly?

MR MORRISSEY: Yes, I do, because there needs to be a nexus between the two. There needs to be a nexus between the two. In light of that, it is then worth going quickly to the reasons of the plurality below, in the court below, at 174, and there one sees, in the second‑last sentence, the statement ‑ ‑ ‑

BEECH‑JONES J: I am sorry, what paragraph was that?

MR MORRISSEY: I am sorry, your Honour, it is paragraph 174, and it is at 186 of the book. It says:

For all of the offences –

The sentence beginning at – that is worth noting that is for all of the offences, and it is also worth noting previous discussion makes it clear that individual consideration had been given to each offence:

For all of the offences, it would be open to the jury to conclude that there was a reasonable possibility that the applicant would not have been present or undertaken the specific acts that constituted the offending had it not been for an unstated demand from JR that she do so, otherwise he would physically and sexually abuse her.

Now, the term “unstated”, we also submit, could be – without violence to what the court was saying – substituted for “implied”. The only comment we would wish to make about that is that on this appeal, we could ask the Court to consider that in this particular case, on these facts, it was well open to the jury to consider the reasonable possibility that an express and specific topical threat and demand was made each time.

That cannot be excluded on the evidence. There is a want of positive evidence of such an express, immediate verbal communication of both parts of – but we would submit it cannot be ruled as a reasonable possibility. That may – that is unnecessary to our submissions. We do not need to go so far, because our submission is that ‑ ‑ -

GORDON J: But it does – it may be relevant, Mr Morrissey, to the things I raised with Mr Boyce, and that is the level at which one considers this for the purposes of section 14(1) of the Jury Directions Act. In this sense, is what you are saying to us consistent with those principles and the authorities – including what I will call the Victorian Martin, not the English Martin – that one would only not leave it to the jury in an extreme case, given the facts you have just outlined.

MR MORRISSEY: Yes. Yes.

GORDON J: In other words, there must be good reasons not to leave it to the jury.

MR MORRISSEY: That is our position, and we do adopt Martin – and we also apologise for the difficulties that emerged in relation to providing the correct version of Martin, which I trust has come to the Court overnight. It may be apparent why that occurred, because the reported version did not include the crucial passages, and it is for that reason that we substituted the unauthorised but helpful report in the Australian Criminal Reports, the first part of which – of Justice Ashley – deals with the section that your Honour has adverted to. It is at paragraph 21 where that comment of Justice Ashley is made.

That was an extreme case where it was legitimate to remove the matter from the jury’s consideration, but we would submit that it is in the Victorian context of section 14 of the Jury Directions Act we agree that, indeed, it is a further reason why the sort of – why the approach taken by the court fits well with such an approach. In any event, we make the point that 174 contains no error of principle, no overt extension, no extension to the law, no extension of principle. Overall, we make this comment – it is appropriate to make it here, or make this submission – that the formulation of the court in this case involved no extension of principle, and no development of principle, but simply the application of an existing principle to a different factual scenario.

It does no violence to the existing approach or to the directions that are appropriate to be given; it is consistent with it, and it is consistent on the back of a test, that being the test in Hurley and Murray, which has stood the test of time very well in Victoria, New South Wales and other common law jurisdictions, uncontroversially applied and relied upon in different formulations, in Abusafiah, in Victorian Zaharias – in short, in many cases, including most of those which postdate it which appear here. There are many that are not cited here. One could refer to Harding or to Darrington v McGauley, but it has been adopted without controversy, and it appears therefore to be a solid rock and not to be confined or altered under the banner of restricting its unwelcome spread. Rather, it should simply remain as it is and applied in the terms that it is.

Now, so we make those points by way of introduction, and then we could turn – pardon me, I am sorry – the Court may have our speaking notes, and it will occur to the Court that they are extraordinarily repetitious on the original submissions and on the submissions in the court below, and they may not benefit from repetition, but they just reflect a consistent position that we have sought to take, but we have sought to meet the argument that is now advanced in paragraph 8 of our written submissions and ‑ ‑ ‑

GAGELER CJ: I am not sure that really is the argument that ended up being advanced this morning.

MR MORRISSEY: Yes.

GAGELER CJ: I think there was a backing away from a reliance on the state of mind of the perpetrator.

MR MORRISSEY: Yes. Well, I was not sure myself about that, I am sorry.

MR BOYCE: Well, just to make it clear, I thought I had, your Honours.

GAGELER CJ: Please move to the microphone.

MR BOYCE: Sorry, I thought I had backed away from it, your Honour.

GAGELER CJ: Yes, thank you.

MR MORRISSEY: Well, it nevertheless merits attention, not because it was a – well, I submit that it was, in a sense, a logical corner into which the argument for the appellant had driven itself, really, and that is why it came about, because in the reply submissions it seemed to be conceded that on each occasion the accused, or the respondent here, did face a threat and she could subjectively have appreciated that and had reasonable grounds for doing it.

Now, our submission about the effect of all of that is that this was – this matter turned on simply whether these were matters for the jury and they all were, in our submission. Yes, rather than tilting at a derelict windmill, could I instead just go to (iii) of the arguments under paragraph 8, because that remains relevant to any of the arguments that are placed here. The submission here is that on the facts of this case – perhaps, yes, I will make a submission based on the facts, and in doing so we make the point that there is no challenge to the criticisms raised and made by the court of the trial judge in his factual findings, none of those are challenged, and, indeed, here there seems to be no – or there is no challenge to the admissibility and use of the report of Ms Matthews.

So, the facts here are awful, and what they support, in my submission, is the reasonable possibility – and, indeed, we go further and say it is just the overwhelming likelihood – that JR did intentionally rely, every time he made a demand, upon the threat that he created and maintained of serious ongoing sexual violence. The evidence discloses – there is a threefold division of evidence that has been convenient for the parties to rely upon, although we do not have to segment it.

That is, first of all, the evidence of the complainants themselves, which was powerful: he made her do it – it does not get more powerful, these were the lived experiences of people. Whilst it may have been stated at a general level, a jury could use it as relevant ‑ ‑ ‑

BEECH‑JONES J: Is that really admissible? A statement by a complainant: I do not think my mother would have done this unless she was forced – is that not really an opinion?

MR MORRISSEY: Your Honour, it is not – well, the verbal formulation could be seen in a number of ways, but one way of understanding it is that is just what she saw. I mean, every opinion – every sense – every relaying of any sensory perception can be seen as an opinion. If I say I was nervous on the way to court, it may just be an opinion that I have now about how I felt then – I know your Honour is familiar with that.

But it is not an expression of an opinion, but just an expression of lived experience – of what the witness saw. If it were to be seen as a mere opinion, the witness could have been called to say that; that could have been clarified. So, the construction that we would seek to place upon it at this point is open to a jury. If they were persuaded it was just an academic opinion from afar, then they could set it aside. But it is a jury question.

On what is before the Court, it could bear the view that what the court sought to place was the lived experience, and evidence of what actually was observed by a person who was there experiencing it at the same time, and seeing each incident unfold over a five‑year period for each charge. So, that is the reply to that part.

The other two – I was talking about the three‑part section of evidence, the experience of the two victim complainants, the evidence of Pamela Matthews and the evidence set out in the tendency notice, and the tendency that it then evidenced in JR. So, that evidence, in our submission, is capable of supporting for a jury the contention that whenever he made a suggestion or a requirement that was a demand in nature, and that whenever he did so, he did so well intending that that should be backed by the threat that it obviously did impose and carry.

GAGELER CJ: Well, if you leave his intention out of it, you would say the same thing of what is conveyed by his words and conduct at the time of the alleged offending.

MR MORRISSEY: Yes. And I would submit that the evidence does not foreclose that he did become verbally specific, one way or the other, but does not say what he did. But it does not matter, because a jury would be entitled to infer from the very act, in the context of performative, violent, domineering sexual abuse of an absolutely chilling kind, set out for detail purposes in that table, that a jury could well infer that what was being communicated is, do this or else. In fact, it is almost fantasy land to infer anything else.

That is because of a combination of two things. Firstly, the very nature of the ongoing violence, capricious in nature, wilful in nature, domineering in nature, apt to break the will of those subject to it in nature, combined with the fact that what was being demanded, in each case, was a horrifically improper and criminal act. It also cannot be evaded that, at least on one view – and the court used the term in the concluding paragraphs, which I believe was at 177 of the judgment; I will seek to come back to the Court on that – referred to the word “rape”. They did so only once in the course of the judgment because no rape trial had occurred, and there may be a variety of issues about that.

At least from the perspective of the respondent here, it is very much open to conclude that she was subject to rape on several occasions. Her consent had been set at nothing from many years before, from 2006 onwards. In the circumstance where she is charged with permitting somebody else to be present, it is hard to avoid that she was being subject to, I will simply term it, sexual abuse in that time.

For those reasons, it should be here concluded that there was a communicative nexus at least implied between the threat, a background, but ongoing – so it was a constantly existing one, but one which was focussed and present, and must have been – at least a jury could infer – in the minds of all present at the time when the offences were being demanded. That is the nexus, in my submission, recognising that does no violence at all to Hurley number (i); it falls squarely within it.

I could just refer the Court – when the case is refined, it removes the props of preconceived submissions, your Honours. But may I at least take the Court to a couple of examples which at least demonstrate that the court was not in adventurous new territory in finding that a regime of terror of one sort or another can create or was capable of creating – fit for a jury, at least – the nexus between the threat and the demands.

GAGELER CJ: You are going to take us to the facts of some cases to illustrate that?

MR MORRISSEY: Yes, I was. I was just going to briefly – there are really two that are foregrounded here. Some, I will not. Could I perhaps – because I have adverted to it in my submissions, and because it assists – I will refer a little bit later to the facts in Dawson, Lorenz, and Clarkson. For now, the two cases I just wanted to refer to briefly were the facts in Lynch. Lynch was overruled on the murder point, but – if I could just take the Court to the decision in Lynch, the passage is at 237, which is in the judgment of Justice Edmund‑Davies, and ‑ ‑ ‑

GAGELER CJ: This is 1975 appeals cases?

MR MORRISSEY: I apologise, your Honour. Yes, it is.

GAGELER CJ: Page 653?

MR MORRISSEY: Yes, your Honour. I am grateful to your Honour for citing the case for me. In the passage at the top of page 705 of the judgment – 237 of the book – the facts appear:

Sean Meehan was a well‑known and ruthless gunman, and the appellant and Bates gave evidence that Meehan was the kind of person whom it would be perilous to defy or disobey, and who, on the occasion in question, gave his instructions in a manner which indicated to them that he would tolerate no disobedience. There was no evidence of a direct threat by Meehan or any other person against the life or personal safety of the appellant or any member of his family, but both the appellant and Bates testified to their fear of Meehan and their clear view that their disobedience of his instructions would cause them to be shot.

The Lord Chief Justice below had concluded:

We consider that the evidence in this case raised a question for the jury whether Meehan impliedly threatened the appellant with death or serious personal injury.

That is just an example of how it can be done. Meehan did not say so, but he did not have to. The same facts are rehearsed at 210 of the appeal book.

GORDON J: Speaking of Hurley, Justice Smith recognised that it could be unsaid.

MR MORRISSEY: Yes. I do not think my learned friends are disputing that. It is clear that it can be unsaid.

GORDON J: Sorry, Mr Morrissey, I am a bit lost. Why are we going to these cases?

MR MORRISSEY: It is really to show that it is not an extension. This is the background. There have been cases – I shall keep it short. The other case relied upon ‑ ‑ ‑

GORDON J: No, no, no. I am just asking.

MR MORRISSEY: It is simply to illustrate – although my friend agrees with the implied situation, it is the way one establishes the nexus.

GORDON J: Thank you.

GAGELER CJ: The history of violence is the background to the communication.

MR MORRISSEY: And what we would submit is that, whereas Meehan just made a bare demand – as Justice Beech‑Jones pointed out earlier on, there is a world of difference between Meehan making a bare demand, on the one hand, and JR making a demand while he is doing it at the very moment, on the other. There is quite a stark distinction there, and one favourable to the respondent in this case.

The other one – I do not need to take the Court to the references, really, but I can just direct you to it. It is Runjanjic [1991] SASC 2951; (1991) 56 SASR 114, found at reference 36 at 564. There is no point of principle, really, that arises for our purposes there. That was a case of battered woman syndrome, and for Hurley (i), the relevance of it is that it just appears to have proceeded on the same basis, and our court below treated it as doing so. It appears to have proceeded on the basis that the brute in that case, Hill, made a demand on one of the two accused to go and collect the victim and bring her to a place, and that thereafter the two accused participated to greater or lesser degrees in the violence against the victim.

There was, once again, an absence of any express demand which was expressly tied to the threat, and there was a gap because each of the accused in that case denied that they had entered into any agreement at all. However, the case seems to have proceeded in the same way that the case in Lynch proceeded. So, what that means is that what was being done by the court – my friend made reference to a self‑conscious extension, but that is not right. The court were very clear that they were not. They said it is a different fact scenario and they were aware that no court had determined whether the principles apply in this fact scenario or not, but they saw no reason, in principle, why it should not. We maintain that they were correct in doing so.

It is not the development in principle. I make the cowardly, palliative secondary submission that if the Court were to find that it could represent an advance of principle, it is a moderate, modest, unexceptional development, but nothing like the lurch into novelty that would be signalled by an acceptance of the duress of circumstances. But we submit it is not an extension of principle in truth – that is not the correct way to view it.

Your Honours, in terms of the cases that my friend relied upon to indicate a level of departure from past cases, you will see in the outline of submissions we have adverted to Lorenz, Dawson and Clarkson. They are cases which the appellant referred to in their original submissions in this Court. There does need to a little bit of analysis of those cases. If one looks at Lorenz first of all – Lorenz (1998) 146 FLR 369, it is number 31 of the cases in the book, and the page of Justice Crispin’s reasons to which I will direct the Court is found at 512 of the joint appeals book.

GORDON J: What page of the report is that, please, Mr Morrissey?

MR MORRISSEY: Yes, your Honour, it is 376 of the report.

GORDON J: Thank you.

MR MORRISSEY: Here, in the very bottom paragraph, Justice Crispin said:

Finally and in my view most importantly, the Crown pointed to the obvious fact that Mr Henshaw did not ask her to commit the offence with which she is charged or in any way suggest that she should do so.

And it picks up on Dawson, which obviates the need for me to take you separately to Dawson, but it says:

In R v Dawson –

citation given:

the Full Court of the Supreme Court of Victoria held that a defence of duress was not open to a defendant who had escaped from lawful custody in order to avoid threats of violence. Anderson J, with whose reasons for judgment Starke J agreed, observed that in all of the cases relating to duress of which he was aware the offence which the accused person had been constrained to commit had been nominated by the person making the threats. His Honour took the view that that was an element of the defence.

Now, in these two cases, there was a want of a requirement. So, for Hurley number (i), there needs to be a requirement. In the case of Lorenz, she was a pitiable individual who committed the crime because of the situation she found herself in but had not been asked by – “principal offender” is a better term than “brute” for these purposes – the principal offender to commit the offence.

Dawson, who escaped with Loughnan, who generates the necessity cases – Dawson escaped without a requirement imposed upon him to escape and, as Justice Beech‑Jones pointed out earlier, in each of those cases at the time of the offence, the principal offender is not present – not present enforcing, or staring, or glaring, or ensuring that the offence is carried out; not communicating that he is free to do what he likes, and has commensurate power to inflict – and to inflict more, in each case.

I will not take the Court to Dawson because the point is captured within the report of Lorenz, but Clarkson [2007] NSWCCA 70; (2007) 171 A Crim R 1, which is number 19 on the list of authorities – may I direct the Court then to page 149 of the book. The actual citation within the authority is page 19. The passage I am referring you to is paragraph 86, which disposes shortly of the argument put by Clarkson. Now, Clarkson’s Case is a tangle, and he represents a Victorian export to New South Wales.

GAGELER CJ: So, what are we doing here? We are looking at the facts, are we?

MR MORRISSEY: I am sorry, your Honour, it is the last of these but, yes, we are looking to the facts here and we are looking again to the absence of a demand on the facts, and the reason for rejecting in this case the availability of the defence, because there is an absence of demand. Clarkson’s account, the Court may recall – there is a wealth of details of criminality across these cases, but Clarkson, among his various exploits, had procured false travel documents and had done so, he said, because of the necessity to escape the “Carlton crew” in Melbourne. It was said, well, there was no demand to do that and the defence simply should not have been left in the manifest absence of a pillar of the defence in that setting.

GAGELER CJ: Now, where are we in your outline?

MR MORRISSEY: Well, in my submissions we are almost finished, because I would simply mean to adopt by reference the rest of them.

EDELMAN J: Just before you do conclude, then, you took us to paragraph 86 of Clarkson, and there Justice Beazley says:

There was no evidence that the appellant was required to commit the offences under threat if he failed to do so –

The word “required” there, in some respects, is ambiguous. On one view, it is referring to the element that on your primary submission and on the appellant’s submission is the element of an express or implied demand of what is required. On another view, it is what can be required can simply be required by the circumstances of threat. The threat may present no other possibility other than to do a particular act.

MR MORRISSEY: Yes, I understand the ‑ ‑ ‑

EDELMAN J: I asked this of the appellant, but what, as a matter of principle, is the difference between the two?

MR MORRISSEY: Sorry, may I pursue the ambit of the question a bit?

EDELMAN J: If the threatening party does not expressly or impliedly communicate the demand but communicates a threat which can really only be avoided by doing one particular course of conduct, why is there a requirement that the threatening party must also communicate the particular demand or, perhaps in the words of the Victorian legislation now, communicate a demand of an offence generally?

MR MORRISSEY: Yes. My submission is it may be that there are cases where it does not. It may be that there are such cases, and I do not have an easy or clear answer to your Honour’s question, but the answer is that one could, by designing by casuistry, establish a situation where that issue arose squarely, and it may be that in that situation there was no need for either an express or an implied requirement.

EDELMAN J: It seems to me that may be one of the key differences at the moment in the state of Australian authority, at least on one view, and the state of English authority is just whether or not this word “requirement” can connote something that is required as a matter of consequence of the threats, or whether it is required as a result of an express or an implied communication.

MR MORRISSEY: Yes. It encompasses at least the express or implied requirement, and our case was always and remains that AR fell squarely within the implied requirement, and we would go further, but we do not need to, to say that one could not exclude, a reasonable possibility, a direct demand or request in each case. The very act – the very nature of the act itself and his presence during it, his participation in it and the rough violence that he showed at all times to participants who were crossing him during it, makes it clear that one would infer that there was a requirement – a relevant requirement in each case.

I do not foreclose the possibility that in a particular scenario your Honour’s question may raise a genuine issue to be tried. I cannot escape this, though: the reality is that we relied heavily, as the court did, on the formulation of Hurley and the term “requirement”, and that has been adumbrated in various cases in the narrower way that I am indicating. We are submitting we fall comfortably within the narrower way, but if there be a broadening, we would happily embrace it, but it would require a particular set of facts and we are not needing to go to those.

Now, because of the way things have refined, would the Court just permit me 30 seconds of reflection to see – because the indication is this: we would rely upon our submissions and not withdraw any of them, but the Court is adequately familiar with all of them, I expect.

Your Honours, those are the submissions, subject to any questions that I have to make.

BEECH‑JONES J: Mr Morrissey, I have just one question. We can proceed on the basis that the evidence of the two victims that was adduced on the voir dire before the trial judge was not materially different to the evidence they gave at trial, as summarised in the Court of Appeal’s reasons. Is that correct?

MR MORRISSEY: Yes, your Honour, and the process is there is a special – there is a prerecording, a VARE tape, which is tendered in evidence, so evidence in‑chief.

BEECH‑JONES J: So, it was in fact the same evidence.

MR MORRISSEY: It is, it is played.

BEECH‑JONES J: Right.

MR MORRISSEY: It is recorded and then there is a special hearing at which the cross‑examination occurs. On any retrial, those tapes would be played again.

GAGELER CJ: Thank you, Mr Morrissey.

MR MORRISSEY: Thank you, your Honour.

GAGELER CJ: Mr Boyce, can you answer Justice Gordon’s question at this stage?

MR BOYCE: Of course, your Honours and Justice Gordon, section 14 would, of course, arise following section 11 which was – well, it follows upon section 11, which states that:

After the close of all evidence and before the closing address of the prosecution –

(a) the prosecution must inform the trial judge whether it considers that the following matters are open on the evidence and, if so, whether it relies upon them –

. . .

(b) defence counsel must then inform the trial judge whether he or she considers that the following matters are or are not in issue –

which element, any defence and so forth. There was no such discussion in the ‑ ‑ ‑

GORDON J: No, because there was the pre‑ruling.

MR BOYCE: Yes, that is right.

GORDON J: Yes. But those sort of concepts must still at least consider the way in which one looks at the level at which one is assessing whether or not it is a matter that should be left to the jury.

MR BOYCE: I am not sure of any authority to that effect, your Honour.

GORDON J: It seems the way Justice McLeish dealt with it, at least, in his judgment.

MR BOYCE: If the Court please. The only other thing that I would say in response, when my friend submits that the court – says I am wrong when the court said that it was not self‑consciously, to some degree at least, stepping into new territory, is to remind the Court what the plurality states from paragraph 154 to 156. We get meaning of what the plurality means when it speaks of “continuing or ever present threat” from what the plurality says at those three paragraphs, and if I can – because it seems, to us at least, clear beyond pure adventure that not only are their Honours stepping out where no previous authority has gone but are clear what they mean by “continuing or ever present threat”. If I can just read 154:

The first error is the judge’s implicit acceptance that element (i) of the defence of duress requires a specific, overt threat in close temporal proximity to the offending and that a continuing or ever present threat is not sufficient. This implicit acceptance is evident from [122]‑[123] above.

We accept that no previous case has expressly accepted the proposition that a continuing or ever present threat – whether overt or tacit – as distinct from a specific, overt threat, is sufficient. However, no case has expressly considered that proposition and rejected it. In Warren, Doyle CJ considered that proposition in the context of a continuing or ever present threat of violence based upon customary Aboriginal law, and declined to decide the issue because it was not necessary for him to do so. However, a fair reading of his brief analysis indicates that he was prepared to allow for the possibility that a continuing or ever present threat may be sufficient. Further, the analysis of the Full Court of the Supreme Court of South Australia in Runjanjic is consistent with the proposition that a continuing or ever present threat may be sufficient.

Paragraph 156, it is important:

In our opinion, a continuing or ever present threat which is subsisting at the time an accused committed the charged offence can suffice if, in all other respects, the defence of duress can be made out. We cannot think of any reason in principle or policy that requires exclusion of a continuing or ever present threat where, due to the threat, the accused has lost his or her freedom to choose to refrain from committing the charged offence. In this context, it is relevant to note the additional limiting factors identified in element (iii) which requires that the threat be present and continuing, imminent and impending at the time each offence is committed.

And it is there, it is submitted, or we would submit, with respect, we see the extension, writ large and plain, when one reads it in the context of what then follows, in respect of the paragraphs that we have already taken the Court to – that is to say, the plurality is saying in no uncertain terms, in our respectful submission, that the existence of an objective continuing or ever present threat would be sufficient.

No reference – and that must be something that is inferred by the jury from the previous evidence of the conduct. It is not to look at the conduct of JR, let us say, in this particular instance, on that . . . . . day, and say, is it something like what occurred, let us say, in Hurley? Can we say there is an implicit threat that he is communicating connected to the criminal act? It is to look at whether there is a continuing or ever present objective threat to that effect and that will suffice. And that, in our submission, is the clear extension of principle which has taken this Court
into the territory of what has become known in the United Kingdom as “duress of circumstances”.

GAGELER CJ: On the United Kingdom approach, would Dawson have been correctly decided?

MR BOYCE: It could have been, yes. I think the answer is – when one looks to the facts ‑ ‑ ‑

GAGELER CJ: It could have been what?

MR BOYCE: Well, if I can put it this way, your Honour, when one looks at the facts of the so-called duress of circumstances cases, in summary – and I will not spend too much time on them – what do we find? We find, I think, in Willer (1986) 83 Cr App R 225, reckless driving, slowly on a pavement precinct, escaping from a gang of youths that had been previously banged the car and threatened him.

R v Conway [1988] EWCA Crim 1; [1988] 3 All ER 1025, reckless driving, driving in fear of life mistakenly believing police officers to be assassins. In the watershed case that then follows through the other cases of R v Martin [1988] EWCA Crim 2; [1989] 1 All ER 652, driver was disqualified, driving his stepson to work because he had overslept, and his wife had threatened suicide were the stepson to be late to work. Pommell [1995] EWCA Crim 7; [1995] 2 Cr App R 607, possession of a loaded submachine gun; but it was held to be potentially held in circumstances of duress because it had been taken:

off a geezer who was going to do some people some damage with it.

R v Abdul Hussain [1998] EWCA Crim 3528; [1999] Crim LR 570, hijacking of a Sudanese airbus, because the persons were terrified of Sudanese authorities, and that they might deport them to Iraq where they faced the prospect of imprisonment in conditions of extreme hardship, torture or summary execution. So, it is hard to see how it would not, when one looks at those things.

GAGELER CJ: Yes.

MR BOYCE: And that is why we submit that the extension was being made. Thank you, your Honours.

GAGELER CJ: Thank you. The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 11.34 AM THE MATTER WAS ADJOURNED