Carr v R

1. [1]

   DAVIES J: After a judge-alone trial presided over by Judge M Williams SC, the appellant was convicted of the following offences:

2. [2]

   Counts 4 and 6 were alternative counts to counts 3 and 5 respectively.

3. [3]

   On 8 December 2022 Judge M Williams SC sentenced the applicant to an aggregate sentence of 4 years’ imprisonment commencing 3 October 2021 and expiring 2 October 2025 with a non-parole period of 22 months expiring 3 August 2023.

4. [4]

   The appellant now appeals against her conviction on one ground only as follows:

5. [5]

   The trial was largely conducted on the basis of agreed facts. The issue of duress was raised by the appellant with the result that the Crown had to prove beyond a reasonable doubt that the appellant was not acting under duress when committing the offences. She asserted that she was acting under duress from Aiden Osborne, with whom she was involved in an intimate relationship. Mr Osborne was charged with the same or similar offending.

6. [6]

   In addition to the agreed facts, evidence was led from Jessica Muir about the events at the place she lived in Cooma with her partner David Sizmur. The appellant also gave evidence, not all of which was consistent with the agreed facts.

The offending

1. [7]

   The appellant gave evidence that Mr Osborne wanted to leave Dubbo on 1 April 2021. The appellant said that she did not want to leave but Mr Osborne threatened her with a firearm, saying that if she did not leave with him he would shoot everyone in the house at her mother’s place. She then agreed to leave with him.

2. [8]

   On 1 April 2021 Mr Osborne and the appellant travelled from Dubbo to Molong in a motor vehicle. Tyler Webb, the victim of this offence, arrived at a friend’s place in Molong in his motor vehicle, a Hilux Utility.

3. [9]

   Mr Osborne took the Hilux Ute from Molong shortly after midnight on 2 April 2021. The appellant in the agreed facts acknowledges that at the time that she was a passenger in the vehicle, and she knew it had been taken without the consent of the owner. They travelled from Molong to Sydney and from Sydney to Cooma.

4. [10]

   They met up with a person called Daniel Campbell who Mr Osborne knew from gaol. He drove with them to another person’s place in order to find out where they could obtain more drugs. Along the way at a service station at Cooma CCTV footage depicts the appellant and Mr Osborne in the company of Mr Campbell. It shows Mr Osborne putting fuel in the car, and the appellant getting out of the car and cleaning the windscreen.

5. [11]

   Mr Campbell then took them to premises at Sharp Street in Cooma which were occupied by Mr Sizmur, Ms Muir, and their three children, HS aged 12, and two others.

6. [12]

   The appellant knocked on the door and said to HS that she was there to see David Sizmur. She said she had been sent by someone. Mr Sizmur then came to the door and asked the appellant, "What did they send you here for?" She said, "They said I could get on here." Mr Sizmur assumed that she wanted to buy drugs and he said, "Get on what?" He opened the door to let her in, and as she stepped into the hallway, Mr Osborne came running in behind her with his face covered by a bandana and armed with a shortened .22 calibre rifle.

7. [13]

   He yelled out, "Give me all your drugs and money?" Mr Sizmur said, "What drugs and money?” There was a struggle and the gun was fired. Mr Sizmur stood up and saw Mr Osborne operating the bolt to load another round. Ms Muir had overheard Mr Osborne's demands for drugs and money and came from her bedroom into the lounge room. As she was halfway down the hall, she heard the gunshot and smelt gun powder. As she was entering the lounge room, she saw HS on his back on the lounge with one leg in the air telling the appellant to "Fuck off."

8. [14]

   Ms Muir yelled, "Oi", and this startled the appellant who turned and came towards Ms Muir preventing her from entering the lounge room. Ms Muir formed the opinion that the appellant was drug affected because she seemed very jumpy and nervous. The appellant gave evidence disputing that particular part of the agreed facts, but the trial judge accepted the Crown submission that the agreed facts should be preferred to that evidence given by the accused.

9. [15]

   Mr Osborne and the appellant ran out, got back into the stolen Hilux and left Cooma travelling north. They stopped early the next morning in the car park at Canberra Hospital, and CCTV footage showed the appellant getting out of the car with Mr Osborne at some stage and walking into the hospital, and Mr Osborne sitting by himself outside the hospital for some time.

10. [16]

    There were then a number of police pursuits along the Hume Highway. Police positioned themselves behind the stolen car at a safe distance looking for a suitable location to drop spikes in an attempt to stop the speeding vehicle.

11. [17]

    The first of the carjackings took place at Marulan. Joshua Fanning with his wife and child were in a Ford Territory motor vehicle. He looked over his shoulder and he saw Mr Osborne coming in their direction carrying a firearm. Mr Osborne pointed the firearm at Mr Fanning’s wife, Charlotte Lanigan, through a closed window of the vehicle and yelled at her to get out of the car. Mr Fanning got out of the car and removed his child. Mr Fanning saw the appellant walking towards the vehicle and Ms Lanigan heard the appellant yelling at them to get out of the car. Ms Lanigan also got out of the vehicle which was then driven away by Mr Osborne with the appellant in the front passenger seat.

12. [18]

    About 20 minutes later, Mr Osborne drove the car at considerable speed into the Coles Service Station at Sutton Forest, failed to negotiate a roundabout and collided with the guardrail. Mr Osborne got out of the driver's side of the car and jumped over the guardrail. The appellant got out of the passenger side. The footage shows that Mr Osborne was not carrying the firearm at that stage, but the trial judge accepted that, while briefly out of the sight in the footage, the appellant had taken the rifle out of the vehicle and given it to Mr Osborne, because he was then seen running towards Layce Riley, who was fuelling her car, a Ford Focus, with her children in the vehicle.

13. [19]

    The appellant told one of her daughters to "get out of the fucking way” before she got into the passenger seat of the car. Mr Osborne got into the driver's seat and they sped off back onto the Hume highway. They stopped at Mittagong and stole some registration plates, put them on the stolen Ford Focus and continued to drive towards Sydney.

14. [20]

    There was a further police pursuit at Yerrinbool and at Mount Annan. The car was ultimately followed through the streets of Paramatta. They stopped about 6.45pm on 2 April 2021. The appellant and Mr Osborne were seen to leave the car and run through the streets. Before they left the car, they set fire to the back seat. They were ultimately arrested in the street shortly afterwards.

15. [21]

    The firearm was identified as a shortened .22 long rifle calibre Birmingham Small Arms manufactured repeating bolt action rifle.

Submissions

1. [22]

   The appellant submitted that the principal error made by the trial judge was his failure to consider that the issue of duress had been raised sufficiently that it was required to be considered by the tribunal of fact in the matter.

2. [23]

   The appellant submitted that, although she had conceded that there was no direct evidence of a specific demand by Mr Osborne to take part in any offences, her case was that she knew what Mr Osborne wanted her to do at the time of each offence, and that he did not need to say what it was, expressly or overtly, for her to follow and comply.

3. [24]

   The appellant submitted that the principle that emerges from the authorities in relation to a demand or request to do the particular offence is a requirement that there be evidence from which the jury could reasonably conclude that the threatener intended the accused be coerced to commit the act comprising the alleged offence. Such evidence may arise from the threat itself (whether direct or implied), or from a direction, request or demand (whether direct or implied), such as the particular facts and circumstances of the case may reasonably permit. This, the appellant submitted, is a different and lesser requirement than what was found by the trial judge.

4. [25]

   The appellant submitted that the requirement or demand by Mr Osborne in Dubbo that the appellant leave with him in the car set the tone for what occurred and, in the context of the coercive control relationship, was sufficient evidence of an implied demand for the particular offences. That was because those events were all so closely related to the circumstances in which the appellant was required to leave Dubbo prior to the offending.

5. [26]

   The Crown submitted that the trial judge was not considering the preliminary issue of whether duress was sufficiently raised that it could be considered by the tribunal of fact. Rather, his Honour proceeded on the basis that duress had been raised, and his Honour was determining as the tribunal of fact that the Crown had negatived it because there was no evidence of a request or demand to commit the various offences.

Consideration

1. [27]

   Although the appellant’s written submissions in this Court appeared to be directed to the substantive issue of whether there must be evidence of a specific, direct and overt demand or request to commit the offence charged, the appeal was argued on a somewhat different basis orally. Counsel for the appellant said:

2. [28]

   The Crown, on the other hand, as noted earlier, submitted that his Honour regarded the issue of duress as having been properly raised (in the sense that it should go to the jury) and that his Honour’s judgment was his verdict as the tribunal of fact.

3. [29]

   It appears to me unsatisfactory to decide the appeal simply on the basis of whether his Honour considered the issue in the preliminary sense only or in a final sense as the tribunal of fact. A finding that his Honour had finally determined the issue would mean that the substantive question concerning the nature of the demand or request to constitute duress, and whether there was any evidence of such, would remain unanswered. Accordingly, three questions will be answered:

4. [30]

   It should be said at the outset that the trial was conducted in such a way that it is understandable that there is now a lack of clarity about the decision that was made. The parties and the trial judge, no doubt to conduct the trial as efficiently and economically as possible, did not take care to follow the procedure that would have been followed had there been a jury.

5. [31]

   However, a reading of the transcript of the trial, the parties’ written submissions to the trial judge, together with the trial judge’s judgment, satisfactorily demonstrates that the judgment appealed from is not a determination that duress was not raised sufficiently to be left to the tribunal of fact but, rather, was his Honour’s final determination as the tribunal of fact that the appellant was guilty of the offences because the Crown had successfully negatived one of the elements of duress. That element was the demand or request to commit the offences charged.

6. [32]

   At the outset, counsel for the appellant, in answer to the judge’s enquiry, “The issue is duress, isn’t it?”, said, “That’s right, your Honour, yes. Essentially all of the physical acts attributed to my client are admitted and agreed…”.

7. [33]

   The agreed facts were tendered, Jessica Muir gave evidence, her statement was tendered and she was briefly cross-examined. Ms Muir did not agree with the few matters that were put to her by counsel for the appellant. Thereafter, a number of videos were played. They had been recorded at various places along the route that Mr Osborne and the appellant had driven. That constituted the Crown case.

8. [34]

   The appellant then gave evidence. Her evidence was interrupted by the evidence from the expert, Dr Breckenridge, who had prepared a report concerning the appellant and the coercive relationship the appellant was in with Mr Osborne. There was argument about aspects of the report, and what was ultimately admitted was a redacted version after evidentiary rulings by the trial judge. The appellant then concluded her evidence. That evidence departed at times from what was contained in the agreed facts.

9. [35]

   The trial was then adjourned for approximately three weeks to enable counsel to prepare written submissions. Detailed submissions were prepared on both sides. The trial judge sought clarification from counsel for the appellant, because his written submissions elided the two matters of the threat to the appellant and the demand or request to her to commit the offences. Counsel thereafter prepared supplementary written submissions. Finally, both counsel addressed their submissions. At the conclusion of addresses, the trial judge delivered his verdict with reasons.

10. [36]

    A number of matters are significant in assisting an understanding of what was taking place, in terms of the issue now raised by the ground of appeal.

11. [37]

    First, nowhere in the written submissions is there any notion that what was being considered was confined to whether duress was sufficiently raised. The submissions proceeded on the basis that whether duress was established (or, more correctly, whether the Crown had failed to negative it) was now for determination by the judge as the tribunal of fact. For example, in the Crown’s submissions at par 20, attention is drawn to the Criminal Trials Bench Book jury direction about duress. Thereafter, the submissions read:

12. [38]

    That makes clear that the Crown was putting the submission as part of a closing address to the tribunal of fact; it was not submitting that something should not “go to the jury” because it was not open to the tribunal of fact to find duress.

13. [39]

    Similarly, the defence submissions read:

14. [40]

    Those submissions are not dealing with whether the issue of duress was such that it could be left to the tribunal of fact. They are addressed to the tribunal of fact, pointing out what the Crown has to establish to negative duress.

15. [41]

    Secondly, no voir dire was conducted to determine whether the issue was sufficiently raised to be left to the tribunal of fact. The likely explanation for that is that both parties accepted from the outset that the trial judge was required, as the tribunal of fact, to consider if the “defence” was made out.

16. [42]

    Thirdly, the exchanges between the trial judge and counsel during discussion of the submissions focused on what the Crown had to prove beyond reasonable doubt to negative the elements of duress. That was an issue clearly raised in the written submissions on behalf of the appellant made to the trial judge.

17. [43]

    Fourthly, a reading of the trial judge’s judgment as a whole provides clear indications that his Honour considered that the issue was sufficiently raised for consideration by the tribunal of fact. In par 10 his Honour said:

18. [44]

    In similar vein, the trial judge said at par 13:

19. [45]

    His Honour’s conclusion at par 73 is:

20. [46]

    I am entirely satisfied that his Honour’s judgment is dealing, as the tribunal of fact, with the question of whether the Crown had successfully negatived the issue of duress. In that way, these matters demonstrate that the trial judge did not fail to leave the issue of duress to the tribunal of fact. The issue was considered by his Honour as the tribunal of fact in reaching a conclusion that the Crown had successfully negatived that element of duress which required there to be a particular request or demand in relation to the specific offences charged.

21. [47]

    The trial judge held at par 71:

22. [48]

    The leading authority on the elements of the common law defence of duress is the judgment of Smith J in R v Hurley and Murray [1967] VR 526 where the following appears:

23. [49]

    In R v Dawson [1978] VR 536 Harris J said of Smith J’s judgment in Hurley and Murray (at 542):

24. [50]

    In the same case, Anderson J said (at 438):

25. [51]

    In Nguyen v R [2008] NSWCCA 22; (2008) 181 A Crim R 72 Hodgson JA (Kirby and Buddin JJ agreeing) said at [36]:

26. [52]

    In R v Lorenz (1998) 146 FLR 369, Crispin J said (at 376):

27. [53]

    In Rowan (A Pseudonym) v The King [2022] VSCA 236 the joint judgment of Kyrou and Niall JJA said at [63]:

28. [54]

    Whilst none of these decisions is binding on this Court, the approach taken in those cases, chiefly in reliance on what was said by Smith J in Hurley, may be taken to state the law in respect of the requirements for duress to be successfully established. The High Court has noted that Smith J’s statement of the elements has been frequently cited as authoritative: Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53 at [25]. This Court has referred with approval to Hurley: R v Abusafiah (1991) 24 NSWLR 531 at 537; Clarkson v R [2007] NSWCCA 70; (2007)171 A Crim R 1 at [73]-[77] and [86]; Nguyen v R at [34].

29. [55]

    Although the appellant argued before the trial judge that the threat and the demand were one and the same, that was not the basis of the argument in this Court. In many cases, the two features of the duress will be separate. Certainly, the Victorian Court of Appeal in Rowan regarded them as distinct: see [173] and [174].

30. [56]

    As to the matter of the threat, the Victorian Court of Appeal held in Rowan (at [156] that:

31. [57]

    The Crown said in written submissions to the trial judge,

32. [58]

    The trial judge said in his judgment (at par 43):

33. [59]

    His Honour then correctly identified that the one matter left for determination (at par 50) was:

34. [60]

    However, the appellant relied both before the trial judge and this Court on what was said in Rowan at [174] in the joint judgment:

35. [61]

    Two related things are clear from that part of the judgment. First, the appeal in Rowan was against the refusal of the trial judge to leave the issue of duress to the jury. As Rowan at [174] makes clear, the question being discussed there was whether it was open to the jury to infer that there was a reasonable possibility that there was such a demand or request to commit the acts that constituted the offences. Secondly, by reason of the factual context of that case, it was open to the jury so to infer “based upon the history of the relationship”.

36. [62]

    That is not the position in the present matter. The trial judge was not considering whether the issue should be left to the tribunal of fact because inferences were capable of being drawn; his Honour was deciding the matter as the tribunal of fact.

37. [63]

    In any event, all that was being said in Rowan, was that the absence of “direct evidence” of the demand or request was not fatal in the circumstances of that case. It was sufficient that it was open to the jury to infer such a demand or request even if it was an “unstated demand”.

38. [64]

    In my opinion, the authorities are clear that a particular request or demand in relation to the specific offence charged is required even if, in some circumstances it can be inferred as Rowan suggests at [174]. The trial judge’s conclusion at par 71 (set out at [46] above) about what was required was correct.

39. [65]

    The evidence does not disclose a particular request or demand to carry out any of the acts concerned. The only evidence of that nature given by the appellant was her evidence that Mr Osborne demanded she leave Dubbo with him, coupled with the threats to her and her family if she did not. Although the appellant submitted that that threat, in effect, carried forward to the events in Molong and Cooma, and subsequently on the trip back to Sydney because it “sets the tone” and in the context of what occurred there was not a long period between that threat and the offending, that submission must be rejected.

40. [66]

    The appellant said that Mr Osborne threatened her and demanded she leave Dubbo with him. When they got to Molong, she gave the following evidence :

41. [67]

    In cross-examination, the appellant gave this evidence about the theft of the car :

42. [68]

    Even if what is said in Rowan at [174] is correct, there is nothing in the present case from which it could be inferred that a demand or request was made to the appellant by Mr Osborne concerning Count 1.

43. [69]

    When the appellant and Mr Osborne arrived at Cooma, they went to see a person Mr Osborne knew from gaol. Mr Osborne asked if he knew where they could get methamphetamine. They were taken to a dealer’s house. The appellant then gave this evidence :

44. [70]

    That account by the appellant does not sit easily with her plea to the offences because it suggests that there was no joint criminal enterprise to rob the occupants of the house. Nevertheless, no demand or request is disclosed.

45. [71]

    The appellant relied on what she said in cross-examination as follows :

46. [72]

    The appellant submitted that the demand was that she “was sent up there with money to get on”. This account differed from what appeared in the agreed facts, and appeared to be in support of her evidence that Mr Osborne thereafter unexpectedly appeared with the gun demanding the drugs from the occupants of the house. At no point did the appellant give any evidence to suggest that she had been told to go to the door asking for drugs with the intent that Mr Osborne would then arrive to threaten and rob the occupants. Indeed, her assertion that she was sent there “with money to get on” is inconsistent with a demand to commit the offences.

47. [73]

    When the difficulty was raised with counsel for the appellant at the hearing of the appeal, counsel suggested that the joint criminal enterprise to rob may have been made after Mr Osborne came in with the gun. However, there is then no evidence that the appellant was told or required to do anything at all.

48. [74]

    In relation to what occurred at the two service centres, the appellant gave this evidence :

49. [75]

    In cross-examination, the appellant gave this evidence :

50. [76]

    At the commencement of the addresses, the following exchanges occurred between the trial judge and counsel for the appellant:

51. [77]

    The concession was properly made. There is nothing in any of the evidence to demonstrate any direct evidence of a demand or request to commit any of the offences. Nor, if what is said in Rowan at [174] is correct, is there anything from which an inference could be drawn that there was a reasonable possibility of such demand or request.

52. [78]

    The trial judge was correct in concluding that the Crown had successfully negatived the element of duress which required a demand or request to commit the particular offences.

Conclusion

1. [79]

   I would make the following order:

   1. (1)

      Dismiss the appeal.

2. [80]

   FAGAN J: I agree with Davies J. I gratefully adopt his Honour’s summary of the charges and of the evidence at trial, on the basis of which I add the following observations.

3. [81]

   The trial was conducted substantially on the basis of facts agreed pursuant to s 191 of the Evidence Act 1995 (NSW). The solicitor advocate who represented the appellant adduced from her evidence that was in some respects contradictory of the agreed facts. The most significant differences concerned count 2, the armed robbery at Cooma. The appellant participated by attending the premises where the robbery was carried out, in company with Osborne. He entered after her carrying a shortened firearm and demanded “drugs and money” from the occupants. The detail of the appellant’s actions in the agreed facts supported an inference that she was present in furtherance of a joint criminal enterprise. In oral evidence the appellant gave different details, which her solicitor submitted in closing argument were more consistent with her having aided and abetted Osborne in the commission of the offence as an accessory at the fact (or principal in the second degree). This difference was immaterial, as were the other discrepancies between the oral evidence and the agreed facts, because in closing submissions the appellant’s solicitor conceded that all elements of each count were established.

Conduct of the defence case at trial

1. [82]

   After the close of the case for the accused on 8 November 2022, written submissions were exchanged and the trial was relisted for supplementary oral argument on 1 December 2022. The written submissions for the appellant show that the defence case was founded upon a misapprehension of the law.

2. [83]

   As Davies J has explained at [47]-[64], the authorities establish that in the common law of duress a demand by the threatener to the accused, requiring that he or she commit the offence charged, is a concept distinct from a threat of harm that is made to the accused to induce compliance with the demand. Of course, the demand and the threat would commonly be communicated at the one time, in words to the effect: “Commit this offence, or I will harm you.” But both aspects must be conveyed to constitute duress. In the present case, assuming that the Crown failed to exclude beyond reasonable doubt the other circumstances that the common law requires should be present for the defence to operate, the trial judge would return verdicts of not guilty only if there remained on the evidence a reasonable possibility of the following two matters: first, that Osborne demanded of the appellant that she perform the acts constituting each offence and, secondly, that Osborne threatened the appellant with harm if she did not perform those acts.

3. [84]

   In evidence and in submissions at trial the appellant’s solicitor dwelt upon a contention that his client was in an abusive relationship with Osborne and that she was subject to ongoing threat of violence from him. The appellant’s closing written submissions of 29 November 2022 contained the following:

4. [85]

   That was followed in par 4 of the defence submissions with a reference to the judgment of Kyrou and Niall JJA in Rowan (A Pseudonym) v The King and a contention that their Honours had rejected “the proposition that a demand or request to commit each offence is required to make out duress”. Paragraphs [155]-[156] of the joint judgment were cited but they do not contain any such rejection. Those paragraphs are concerned with what may suffice as a threat of harm, on which subject their Honours said this:

5. [86]

   Kyrou and Niall JJA accepted that a demand made of the accused that he or she should commit the offence in question is one of the essential constituents of duress, by the disproof of which the Crown may defeat the defence. Their Honours were of the view that this constituent is not necessarily excluded by an absence of evidence of explicit demand: the defence may succeed if there is circumstantial evidence from which the reasonable possibility an implicit demand by the threatener to the accused to perform the relevant acts could be inferred. Their Honours said this at [174]:

6. [87]

   At pars 11-17 of the written submissions of 29 November 2022 the appellant’s solicitor put to the trial judge a summary of the circumstances of each count. Those paragraphs were expressed in terms that failed to recognise the need for evidence of demands made to the appellant by Osborne that she commit the respective offences. In relation to count 1 (riding in a conveyance without consent) and counts 2-6 (concerning the robbery at Cooma) pars 11 and 12 of the submissions commenced as follows:

7. [88]

   It was inaccurate to speak of “threats … to [act]”. However, it was plainly intended by these submissions to acknowledge that there was no evidence of Osborne having made to the appellant any demands to act, that is, to commit the offences. In the balance of each of the above paragraphs it was submitted that the appellant was in a constant state of fear and that it could be inferred she took part in the crimes because of that fear. On the authorities discussed in Davies J’s judgment, such a causal connection would not suffice in the absence of demands to commit the unlawful acts. Paragraphs 14-16 of the submissions of 29 November 2022, concerning counts 7-9, did not purport to identify any evidence of demands from Osborne that the appellant commit those three matters. Subsequently, in oral submissions on 1 December 2022, the appellant’s solicitor conceded “in relation to each count, that there’s no direct evidence of a direction” to commit the offences. The appellant had not testified that she received express demands. Nor was there evidence from any other source that express demands had been made upon her. The solicitor did not submit to the trial judge that there was circumstantial evidence from which he could infer implicit demands by Osborne. There was no circumstantial evidence that could have been pointed to.

8. [89]

   In an email from the trial judge’s associate to the representatives of both parties dated 30 November 2022, his Honour communicated the following:

9. [90]

   This drew from the appellant’s solicitor supplementary written submissions dated 30 November 2022, in which the following appeared:

10. [91]

    By that submission the solicitor continued his misconception regarding the constituents of duress, as in pars 3 and 4 of the original closing submissions of 29 November 2022 quoted above. Throughout the oral submissions on 1 December 2022 the appellant’s solicitor steadfastly maintained that in the law of duress there is no requirement of a demand that the relevant unlawful act be carried out, separate from the requirement of a threat of harm. Translating that position into language that reflects the burden of proof, the appellant’s solicitor maintained that if the Crown should exclude any reasonable possibility that the threatener made demand upon the appellant to carry out the relevant acts, that would not defeat the defence.

11. [92]

    The position taken by the applicant’s solicitor in closing is exemplified in the following extract from the transcript of argument:

12. [93]

    Further on in the oral submissions, after discussion of the authorities, this exchange took place:

13. [94]

    The appellant’s written submissions on the appeal include the following:

14. [95]

    The defence position led to the following paragraphs of the trial judge’s decision:

The issue on appeal

1. [96]

   A few quotations from the transcript of oral argument in the appeal will identify the sole issue that was raised in this Court. It was put to counsel for the appellant that the trial judge appeared to have decided that there was no evidence that the appellant received from Osborne “a demand, request, requirement or the like” to commit any of the offences. Counsel responded as follows:

2. [97]

   A further relevant exchange was as follows:

3. [98]

   Later Ms McGee submitted this:

4. [99]

   The substance of the argument, encapsulated in the above extracts, is that the learned trial judge did not decide, by reference to all relevant evidence, whether the Crown had excluded beyond reasonable doubt that Osborne made any demand upon the appellant that she should commit any of the offences charged. The argument is that the judge accepted the appellant’s solicitor’s concession that there was no direct evidence of such a demand and proceeded to hold that there was therefore no evidence for him to consider on the point, erroneously concluding that it would not be sufficient for there to be circumstantial evidence from which the reasonable possibility of implicit demands might be inferred.

5. [100]

   That argument cannot be accepted. His Honour’s judgment is not directed to any such question of what kinds of evidence might be relied upon to support a reasonable possibility of demands by Osborne, explicit or implicit, that the appellant perform the unlawful acts. I find it quite clear on the record of the proceedings that his Honour’s reasons are concerned with deciding, as the tribunal of fact, whether any such reasonable possibility remained on all the evidence. There was no evidence, of any kind, direct or circumstantial, to found a reasonable possibility that demands were made of the appellant to commit the offences. His Honour so found. The appellant’s solicitor having conceded that, apart from excluding duress, the Crown had otherwise proved all elements of each offence, the findings of guilt inevitably followed. On the appeal there has been no suggestion of any error affecting those findings, apart from what has been argued with respect to the issue of duress.

6. [101]

   The appeal should be dismissed.

7. [102]

   DHANJI J: I have had the considerable benefit of reading in draft the judgments of Davies and Fagan JJ. I have come to a different to view to that of their Honours. My reasons for that view, which follow, assume familiarity with the judgments of Davies and Fagan JJ.

8. [103]

   As is clear from the reasons of Davies and Fagan JJ, in order to satisfy the evidentiary burden to raise the defence of duress, there must be (together with the other requirements) evidence of “a threat which is made to coerce the accused to commit the act which was the basis of the offence with which he or she was charged” such that the defence will not apply in the absence of identification by the person making the threat of the “particular offence for the accused to commit”: Rowan (A Pseudonym) v The King [2022] VSCA 236 at [63] (“Rowan”), set in the reasons of Davies J at [53].

9. [104]

   In Rowan, the plurality in the Victorian Court of Appeal, in upholding an appeal against conviction, accepted that there is no need for a specific threat to be made preceding the relevant (otherwise criminal) conduct. Their Honours held that “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”: at [156]. Following that decision, special leave to appeal to the High Court was granted to the Crown to challenge what it described as “duress of circumstances”: see The King v Rowan [2023] HCATrans 90. The expression refers to a line of authority in the United Kingdom. The appeal was argued on 14 November 2023 ([2023] HCATrans 159), and judgment is, at the time of writing, reserved.

10. [105]

    The present matter, at first instance and in this Court, proceeded on the basis that a “standing threat” of the nature discussed in Rowan is sufficient. Further, the matter was contested at trial, and determined by his Honour, on the basis that there was, in existence at the time of each of the offences, such a threat, which was described as a “present and continuing, imminent and impending” threat to the appellant (paragraph 43 of his Honour’s verdict judgment). There was no challenge to his Honour’s finding in this regard. In these circumstances, despite the outstanding challenge to the decision in Rowan, I am of the view this Court should approach the matter on the same basis.

11. [106]

    As has been explained by Davies and Fagan JJ, and is clear from Rowan at [63], the presence of a continuing threat did not obviate the need for evidence linking the threat to the particular conduct such that “what was said and done by the threateners actually manifested an intention to coerce the appellant” to perform the relevant acts making up the offence charged: Nguyen v R [2008] NSWCCA 22; (2008) 181 A Crim R 72 at [36], set out more fully by Davies J at [51]. On the other hand, it is clear from that decision that the demand to perform the relevant acts may be implied: see Nguyen v R at [36]-[37]; Rowan at [174].

12. [107]

    In the context of the above, the present appeal falls to be determined by the terms of the single ground of appeal:

13. [108]

    The ground is amenable to being understood as involving a question of law alone – that is, in order for the defence to be raised, does duress require “evidence of a specific, direct, and overt demand or request made by the threatener to the accused in relation to the specific offence charged”. If the ground is understood as such, leave is not required: Criminal Appeal Act, s 5(1)(a). The parties appear to have proceeded on the basis that leave is not required. While the ground raises this question of law, the answer to the question is straightforward. The evidentiary burden to raise the defence of duress does not require evidence of “a specific, direct, and overt demand or request made by the threatener to the accused in relation to the specific offence charged”, at least insofar as that formulation suggests the demand must be “direct” and “overt”. As discussed above, while there must be a demand that the accused engage in the conduct constituting the specific offence alleged under threat of the relevant harm, such a demand may be implied. In my view, the real question to be determined on this appeal is not the requirements of duress, but rather, whether his Honour determined that the requirements for raising duress are as stated in the ground of appeal. This is a question of fact.

14. [109]

    As has been explained in the reasons of Davies and Fagan JJ, the submissions on behalf of the appellant at first instance, to the extent they may have suggested that there was no need for evidence of a demand to commit the particular crime charged, were incorrect. That does not, however, answer the ground of appeal. If his Honour determined, as the ground of appeal asserts, that a direct and overt demand was required, he was wrong to do so. Whether his Honour might have received greater assistance is not to the point, at least at this stage of the analysis.

15. [110]

    Fagan J (at [88]) points out that the appellant’s representative at first instance conceded an absence of “direct evidence of a direction” to commit any of the offences charged. As his Honour’s discussion of the proceedings demonstrates, there appears to have been a degree of confusion at first instance as to what was required in order to properly raise the defence. His Honour notes that there was no submission that there was circumstantial evidence from which an inference could be drawn that demands were implicitly made. It is unfortunate that the issue was not directly grappled with at first instance. However, insofar as both Davies J (at [77]) and Fagan J (at [88]) go on to find that there was no circumstantial evidence from which an inference of a demand could be drawn, this seems to me, with respect, to be relevant to the application of the proviso (cf Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [48]), or, were it necessary, the granting of leave. As discussed above, leave is not required. If it were, I would not refuse leave, given the issue of leave was never raised, let alone the prospect of refusing leave on this basis.

16. [111]

    It is necessary to return to the reasons of the trial judge in order to determine whether, as the appellant argues, his Honour proceeded on an incorrect basis. The ground of appeal, to some extent, mimics words used by the trial judge. His Honour, at paragraph 46, observed that while the Court in Rowan accepted that a continuing threat may be sufficient, the decision nonetheless proceeded on “the assumption that there was, consistent with the authorities … a specific order, direction or requirement to do the criminal act in question”. The terms of the ground are, however, different in important respects. In contrast to the terms of the ground of appeal, his Honour did not say that the threat must be “direct” or “overt”. Further, his Honour’s use of “or” rather than “and” (that is, “a specific order, direction or requirement”) in contrast with the terms of the ground of appeal, postulated alternatives, rather than cumulative requirements. This leaves an ambiguity in that it is not clear whether the adjective “specific” qualifies only the word “order” or also qualifies the words “direction” or “requirement”. As noted above, to require an overt or direct demand would be contrary to Nguyen v R at [36]-[37] and Rowan at [174], which allow for the possibility that the demand to engage in the relevant conduct might be implied (see Davies J at [63]-[64]; Fagan J at [86]). Despite the parallel with the ground of appeal, it is not clear from this passage alone whether his Honour did require evidence of a “specific” demand in the sense of a “direct” or “overt” demand.

17. [112]

    Further analysis is required to determine whether, reading his Honour’s reasons as a whole, it should be concluded that his Honour failed to consider whether a demand to commit the particular offence charged could be inferred. That reading is not to be done as if construing the words of a statute.

18. [113]

    The reasons of the trial judge were, to a significant extent, and as might be expected, framed by the submissions of the parties. His Honour noted, referring to Rowan, that while a continuing threat may be sufficient, there was an issue between the parties as to what was required to constitute a relevant demand. His Honour expressed the issue, at paragraph 50 of the verdict judgment, as follows:

19. [114]

    While not expressly denying the potential for the demand to be implied, the formulation does appear to articulate a dichotomy between there being no demand and direct evidence of a demand. That his Honour might have so considered the issue is not altogether surprising given that, as Fagan J makes clear, he was not assisted by submissions pointing to the possibility that the demand to commit the particular offence might be implied.

20. [115]

    His Honour referred to what he described as the assumption in Rowan that “a specific order, direction or requirement to do the criminal act in question” is required before proceeding to a discussion of the authorities with respect to the nature of that demand requirement. His Honour noted that in R v Hurley and Murray [1967] VR 526, Smith J stated duress would apply “[w]here the accused has been required to do the act charged against him” and the remaining elements of the doctrine were satisfied. His Honour, at paragraph 47, then set out the following explication of Smith J’s formulation from the reasons of Harris J in R v Dawson [1978] VR 536 at 542:

21. [116]

    Having set out the above, the trial judge referred to the facts of various cases including R v Lorenz (1998) 146 FLR 369 and R v Dawson [1978] VR 536. His Honour noted that, in those cases, the absence of a demand to commit the particular offence was fatal to the defence of duress. That proposition is uncontroversial. The absence of any such demand was also easily demonstrated in those cases. In R v Lorenz, the accused determined to commit an armed robbery to obtain money in response to threats from her abusive partner. In R v Dawson, the applicant made the decision to escape prison to avoid the realisation of threats made by other prisoners. In both cases, the accused determined the particular crime to be committed in response to the threat. This necessarily excluded the making of any demand by the threatener that she or he commit the particular offence charged. These cases are readily distinguishable from the present case in that here there was no issue that Mr Osborne decided upon the offences to be committed. The issue is whether he, intending to coerce the appellant by means of the continuing threat, required that she participate in those offences.

22. [117]

    Clarkson v R (2007) 209 FLR 387; [2007] NSWCCA 70 was also referred to as case in which duress was not raised as there was no evidence “the appellant was required to commit the offences under threat if he failed to do so”. His Honour also referred to R v Runjanjic (1991) 56 SASR 114; (1991) 53 A Crim R 362 as a case in which duress was raised, but noted that the case was decided “against the background of an assumption of a specific request”. Nothing in the discussion of these cases dealt with the question of whether a demand to commit the particular offence might be inferred, and if so, whether it could be inferred in this case.

23. [118]

    The one case dealt with by his Honour which was directly concerned with the issue of an implied demand was this Court’s decision in Nguyen v R. In Nguyen v R the appeal was upheld on the basis that the trial judge was wrong to hold that duress was not available. There, the appellants had been engaged to tend to a crop on a rural property. On their case, on realising the crop they were tending was cannabis, they sought to leave, whereupon they were threatened and told they were to remain at the property. There was no direct demand to continue tending the crop. Hodgson JA (with whom the other members of the Court agreed) found that a demand to continue the acts constituting the offence charge could be implied: at [36]-[37]. That is, given the absence of any other purpose, implicit in the demand that the appellant’s remain at the property was a demand they continue with the acts of cultivation.

24. [119]

    While, as noted above, Nguyen v R was the one decision discussed by his Honour that dealt with an implied demand, his Honour’s treatment of this decision is telling. His Honour said, at paragraph 67 of the verdict judgment:

25. [120]

    Two features of his Honour’s treatment of Nguyen v R, are noteworthy. First, the passage set out by his Honour does little more than restate the need for evidence of a demand that the accused commit the acts constituting the particular offence charged. The real significance of Nguyen v R in the present context is in its acknowledgment that such a demand might be implied, a matter not averted to by his Honour. The second significant feature of his Honour’s discussion of this case is his Honour’s statement that this Court held duress was not available. This was wrong. Those two matters together strongly suggest a failure to appreciate the significance of the decision in Nguyen v R to the present case.

26. [121]

    A further feature of his Honour’s reasons is of note. As discussed, what is required is a demand to commit the particular offence charged. The evidence, while likely to overlap in a case such as the present, will be different as to each charge, or, at the least, the analysis will be. There was, for example, a stronger case for drawing an inference of a demand that the particular offence be committed under the continuing threat with respect to the first offence in time, that being the offence of being carried in a stolen vehicle. In relation to that offence, the appellant’s evidence was that, on locating the vehicle, Mr Osborne said, “Let’s take this” and then “Let’s go”, in response to which she got in the car. The concession that there was no demand that the appellant commit the offence appears to have been wrong. The words, “Let’s take this” and “Let’s go”, to my mind, imply a demand that the appellant get in the vehicle. For present purposes, they were, at least, capable of doing so. Given the nature and proximity of the earlier threat, the use of the gun coupled with the words, “You’re coming with me”, made in the context of the controlling relationship, an inference was available that the implied demand that the appellant get in the vehicle was made under the earlier threat.

27. [122]

    Despite the need to analyse the circumstances of each charge to determine whether a relevant demand was made, his Honour considered the issue globally. Thus, his Honour never considered, in relation to the first charge, the import of the words, “Let’s take this” and “Let’s go”, which, as I have observed, are capable of supporting an inference of a demand made under the earlier threat. This was, in fairness, the result of the manner in which the case was argued. Towards the end of his reasons, after the discussion of the various authorities, his Honour, at paragraphs 70-72, said:

28. [123]

    The appellant’s representative’s approach appears to have led to a confusion which underpins this matter. First, as noted by Fagan J (at [87]), the use of the expression “specific threat” came from the written submissions of the appellant’s representative and is more properly understood as a reference to the absence of a specific demand. Further, the absence of evidence of “specific” demand appears to have been a reference to an absence of “direct” evidence of this. As has been made clear, the threat and the demand are separate requirements. That is not to deny that an inference as to a demand to commit a particular offence might be drawn from the same or substantially the same body of evidence as that with respect to the threats. The submissions, unfortunately, set up a false issue on which the appellant necessarily failed.

29. [124]

    A complete reading of his Honour’s reasons leads me to the conclusion that his Honour did determine the matter on the basis that direct evidence was required of a demand that the appellant commit the particular offence charged. In doing so, his Honour did not consider whether an inference could be drawn of a demand, made under the pre-existing threat, to commit any of the particular offences charged. It follows that his Honour erred.

The proviso

1. [125]

   For the reasons given above, in my view, his Honour erred in determining that direct evidence of a demand to commit the particular offence is required in order to satisfy the evidentiary burden to raise the defence of duress. The question then arises as to whether the proviso can be applied.

2. [126]

   On the appellant’s case, Mr Osborne, by the use of a gun, coupled with threats to the appellant and to her family, demanded that she leave Dubbo, using the words “You’re coming with me”. Whether this instruction, together with the history of the relationship, and importantly, the events surrounding the individual offences, support an inference of a demand in the sense of an instruction to commit the particular offence under the ongoing threat, requires, with respect to each offence charged, close scrutiny of the evidence. As discussed, the inference to be drawn may be different with respect to particular offences. As also discussed above, it might be stronger in relation to the first offence which involved the transfer from the vehicle used to leave Dubbo to the use of the stolen vehicle the subject of that count.

3. [127]

   It is relevant to note that Ms Muir, Ms Breckenridge, and the appellant all gave evidence at first instance. This Court has not had the benefit of seeing and hearing that evidence. However, even without the misgivings I might have in applying the proviso as a result of these matters, significant to the application of the proviso is that duress was the only issue raised at trial. Application of the proviso would amount to substitution of trial by this Court for trial at first instance. I cannot be satisfied that there has been no substantial miscarriage of justice where there has been a failure to determine the only issue at trial.

4. [128]

   I would uphold the appeal, quash the convictions, and order a new trial.