Duress

Moffitt P (who agreed with Nagle CJ at CL and Yeldham J)

6. At the trial, it was common ground that there was a conspiracy to import into Australia from Thailand a very large quantity of cannabis and that, pursuant to the conspiracy, about five tons of it was picked up by a ship, the “Choryo Maru”, from two ports in Thailand; that it was transported in that ship to, and deposited in, a wreck on the Pocklington Reef between New Guinea and the Solomon Islands, and that later about three and one half tons of it was loaded from the wreck into another ship, the “Anoa”, which had come from Cairns and which then brought the cannabis into Australia. The issue contested at the trial by various accused persons who pleaded not guilty was that he or they were not parties to the conspiracy. Some accused, including De Graaff and McCallum raised a defence of duress. At the trial, no question concerning the application of that defence to a charge of conspiracy, or any difficulties in that regard, were raised; and no complaint arising from that circumstance, or concerning the crime charged being that of conspiracy, was raised on appeal. Some later reference to this matter, however, will be made.

…

11. His case was, therefore, that, having joined the ship innocently at Singapore and, without being a party to the conspiracy, having navigated the ship to the reef where the cargo was unloaded, that, from some short time after his arrival back in Australia, he was subject to threats, so that, by coercion alone, he then participated in the selection of a vessel to perform the second part of the operation, and that, by reason of the coercion alone, he navigated the ship “Anoa” to the reef and back to Australia.

…

14. The events which have been recounted give rise to a further difficulty, perhaps a legal difficulty, which stands in the way of the defence of duress in the case of De Graaff. His admitted involvement, by navigating the first ship which in fact aided the smuggling operation, and his admitted failure to disclose, and indeed his concealment of his participation in, the operation at a time when he had an opportunity to do so, when admittedly no threats had been made to him, raises the question, in the present state of the law, whether the defence of duress should be found to be available to him in respect of participation in the later part of the smuggling operation, allegedly under the compulsion of later threats. In the uncertain state of the law, a view well open is that the defence of duress will not be available where a person, by his earlier fault, when free from duress, has exposed himself to the later threats: R v Hurley and Murray. Thus if a person joins an illegal organization when not under duress, the defence will not be available if he is compelled to continue, and to commit a crime. If the position were otherwise, in the present case an anomalous situation would arise. If a man claims he came innocently to do acts in aid of a continuing criminal venture, and admits that, when not subject to any threats, he voluntarily omitted to disclose, or concealed the criminal venture, so that it was able to continue, first, will the policy of the law admit a defence of duress, that by later threats, he was coerced to participate in the completion of the criminal venture; and, second, can he be heard to say that the only opportunities to go to the police proper to be considered on the question of whether the defence will be withdrawn are such opportunities as were presented after the threats were made, they being argued then to present such a risk that the defence should be found not to be withdrawn.

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17. The issue of duress having been raised by the evidence of De Graaff, the Crown had to negative it beyond reasonable doubt in accordance with R v Steane. The trial and the summing up proceeded on this basis and no complaint is raised in respect of directions in relation to the onus of proof. My remarks hereafter should be taken in the context of that onus.

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24. The questions posed are not simply whether the defence of duress is subjective or objective. On any view, the defence involves both elements. It will be available only if the mind of the accused is in fact (ie subjectively) overborne; but, that there are some objective elements to be met before the defence is available, is clear. The law has certainly placed some limits, ie objective limits to the occasions upon which the defence is available. That some line is drawn, so that some cases are excluded, is clear; but, in the present state of the law, it is open to some debate as to where the line is drawn, and as to the means by which that line is to be defined. Thus the defence is withheld, in the case of murder, where the accused did the killing. In such a case the defence is not available, irrespective of the nature of the threats, and how greatly the mind was overborne. Authority to date admits the defence where the objective test is met that the threats are of death or of “serious personal violence”, and does not appear to have conceded that the defence is available in other cases, although there has been some support for the view that threats of some kind, eg of imprisonment may also be included. Thus, there is no authority which decides that the defence is available to an accused person who commits a crime, even a not very serious crime, due only to the compulsion for example of a blackmailing threat of the most vile kind against a member of his family.

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34. The two objective boundaries to the availability of the defence referred to in Whelan's case (2a) and applied in later authority, and the objective boundaries now defined in relation to murder, have been imposed for policy reasons. Such policy reasons may well differ according to the boundary drawn. That the law excludes the defence in some areas for policy reasons is consistent with other branches of the criminal law where “defences” are limited in their availability for policy reasons. Thus, provocation is available only in relation to the crime of murder. In respect of other crimes, it is relevant only to punishment. Further, the “defence” is not available, even to a person who kills with a mind subjectively provoked, if the provocation is not such as would have provoked an ordinary man in like circumstances. The policy of the law is to discourage persons, at the moment of pressure, from giving way too easily to pressure to commit a crime. This it does by confining the defence by limitations based on an expectation of the law, and hence the community, that there shall be resistance to pressure to commit crimes according to the resistance to be expected from an ordinary person. Other examples can be found in the law relating to self defence.

Where the threat is of personal violence, there is a threshold question, namely: Are there any objective limitations on the availability of the defence of duress which depend on the quality of the threats, and of the acts otherwise criminal, and the circumstances which confront the person threatened who commits the crime under the influence of the threats? Will any threat of any harm, or serious harm, of a personal nature suffice for the commission of any crime, no matter how serious omitting, of course, murder by the person who kills?

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55. It follows that the jury, in any case of duress, will have to consider the risk the accused runs in ignoring the threat, or in taking some course of action to avoid it. On an ultimate analysis, the question whether there was a reasonable opportunity for the mind to reassert itself involves the same objective considerations as are involved in the question whether the threats themselves were such as an average person of ordinary firmness of mind would have acted as did the accused. If, in like circumstances, such a person would have taken an available course of action to avoid the operation of the threats so as to reassert his will, then it was an opportunity reasonably open.

56. The law of duress relevant to the present case is as follows:

• Where a person does acts otherwise criminal by reason only of his mind being then overborne by threats of death or serious bodily violence, whether to himself or to another, the defence of duress will be available, provided that an average person of ordinary firmness of mind, of a like

age and sex, in like circumstances, would have done the acts.

• Where it appears that the accused person fails to avail himself of an opportunity reasonably open to him for his will to be reasserted, the defence will not be available to him. The answer to this question will depend upon whether an average person of ordinary firmness of mind, of like age and sex, in like circumstances, involving like risks in respect of the alternatives open, would have availed himself of the opportunity in question.

• The extent to which it will be appropriate to give directions to the jury in relation to the relevance of particular circumstances, including any relevant risks if the threat is ignored, or the opportunity availed of, and in relation to the age and sex of the accused, will depend on the facts of the particular case, and the conduct of the trial.

Nagle CJ at CL and Yeldham J

133. Before departing from this aspect of the appeal, we should add that we have read the judgment of the President, and agree with the first three conclusions he has reached relating to duress. We do so substantially for the reasons he has advanced. Although it might be said that his observations in the paragraph numbered (d) which follows his three conclusions are outside the scope of the issues under appeal; and that, to implement his suggestions, legislative action may be needed, we would wish to say that we are impressed with those observations.

Gleeson CJ

At 533

In this matter I have had the benefit of reading in draft form the judgment of Hunt J. I agree with that judgment.

Mahoney JA

At 533

I agree with the orders proposed by Hunt J and generally with his reasons. There is one matter to which I would make a particular reference.

Hunt J

At 534

The appellant (Monzer Mohammed Abusafiah) was found guilty by a District Court jury of a charge of armed robbery. Judge Armitage QC set a minimum term of four years penal servitude with an additional term of one year and four months.

The Crown case was that, in August 1988, the appellant alighted from a parked car and assaulted the victim, accusing him of having stolen money and demanding its return. He pushed the victim against a wall, produced a knife (about 16 centimetres in length) and threatened the victim with it, again demanding money. When the victim continued to assert that he had no money, the appellant struck him across the face. The victim ultimately surrendered his coat to the appellant, who re-entered the car and it was driven away by another male person. A female was also a passenger in the rear seat. A nearby resident who saw the incident recorded the registration number of the car.

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At 534 and 535

At the trial, and despite a substantial attack made upon the credit of the police witnesses concerning the quality of their investigation, the appellant gave evidence and conceded that he had in fact done what the Crown witnesses alleged that he had done. In his evidence, the appellant said that the man El Atar had told him that he needed the car and that he was to accompany El Atar on a drive. El Atar drove from Lakemba to Redfern, where he picked up the female passenger. He then drove to Kings Cross, where the car was parked and the three of them visited a steak house for some beer. El Atar next instructed the appellant to wait in a coffee shop while he and the female entered a hotel. They were away for an hour. El Atar appeared to be under the influence of drugs when they returned, and he was telling the female not to worry because he would get the money. They sat in the car in the same positions as before, and El Atar told the appellant that he wanted him to do a favour for him.

El Atar was upset, and he told the appellant that he wanted revenge from a man who had ripped him off in relation to three grams of heroin. The revenge sought was the taking of money and a key from the man, with violence. The appellant could not remember the man's name. El Atar explained that he was himself facing a number of charges, he was on parole, and he was known to this man. He did not want any more trouble from the police. They spoke for fifteen to twenty minutes. The appellant protested that he could not do the favour, he had never done this before in his life. El Atar abused him, calling him a coward. Then, according to the appellant's evidence, El Atar threatened the appellant. He grabbed him by the arm and shook him, saying: “You don't listen to what I am telling you, I am going to shoot you.” He took a revolver from the belt of his trousers, and pointed it at the appellant. The appellant just “freaked out”, and was unable to say anything. He had seen the weapon before, but he had never been threatened with it before. El Atar told him that he had to do the favour for him, and the appellant said that he would. El Atar moved the car to another street. As they drove, El Atar told the appellant not to worry, that he would look after him. The appellant continued to protest, saying that he could not do it, he had never done it before. El Atar told him that, when he pointed the man out to him, he was to shout at him, hit him, ask him where the money belonging to El Atar's brother was and take the money.

El Atar stopped in the middle of the road and indicated a man about 5 metres away as the man who had ripped him off. He shouted at the appellant and handed him a knife. The appellant immediately opened the door and alighted from the car. The armed robbery then took place in the manner described by the victim in evidence. The appellant had felt “shocked to death”. El Atar shouted to him from the car to hurry, as the police were coming. The appellant took the victim's coat and re-entered the car. He handed the coat and the knife to El Atar, who was still in the driver's seat. They drove to Campsie. At Campsie, El Atar and the female left with the coat, and the appellant returned home.

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At 541 and 542

I do not agree that provocation and duress are truly analogous issues.

Each does, of course, introduce an objective test of reasonableness, in order to ensure that accused persons with sensitivities falling outside the ordinary or common range of human temperaments are not permitted to escape responsibility for their actions: R v Enright [1961] VR 663 at 669; R v Hill [1986] 1 SCR 313 at 343; Stingel v The Queen (at 327). But beyond that, it seems to me, there is no true analogy. In common law provocation, there must be a loss of self-control (as a result of the victim's conduct) inducing the accused's intention to kill or to inflict grievous bodily harm. In duress, the relevant act is done only because the accused has lost his free choice to refrain from doing the act, in that he did the act because he feared that the consequences of the threat were greater than those flowing from the crime he commits. His act can be said to have been induced by the threat (made by a third person it should be noted, and not by the victim) only in the most general sense; there is no loss of self-control. Provocation is also a partial defence only, in that it reduces the crime of murder to manslaughter. Duress is a complete defence, leading to an acquittal.

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At 543

The relevant direction in relation to the objective test should therefore be that the Crown must establish that there is no reasonable possibility that a person of ordinary firmness of mind and will would have yielded to the threat in the way the accused did. It was conceded before this Court that a direction in those terms would be unobjectionable. There is nothing in either R v Hurley and Murray or R v Lawrence which requires a different direction to be given, as this particular issue did not arise for determination in either case.

…

Before turning to the application for leave to appeal against sentence, I propose to suggest a form in which directions should be given whenever there is evidence in a case from which it could be inferred that there is a reasonable possibility that the accused acted under duress. In my opinion, the jury should in such a case be directed first in relation to the ingredients of the offence charged (including the voluntary nature of the acts of the accused), secondly in relation to the specific acts of the accused alleged to constitute that offence, and then thirdly in relation to duress. The directions relating to duress should be along the following lines:

“(1) The Crown, as I have said, must establish that the acts of the accused constituting the offence were done by him voluntarily. That those acts were in fact done would in most cases lead to the conclusion that they were done voluntarily. In the present case, however, it has been argued that you should not come to that conclusion because, it is said, the accused acted under duress or coercion.

(2) The accused does not have to establish that he did act under duress. The Crown must establish that the acts of the accused were done voluntarily and, in order to do so, it must eliminate any reasonable possibility that he acted under duress.

(3) It is always somewhat difficult to give directions upon the issue of duress in a way which completely avoids any suggestion that the accused has raised that issue by way of a defence to the charge. You must nevertheless keep it firmly in mind at all times that it is the Crown which must eliminate any reasonable possibility that the accused acted under duress.

(4) What the Crown must establish is one or the other of two things. It does not have to establish both of them. The first is that, when the accused did those acts, there is no reasonable possibility that he did so by reason of a threat that death or really serious physical harm would be inflicted upon him [IF RAISED or upon his family ETC] if he did not do those acts.

(5) If the Crown has failed to eliminate that particular reasonable possibility, it must establish in relation to any such threat which may reasonably have been made that there is no reasonable possibility that such was its gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to that threat in the way in which the accused did.

(6) The Crown has to establish one or the other of those two things. It does not have to establish both of them. If it establishes either one or the other of them, and if you conclude from the whole of the evidence that the acts of the accused alleged to constitute the offence were done by him voluntarily, then you should go on to consider the other ingredients of the offence which I have already defined for you.

(7) If, however, the Crown has not established either of those two matters relating to duress, or if you have not concluded from the whole of the evidence that the acts of the accused alleged to constitute the offence were done by him voluntarily, then you must find him not guilty of that offence.”

King CJ

1. The appellants were tried in the Supreme Court on an Information containing a count of false imprisonment and a count of causing grievous bodily harm with intent to do grievous bodily harm. They were found guilty on each count. There was a third count of assault occasioning actual bodily harm but that was an alternative to the second count and no verdict was taken upon it. The appellants have appealed against those convictions.

2. The offences were alleged to have been committed against one Patricia Hunter at a property at Swan Reach where Runjanjic and a man by the name of Hill lived together on a de facto basis. Hill was originally jointly charged with the appellants but died suddenly in January of this year.

…

9. The appellants in their evidence admitted being parties to deceiving Hunter into going to Swan Reach. They denied, however, that they anticipated that Hill would use violence towards her and denied that they were part of any plan involving the use of violence. Their evidence was that the purpose of the plan from their point of view was simply to persuade Hunter to disclose information about the supposed theft. They claimed that Hunter remained at Swan Reach willingly and denied that she was under restraint or that handcuffs were used. They explained their apparent co-operation with Hill by stating that they would face violence from him if they disobeyed him.

10. The primary defence, as it was put to the jury, was that the appellants were not parties to any plan involving the imprisonment or violence and that Hill's assault on Hunter was not anticipated by them. Alternatively, it was contended on their behalf that their wills were overborne by fear of Hill's violence and that they acted under duress.

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12. The defence of duress was a matter for the consideration of the jury. Its force was greatly weakened, however, by the fact that the appellants did not claim to have participated in a plan involving imprisonment and violence out of fear, but had denied such participation altogether. Their credibility must have been severely weakened in the eyes of the jury by what were seen to be false denials and that must have greatly influenced the jury's assessment of the story that, to the extent that they co-operated with Hill, they did so only out of fear.

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14. There was another ground of appeal which raises an important question of admissibility of evidence. At the trial Mr Borick sought to call a Mr Fugler, a professional psychologist, to give evidence of what Mr Borick described on the appeal as "the battered woman syndrome". The learned trial judge ruled that the evidence was inadmissible and Mr Borick has argued on the appeal that that ruling was wrong.

15. Mr Fugler was not sworn and the judge was not provided with a proof of the evidence which he proposed to give. Mr Borick summarized the proposed evidence for the judge. He described Mr Fugler as a clinical forensic psychologist of 20 years experience. He described the proposed evidence in the following terms:

"Our basic submission is that there are certain behaviour patterns displayed by women who are battered in the way these women have been battered and it leads to certain inabilities to handle situations in the way ordinary people would, and in brief what they have undergone is beyond ordinary experience and the jury would require assistance from someone like Dr Fugler to explain. The sort of behaviour patterns that in general patterns Mr Fugler would talk about would be that it starts with what he described as a role induction whereby they become accustomed to violence and begin to rationalize violence. It is associated with a loss of self-esteem and confidence which robs them of the ability to cope with infliction of violence in the way that an ordinary person would. Violence becomes normal. Then there is the effect of long term fear arising out of threats of death or severe injuries over a period of time. Mr Fugler says that leads to a type of dependence where they become dependent upon their assailant. He says their emotional responses are blocked and the expectation of violence which is abnormal to an ordinary person becomes normal to them. Their anxiety level robs them of the ability to make decisions and that is an important aspect of the evidence from the psychologist."

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18. Repeated acts of violence, alternating very often with phases of kindness and loving behaviour, commonly leave the battered woman in a psychological condition described as "learned helplessness". She cannot predict or control the occurrence of acute outbreaks of violence and often clings to the hope that the kind and loving phases will become the norm. This is often reinforced by financial dependence, children and feelings of guilt. The battered woman rarely seeks outside help because of fear of further violence. It is not uncommon for such women to experience feelings for their mate which they describe as love. There is often an all pervasive feeling that it is impossible to escape the dominance and violence of the mate. There is a sense of constant fear with a perceived inability to escape the situation.

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22. Evidence of the kind under discussion is relevant, in my opinion, to issues arising in this case. It was necessary on the evidence for the jury to consider whether the appellants were constrained by duress to participate in the crimes charged. The learned trial judge left that issue to the jury. The defence of duress exists "when the otherwise criminal acts are committed not out of choice but because the will of the accused is overborne by threats of death or serious physical injury in such circumstances that the will of a person of reasonable firmness might be similarly overborne"; The Queen v Brown (1986) 43 SASR 33 at 37. The availability of the defence is subject to a condition that the accused has not failed to avail himself of an opportunity which was reasonably open to him to render the threat ineffective; The Queen v Brown supra at 39. There is therefore a subjective and an objective aspect of the test. There is the question whether the will of the accused was actually overborne. There is then the further question whether the will of a person of reasonable firmness in his situation would have been overborne.

23. The learned judge ruled the proffered evidence to be inadmissible on the ground that the test is objective and that expert evidence of the state of mind of the appellants was therefore irrelevant. I do not think that that is a sound basis for excluding the evidence. In the first place it ignores the subjective aspect of the test. Even if the evidence had no bearing on the objective aspect, it would be relevant to the question whether the wills of these appellants were in fact overborne. But it also misapprehends, in my opinion, an important thrust of the proffered evidence. It may be that the expert is in a position to express an opinion as to the condition of mind of these appellants, but the primary thrust of the evidence is to establish a pattern of responses commonly exhibited by battered women. The proffered evidence is concerned not so much with the particular responses of these appellants as with what would be expected of women generally, that is to say women of reasonable firmness, who should find themselves in a domestic situation such as that in which the appellants were. It is designed to assist the court in assessing whether women of reasonable firmness would succumb to the pressure to participate in the offences. It also serves to explain why even a woman of reasonable firmness would not escape the situation rather than participate in criminal activity. As such it is relevant.

Legoe J

5. In my opinion the evidence should have been proffered and its relevance tested in the ordinary way. The

Crown contended that the evidence was not relevant. I do not agree. To deny the jury evidence which prima facie would assist the application of the test for duress is in my opinion not justified on the principles above referred to. I consider that the defence should have been permitted to call Mr Fugler.

6. I would allow the appeal, set aside the convictions and order a new trial.

Bollen J

1. I have had the advantage of reading the reasons of the learned Chief Justice. The reasoning of the

Chief Justice and the authorities, articles and the texts to which he has referred convince me that expert evidence is admissible in the right circumstances in cases where a "battered wife" raises duress, self-defence or provocation. In case the word "raises" is capable of ambiguity I mention that I remember that the onus is always on the Crown to negate duress, self-defence or provocation. I say, "in the right circumstances" because the question whether such expert evidence is admissible in any particular case will depend on proof of the right facts. But as a general proposition I think we may now say that the "battered wife syndrome" has become "an organised branch of knowledge in which" a person may qualify as an expert (Clarke v Ryan (1960) 103 CLR 501-502 per Menzies J; see too per Dixon CJ at p.491).

Spigleman CJ

1. I agree with Dunford J.

Dunford J

2. On 12 February 1999, following a trial in the District Court of New South Wales, Meliton Pimentel ("the appellant") was found guilty by a jury of an offence against s 233B(1)(d) of the Customs Act 1901 in the following terms:

"That between 1 September 1996 and 5 January 1997, at Port Stephens in the State of New South Wales and elsewhere, was knowingly concerned in the importation into Australia of prohibited imports to which s 233B of the Customs Act 1901 applied, to wit narcotic goods consisting of a quantity of cannabis resin, being not less than the commercial quantity applicable to cannabis resin."

..

30. The third ground of appeal relates to the failure of the trial judge to leave the issue of duress to the jury. Defence counsel made a specific request, which was refused, although his Honour did leave the issue of voluntariness to the jury.

31. The appellant, as was his right, declined to be interviewed by police and did not give evidence at his trial, so to raise the possibility that the appellant acted under duress, it was necessary to rely on such inferences as might reasonably have been open from the Crown case, particularly the evidence of Mr Verheggen.

32. Counsel for the appellant relied particularly on evidence that, although they had been told before passing through Port Said that there was to be a "special cargo" and the crew would share in a bonus of 100,000 Dutch florins which, having regard to the decrepit nature of the ship, must at least have excited suspicions that the cargo was some form of illegal substance, they were not told in advance of the nature of the cargo, the dhow from which the cannabis resin came was armed, and that an attempt was made by the appellant to stop the loading from the dhow onto the Hiddensee, but after Verheggen spoke to the skipper of the dhow, he told the appellant and the crew that they could not refuse to take the cargo.

33. Moreover, during the voyage it appears that the option of throwing the cargo overboard was discussed, but Verheggen told some crew members, including the appellant, a story about how a Dutch mariner who had thrown a cargo overboard was the subject of a revenge attack at his home, and on another occasion he told the appellant and other crew members: "If they find out we throw it overboard without any reason, they will have revenge and [the family] will be in trouble or in danger".

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35. The accused does not have to establish that he acted under duress. The Crown must establish that he acted voluntarily and in order to do so must eliminate any reasonable possibility that he acted under duress.

36. The matters which the Crown must negative when an issue of duress is raised are:

1. The making of an actual threat,

2. That the threat must be of death or serious injury to the accused or his family,

3. That the threat was of such gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to the threat in the way that the accused did, and

4. That the accused acted as he did because of the threat which was still acting on his mind at the time of the criminal act: R v Abusafiah (1991) 24 NSWLR 531 at 544-5.

37. For such a threat to be effective it must be continuing and be seen to be continuing and such threat will not be continuing and effective if the accused has a reasonable opportunity to render the threat ineffective: R v Williamson [1972] 2 NSWLR 281 at 283, 300.

38. In the present case the evidence established that the appellant was prepared to engage in the carrying of some "special cargo" in a vessel which was hardly seaworthy in return for a share of 100,000 Dutch florins. There was no evidence that his motive in trying to stop the loading was that he objected to the nature of the cargo, but the evidence rather suggests that he acted on behalf of Verheggen who objected to the manner in which the cargo was being thrown on board. There was no suggestion that the stories told by Verheggen of what had happened to other persons who had thrown a cargo overboard was at the hands of people connected with the present voyage, no evidence of any actual threat of death or serious injury made to the appellant, no evidence that he could not have stopped the operation by sending a radio message or such like and, most of all, no evidence that any alleged threats induced him to do something which he would not have been happy to do if no such threats had been made. In these circumstances there was no material proper to be considered on the issue of duress and his Honour was correct in not leaving it to the jury. This ground is not made out.

Hidden J

44. I agree with Dunford J.