The King v Anna Rowan – A Pseudonym [2024] HCA 9

In The King v Anna Rowan – A Pseudonym [2024] HCA 9 (‘Rowan’), the High Court clarified the nature of threats sufficient to raise a defence of duress at common law and left open the possibility of recognising a defence of ‘duress of circumstances’ in the future.

Facts

Ms Rowan (a pseudonym) and her partner, JR, were charged with offences arising from the alleged sexual abuse of two of their daughters (aged between 10 and 15) over a six-year period. Their alleged conduct included JR and Ms Rowan performing sexual acts in the presence of the children and JR engaging in sexual intercourse with the children in Ms Rowan’s presence or with her assistance. Some allegations included sexual touching or contact between Ms Rowan and one of the children.

In her trial, Ms Rowan sought to have the defence of duress left to the jury. She had admitted to a forensic psychologist that she and JR had sex in the children’s presence but said he ‘made her’ (she denied the other allegations): at [26]. Ms Rowan told the psychologist that JR would hit her during sex and displayed ‘extreme anger’ towards her, and that she was fearful of him: at [25]. She said she was afraid of ‘what might happen’ if she did not have sex with JR and referred to the possibility that JR would hit her or the children: at [26]. The psychologist concluded that Ms Rowan was subject to JR’s control and had been emotionally and sexually abused by him: at [27]. She opined that Ms Rowan had symptoms consistent with ‘battered woman syndrome’ as well as a mild intellectual disability, which made it more difficult for her to withstand persuasion and manipulation: at [4], [25], [27].

In addition, evidence in the Crown case showed that JR was generally violent and controlling towards Ms Rowan and the children: at [5]. There was evidence from the children of acts of violence by JR against them not involving Ms Rowan, and one child recounted other acts of ‘extreme depravity’ that JR made her perform under threats of violence: at [17]–[18]. Both children made statements suggesting that Ms Rowan would not have been involved in their abuse voluntarily: at [19], [22].

The trial judge did not consider that there was a sufficient evidentiary basis to leave a defence of duress to the jury and declined to do so. Ms Rowan was convicted of most of the offending alleged (as was JR).

‘Elements’ of duress

Central to the issue of duress at first instance and on appeal was the common law requirement that the accused have done the act charged under a threat that death or grievous bodily harm would be inflicted upon a human being if they failed to do the act, which was the first ‘element’ of the defence of duress described by Smith J in R v Hurley [1967] VR 526 (‘Hurley’): at 543.

In Taiapa v The Queen (2009) 240 CLR 95 (at [28]), the High Court observed that Smith J’s formulation of the ‘elements’ of the defence had been adopted throughout Australia as authoritative. The plurality in Rowan repeated that observation (at [35]) and referred to Smith J’s judgment as representing the common law understanding of duress in Australia, at least with respect to the nature of the ‘threats’ required: at [3].

Court of Appeal

The Victorian Court of Appeal held that the trial judge erred by not leaving duress to the jury. Kyrou and Niall JJA considered that the ‘combined psychological, physical and sexual abuse (including rape) … could be inferred to be the subject of a continuing or ever-present threat’ in Ms Rowan’s case and that this was sufficient to satisfy the first element of Smith J’s formulation in Hurley. This was notwithstanding the absence of any evidence that JR threatened sexual or physical abuse before each act: Rowan v The King [2022] VSCA 236: at [173]–[174]. McLeish JA reached the same conclusion, reasoning that it was ‘not necessary to infer an explicit threat’ and that an implicit threat of serious physical harm to Ms Rowan if she refused to participate might be inferred from evidence of JR’s general conduct: at [218].

High Court

There was no dispute that, as per Smith J’s judgment in Hurley, for duress to be available there needed to be evidence of a threat of the relevant form of harm if Ms Rowan did not undertake the criminal acts. The Crown contended that the Court of Appeal had reasoned in a way that was akin to accepting the availability of a broader defence of ‘duress of circumstances’, not otherwise recognised in Australia. ‘Duress of circumstances’ is recognised in England and Wales and can be made out where an accused commits an act to avoid death or serious injury, without the need for there to be any threat of harm connected to the act, so long as the person’s response was a reasonable and proportionate one: at [2], [47]–[48].

The High Court unanimously dismissed the Crown’s appeal.

The plurality held that the trial judge ought to have left the defence of duress to the jury because the threat required by the first element in Hurley could be implied. Their Honours noted that, in Hurley, Smith J referred to the possibility that a threat may be ‘left unsaid’ as long as it was ‘sufficiently present and continuing, imminent and impending’ at the time the crime was committed: at [39]. The latter requirement, the plurality reasoned, simply means that the threat must be ‘operative’ or ‘effective’ at the time of the act as opposed to requiring that the threat immediately precede the criminal conduct: at [40]. The plurality concluded that the evidence of ‘pervasive violence, intimidation, control and sexual abuse’ by JR against Ms Rowan and her children over a sustained period of time ‘raised a reasonable possibility that any express or implicit demand JR may have placed on [Ms Rowan] to join in the sexual abuse … carried with it the implication that serious violence and more severe sexual abuse would be inflicted … if she refused’: at [62].

Accordingly, the defence of duress may be available where there is evidence of threats looming over a person at the time of their offending even if they are unspoken and not closely temporally connected to the relevant act. Importantly, however, there must still be a connection between the threat and the criminal act, such that threats of violence per se will not suffice: at [53].

A threat that is unspoken could give rise to fine distinctions. Two earlier decisions referred to by the plurality (at [38]) where duress was found to not be available – R v Dawson [1978] VR 536 (‘Dawson’) and R v Lorenz (1998) 146 FLR 369 (‘Lorenz’) – illustrate the point. They respectively involved:

1. a prison escapee who said he had been threatened by other prisoners and feared for his life, but was not found to have been threatened into escaping; and
2. a pregnant woman accused of armed robbery whose partner had threatened to kill her if she did not obtain money for his car registration but did not threaten to kill her if she did not commit a robbery.

The plurality considered Ms Rowan’s case to be more similar to the facts of Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 (‘Lynch’). There, duress was available to an appellant who drove a group of gunmen to a murder at the direction of a ‘known member of the IRA and a ruthless gunman’ who did not expressly threaten him but ‘gave his instructions in a manner which indicated … that he would tolerate no disobedience’: at [42] citing Lynch: at 655–6, 704–5. There, as in Ms Rowan’s case, an implied threat arose partially from the person’s violent character and antecedent conduct: at [43]. In both Ms Rowan’s case and Lynch the source of the threats was present at the time of the criminal conduct, unlike in Lorenz and Dawson: at [62].

The plurality did not find it necessary to consider whether a defence of ‘duress of circumstances’ should be recognised in Australia. Justice Edelman, who agreed with the outcome but wrote separately, was prepared to entertain a broader concept of duress not tied exclusively to identifiable threats, which could overlap with the defence of necessity. In short, his Honour identified ‘no principled basis for distinguishing between sources of extreme pressure’ and observed that ‘a focus exclusively upon threats may be an unjust, unprincipled and unreasonable approach to human psychology’ in cases that are at the margins and involve pressure arising from both threats and circumstance: at [84]–[86]. His Honour saw Smith J in Hurley as setting out sufficient, but not necessary, circumstances for the defence to be raised: at [100]. His Honour considered, in particular, that there should not be an insistence on a threat being accompanied by a demand or direction to commit the specific act charged in every case, since there may be circumstances where there is no such direction, but the offending remains the only reasonable way to avoid harm: at [106]–[108]. His Honour acknowledged, however, that in practice, absent evidence of such a demand or direction, it may be difficult to establish that there was no reasonable alternative than to commit the offence charged: at [109].