AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 1 December 2023

Carr v R

[2023] NSWCCA 269

Assault & violenceTheft & propertyFirearms & weaponsDomestic & family violence
CRIME APPEALS APPEAL AGAINST CONVICTION JUDGE ALONE TRIAL WHERE OFFENDING OCCURRED OVER 18

Citation: Carr v R [2023] NSWCCA 269
Court: Court of Criminal Appeal
Date: 01 December 2023
Judge(s): Davies J, Fagan J, Dhanji J

Background

The appellant was convicted after a judge-alone trial of multiple serious offences committed over an 18-hour period spanning more than 1,000 kilometres, including carjacking, firearm offences, and assault with intent to rob in company. The offending involved a series of events beginning in Dubbo and ending in Parramatta, and included an armed robbery at a private residence in Cooma and two carjackings at service centres along the Hume Highway.

The appellant was in an intimate relationship with her co-offender, Aiden Osborne, who she alleged was subjecting her to coercive control. Before the offending began, she said Osborne threatened her at gunpoint and forced her to leave Dubbo with him. The sole defence raised at trial was duress.

The trial proceeded largely on agreed facts, with the appellant also giving oral evidence. The trial judge accepted the Crown's submission that the evidence did not establish the elements of duress, and the appellant was convicted and sentenced to an aggregate term of four years' imprisonment with a non-parole period of 22 months. She appealed against conviction on a single ground.

Legal Issues

  • Whether the trial judge erred by treating the question of duress as one for preliminary determination only (that is, whether it was sufficiently raised to be left to the tribunal of fact), rather than making a final determination on the merits.
  • Whether the common law defence of duress requires evidence of a specific, direct, and overt demand or request by the threatener to commit the particular offence charged, or whether an implied or inferred demand can suffice.
  • Whether, on the evidence, the Crown had successfully negatived the demand element of duress, such that the trial judge's verdict was open.

Decision

Issue 1: Was the trial judge's ruling a final verdict or a preliminary ruling?

The majority (Davies and Fagan JJ) held that the trial judge's reasons were plainly a final determination as the tribunal of fact, not a ruling that duress was insufficiently raised to be considered. The written submissions of both parties, the absence of any voir dire, the exchanges between the judge and counsel, and the terms of the judgment itself all pointed consistently to the trial judge deciding, as the finder of fact, whether the Crown had negatived duress (at [31]-[46]). The defence submissions were addressed to the tribunal of fact and the Crown's submissions were framed as a closing address. The trial judge's own language confirmed he was reaching a verdict, not a threshold ruling (at [45]-[46]).

Issue 2: What does duress require as to the demand element?

The majority confirmed that the common law defence of duress requires two distinct elements: a threat of harm and a separate demand or request that the accused commit the specific offence charged (at [47]-[64]). The leading formulation from Smith J in R v Hurley and Murray [1967] VR 526, cited with approval by the High Court and this Court, requires that the accused have been "required to do the act charged." However, the majority also accepted that this demand need not be express: in appropriate circumstances, an implied or inferred demand may suffice, consistent with what the Victorian Court of Appeal said in Rowan (A Pseudonym) v The King [2022] VSCA 236 at (at [63]-[64]).

Issue 3: Was there evidence of any such demand?

The majority held there was no evidence, direct or circumstantial, from which any demand or request by Osborne to commit any of the individual offences could be found or inferred (at [77]-[78]). The appellant's solicitor had conceded at trial that there was no direct evidence of a direction to commit any offence. The only demand in evidence was Osborne's instruction to leave Dubbo with him, which the majority held could not be read forward as a demand to commit the subsequent offences (at [65]-[78]). The trial judge was therefore correct to conclude that the Crown had negatived this element of duress (at [78]).

Dhanji J (dissenting): Dhanji J reached a different conclusion. His Honour found that a complete reading of the trial judge's reasons showed his Honour had in fact required direct evidence of a demand, without considering whether a demand to commit each particular offence could be inferred from circumstantial evidence (at [124]). His Honour noted, for example, that Osborne's words "Let's take this" and "Let's go" at the time of the first offence were at least capable of implying a demand that the appellant enter the stolen vehicle (at [121]). Dhanji J held the trial judge's misreading of Nguyen v R as a case in which duress was unavailable, when in fact it was a case where duress succeeded on the basis of an implied demand, was a significant indicator of the error (at [119]-[120]). Because duress was the only issue at trial and was not properly determined, his Honour concluded that the proviso under the Criminal Appeal Act could not be applied, and a new trial was required (at [127]-[128]).

Orders Made

  • The appeal is dismissed.

Key Takeaways

  • The common law defence of duress requires two distinct elements: a threat of harm to induce compliance, and a demand or request by the threatener that the accused commit the specific offence charged. These are separate requirements and both must be present (at [47]-[64]).

  • A demand that the accused commit the particular offence need not be express or direct. The Court of Criminal Appeal (by majority) accepted that in appropriate circumstances an implied or inferred demand may suffice, consistent with the Victorian Court of Appeal's approach in Rowan (at [63]-[64]).

  • Where there is no evidence, direct or circumstantial, of any demand or request to commit the offences charged, the Crown will have successfully negatived the duress defence even where a continuing threat of harm is established (at [77]-[78]).

  • In a judge-alone trial where duress is the sole issue, the manner in which the parties frame their submissions to the trial judge materially shapes whether the resulting reasons address the correct legal question. Dhanji J's dissent illustrates the risk that a concession of "no direct evidence" of a demand, where an implied demand was legally available, may foreclose the proper analysis (at [110]-[124]).

  • The split decision reflects an unsettled area of law. Dhanji J noted that a High Court appeal in The King v Rowan had been argued but not yet decided at the time of judgment, leaving open broader questions about "duress of circumstances" as a species of the defence (at [104]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 97, 154A, 154B
- Criminal Appeal Act (1912) NSW s 5
- Evidence Act 1995 (NSW) s 191
- Firearms Act 1996 (NSW) s 62

Cases
- Clarkson v R (2007) 209 FCR 387; [2007] NSWCCA 70; (2007)171 A Crim R 1
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Nguyen v R [2008] NSWCCA 22; (2008) 181 A Crim R 72
- R v Abusafiah (1991) 24 NSWLR 531
- R v Dawson [1978] VR 536
- R v Hurley and Murray [1967] VR 526
- R v Lorenz (1998) 146 FLR 369
- R v Runjanjic (1991) 56 SASR 114
- Rowan (A Pseudonym) v The King [2022] VSCA 236
- Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53
- The King v Rowan [2023] HCATrans 90