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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: NSW Court of Criminal Appeal
Date: 1 December 2023
Judge(s): Davies J, Fagan J, Dhanji J (dissenting)

Background

The appellant was convicted after a judge-alone trial of seven offences arising from an 18-hour crime spree covering more than 1,000 kilometres from Molong to Cooma and then to Sydney. The offences included two carjacking counts, three counts of assault with intent to rob in company, one firearm possession offence, and one count of being conveyed in a vehicle taken without the owner's consent. A co-offender, with whom the appellant was in an intimate relationship, used a .22 calibre rifle to threaten victims throughout the offending. The appellant was sentenced to an aggregate of four years' imprisonment with a non-parole period of 22 months.

The central issue at trial was whether the appellant acted under duress. She gave evidence that the co-offender had threatened her with a firearm in Dubbo, saying he would shoot everyone at her mother's house if she did not leave with him. She argued that this initial threat, set in the context of a coercive control relationship, constituted an implied demand to participate in each of the subsequent offences.

The trial judge, sitting without a jury, found that duress had not been established. The appellant appealed on a single ground: that the trial judge erred by requiring evidence of a specific, direct, and overt demand or request to commit each particular offence charged.

  • Whether the trial judge's ruling was a preliminary determination that duress had not been sufficiently raised, or a final determination as the tribunal of fact.
  • Whether the defence of duress requires a direct or express demand by the co-offender to commit the specific offence charged, or whether such a demand can be implied from circumstances.
  • Whether the evidence was sufficient to support an implied demand in respect of any of the offences charged.
  • Whether, if the trial judge erred, the proviso under the Criminal Appeal Act 1912 (NSW) should be applied to avoid a retrial.

Decision

On the nature of the ruling (majority: Davies and Fagan JJ)

The majority rejected the appellant's submission that the trial judge had only made a preliminary or threshold determination about whether duress was sufficiently raised to be left to the tribunal of fact. Reading the transcript, the parties' written submissions, and the judgment together, the majority was satisfied that the trial judge was deciding the matter as the tribunal of fact, and had concluded that the Crown had negatived duress beyond a reasonable doubt.

On the legal requirements for duress (majority)

The majority confirmed that the common law defence of duress requires both a threat of harm and a demand or request to commit the specific offence charged. While both elements must be present, the majority accepted that a demand need not always be express: it may in some circumstances be inferred. The threat and the demand are conceptually distinct requirements, each of which must be established.

On the evidence in this case (majority)

Despite accepting that an implied demand could in principle satisfy the legal test, the majority found that nothing in the evidence disclosed any direct or implied demand by the co-offender to commit any of the particular offences. Notably, the appellant's trial solicitor had conceded the absence of direct evidence and made no submission that an implied demand could be inferred from the circumstances. On that basis, the majority held the trial judge correctly concluded that the Crown had negatived duress, and dismissed the appeal.

The dissent (Dhanji J)

Dhanji J agreed that an implied demand can satisfy the duress requirement, but reached a different conclusion about the trial judge's reasoning. His Honour read the verdict judgment as revealing that the trial judge failed to turn his mind to whether a demand could be inferred, and instead required direct evidence of a demand. Dhanji J held this was an error. He considered that the evidence, particularly in relation to the first offence in time, may have supported an inference of an implied demand. Because duress was the only issue at trial and the Court had not seen or heard the witnesses, his Honour would have upheld the appeal, quashed the convictions, and ordered a new trial.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the common law defence of duress requires both a threat of harm and a demand or request to commit the specific offence charged. These are two distinct elements, and both must be established.
  • A demand to commit the particular offence charged need not be express or overt. In appropriate circumstances, such a demand may be implied or inferred from the surrounding evidence, including the context of an ongoing coercive relationship.
  • In dismissing the appeal, the majority found no direct or inferrable evidence of a demand to commit any of the individual offences, noting that the appellant's own trial solicitor had conceded the absence of direct evidence and advanced no case for implied demand.
  • The dissent raises a live question about how trial judges should approach implied demands in coercive control cases: Dhanji J considered that the trial judge's reasons did not demonstrate engagement with whether demands could be inferred offence by offence, which was itself an error.
  • Where duress is the only issue raised at trial and the appellate court has not had the benefit of seeing and hearing the witnesses, the dissent took the view that applying the proviso to avoid a retrial would be inappropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97, 154A, 154B
- Criminal Appeal Act 1912 (NSW), s 5 (and proviso to s 6)
- Evidence Act 1995 (NSW), s 191
- Firearms Act 1996 (NSW), s 62

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