Citation: R v Henry (a pseudonym) (No 2) [2025] NSWSC 1510
Court: Supreme Court of New South Wales
Date: 28 August 2025
Judge: McNaughton J
Background
An accused man stood trial for the murder of a 25-year-old man found dead in a Sydney CBD stairwell in December 2022. The Crown alleged that the accused and another man entered the stairwell, carried out a severe assault, cleaned the scene, took the deceased's phone and bank card, and then spent the evening socialising. The deceased's body was located three days later.
The accused, in his record of interview and in evidence at trial, admitted being present but denied being an enthusiastic participant. He claimed the other man carried out the assault, that he tried to stop him, and that he complied with the other man's demands out of fear for his own safety. The Crown rejected this account, contending the accused was a willing participant throughout.
The defence raised duress as a complete defence. During preparation of his summing up, McNaughton J identified that a blanket proposition in the authorities — that duress is unavailable for murder — required closer analysis given the three alternative bases on which the Crown put its case.
Legal Issues
- Whether the defence of duress is available to a charge of murder based on joint criminal enterprise (where each participant is treated as a principal in the first degree)
- Whether the defence of duress is available to a charge of murder based on extended joint criminal enterprise (where the accused foresaw but did not agree to the killing)
- Whether the defence of duress is available to constructive murder (where death results from a foundational offence, without any intention to kill or cause grievous bodily harm)
Decision
Issue 1: Joint criminal enterprise murder and duress
McNaughton J held that duress is not available as a defence to murder where the accused is alleged to have directly and intentionally killed or caused grievous bodily harm. The NSW Court of Appeal confirmed this in R v McConnell [1977], and the House of Lords reinforced the position in R v Howe [1987]. The High Court's analysis in Mitchell v The King (2023) further established that each participant in a joint criminal enterprise to murder holds the requisite intention and is treated as a principal in the first degree. On that basis, the accused in a joint criminal enterprise murder is in the same position as a direct killer, and duress cannot be left to the jury on that pathway.
Issue 2: Extended joint criminal enterprise murder and duress
Extended joint criminal enterprise involves a different form of liability. The secondary participant does not agree to the killing; they merely foresee the possibility that another participant might kill or cause grievous bodily harm in the course of the agreed offence. Because no intention to kill or cause grievous bodily harm is attributed to the secondary participant, and because the High Court in Mitchell v The King confirmed there is no attribution of the acts in respect of the incidental crime, the rationale for excluding duress does not apply. McNaughton J found no binding authority excluding duress on this pathway and left the defence to the jury.
Issue 3: Constructive murder and duress
Constructive murder similarly involves no intention to cause death or grievous bodily harm. As the High Court noted in Mitchell v The King, it operates as a fiction or deeming provision: a person is treated as a murderer where death results from a foundational offence without the relevant mental element. McNaughton J found that the same reasoning applied here. With no binding authority to the contrary, duress was left to the jury on the constructive murder pathway as well.
Orders Made
[Orders not located in provided text]
Key Takeaways
- The Supreme Court confirmed that duress remains unavailable as a defence to murder where the accused is alleged to have participated in a joint criminal enterprise, because each such participant holds the intention to kill or cause grievous bodily harm and is treated as a principal in the first degree.
- A more nuanced position applies beyond the bare proposition that duress is never available for murder: the availability of the defence depends on the specific pathway of liability alleged by the Crown.
- Under extended joint criminal enterprise, a secondary participant does not authorise or agree to the killing and holds no intention to cause death or grievous bodily harm; no binding authority in New South Wales excludes duress on that basis.
- Constructive murder, which operates as a deeming provision and requires no intention to kill or cause grievous bodily harm, similarly falls outside the established rule barring duress from murder cases.
- McNaughton J emphasised that the defence of duress in New South Wales remains part of the common law, not statute, and that its availability must be assessed with reference to the mental element and form of liability actually engaged in each case.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 86
Cases
- Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653
- IL v The Queen (2017) 262 CLR 268; [2017] HCA 27
- Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- R v Bassett (Supreme Court of NSW, 29 April 1994, unrep)
- R v Howe [1987] AC 417
- R v McConnell [1977] 1 NSWLR 714
- R v Mitchell & Ors (No 6) [2021] SASC 20
- Rigney v The Queen; Tenhoopen v The Queen; Carver v The Queen; Mitchell v The Queen [2021] SASCA 74
- The King v Anna Rowan (A Pseudonym) (2024) 278 CLR 470; [2024] HCA 9