The Australian common law of duress: The King v Anna Rowan (A Pseudonym) [2024] HCA 9

Is it right in principle to require, for the defence of duress, that the threat be accompanied by a demand that a particular offence be committed?

And can the threat be implied from the circumstances, or must it be an express threat?

The Australian common law was considered in The King v Anna Rowan (A Pseudonym) [2024] HCA 9.

In a joint judgment Gageler CJ, Gordon, Jagot and Beech-Jones JJ held that Australian common law of duress does indeed require that the threat included a requirement or demand that the defendant commit the acts that constitute the offence charged [53]. Also, the threat and the demand can be unstated but implied from the circumstances [55], [57]. Here, the Court of Appeal had not made the mistake of moving away from the established common law of duress, which was the Crown’s concern, and, as there had been sufficient evidence at voir dire to raise duress as a live issue, this appeal against the Court of Appeal’s reversal of the judge’s decision was dismissed.

Edelman J concurred in the result but suggested a principled development of the Australian common law. He argued that there is no basis for a distinction between threats made by a human person and threats from other sources [84]. This is so, notwithstanding that duress and necessity are separate, and neither party here sought their unification [86]-[87]. Also, although neither party submitted that a demand directed at the commission of a particular offence was unnecessary, such a demand is not needed [98].

The requirement for a demand that a particular offence (the offence charged) be committed to avoid the threatened acts is contrary to principle [106]. Here, the point being made appears to be that if the defence of duress was only available for the demanded offence, a defendant who found a way to avoid the threatened action by committing a lesser offence would not have the defence of duress for that lesser offence. Indeed, continued Edelman J, there need not be any demand for an offence to be committed, as where the defendant drove dangerously to avoid threats of violence from a dangerous mob [107].

Common sense in assessments of the credibility and reliability of witnesses in judge-alone trials: R v Kruk, 2024 SCC 7

In judge-alone trials, the judge must give reasons for the verdict. This obligation creates difficulties for the judge, especially around adequately explaining reasons for assessments of the credibility and reliability of witnesses. There can be a tendency for judges to refer to their common sense and their experience of the ways of the world. This might lead to a departure from the evidence in the case. How should an appellate court determine whether the judge has reasoned lawfully?

This was the central question in R v Kruk, 2024 SCC 7.

The Court unanimously rejected a rule-based approach called “the rule against ungrounded common-sense assumptions” [1].

There were numerous reasons for that rejection, but of more general interest is the articulation(s) of the correct appellate approach to judicial assumptions not supported (or controverted) by evidence.

Two judgments were delivered, with Rowe J agreeing in the results of these appeals (in two unrelated cases) but setting out the analysis he prefers. How different is this from that of the other judges - Wagner CJ, Coté, Martin, Kasirer Jamal and O’Bonsawin JJ - in their joint judgment?

The joint judgment sets out “the existing and well-established law on assessing a trial judge’s credibility or reliability assessments” at [93]-[99]. As their summary is given “for the utmost clarity” [93], it seems pointless to summarize their summary.

But in asking whether Rowe J’s approach is different, comparison of [93]-[99] with [129]-[132] is necessary. He describes the issue in these terms: “These two appeals ask how appellate courts should review trial judges’ reliance on generalized expectations based on common sense and human experience in the fact-finding process” [128]. Broadly, appellate courts need to be sure that what the judge relied on was indeed a generalized expectation and not an assessment of evidence in the case ([130] - this is what the joint judgment says at [94]), then, if reliance had been placed on a generalized expectation, ask whether that expectation was reasonable ([131] - here the joint judgment at [95] diverts to address unreasonable assumptions and to consider how these should be reviewed on appeal [96]-[97]), and if it was reasonable, ask whether it was used to replace evidence instead of being a benchmark for assessing the evidence ([132] and here the joint judgment follows an identification of error by asking whether it was “palpable” in the sense that it affected the result or went to the very core of the outcome of the case [98]).

One kind of error is an error of law, and the standard for review is simply whether the judge got the law right [96]. Examples of this open-ended category are given at [96]. If the error was not one of law, the standard for review is whether the error was palpable and overriding, and examples are given at [97].

A case that was overruled in Kruk provides a quite amusing (at least, I think so) illustration of how absurd it is to require generalizations that are advanced to support credibility and reliability findings to be grounded in evidence: R v JC, 2018 ONSC 5547. See Kruk per Rowe J at [211]-[213], and the joint judgment at [21]-[23]. Absurd, because “The Crown cannot be expected to elicit evidence on how sexual encounters ordinarily unfold in every sexual assault trial before a trial judge can rely on their common sense or human experience with respect to human sexual behaviour” [211].