20 University ofQueensland Law Journal Vol.. 11, No. 1 Married Women and the Defence of Compulsion under the Criminal Code

R.S. O'Regan* The writer has disussed elsewherel the general defence of compul­ sion under the Queensland Ciminal Code. This article is concerned with the special form of the defence which is available to married women. It is set out in s. 32 which reads as follows: '" A married woman is not free from criminal responsibility for doing or omittIng to do an act merely because the act or omission takes place in the presence of her husband. But a married woman is not criminally responsible for doing or omit­ ting to do an act which she is actually compelled by her husband to do or omit to do, and which is done or omitted to be done in his presence, except in the case of an act or omission, which would constitute [the crime of treason or ... murder, or any of the crimes defined in the sec­ ond paragraph of section eighty-one and in section eighty-two of this Code],2 or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, in which case the presence of her husband is immaterial." As Sir Samuel Griffith observed in a note appended to this sec­ tion in his draft of the Code, 3 the scope of the common law defence of marital coercion which the section replaced was obscure and he decided that "the case should be treated as a particular instance of the general law of compulsion, and dealt with in the same way".4 However, this aim was only partly accomplished in 32. Unlike Sir James Stephen who had recommended the complete abolition of the special defence5 Sir Samuel Griffith chose to retain it as a form of compulsion but with some distinctive features of its own.

The Presumption of Coercion At common law if a wife committed an offence in the presence of her husband it was presumed that she committed it under such coer­ cion as to be relieved of criminal responsibility.6 The presumption did not arise where the offence was treason, murder or possibly some other serious offences and there is some authority to the effect

* B.A., LL.B., Dip.Pub.Admin.(Qld), LL.M. (PNG), Professor of Law, Univer­ sity of Queensland. 1. In a paper entitled Compluslon Codified presented to the 33rd Conference of the Australasian Universities Law Schools Association at Perth, Western Australia on 23rd August, 1978. 2. The words in square brackets were substituted for Han offence punishable with death" by The Cnmmal Code Amendment Act of 1922 and the words ~~wilful murder or" were omitted where indicated by The Criminal Code and the Offen­ ders ProbatIon and Parole Act Amendment Act 1971. 3. Queensland Parliamentary Papers C.A. 89-1897, 17. 4. Ibid. 5. See History ofthe Cnmlnal Law ofEngland (883) Vol. II at pp. 105, 106. 6. The history and scope of the common law presumption are discussed by Glanvi­ lle Williams in Cnnlinal Law - The General Part, 2nd ed., 1961, para 248. Married Women and the Defence ofCompulsion 21 that it did not arise in the case of summary offences either.7 Where the presumption did apply it could be rebutted by proof that the wife had taken the initiative in committing the offence. According to Professor Glanville Williams the presumption origi­ nated in the wife's subjection to her husband and it survived as a device for evading the death penalty for women at a time when they could not claim benefit of clergy. 8 Logically it should have dis­ appeared in 1692 when benefit of clergy was extended to women9 but it continued in existence. The Criminal Law Commissioners in 1845 10 and the Criminal Code Commissioners in 187911 recom­ mended the abolition of the presumption and this was eventually accomplished by s. 47 of the Criminal Justice Act 1925. The same result had already been achieved in Queensland by the first sentence of s. 32 of the Code. The presumption was arguably an anachronism at the time ofenactment of the Code in 1902 and certainly it is now. Indeed, the lead given by Sir Samuel Griffith has since been followed in all Australian States. 12

Actual Compulsion Having abolished the presumption of coercion s. 32 then provides a married woman with a defence when in certain circumstances she is "actually compelled" by her husband to do an act or make an omis­ sion. However, the nature of the actual compulsion required is not specified. This is in contrast to the general defence of compulsion set out in the preceding section which specifies that only threats of "immediate death or grevious bodily harm" will suffice. Presumably, therefore, s. 32 is intended to have a wider opera­ tion. A literal interpretation of the words used is that if by any means the husband destroys his wife's will she has a defence. Thus the form of compulsion might be threats of physical injury less than grievous bodily harm, moral coercion or economic pressure. Furthermore the test appears to be entirely subjective. If the wife's will is overborne by pressure which would be resisted by a woman of more resolute and independent disposition the section still applies. It should also be noted that except in so far as certain serious offences are specifically excluded altogether from the operation of the defence there is no suggestion that there must be some proportion between the nature of the compulsion and the offence committed. Similar problems of interpretation have arisen in England with the defence provided to a married woman by s. 47 of the Criminal Justice Act 1925 which is available when the offence is committed

7. See Manue/s v. Crajier [I940] S.A.S.R. 7 and Ewart v. Fox [I954] V.L.R. 699. In Excise Departmentv. Pearce (1893) 5 Q.LJ. 31 the Full Court of the Queensland Supreme Court suggested otherwise but these remarks were obiter. The cases are discussed by Waller and Merralls in a Note in 7 Res. Judicatae at p. 193. 8. Ope cit., n.6. 9. By 4 Wm. & Mary C.9. 10. Second Report (1845) Parliamentary Papers XXIV, 114. 11. Draft Code, s.23. 12. In Western Australia in 1902, Tasmania and New South Wales in 1924, South Australia in 1940 and Victoria in 1977. 22 R.S. 0 'REGAN

"in the presence of, and under the coercion of the husband". The word "coercion" here is undefined. I3 Such meagre authority as there iSI4 suggests that the term extends at least to moral coercion and would also cover intimidation in the form of a threat of deser­ tion but the point has not been authoritatively determined. Nor has it been decided whether the test is entirely subjective and whether there must be proportion between the gravity ofthe coercion applied and the seriousness of the offence charged. Considerations such as these recently led the Law Reform Com­ missioner in Victoria, the Hon. T.W. Smith15, to recommend in a Report entitled Criminal Liability ofMarried PersonsI6 that the word "coercion" be defined by statute and this has now been done in the Crimes (Married Persons' Liability) Act 1977 which after abolishing the common law presumption and providing a defence of coercion for all offences except treason, murder and a few of the other more serious offencesI ? then defines "coercion" as foHows:

(3) For the purposes of this section 'coercion' means pressure, whether in the form of threats or in any other form, sufficient to cause a woman of ordinary good character and normal firmness of mind, placed in the circumstances in which the woman was placed, to conduct herself in the manner charged. (4) Without limiting the generality of the expression 'the circumstances in which the woman was placed' in sub-section (3), such circumstances shall include the degree of dependence,whether economic or otherwise of the woman on her husband." These provisions indicate precisely the scope ofthe defence and it is submitted that the phrase" actually compelled" in s.32 might be clarified by an amendment in similar terms.

The Presence ofthe Husband According to s.32 the accused has a defence only when the act is done or omitted to be done "in the presence of her husband". However, in s.31 which defines the general defence of compulsion the threatener must be "actually present". In PickartJ 8 Stanley J., delivering the judgment of the Queensland Court of Criminal Appeal, held that this phrase did not apply to a situation in which after making certain threats the threatener, Johnson, had broken and entered a building and stolen a safe while the accused kept

13. Although the word Hcoercion" is not used in s.32 it is a defence in the Code in another context. See s.223 which provides such a defence to a woman charged with incest. Here also the word is undefined. · 14. See Pierce (941) 5 Jo.Cr.L. 124 in which the jury were directed that moral pres­ sure would suffice but in fact they convicted the accused and the case referred to by Garner in The D~/ence oj'CoerclOn [I954] Crim.L.R. 448 at pp.449, 450. In this case a recorder apparently accepted that a threat of desertion might constitute coercion. 15. Formerly Smith J. of the Supreme Court of Victoria. 16. Published in June 1975. 17. Conspiracy and incitement to murder and attempted murder. 18. [I959] Qd.R. 475. Ma"ied Women and the Defence ofCompulsion 23 watch outside. Stanley J. observed: 19 "At the time he was watching he was constructively present with Johnson stealing the safe but I cannot see how you can reasonably say that Johnson was actually present with him in the street." Stanley J. also expressed the opinion that the use of the word "actually" in s.31 was intended to exclude cases in which "a person might have the right to be present at the place where the criminal act or omission takes place, for example, in his own premises in a house or a shop, but was not there at the relevant time".2o He noted that this distinction had been made in the common law when applying the presumption of marital coercion. There was some uncertainty in the common law as to the strictness of the requirement of presence of the husband but generally there was an insistence on physical pre­ sence or at least such proximity as would enable the husband to exert pressure on his wife. 21 There is no case in which the scope of presence in s.32 has been discussed. It has been mentioned that in his note to this section in the draft Code, Sir Samuel Griffith sought to treat compulsion by a husband as a particular instance of the general law of compulsion contained in s.31 and it may be, therefore, that he thought the re­ quirement of presence was the same in both sections. This, however, is only of historical interest because the Court ofCriminal Appeal has ruled on several occasions that resort should not be had to these notes when interpreting the Code. 22 Of course, if the word presence is regarded as ambiguous or as having acquired a technical meaning at the time ofenactment of the Code then recourse to the pre-existing common law would be per­ missible and would confirm the narrow interpretation of presence. However, the use of the word "actually" in s.31 and its absence in a corresponding context23 in s.32 does suggest that presence should be more broadly interpreted in the latter section.

The Excepted Offences The list of offences excepted from the operation of the defence in s.32 is precisely the same as in s.31. The only special feature in s.32 is the inelegant way in which the exception clause has been drafted. After excepting an act or omission which would constitute anyone of the specified offences the section concludes with the words "in which case the presence of her husband is immaterial". It is submit­ ted that where the exception clause applies both actual compulsion by and presence of the husband are immaterial. The defence is just not avajIable. Couching an exception clause in terms of the

19. Ibid., p. 470. 20. Ibid., at p. 477. 21. See Hughes (1813) 2 Lew. 299, Connolly (1829) 2 Lew. 229 and Whelan [1937] S.A.S.R. 237. 22. See Martyr [I962] Qd.R. 398 and Burnell [1966] Qd.R. 348. 23. It is used in another context in the section in the phrase "actually comPelled". Its omission with reference to presence may suggest that presence was to be interpreted broadly. . 24 R.S. 0 'REGAN

immateriality of the husband's presence would be appropriate in excluding offences from the ambit of the old presumption of coer­ cion. In that case the presence of the husband raised the presump­ tion. No evidence of actual coercion was required. In s.32, however, the wife has a substantive defence of which her husband's presence is only one element. The other is actual compulsion by him and there must be evidence of both. It is submitted that the final words of s.32 referred to are surplusage.

The Onus of Proof S.32, like s.31, is an excusatory provision which the Crown must negative beyond reasonable doubt. All the accused has to do is to satisfy the evidential burden on the matter by pointing to sufficient evidence that she was actually compelled to do the act or make the omission in her husband's presence to make the defence an issue properly to be left to the jury. In the Victorian Law Reform Commissioner's Report to which reference has already been made it was suggested that "the language used [in s.32] may have the effect of casting on the accused, not merely the onus of leading evidence of the elements necessary to constitute the defence, but also the ultimate burden of proof."24 It is submitted that the language of s.32 is not capable of that interpreta­ tion. To adopt the words of Philip J. concerning the excuse ofhonest and reasonable mistake of fact, "it is a privative of or exoneration from criminal responsibility"25 and the prosecutor must always prove criminal responsibility. In this respect s.31 may be contrasted with its English counter­ part, s.47 of the Criminal Justice Act 1925, which after abolishing the presumption of coercion provides "that on a charge against a wife for any offence, other than treason or murder, it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband". Clearly this formulation places the persuasive onus upon the accused. 26

Should the Defence be Retained? The special defence of compulsion available to married women was abolished in another Australian Code State, Tasmania, in 1924. 27 There it was enacted that a married woman should have only the stricter defence of compulsion available to accused persons generally. 28 The Law Commission in England has recently made a similar recommendation.29 It is pertinent to ask, therefore, whether

24. Report No.3 Criminal Liability ofMarried Persons at para. 29. 25. In Brimblecombe v. Duncan [1958] Qd.R.8 at p.l2. 26. On the other hand the Cnmes (Married Persons' Liability) Act 1977 in Victoria has specifically placed the persuasive onus of negativing the defence upon the prosecution. 27. By the Cnmlnal Code Act 1924. 28. Criminal Code Act 1924 s.20. 29. Criminal Law Report on Defences ofGeneral Application (1977), Law Com. No.83, para 3.9. Married Women and the Defence ofCompulsion 25 the defence in s.32 of the Queensland Code should be retained. The Law Commission made its recommendation in the context of a Report which also recommended a liberalisation of the defence of compulsion, or duress as it is often called at common law. Even the present common law defence of duress is much wider than its Code counterpart in s.31. For instance, it comprehends threats of future as well as immediate harm, it applies to threats directed against third parties, the actual presence of the threatener is not required, and fewer offences are excluded from its operation than in s.31. 30The Commission's proposal extends the scope of the defence still further so that it would be available for all offences. In these cir­ cumstances the case for abolishing marital coercion as a special defence was very cogent but while s.31 of the Code remains so restricted no such case can be made out in Queensland. It is interesting to note that the Law Reform Commissioner in Victoria has recommended the retention of the defence. Victoria is a common law jurisdiction and as already indicated the common law defence of duress is much wider than s.31. Nevertheless the Com­ missioner thought the common law defence not sufficiently wide to justify the assimilation to it of the defence of marital coercion. His Report shows convincingly that the pressures on a wife may be very serious, indeed overwhelming, without bringing her within the pro­ tection of the defence of duress. The argument is set out as follows: 31 "Where a wife, as is still commonly the case, has to look to her husband for support and shelter, and especially when she has young children to care for, the pressure upon her of insistent demands, and of threats of abandonment, may in many cases be just as difficult for her to resist as threats of physical violence sufficient to found a defence of duress. Moreover, the duty and habit of loyalty and co-operation which arise from the special relationship of husband and wife will commonly make it more difficult for a wife to resist pressure from her husband than from a stranger ... A further objection to confining a married woman to the ordinary defence of duress is that, even when she is subjected by her husband to threats of grave physical violence, that defence will ordinarily be un­ available to her because, in strictness, she will have a safe means of avoiding the threatened violence by informing the police of her hus­ band's threats and criminal plans. But this recourse will often be availa­ ble to her only at the cost of putting an end to her marriage." It is submitted that this reasoning also applies in Queensland and that the special defence set out in s.32 of the Code should be retained. Indeed it may be argued that s.32 should be extended to cover not only a married women but also a de facto wife or even a woman cohabiting with a man in a relationship which appears to have some degree of permanence. Women thus circumstanced may be subject to the same sorts of pressures as married women. Never­ theless the common law courts refused to extend the presumption

30. The differences between the Code and the common law have been discussed by the writer elsewhere. See Ope CIt., 0.1. 31. Ope CIt. n. 24, paras. 16, 17. 26 R.S. 0 'REGAN ofcoercion to such persons32 and the recent Victorian legislation has also denied them any defence. In canvassing and rejecting proposals that the protection of the defence should be extended the Law Reform Commissioner had pointed out that proof of such a relationship, unlike proof of mar­ riage, "would commonly be an additional area of dispute and difficulty".33 He had also suggested that the indulgence to a married woman recognised in the special defence of coercion is justified at least in part by the State's concern to preserve the stability of mar­ riage. 34 The State does 'not have'the same concern to preserve the stability of de facto relationships. Another consideration which the Commissioner had suggested might tend to justify the restriction of the defence to a married woman was that "the woman's difficulty in resisting pressures from the man, and in departing from a habit of loyalty, co-operation and confidentiality will commonly be increased substantially, it may be thought, by her awareness that they are husband and wife and her recollection of the ceremony of marriage at which they made a for­ mal public exchange of undertakings which were intended and expected to be observed throughout their lives. "35 It is submitted that this consideration although material is less significant than the others mentioned. After all would the habit of conjugal support in the ordinary events of life create pressure for support in the extra­ ordinary circumstance of the commission of a criminal offence? No doubt in some cases it would but in this emancipated age one might expect that such cases would be relatively few. These considerations suggest that on balance it would not be appropriate to make the defence in s.32 available to persons other than married women. Such persons must rely on the stricter defence in s.31 but ofcourse if that is inapplicable then evidence of coercion would be relevant in mitigation of sentence.

32. See Court (1912) 7 Cr. App.R. 127. However in practice a de facto wife may sometimes have been able to rely on the presumption. This was because the accused did not have to prove marriage formally. It could be established by evi­ dence of cohabitation and reputation. See Woodward 8 C. & P. 561. 33. Ope cit. n. 24, para 82. 34. Ibid., para. 83. 35. Ibid.