SHEPHERD v THE KING [2026] SASCA 57

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DURRANT ) DCCRM-22-015285 Appellant: BENJAMIN SHEPHERD Counsel: MR A PANOUSAKIS - Solicitor: OLD PORT CHAMBERS Respondent: THE KING Counsel: MR M HINTON KC WITH MS J HOULAHAN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 18/08/2025 File No/s: SCCRM-24-026277 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. SHEPHERD v THE KING [2026] SASCA 57 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice Stanley) 21 May 2026 APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON- DIRECTION - JUDGE'S SUMMING UP CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - TESTS - WHETHER JURY WOULD HAVE RETURNED SAME VERDICT - MISDIRECTION AND NON-DIRECTION CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - DURESS AND COMPULSION - DIRECTIONS TO JURY JURY - MATTERS RELATING TO JURORS - QUESTIONS AND INQUIRIES BY JUROR Appeal against conviction. Following a trial by jury, the appellant was convicted by majority verdict of aggravated robbery and aggravated serious criminal trespass in a place of residence contrary to ss 137(1) and 170(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). It was not in dispute at trial that the appellant committed the offending; the sole issue was whether the prosecution proved beyond a reasonable doubt that the appellant did not act under duress when doing so. On appeal, the appellant complained that the trial judge’s directions to the jury on the defence of duress were erroneous and involved a wrong decision on a question of law, or otherwise occasioned a miscarriage of justice. The question for the Court involved consideration of the three limbs of the statutory defence in s 15D(1) of the CLCA. At issue, ultimately, was whether the trial judge’s -- 1 of 21 -- directions accorded with the correct construction of s 15D, whether the trial judge failed to inform the jury of the subjective component of the first and second limbs of statutory duress, and whether the trial judge failed to differentiate between the subjective and mixed subjective/objective components of those limbs and to properly describe the latter. The appellant relied upon the reasons in Director of Public Prosecutions (Vic) v Parker (2016) 258 A Crim R 527, seeking to emphasise the subjective component of the defence and arguing that what a defendant “reasonably believes” must be determined having regard not only to the circumstances in which they found themself, but also to their personal perception and characteristics. On the contrary, the respondent contended that s 15D should be approached in a manner reflected in the South Australian Criminal Trials Bench Book Direction, Jury Direction #17.6 – Statutory Duress, being consistent with the approaches taken in Oblach v The Queen (2005) 65 NSWLR 75 and Taiapa v The Queen (2009) 240 CLR 95. Held, per the Court, dismissing the appeal: 1. In construing s 15D, an approach consistent with Taiapa, Oblach and the Bench Book is preferred over an approach consistent with Parker due to the significant textual and contextual differences between the provision considered by the Victorian Court of Appeal in Parker and the South Australian provision. 2. Section 15D imposes a requirement of objective reasonableness applying to all three limbs of the defence, however, the first and second limbs involve both subjective and objective inquiries. Those limbs are subject to the chapeau to s 15D(1)(a), namely, “at the time of carrying out the conduct constituting the offence, the defendant reasonably believed that…”. The objective components of the defence involve consideration of what a reasonable person in the defendant’s position might believe, having regard to the circumstances the defendant thought they faced, but without taking into account the defendant’s personal perception and characteristics. 3. The adequacy of the directions was to be assessed against the real issues at trial. The sole issue was duress and the prosecution case was that the appellant was lying such that his evidence should be rejected. 4. In that context, the jury were first directed to consider whether they accepted the appellant’s evidence that the threats were made. The balance of the directions about duress however were premised on an acceptance, as a reasonable possibility, that the threats were made. 5. The combined effect of the trial judge’s directions, including an aide memoire, was to invite the jury to first consider whether they accepted the existence of the threats as a reasonable possibility; only then did the directions progress to the objective elements, namely what the prosecution must prove about the state of mind of a reasonable person in the position of the appellant. To the extent the directions elided the jury’s consideration of the subjective elements, this occurred at the expense of the prosecution’s capacity to disprove those elements and could not realistically have affected the verdict. 6. There was no misdirection on statutory duress, no error of law and no miscarriage of justice. The appeal is dismissed. Crimes Act 1958 (Vic) s 9AG (ceased); Criminal Code 1995 (Cth) s 10.2; Criminal Code 1899 (Qld) s 31; Criminal Law Consolidation Act 1935 (SA) ss 15-15D, 137(1), 170(1); Criminal Procedure Act 1923 (SA) ss 257(1)(a)(i), 257(1)(a)(ii); Evidence Act 1929 (SA) Part 3 Division 4, ss 34W, 34X; Jury Directions Act 2015 (Vic); Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020, referred to. Director of Public Prosecutions (Vic) v Parker (Parker) (2016) 258 A Crim R 527; Oblach v The Queen (2005) 65 NSWLR 75; R v A2 (2019) 269 CLR 507; Taiapa v The Queen (2009) 240 CLR 95, discussed. CTM v The Queen (2008) 236 CLR 440; Marwey v The Queen (1977) 138 CLR 630; MDP v The King (2025) 99 ALJR 969; Perara-Cathcart v The Queen (2017) 260 CLR 595; The King v Anna Rowan (a pseudonym) (2024) 278 CLR 470, considered. -- 2 of 21 -- SHEPHERD v THE KING [2026] SASCA 57 Court of Appeal – Criminal: S Doyle, Bleby and Stanley JJA THE COURT: Introduction 1 The appellant, after a trial by jury, was convicted by a majority verdict of the offences of aggravated robbery and aggravated serious criminal trespass in a place of residence, contrary to ss 137(1) and 170(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). 2 At his trial, the appellant elected to give evidence in his defence. His defence was that he committed the conduct constituting the offences while under a compulsion of threat. The appellant says his evidence raised the defence of statutory duress, which the prosecution had to rebut, beyond reasonable doubt, in proof of his guilt. 3 On appeal, appellant complains that the trial judge’s directions to the jury on the defence of duress were in error and involved a wrong decision on a question of law, or otherwise resulted in a miscarriage of justice.1 As the grounds of appeal concern questions of law, permission to appeal is not required. The issue 4 At issue is whether the directions of the trial judge accorded with the correct construction of s 15D of the CLCA. 5 As the appellant submits, the statutory defence enshrined in s 15D(1) of the CLCA has three limbs. The appellant contends that the trial judge failed to inform the jury of the subjective component of the first and second limbs of statutory duress. The appellant submits that the trial judge failed to direct the jury that they had to consider whether the appellant actually believed that a threat had been made, and that the threat would be carried out unless he engaged in the conduct. 6 The appellant also contends that the trial judge misdirected the jury by failing both to differentiate between the subjective and mixed subjective/objective components of those first two limbs of the defence, and to properly describe the latter. The result is that consideration of a reasonable person’s perception was substituted for a consideration of the appellant’s perception. 7 The appellant relies upon the reasons of the Victorian Court of Appeal in Director of Public Prosecutions (Vic) v Parker2 (Parker). The appellant submits that the statutory defence of duress enshrined in s 15D of the CLCA is in 1 Criminal Procedure Act 1923 (SA) ss 257(1)(a)(i), 257(1)(a)(ii). 2 (2016) 258 A Crim R 527. -- 3 of 21 -- [2026] SASCA 57 The Court 2 substantially similar terms to s 9AG(2) of the Crimes Act 1958 (Vic)3 under consideration in Parker. As such, the appellant seeks to emphasise the subjective component of the defence, arguing that what a defendant ‘reasonably believes’ must be determined having regard to not only the circumstances in which he or she finds himself or herself, but also having regard to his or her personal perception and characteristics. 8 The respondent, on the other hand, contends that s 15D of the CLCA should be approached in a manner reflected in the South Australian Criminal Trials Bench Book (Bench Book) Direction,4 Jury Direction #17.6 - Statutory Duress. This in turn reflects the approach taken in Oblach v The Queen5 and Taiapa v The Queen,6 and does not include having regard to the defendant’s personal characteristics when determining whether his or her relevant belief was reasonable. The respondent contends that the trial judge adequately directed the jury on the first, second, and third limbs of duress; that there was no wrong direction on a question of law; and that there was no miscarriage of justice. Accordingly, the appeal should be dismissed. The trial 9 It was not in dispute at trial that the appellant committed the offences of aggravated robbery and aggravated serious criminal trespass. The sole issue was whether the prosecution proved beyond a reasonable doubt that the appellant did not act under duress when he committed the offending. 10 On 7 December 2021, at the victim’s home, the appellant threatened force against the victim in committing a theft of $5,000 cash (the aggravated robbery). The threat was made at the time of, or immediately before, the theft of that cash. The offence was aggravated by the use, or threat to use, an offensive weapon, namely a knife, and by reason that the appellant knew the victim was over the age of 60 at the time of the offence. 11 On the same occasion, the appellant remained in the victim’s home as a trespasser with the intention of committing theft (the aggravated serious criminal trespass). That offence was aggravated because the victim was lawfully present at the address when the offence was committed, the appellant used an offensive weapon, namely a knife, and the appellant knew that the victim was over the age of 60 at the time of the offence. 12 As mentioned, the appellant gave evidence that he committed the offending under duress. Broadly, his evidence was that he met a bikie named Aaron at the backpackers accommodation where he was staying. Aaron spoke inappropriately 3 As in force between 23 November 2005 and 31 October 2014. 4 South Australian Criminal Trials Bench Book, 4th ed, February 2026 (Bench Book). 5 (2005) 65 NSWLR 75. 6 (2009) 240 CLR 95. -- 4 of 21 -- [2026] SASCA 57 The Court 3 to the appellant’s partner. He also stole money from the appellant, and over time became aggressive towards him. 13 At the time of the offending, the appellant’s relationship with his partner was in turmoil. On the day of the offending, he was heartbroken because she had been missing for two days. The appellant was drinking alcohol on the front lawn of the backpackers when he was approached by Aaron. Aaron told the appellant he was to ‘go through a door’ for him, otherwise someone else would go through his mother’s door. 14 The appellant said Aaron grabbed him by the scruff of his neck and gestured towards a VS Commodore. He followed Aaron and got into the car. Aaron’s partner was in the front seat. The appellant made reference to Aaron gesturing towards where his mother and family lived. When asked whether the appellant thought Aaron knew where his family lived, the appellant gave evidence that when they were out the front of the backpackers, Aaron pointed past him towards the Birkenhead Bridge. The appellant said that ‘of all the ways to point, he pointed in the direction of my family home’. 15 They drove to the victim’s home and Aaron told the appellant that he was to go in and collect $80,000 in drug money. Aaron let the appellant out of the car just before the victim’s home and gave him a knife from the glovebox. The appellant approached the victim in his driveway. The appellant accepted that the victim tried to get away, and that he pushed his way into the house by putting his arm across the screen door as the victim tried to pull the door shut. 16 The appellant said that once he was inside the victim’s home, he realised something was not right. He said that after taking a few steps into the house he realised he was not there to collect a debt, but had been sent to the house to rob the victim. The appellant accepted that he then concocted a story about having a daughter who needed an operation, and that he needed money for that. 17 The appellant left the house, taking $5,000 from the victim, and found Aaron’s VS Commodore parked around the corner. The appellant said he gave Aaron the money, and Aaron then drove off without counting it. The appellant continued to stay at the backpackers for about a week. Aaron and his partner were also living there during that time. 18 In cross-examination the appellant was asked whether Aaron ever said anything about the fact he had told the appellant to get $80,000, and he only gave Aaron $5,000. The appellant said: No, no, he never even questioned it afterwards. If anything, he just had smiles and even tried to pat me on the back. 19 At trial, the prosecution submitted that the jury should reject the appellant’s evidence of a threat being made by Aaron and find him guilty of the offences. In the alternative, even if the jury accepted the appellant’s evidence, the prosecution -- 5 of 21 -- [2026] SASCA 57 The Court 4 submitted it had proved beyond reasonable doubt that the appellant was not under duress. 20 Ultimately, the prosecution submitted it had proved beyond reasonable doubt that the appellant was not under duress because: (i) the appellant did not reasonably believe that the threat could be carried out because there was no evidence Aaron knew where his family lived, and a reasonable person in such circumstances would not have believed there was a threat to their family which would be carried out; and (ii) the appellant did not reasonably believe committing the offence was the only reasonable way to avoid the threat because he had six opportunities to avoid the threat. Grounds of Appeal 21 The appellant seeks permission to appeal his conviction on two grounds. At the outset of the appeal hearing, he sought and obtained leave to rely on a further amended ground of appeal. The grounds of appeal are as follows: 1. That the verdict of the jury should be set aside on the ground that there was a wrong decision on a question of law or that there was a miscarriage of justice. PARTICULARS That the Learned Trial Judge erred in giving directions on the defence of duress (Section15D of the Criminal Law Consolidation Act) in that: (i) He failed to direct the jury that the jury had to determine what the appellant actually believed before determining whether his response to that belief was reasonable. (ii) He failed to direct the jury that they had to look at all of the circumstances in which the appellant found himself in determining whether it was reasonable for him to engage in that conduct. (iii) The answers provided to the jury’s questions were not directed to the earlier misdirection made in his summing up and therefore did not remedy his earlier misdirection. (iv) He failed to provide a direction pursuant to section 15B(1) of the Criminal Law Consolidation Act. 2. The learned trial Judge erred in law by failing, in his charge, to direct the jury that: (i) they should ask themselves whether they were satisfied beyond reasonable doubt that the appellant’s evidence, as to the subjective belief(s) which he in fact held at the time of carrying out the conduct constituting the offence, was untrue; and (ii) the jury was required to consider the elements of duress only if not so satisfied; and -- 6 of 21 -- [2026] SASCA 57 The Court 5 (iii) the issue for the jury was not whether it should accept the appellant’s version given in evidence but, rather, whether the [respondent] had negatived it as a reasonable possibility; and (iv) in that connexion, the jury was required to consider whether it accepted the relevant part(s) of what the appellant said in his evidence, as to the subjective belief(s) which he in fact held at the time of carrying out the conduct constituting the offence, as being a reasonable possibility, the consequence of which was to misstate the issue for the jury’s determination in a way which relieved the [respondent] of proving its case beyond reasonable doubt; and which failure thus involved a wrong decision on a question of law, or otherwise resulted in a miscarriage of justice. Section 15D of the CLCA 22 Section 15D of the CLCA provides: (1) It is a defence to a charge of an offence (other than a prescribed offence) if— (a) at the time of carrying out the conduct constituting the offence, the defendant reasonably believed that— (i) a threat had been made that would be carried out unless the person engaged in the conduct; and (ii) carrying out the conduct was the only reasonable way that the threat could be avoided; and (b) the conduct was a reasonable response to the threat. (2) However, this section does not apply if the threat referred to in subsection (1)(a) was made by or on behalf of a person with whom the defendant was voluntarily associating for the purpose of carrying out conduct of the kind actually carried out. (3) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt. (4) In this section— prescribed offence means— (a) murder; or (b) attempted murder; or (c) conspiring or soliciting to commit murder; or (d) aiding, abetting, counselling or procuring the commission of murder; or (e) any other offence prescribed by the regulations for the purposes of this definition. -- 7 of 21 -- [2026] SASCA 57 The Court 6 23 Duress is an affirmative defence that, under certain conditions, excuses the commission of an offence other than a prescribed offence.7 So much is evident from the opening words to s 15D(1). 24 In the same way as the elements of a statutory offence are determined having regard to the application of the ordinary principles of statutory construction,8 so should the elements of a statutory defence. In R v A2,9 in the context of construing an offence creating provision, Bell and Gageler JJ said:10 The principles of interpretation were not in issue on the hearing of the appeals. In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical meaning of the words taking into account both context and legislative purpose. Consideration of context in its widest sense and the purpose of the statute informs the interpretative task throughout. That consideration, and the consequences of giving a provision its literal, grammatical meaning, may lead the court to adopt a construction that departs from the ordinary meaning of the words. Purposive construction, however, does not extend to expanding the scope of a provision imposing criminal liability beyond its textual limits. [citations omitted]. Text, context and construction of s 15D of the CLCA 25 The history of s 15D of the CLCA can be traced to the report of the Criminal Law Officers’ Committee of the Standing Committee of Attorneys-General Report entitled “Model Criminal Code. Ch 2: General Principles of Criminal Responsibility” (the MCC Report).11 The origins of s 15D are derived from stages 1 and 2 of the report of the South Australian Law Reform Institute entitled, “The Provoking Operation of Provocation”.12 26 Clause 10.2 of the MCC Report included the following draft duress defence: (1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress. (2) A person carries out conduct under duress if and only if he or she reasonably believes that: (a) a threat has been made that will be carried out unless an offence is committed; and (b) there is no reasonable way that the threat can be rendered ineffective; and (c) the conduct is a reasonable response to the threat. 7 The King v Anna Rowan (a pseudonym) (2024) 278 CLR 470 at [75], [82]. 8 CTM v The Queen (2008) 236 CLR 440 at [5]. 9 (2019) 269 CLR 507. 10 R v A2 (2019) 269 CLR 507 at [124]. 11 South Australian Law Reform Institute, The Provoking Operation of Provocation: Stage 2, at 160. 12 South Australian Law Reform Institute, The Provoking Operation of Provocation: Stage 2, at 160. -- 8 of 21 -- [2026] SASCA 57 The Court 7 27 It can be seen that the MCC Report draft duress defence and s 15D are not materially different. It seems to us that the report supports, or is at least consistent with, the approach contended for by the respondent. It supports an approach that contains an objective element both as to necessity for the conduct and the response to the threat. The objective overlay was considered necessary for policy reasons, in particular to safeguard against abuse of the defence.13 We do not consider that the report supports any dilution of this objective approach by reference to the defendant’s personal characteristics. 28 In Taiapa v The Queen14 the High Court considered the defence of duress as created by s 31(1)(d) of the Criminal Code 1899 (Qld). The Court observed that s 31(1)(d) of the Criminal Code (Qld) had been further amended in 2000, incorporating aspects of the MCC Report.15 Section 31(1)(d) included a reasonable belief test. The Court said:16 Reasonable belief is a familiar concept in the context of criminal responsibility in the Criminal Code and at common law. Section 271(2) of the Criminal Code speaks of a belief “on reasonable grounds”. As Stephen J observed in Marwey v The Queen, to ask whether a person has a reasonable belief is not different in substance from asking whether a person has reasonable grounds for belief. His Honour explained that in a case in which self-defence under s 271(2) is raised the jury are required to consider two questions. The first is an inquiry as to the state of the accused’s mind. The second is an objective question that his Honour said is “exclusively concerned with the jury’s view of the grounds, whether they constitute reasonable grounds”. Barwick CJ also observed that it is for the jury to judge whether such grounds exist. The recognition that the determination of whether grounds are reasonable is a factual question for the jury is not to overlook the anterior question of law, which is whether there is any material upon which it would be open to a reasonable jury to determine the issue favourably to the accused. [citations omitted]. 29 Section 10.2 of the Criminal Code 1995 (Cth) created the statutory defence of duress at the Commonwealth level; and s 9AG of the Crimes Act (Vic) created the statutory defence of duress in Victoria.17 These provisions were considered by the Courts in Oblach and Parker respectively. 30 In Oblach,18 the New South Wales Court of Criminal Appeal considered the construction of s 10.2 of the Criminal Code (Cth), and in particular the requirement that a defendant hold a reasonable belief. Relying primarily on contextual indicators, including the origins of the provision, and the contrast with the language used in describing self-defence, Spigelman CJ emphasised the 13 Model Criminal Code. Ch 2: General Principles of Criminal Responsibility, at [311]. 14 (2009) 240 CLR 95. 15 Taiapa v The Queen (2009) 240 CLR 95 at [27]. 16 Taiapa v The Queen (2009) 240 CLR 95 at [29]. 17 The statutory defence of duress in Victoria can now be found in s 322O of the Crimes Act 1958 (Vic). Section 322O is in similar, but not identical terms to s 9AG. 18 (2005) 65 NSWLR 75. -- 9 of 21 -- [2026] SASCA 57 The Court 8 importance of an objective component to ensure that the defence of duress fulfills its purpose. His Honour said:19 The Code requires that the relevant belief should be objectively justifiable. What is objectively reasonable must remain the primary focus. This focus is, at the least, blurred and perhaps overwhelmed if idiosyncrasy or even perversity in the knowledge or perception of an individual accused is a permissible subject of inquiry. 31 For broadly similar reasons, Sully J held that the requirement that a defendant’s belief be reasonable entails an enquiry into whether the relevant belief would have been held by an ordinary person in the position of the defendant, but not taking into account his or her personal characteristics.20 The third member of the Court, Hulme J, expressed a similar view, excluding consideration of the defendant’s personal perception and characteristics from the objective aspect of the defence.21 32 In so concluding, their Honours rejected the contention that a reasonable belief for the purpose of s 10.2 of the Criminal Code (Cth) was what the defendant (as opposed to an ordinary person) might reasonably believe in all the circumstances in which he or she found himself or herself. 33 The point made in Oblach22 by Spigelman CJ and Hulme J about the textual difference between the defences of self-defence and duress is relevant when considering the construction of s 15D of the CLCA. Self-defence is located in s 15(1) of the CLCA. Under that section, it is a defence to a charge of an offence if a defendant ‘genuinely believes’ the conduct to which the charge related is necessary and reasonable for a defensive purpose, and the conduct was, in the circumstances as the defendant ‘genuinely believed’ them to be, reasonably proportionate to the threat that the defendant ‘genuinely believed’ to exist. It is noteworthy that the defence of duress in s 15D, on the other hand, does not include any reference to the defendant’s ‘genuine belief’. Its focus is upon the defendant’s ‘reasonable belief’. 34 In Parker,23 two questions of law were reserved for the determination of the Victorian Court of Appeal. Those questions were: 1. In considering whether the accused had a “reasonable” belief as to the matters set out in s 9AG(2)(a) to (c) of the Crimes Act 1958 (Vic) (as in force between 23 November 2005 and 31 October 2014) (“Crimes Act”), is the court to consider the position from the point of view of: a. The accused, taking into account any personal characteristics that might have affected his or her appreciation of the circumstances; b. A sober person, of 19 Oblach v The Queen (2005) 65 NSWLR 75 at [59]. 20 Oblach v The Queen (2005) 65 NSWLR 75 at [74], [80]. 21 Oblach v The Queen (2005) 65 NSWLR 75 at [91]-[95]. 22 Oblach v The Queen (2005) 65 NSWLR 75. 23 Director of Public Prosecutions (Vic) v Parker (2016) 258 A Crim R 527 at [4] (Redlich, Osborn and Priest JJA). -- 10 of 21 -- [2026] SASCA 57 The Court 9 reasonable firmness of mind, sharing the following characteristics of the accused: i. Age; ii. Gender; iii. Maturity; iv. Any features arising by reason of s 9AH of the Crimes Act; c. An ordinary person; or d. Some other and, if so, what person? 2. In considering the matters set out in subsections (a) to (c) of s 9AG(2) of the Crimes Act, is the court to consider: a. The circumstances as the accused perceived them to be; or b. Some other, and if so, what circumstances? 35 The Victorian Court of Appeal answered the questions as follows:24 The requirement that the accused “reasonably believes” the matters enumerated in s 9AG(2) will be satisfied where a reasonable person possessing the personal characteristics of the accused that might have affected the person’s appreciation of the circumstances, might have held that belief. The first reserved question is to be answered in accordance with alternative (d), namely a reasonable person possessing any personal characteristics of the accused that might have affected the accused’s appreciation of the circumstances. The second reserved question is to be answered by reference to the circumstances as a reasonable person, possessing the personal characteristics of the accused, would have perceived them to be. 36 In arriving at this position, the Victorian Court of Appeal was conscious that it differed from the approach adopted by the New South Wales Court of Criminal Appeal. However, the Court considered that the reasoning of Spigelman CJ and Hulme J in Oblach was influenced by the contrast with the text of the defence of self-defence in the Criminal Code (Cth), and did not involve any consideration of the contextual significance of related reforms concerning family violence evidence. In this latter regard, the Victorian Court of Appeal said:25 As the parties accepted, it is plain that the statutory defence of duress has an objective component. Many of the provisions of the Crimes (Homicide) Act, were introduced to give a voice to people, disproportionately a majority of whom were women, who had committed an act of homicide due to family violence. The circumstances in s 9AH of the Crimes Act and Pt 6 of the JDA,26 which are also intended to apply to duress, reflect as much. The effect of 24 Director of Public Prosecutions (Vic) v Parker (2016) 258 A Crim R 527 at [59]. 25 Director of Public Prosecutions (Vic) v Parker (2016) 258 A Crim R 527 at [55]-[58]. 26 Jury Directions Act 2015 (Vic). -- 11 of 21 -- [2026] SASCA 57 The Court 10 s 9AH is to provide a framework in which factors personal to the accused, in the context of family violence, may be relevant to the homicidal actions of such an accused. Personal characteristics of an accused including those set out in s 9AH of the Crimes Act and Pt 6 of the JDA are calculated to influence the process of the formation of beliefs. The provision does not contemplate that a distinction should be drawn between the accused’s perception of the relevant circumstances referred to s 9AG(2) and the characteristics of the accused which influenced that perception. The influence of those personal characteristics in the formation of any belief bear upon the conclusion whether the accused “reasonably believes” that the conduct is the only reasonable way that the threatened harm can be avoided; and whether the conduct is a reasonable response. Regard to general characteristics reflects community standards of reasonableness. The phrase “the person reasonably believes” in its natural meaning requires regard be had to the characteristics of the accused. The words connote what an accused might reasonably believe in the circumstances in which the accused found himself or herself having regard to the personal characteristics of the accused. They encompass the subjective belief of the accused, informed by the personal characteristics of the accused with an objective overlay in the form of reasonableness which allows community standards to be taken into account when assessing the culpability of an accused. 37 When s 15D was introduced into the CLCA,27 the responsible Minister, in the Second Reading Speech, identified that the primary concern for the Government was the abolition of the partial defence of provocation, while leaving scope for the impact of evidence of family violence to be taken into account in the context of the defences of self-defence and duress. The Minister said:28 This bill implements the preferred recommendations in stage 1 and stage 2 reports of the South Australian Law Reform Institute (SALRI), entitled 'The Provoking Operation of Provocation'. The SALRI reports recommended that the common law defence of provocation should be abolished. At common law, if successfully raised provocation operates as a partial defence, reducing murder to manslaughter. The defence has been criticised for being complex, gender-biased and encouraging victim blaming. It is at odds with community expectations that, regardless of the degree of provocation, ordinary people should not resort to lethal violence. Sometimes referred to as the gay panic defence, it has been controversial in its use by accused persons who have perpetrated violence against members of the gay community. Notwithstanding that the defence was rarely successful in this context, this aspect of its operation is offensive and unacceptable. The defence has had some limited utility in the case of women who, having been the victims of prolonged family violence, finally retaliate against their abuser. Absent the defence, these women may be convicted of murder and face a mandatory sentence of life imprisonment, and a mandatory minimum non-parole period of 20 years. In line with the recommendations in the SALRI reports, the bill addresses this issue by ensuring that evidence of family violence and the circumstances surrounding it can be taken into account both at trial, particularly in the context of defences of self-defence and duress where the dynamics of a domestic relationship may be especially relevant and in sentencing, including in relation to murder. 27 Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020 (SA). 28 Second Reading Speech, Legislative Council, 15 October 2020 at 1989. -- 12 of 21 -- [2026] SASCA 57 The Court 11 38 Consistently with this, the Statutes Amendment (Abolition of Defence of Provocation and Related Matters) Act 2020 (SA) (the Amending Act) also inserted Part 3 Division 4 into the Evidence Act 1929 (SA). That Division deals with the admissibility and use of family violence evidence. What constitutes evidence of family violence is defined in s 34W of the Evidence Act. Social framework evidence is included within the meaning of s 34X. Section 34X permits the admission of certain expert evidence relating to the nature and effect of family violence. Social framework evidence is admissible in prescribed proceedings, including proceedings in which duress is raised as a defence. Importantly, the Amending Act also inserted s 15B into the CLCA. That section ensures that family violence evidence can be considered when considering the defences contained in ss 15 – 15D. The construction of the defence of duress in s 15D of the CLCA 39 We do not accept the appellant’s submission insofar as he seeks to rely upon the construction of s 9AG(2) in Parker in construing s 15D of the CLCA. On the contrary, we accept the respondent’s submission that there are significant textual and contextual differences between the provision considered by the Victorian Court of Appeal in Parker and the South Australian provision. The position in South Australia is more closely aligned with the position taken by the New South Wales Court of Criminal Appeal in Oblach. Accordingly, s 15D of the CLCA should be construed in a manner which more closely aligns with the approach in Oblach and Taiapa, and which is reflected in the Bench Book direction.29 40 Section 15D imposes a requirement of objective reasonableness. That requirement applies to each of the three limbs of the defence. The first and second limbs, enshrined in ss 15D(1)(a)(i) and (ii) respectively, are both subject to the chapeau to s 15D(1)(a), namely: “at the time of carrying out the conduct constituting the offence, the defendant reasonably believed that…”. They involve both subjective and objective considerations. The third limb, s 15D(1)(b), is not subject to the chapeau to s 15D(1)(a), but requires that the response to the threat be ‘reasonable’. 41 We consider the correct construction of, and thereby the correct approach to, s 15D of the CLCA is that where a defendant is charged with an offence (other than a prescribed offence as defined in s 15D(4)) and raises a defence of duress, the prosecution must, in order to negate that defence, prove beyond a reasonable doubt that, at the time of the conduct constituting the offence: (i) the defendant did not believe that a threat had been made that would be carried out unless the defendant engaged in the conduct constituting the offence. Here, the trier of fact is concerned with the existence and content of a belief actually or subjectively held; or 29 Bench Book Jury Direction #17.6 – Statutory Duress. -- 13 of 21 -- [2026] SASCA 57 The Court 12 (ii) the defendant did not ‘reasonably’ believe that a threat had been made that would be carried out unless the defendant engaged in the conduct constituting the offence. Here, the trier of fact is concerned with the objective issue of what the defendant might reasonably believe in the circumstances in which he or she found himself or herself; or (iii) that the defendant did not (subjectively) believe that carrying out the conduct constituting the offence was the only reasonable way that the threat could be avoided; or (iv) that the defendant did not ‘reasonably’ believe that carrying out the conduct constituting the offence was the only reasonable way that the threat could be avoided; or (v) that the defendant’s conduct was not a ‘reasonable’ response to the threat pursuant to s 15D(1)(b). 42 At the risk of repetition, paragraphs (i) and (iii) involve subjective enquiries, whereas (ii), (iv) and (v) involve objective enquiries. While the objective enquiries in (ii), (iv) and (v) involve consideration of the circumstances or position in which the defendant found himself or herself, and in that limited sense may be described as involving a mixed subjective/objective component, they do not take account of the personal characteristics of that defendant. 43 This is consistent with Jury Direction #17.6 – Statutory Duress contained in the Bench Book. The Bench Book provides the following direction:30 Jury Direction #17.6 – Statutory Duress Note: Where duress arises, the following direction should be given as part of the element of unlawfulness. For this element, the prosecution must prove the accused did not act under duress. Duress provides a defence to a person who commits a crime when compelled to do so because of serious threats of harm. It requires the accused to have been threatened and that committing the crime was a reasonable response to the threat. Like all other elements, the prosecution must prove the accused did not act under duress. This requires the prosecution to prove that duress does not apply. The accused does not need to prove that duress does apply. There are three ways the prosecution can prove the accused did not act under duress. 30 Bench Book Jury Direction #17.6 – Statutory Duress. -- 14 of 21 -- [2026] SASCA 57 The Court 13 First, duress will not apply if the prosecution proves that the accused did not reasonably believe that a threat had been made which would be carried out unless s/he committed the offence. Second, duress will not apply if the prosecution proves that the accused did not reasonably believe that committing the offence was the only reasonable way to avoid the threat. Third, duress will not apply if the prosecution proves that committing the offence was not a reasonable response to the threat. I will now explain these three ways of proving the accused did not act under duress in more detail. The first way relates to whether the accused reasonably believed that a threat had been made that will be carried out unless the person committed the offence. If the prosecution can prove that the accused did not believe there was a threat which would be carried out unless s/he committed the offence, or that a reasonable person in the accused’s position would not have believed there was threat which would be carried out unless s/he committed the threat, then the prosecution has proved that duress does not arise. The second way relates to whether the accused reasonably believed that committing the offence was the only reasonable way to avoid the threat. The prosecution can prove that duress does not arise if they can prove that the accused did not think that committing the offence was the only option, or if a reasonable person in the accused’s position would not have thought it was the only option. When you are considering whether a reasonable person in the accused’s position would have believed there was a threat, or that committing the offence was the only option, you must consider the issue from an objective view, taking into account the situation the accused thought s/he was facing. In other words, the prosecution must prove that a reasonable person, faced with the situation the accused thought s/he was facing, could not have believed there was a threat, or could not have believed that committing the offence was the only reasonable way to avoid the threat. The third way relates to whether committing the offence was a reasonable response to the threat. This third issue asks whether the conduct was a reasonable response to the threat. You must determine this from an objective view. But you must recognise that there may be several reasonable responses. When you are considering both the second way and the third way, two matters that may be relevant are alternative options and whether the accused’s conduct was proportional. First, consider what alternatives the accused had. Could s/he have reported the threat to police? Or could s/he have ignored the threat? The second matter is whether the conduct was proportional. How much harm was being threatened against the accused compared to the amount of harm the accused was expecting to cause? These two matters may help you decide whether the prosecution has proved that a reasonable person in the accused’s position would not have thought that carrying out the offence was the only option, or was a reasonable response to the threat. [If the issue of voluntary association arises, add the following direction: In this case, there is a fourth issue you must also consider. A person cannot rely on the defence of duress if the threat was made by a person who the accused was voluntarily associating with for the purpose of carrying out conduct of the kind carried out. The law recognises that when two people are working together to commit an offence, one may use threats to discourage the other from backing out of the arrangement. The law says that in that situation, the person -- 15 of 21 -- [2026] SASCA 57 The Court 14 who sought to back out cannot rely on the defence of duress. So, if the prosecution can prove that the threats were made in the context of an existing voluntary association for the purpose of committing conduct of the kind charged, then the prosecution has proved that duress does not apply. 44 It is convenient now to address the trial judge’s directions to the jury in the present matter. The trial judge’s directions and answers to the jury The trial judge’s directions 45 The trial judge directed the jury in relation to duress both orally and by way of an aide memoire entitled “R v Shepherd – Elements Memo”.31 The directions included the following:32 (a) The prosecution must prove beyond reasonable doubt that the accused did not act under duress. (b) The first way the prosecution can prove the accused did not act under duress is by proving the accused did not reasonably believe a threat had been made which would be carried out unless he committed the offence, or that a reasonable person in the accused’s position would not have believed there was a threat which would be carried out unless he committed the offence. When considering this, the jury must consider the issue objectively, taking into account the situation the accused is facing. That is to say, the prosecution must prove that a reasonable person faced with the situation the accused thought he was facing, could not have believed there was a threat. (c) The second way the prosecution can prove the accused did not act under duress is by satisfying the jury that he did not reasonably believe that committing the offence was the only reasonable way to avoid the threat. This must be considered objectively, taking into account the situation he thought he was facing. In other words, the prosecution must prove a reasonable person faced with the situation the accused thought he was facing could not have believed that committing the offence was the only reasonable way to avoid the threat. (d) The third way the prosecution can prove the accused did not act under duress is by satisfying the jury that the offence was not a reasonable response to the threat. This must be determined objectively, recognising that there may be several reasonable responses. 46 The appellant submits that the trial judge’s directions to the jury were erroneous in that they failed to inform and instruct the jury as to the subjective component of the statutory defence duress, and in particular the first limb of that 31 AB 52, p 4. 32 Summing up pp 8, 14-16. -- 16 of 21 -- [2026] SASCA 57 The Court 15 defence. The appellant submits that the effect of the trial judge’s contended misdirection was to divorce the jury’s consideration of the objective, or mixed subjective/objective component of the duress defence from any consideration of his subjective belief. The appellant further submits that the effect of this was to exclude from the jury’s consideration the circumstances as he understood them. The jury note 47 During its deliberations the jury provided to the trial judge a note asking the following question:33 The jury would like clarification of the elements memo, page 5, para 2, “Reasonable person in the accused’s position”. We are very much at odds and need assistance. We also note the para on same page regarding “how much harm the accused was expecting to cause”. 48 The parties made submissions about how the trial judge should answer the jury question, in particular, whether ss 15D(1)(a)(i) and (ii) of the CLCA encapsulate an objective or subjective test, or a combination of both.34 49 The trial judge answered the jury question in the following way:35 [A]sk yourselves whether a reasonable person would believe committing the offence was the only reasonable way to avoid the threat. When you ask yourselves that question, take into account the situation Mr Shepherd thought he was facing. It may be relevant for you to consider what alternative options Mr Shepherd had, and whether what Mr Shepherd was being told to do was proportional to what was being threatened against his family. Keep in mind, a reasonable person may well respond in any one of a number of ways to a particular situation. 50 The appellant submits the trial judge’s directions again failed to inform and instruct the jury as to the subjective component of the second limb of statutory duress; and failed to properly assist and inform the jury as to how they were to approach the mixed subjective/objective components of the second and third limbs. 51 The appellant also submits that the directions which the trial judge gave the jury in response to their questions were not directed to, and did nothing to cure, what the appellant submits were the trial judge’s earlier misdirections to the jury. The trial judge’s directions and answers were adequate 52 It is well established that whether a trial judge’s directions to a jury are sufficient must be determined having regard to the real issues in the case.36 The sole issue in this case was duress. The only evidence of duress at trial was the appellant’s evidence. The principal position of the prosecution was that the 33 Summing up pp 21-22. 34 Summing up pp 27-41. 35 Summing up pp 41. 36 Perara-Cathcart v The Queen (2017) 260 CLR 595 at [53]. -- 17 of 21 -- [2026] SASCA 57 The Court 16 appellant was lying and his evidence should be rejected. The trial judge’s directions must be read in that context. 53 Having first addressed the appellant’s evidence, the trial judge then directed the jury as to how they should reason in circumstances where they had not rejected the appellant’s evidence. Contrary to the appellant’s submission, these directions were – when read as a whole – consistent with the Bench Book Direction,37 and were adequate in the circumstances of the forensic contest at trial. 54 To recapitulate, the subjective inquiries in respect of each limb are, then, whether the prosecution have proved beyond a reasonable doubt: (a) that the defendant did not believe that a threat had been made that would be carried out unless the defendant engaged in the conduct constituting the offence; and (b) that the defendant did not believe that carrying out the conduct constituting the offence was the only reasonable way that the threat could be avoided. Further, adopting the approach taken by the New South Wales Court of Criminal Appeal in Oblach,38 the relevant objective question, in respect of each of the first and second limbs of the defence of duress, is what the defendant might reasonably believe in the circumstances in which they found themselves. 55 The complaint that the judge did not direct the jury adequately on the subjective components of these limbs of the defence must be understood in the context of this constructional approach. The Director submitted that the judge did direct the jury sufficiently as to the subjective elements of the limbs, having regard to the issues in the trial, in circumstances where the prosecution contended that the appellant was lying. The Director pointed to the following directions: The accused gave evidence going to duress. In respect of his evidence that Aaron had threatened him, the prosecution submitted that was a lie and you should reject it as untrue. If you do reject that evidence of the accused as the prosecution has submitted you should, then you will be satisfied the prosecution has established beyond reasonable doubt he did not act under duress when he committed the charged offences. If you do reject that evidence, then you must always bear in mind it is still for the prosecution to prove each and every element of each of the charged offences beyond reasonable doubt before you can return a verdict of guilty in respect of that charged offence. … If you reject the evidence of the accused about Aaron threatening his family or anyone else and if you are otherwise satisfied the prosecution has proved the other elements of the two charged offences, you will find the accused guilty of those offences. If you accept the evidence of the accused about what Aaron said to him on the lawn and in the car, then the prosecution must prove duress does not apply. The accused does not need to prove that duress does apply. 56 If the jury were to reject the appellant’s evidence in its entirety, that would necessarily incorporate a determination that the appellant did not believe that a 37 Bench Book Jury Direction #17.6 – Statutory Duress. 38 (2005) 65 NSWLR 75. -- 18 of 21 -- [2026] SASCA 57 The Court 17 threat had been made that would be carried out unless he engaged in the conduct constituting the offence. 57 The appellant complained that this direction did not clearly articulate that the jury would need to reject the evidence of the threat as a reasonable possibility. However, the direction was given in the context of directing what the prosecution must prove. Earlier, the judge had explained: Like other elements, the prosecution must prove that the accused did not act under duress beyond reasonable doubt. 58 The ‘Elements Memo’ framed the directions on the defence of duress in terms of how the prosecution could prove that the appellant did not act under duress. We are satisfied that, in context, the jury would have understood the obligation on the prosecution to disprove the elements of duress beyond reasonable doubt. 59 The question then arises, however, of the adequacy of the directions on the subjective elements if the jury did not reject the existence of a threat as a reasonable possibility. The jury would then be concerned with the consequences of that threat, including the appellant’s subjective beliefs as to (a) whether the threat would be carried out and (b) whether committing the offence was the only reasonable way to avoid the threat. That is to say, the questions of the appellant’s subjective beliefs do not stand or fall only with the question of whether the threat was made. We are not satisfied that the directions set out above addressed fully the subjective elements of the first and second limbs of duress. 60 It is necessary to return to the oral directions the judge gave as to the elements of duress. The judge used compendious phrasing to the effect that the prosecution must prove that the appellant did not reasonably believe (a) that a threat had been made which would be carried out unless he committed the offence; and (b) that committing the offence was the only reasonable way to avoid the threat. This approach departed from the model direction provided in the Bench Book in that it does not say in respect of (a): If the prosecution can prove that the accused did not believe there was a threat which would be carried out unless s/he committed the offence, or that a reasonable person in the accused’s position would not have believed… (Emphasis added.) and (b): The prosecution can prove that duress does not arise if they can prove that the accused did not think that committing the offence was the only option, or if a reasonable person in the accused’s position would not have thought it was the only option. (Emphasis added.) 61 The direction in the present case used the phrase ‘did not reasonably believe’, with an attendant explanation in each case. -- 19 of 21 -- [2026] SASCA 57 The Court 18 62 The model direction in the Bench Book is preferable. However, we do not think that the failure to follow that direction precisely caused a miscarriage of justice. 63 First, we are inclined to read the phrasing employed by the trial judge as incorporating an inquiry as to whether the appellant held the subjective beliefs at all. We accept, however, that it is not entirely clear. 64 Secondly, and more fundamentally, the full context of the direction indicates that even if it were to be accepted that the above passages elided the inquiries as to the subjective state of mind of the appellant, that can only have been to the advantage of the appellant. In respect of the first limb, the ‘Elements Memo’ provided to the jury reads: When you are considering whether a reasonable person in the accused’s position would have believed there was a threat which would be carried out unless he committed the offence, you must consider the issue from an objective point of view, taking into account the situation the accused thought he was facing. In other words, the prosecution must prove that a reasonable person, faced with the situation the accused thought he was facing, could not have believed there was a threat. (Emphasis added.) 65 Then in respect of the second limb: As with the first way, when you are considering whether a reasonable person in the accused’s position would have believed that committing the offence was the only reasonable way to avoid the threat, you must also consider the issue from an objective point of view, taking into account the situation the accused thought he was facing. In other words, the prosecution must prove a reasonable person, faced with the situation the accused thought he was facing, could not have believed that committing the offence was the only reasonable way to avoid that. (Emphasis added.) 66 The oral directions set out are in closely similar terms. The emphasised passages above are premised on the jury accepting the making of the threat and that the accused held the necessary subjective beliefs for the defence of duress to operate. 67 To take the directions in stages, then: first, the jury were directed about the consequence if they did not accept the appellant’s evidence that the threats were made, as set out earlier. 68 Secondly, the balance of the directions about duress were premised on an acceptance, as a reasonable possibility, that the threats were made. To the extent that those directions may have elided the subjective elements of duress as separate considerations for the jury, that occurred at the expense of the prosecution’s capacity to disprove the appellant’s subjective beliefs. That is, the oral directions -- 20 of 21 -- [2026] SASCA 57 The Court 19 and the Elements Memo effectively invited the jury to assume the subjective states of mind of the appellant necessary to establish duress in the event they accepted the existence of the threats as a reasonable possibility. The directions then progressed to the objective elements, namely what the prosecution must prove about the state of mind of a reasonable person in the position of the appellant. 69 On that basis, we do not accept that, to the extent that the directions elided the jury’s obligation to consider the appellant’s subjective beliefs in respect of the first and second limbs of the duress defence, this could realistically have affected the reasoning of the jury to the verdict of guilty.39 70 Given our earlier conclusion to the effect that the objective components of the defence of duress in s 15D do not incorporate consideration of a defendant’s personal characteristics, no complaint can be made about the failure of the trial judge to direct the jury to take these characteristics into account. Conclusion 71 For the above reasons, the trial judge did not err in the directions he gave as to the proper construction of the defence of duress in s 15D of the CLCA. Nor did the directions given occasion any miscarriage of justice. 72 We dismiss the appeal. 39 MDP v The King (2025) 99 ALJR 969 at [3] (Gageler CJ); compare Marwey v The Queen (1977) 138 CLR 630 at 641 (Stephen J). -- 21 of 21 --