This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Defence of Duress
The defence of duress involves a serious threat to an accused or their family, often involving the immediate death or serious injury of the accused or their family, but which can include the threat of future harm and of threats or violence to others. This defence is rarely raised in a criminal trial.
An accused person is to be acquitted of a criminal offence if the court accepts that he or she acted under duress.
Definition
Section 40 of the Criminal Code 2002 provides that a person is not criminally responsible for an offence if the person carries out the conduct required for the offence under duress.
A person carries out conduct under duress only if the person reasonably believes that:
- a threat has been made that will be carried out unless an offence is committed; and
- there is no reasonable way to make the threat ineffective; and
- the conduct is a reasonable response to the threat.
However, the person does not carry out conduct under duress if the threat is made by or on behalf of a person with whom the person is voluntarily associating to carry out conduct of the kind required for the offence.
The Onus of Proof of A Defence of Duress
The accused bears an evidentiary onus. That is, he or she needs to call evidence that raises the defence. Once the accused discharges that evidentiary onus, the prosecution must prove beyond reasonable doubt that the accused acted voluntarily and in order to do so must eliminate any reasonable possibility that he or she acted under duress.
Case law
In R v Abusafiah (1991) 24 NSWLR 531, Justice Hunt, delivering the leading judgment, said: “In duress, the relevant act is done only because the accused has lost his free choice to refrain from doing the act, in that he did the act because he feared that the consequences of the threat were greater than those flowing from the crime he commits … Duress is a complete defence leading to an acquittal.”
Other Principles
The court stated that the prosecution must establish one or the other of two things. It does not have to establish both of them. The first is that, when the accused did those acts, there is no reasonable possibility that he did so by reason of a threat that death or really serious physical harm would be inflicted upon him or upon his family if he did not do those acts.
If the prosecution has failed to eliminate that particular reasonable possibility, it must establish that there is no reasonable possibility that such was the gravity of the threat that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to that threat in the way in which the accused did.
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