The Defence of Duress
The defence of duress is available in relation to almost all criminal offences. However, it is rarely raised and even more rarely succeeds. It can be argued where the offence was committed only because the accused was put under enormous pressure to commit the offence and believed that they or someone else would be seriously harmed or killed if they did not comply.
What must be proven?
To make out the defence of duress, the accused must call evidence establishing the following:
- that an actual threat of death or serious injury was made to the accused or another person,
- that the threat was of such gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to the threat in the way that the accused did, and
- that the accused acted as they did because of the threat which was still acting on their mind at the time of the criminal act.
For such a threat to be effective it must be continuing and be seen to be continuing and a threat will not be seen to be continuing and effective if the accused had a reasonable opportunity to render the threat ineffective.
The onus of proof
An accused who wishes to rely on the defence of duress bears an evidentiary onus. This means they must call evidence that raises the defence. Once the defence has been raised, the prosecution must prove that the accused acted voluntarily and in order to do so must eliminate any reasonable possibility that he acted under duress.
When can the defence of duress not be argued?
The defence of duress cannot be argued in relation to very serious offences such as murder, treason and terrorism offences. This is because the criminal law considers that some actions are so serious that they cannot be excused even under extreme circumstances. However, courts have held that the defence of duress can be relied on by a person charged as an accessory to murder if they were forced to assist through threats of death or serious harm.
The defence of duress cannot be argued where the duress was foreseeable. The most common example of this is where the accused has chosen to associate with criminals.
The defence of duress in different states
The precise laws on the defence of duress vary between different states and territories. While in common law jurisdictions like Victoria, the defence of duress can only be argued where a threat of physical harm was made to a person, Queensland has extended the defence to cover threats to property. However, the defence can only be relied on where the response to the threat to property was proportionate.
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