The Defence of Duress
All Australian jurisdictions have some version of the defence of duress. This defence applies if a person accused of an offence was essentially ‘forced’ to do the act by another person. In Queensland, duress is known as compulsion. This page deals with the defence of duress in the different states and territories of Australia.
Duress in the ACT
Under section 40 of the Criminal Code 2002, an individual cannot be held criminally responsible for an offence in the ACT if they were forced to commit the act under duress.
For this defence to apply, the person must have believed that a threat would be carried out if they did not commit the offence and that there was no other reasonable way to prevent the threat from being carried out.
The conduct committed must have been a reasonable response to the threat. However, if the threat was made by or on behalf of a person who the accused was voluntarily associating with to commit acts of this nature (such as members of a criminal organisation), then the defence of duress cannot be relied on.
Duress in Victoria
Section 322O of the Crimes Act 1958 outlines the defence of duress in Victoria. This provision includes the following:
- A person is not guilty of an offence if they were coerced into committing the act under duress.
- A person can be considered under duress if they reasonably believed that a threat of harm would be carried out unless they committed the offence, and committing the act was the only reasonable way to avoid the harm.
- The act committed was a reasonable response to the threat.
If the threat was made by or on behalf of a person who the accused was voluntarily associating with to commit violent acts, the defence of duress does not apply.
The defence of duress only applies in cases of murder if the accused believed that the threat was to inflict death or serious injury.
Compulsion in Queensland
In Queensland, the defence of compulsion is outlined in section 31 of the Criminal Code 1899. Under this provision, a person cannot be held criminally responsible for their actions if they were acting under compulsion.
The following conditions must be met for this defence to apply:
- The accused commits an act or omission to prevent serious harm to themselves, another person, or property.
- The harm is being threatened by someone who has the ability to carry out the threat.
- The accused reasonably believes that they are unable to escape the harm.
- The act or omission is reasonably proportionate to the harm being threatened.
Section 31(2) of the Criminal Code Act 1988 specifies certain offences to which the defence of compulsion does not apply in Queensland. These include:
- Offences that result in or are intended to cause grievous bodily harm
- Offences that involve voluntary participation in unlawful associations, such as criminal organizations.
Duress in New South Wales
In order for an accused person to be acquitted on the basis of duress in New South Wales, they must provide evidence that establishes that:
- A threat of death or serious injury was made to them or their family member.
- The gravity of the threat was such that a person of similar sex and age as them, who possessed ordinary firmness and courage, would have acted in the same way as the accused.
- The accused committed the alleged acts because of the threat.
- The accused had no other way of avoiding the threat.
In New South Wales, duress cannot be argued for murder, attempted murder, or certain forms of treason. However, it can be argued as a defence to manslaughter and all other criminal charges.
Duress in Western Australia
Section 32 of the Criminal Code provides that an individual is not criminally responsible for an act carried out under duress in Western Australia. This provision specifies that an individual is considered to have acted under duress if they believe the following:
- A threat has been made
- The threat will be carried out unless they commit an offence
- Committing the act is necessary to avoid the threat being carried out
- The act is a reasonable response to the threat under the circumstances that they reasonably believe to exist.
The defence of duress cannot be used in WA if the threat was made by a person who the accused voluntarily associated with for the purpose of committing acts like the one charged.
Duress under Commonwealth criminal law
Section 10 of the Criminal Code 1995 allows for the defence of duress to be used in response to all Commonwealth offences, including those related to drug importation and various offenses that occur on the internet.
Under the Commonwealth act, a person accused of an offense is not guilty if they can prove the following:
- A threat was made that caused them to act against their will.
- An ordinary person of similar age and gender would have also succumbed to the threat in the same situation.
- The accused had no reasonable means of avoiding the threat.
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