The Defence of Duress (NSW)

In New South Wales, the defence of duress applies to most criminal offences. Duress exists when there was an extremely serious physical threat to the accused which compelled them to perform acts that they would not perform willingly. The rationale for the defence is that individuals should not be held criminally responsible for acts that they were essentially ‘forced’ to do by someone else. However, the legal defence of duress is rarely raised and even more rarely succeeds.

Definition of duress

To secure an acquittal based on duress, an accused person must call evidence that:

• A threat of death or serious injury was made to them or to a member of their family;
• The gravity of the threat was sufficient that a person of ordinary firmness and courage who was of the same sex and maturity as them would have yielded in the way they did;
• That the accused performed the alleged acts because of the threat;
• That the accused did not have any other way to escape the threat. 

Burden of proof

Once an accused has raised duress as a defence, it is up to the prosecution to prove that the person was not acting under duress. The defence does not have to prove that duress applies. This is called a reverse onus.

Intent

Where a defence of duress is accepted, the accused will be found to have had the requisite intent to commit the crime. However, they will be found not guilty because that intention was formed only because of a threat.

Voluntariness

A defence of duress does not mean that the accused person committed the act or acts involuntarily. An accused person who acted under duress acted voluntarily; however, under constrained circumstances. A person who acts involuntarily does not have control of their actions – for example, a sleepwalker. 

R v Abusafiah

The 1991 decision of Abusafiah is the leading case on the defence of duress. In that case, the accused was charged with robbery and claimed that he acted under duress after being threatened with a gun. The accused claimed he feared the man threatening him would bash or kill him if he did not comply.

The court held that the relevant test for duress is whether the threat was of a magnitude that the accused person could not reasonably have been expected to resist it under the circumstances.

When is the defence of duress not available?

In New South Wales, the defence of duress cannot be argued where a person is charged with murder, attempted murder, or some forms of treason. However, the defence of duress is available to be argued where a person is charged with manslaughter and all other criminal offences.

Commonwealth offences

Under Section 10 of the Criminal Code 1995 (Cth), duress is available as a defence to all Commonwealth offences. Commonwealth offences include offences relating to importation of drugs and many offences committed over the internet. 

The act provides that an accused is not guilty of an offence if they can establish that:

• A threat was made that resulted in their will being overborne;
• A person of ordinary firmness and courage who was of the same age and sex as them would have yielded to the threat under similar circumstances;
• The accused had no reasonable way of avoiding the threat.

When does a defence of duress fail?

A defence of duress will not succeed if the prosecution can show that:

• There was no threat made;
• The threat was not sufficiently seriously to justify the accused’s actions;
• The threat was not still continuing, imminent and impending at the time the accused committed the acts;
• The accused person did not reasonably apprehend that the person making the threat would carry the threat out;
• The threat did not induce the accused to commit the acts;
• The accused voluntarily exposed themselves to duress (for example, by associating with a criminal organisation);
• The accused had the opportunity to escape the threat or avoid the threat;
• A person or ordinary firmness in similar circumstances and with similar characteristics would not have yielded to the threat.

If you require legal advice or representation in a criminal law matter or in any other legal matter please contact Armstrong Legal.