The Defence of Duress (or Compulsion) (Qld)

In Queensland, the defence of duress is available to an accused for a broad range of criminal offences. This defence provides that a person is not criminally responsible for an act, or omission, carried out because the person was threatened with death or serious harm if they did not carry out the act or omission.

The defence, which is now legislated, is built on the common law principles that provided an excuse for an accused when they are placed in a position that would overbear an ordinary human’s willpower to resist undertaking the act or omission.

Legislative Framework for duress

The defence of duress in Queensland is legislated under section 31 of the Criminal Code 1899. The provision states that a person is not criminally responsible for an act if they acted under compulsion.

This occurs when:

1. The person does an act or omission to save themselves, another person or property from serious harm, which is being threatened by someone who is in a position to carry out the threat;
2. The person must reasonably believe that they are unable to escape the harm that is being threatened; and
3. The act or omission must be reasonably proportionate to the harm threatened.

Threat of harm

The defence of duress essentially excuses an accused from criminal responsibility if they were compelled to do an unlawful act or omission in order to avoid a real threat of harm or death being perpetrated against themselves, another person or property.

Prior to amendments made in 2000, the defence could only be used if there was an imminent threat of grievous bodily harm to a person or imminent death.

However, the defence can now be relied on when there is a:

1. Threat of serious harm or detriment, whether this be to the accused person themselves or another person; or
2. Threat to property.

The threat must be able to be carried out by the person who is making the threat. Therefore, it is not sufficient that there be a threat that is not imminent.

Notwithstanding the expansion of the legislation, this defence is not commonly used.

Unable to Escape Harm

The second requirement for the defence of duress is that the accused must have reasonably believed they could not escape the threatened harm. Therefore, if an accused had another option to escape the threat, the defence will not succeed.

This is a subjective test. It requires a jury to consider whether a person of the same age, gender and mental ability would have reached the same view that the accused did when considering whether they had the option of escaping the threat of harm. The jury needs to consider whether the accused had an opportunity to render the threat ineffective. In considering this, it ought to consider how realistic the threat to the accused was. If the threat was not realistic, the defence cannot succeed.

Response to the Threat

The act or omission by the accused must be reasonably proportionate to the harm threatened. This means that the act or omission of the accused cannot be far more significant than the threat they were facing.

Defence of duress and excluded offences

The defence of duress is not available for all criminal offences in Queensland. Under section 31(2) of the Criminal Code Act 1988, there are certain offences for which the defence cannot be used. This includes:

1. Murder;
2. Offences which result in, or are intended to cause, grievous bodily harm; and
3. Offences that involve voluntarily participating in unlawful associations, such as criminal organisations.

Interestingly, whilst the defence is not available for murder, it is available in some circumstances for the offence of manslaughter. This was confirmed by the High Court in the decision of Pickering v R(2017) 91 ALJR 590. However, if there is an act of grievous bodily harm that results in death and a charge of manslaughter, the defence is not available.

If a person is charged with murder but the alternate charge of manslaughter is available to the jury, the defence of duress can remain a live issue. This was confirmed in the case of R v Evans and Gardiner (No 1) [1976] VR 517.

Evidentiary burden

In order to successfully rely of the defence of duress, the accused needs to prove that they were placed under such a level of threat that they had a genuine belief that had they not committed the offence, they or some other person would be seriously harmed or killed, or property damaged. This means that an accused must, through cross-examination of prosecution evidence, or by calling evidence themselves, place evidence before the court that they were acting under duress.

Once that evidence is raised, the prosecution then has the onus of proving, beyond a reasonable doubt, that the accused did not commit the act or omission as a result of any threat. The prosecution must satisfy the jury that cannot be excused from criminal responsibility due to duress or compulsion.

Conclusion

Duress is a complicated defence to run but it allows an absolute discharge for the act or omission committed by an accused.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.