Anastasia Qvist is an outstanding lawyer. My criminal law situation (family violence order) was difficult, complex and Ana's diligence saved me as I was going through the most difficult period of my life. Ana is down to earth, commonsense and she even kept our costs to a minimum. She is a skilled litigator and knows the ins and outs of the ACT Magistrates Court. She dealt skillfully with the DPP and is an excellent negotiator. You will get a fair representation and she genuinely cares about her clients. She has my complete recommendation. The lady goes to bat for her clients.
I would strongly recommend Anastasia to anyone who is seeking legal representation. As a first-time offender who was charged with a Level 2 Drink Driving offence, she walked me through every step of the matter and was very upfront and clear on all aspects of my case. She was always accessible when I needed advice. Her approach and advice were excellent. Under her representation, I received the best possible outcome and managed to avoid a criminal conviction. She was a pleasure to deal with throughout the whole matter.
Anastasia Qvist was very professional and helpful in every step of my matter. I got a very good outcome and I can’t thank you enough for your hard work and the Armstrong Legal team in Canberra. I would highly recommend her!!!
Throughout Angela has been the consummate professional. She maintained a calm, yet strong demeanour remained informative and completely open in her communication and took complete ownership of the situation. We felt confident we finally had an advocate to steer us out of the nightmare we were in, and she did so with great respect and sincerity. I cannot speak more highly of Angela. She has literally rescued our family from what looked very much like a hopeless future.
Words can’t describe how grateful I am to Trudie Cameron being my solicitor and to Andrew Tiedt presenting my case in the court. They both have been very supportive and amazingly professional and effective. I’ve got an absolutely fantastic outcome I couldn’t even dream about.
Soon after meeting Andrew I knew he was the solicitor I wanted to handle my matter. He immediately sprang into action which brought me stability and hope during a tumultuous time in my life. Andrew was never afraid to give me straight answers to my tough questions which is a true mark of integrity. He is clearly at ease in the court environment and I believe his calm and measured demeanour went a long way to helping me secure the best result from my day in court. I would certainly recommend you approach Andrew if you need assistance.
"Andrew Tiedt was very professional and considerate to personal circumstances and gave sound advice that resulted in the best outcome possible. Highly recommended."
The defence of duress can be argued when the accused was essentially ‘forced’ to commit the offence by having a very serious threat made to them or to another person. The defence of duress is rarely argued and even more rarely succeeds. It is available as a defence to all criminal offences with the exception of very serious offences such as treason and terrorism. It can be argued as a defence to murder only if the threat was to inflict death or really serious injury on a person.
The test for duress is set out at section 322O of the Crimes Act 1958. This provision states:
- A person is not guilty of an offence in respect of conduct carried out by the person under duress.
- A person carries out conduct under duress if—
- the person reasonably believes that—
- subject to subsection (3), a threat of harm has been made that will be carried out unless an offence is committed; and
- carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and
- the conduct is a reasonable response to the threat.
- the person reasonably believes that—
- A 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 for the purpose of carrying out violent conduct.
- This section only applies in the case of murder if the person believes that the threat is to inflict death or really serious injury.
The Onus of Proof of a Defence Of Duress
The accused has the onus to raise duress. This is normally done by presenting or pointing to evidence that suggests a reasonable possibility that if the facts were to be accepted, they would establish the defence of duress.
Once an accused satisfies that evidential onus, the legal onus then shifts to the prosecution to prove beyond reasonable doubt that the accused did not carry out the offence charged under duress.
Elements of Duress for the Prosecution
To prove that an accused did not act under duress, the prosecution must disprove one or more of the following five elements:
- The accused reasonably believes that a threat of harm has been made;
- The accused reasonably believes that the threat will be carried out unless an offence is committed;
- The accused reasonably believes that carrying out the conduct is the only reasonable way the threatened harm can be avoided;
- The conduct is a reasonable response to the threat;
- The threat was not made by or on behalf of a person with whom the accused is voluntary associating for the purpose of carrying out violent conduct.
The issue as to what is meant by the phrase ‘reasonably believes’ is a very complicated concept. There are both subjective and objective aspects which vary depending on the circumstances of the accused and the facts presented before the Court. This concept also varies depending on the accused’s level of intoxication, whether the offence relates to family violence or whether someone died because of the threat.
The information contained in this section involves complex legal principles. If you do not have a good knowledge of the law, you may have difficulty in understanding these principles or how they apply to your circumstances. If you need assistance, please do not hesitate to contact one of our experienced criminal lawyers.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.
WHERE TO NEXT?
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.
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