Duress

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.

Legislation

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.

• 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.

Other Principles

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.