Duress is a full defence to most criminal charges in Western Australia. An accused person can be acquitted based on duress if they were ‘forced’ into committing the acts that form the basis of the criminal offence. Duress is based on the principle that people should not be held criminally responsible for acts that they did not do of their own free will. In WA, the defence of duress is contained in Section 32 of the Criminal Code.
Under section 32 of the Criminal Code, a person is not criminally responsible for an act that was done under duress. The provision states that a person acts under duress if they believe that:
- A threat has been made;
- The threat will be carried out unless they commit an act that constitutes an offence;
- Doing the act is necessary to avoid the threat being carried out; and
- The act is a reasonable response to the threat under the circumstances that they reasonably believe to exist.
In Western Australia, the defence of duress cannot be relied on if it was made by a person who the accused was voluntarily associating with for the purpose of doing acts like the one charged – for example, another member of a criminal organisation that the accused is part of. In this situation, the accused will be held fully responsible for their actions.
Who bears the onus of proof?
The defence must raise the defence of duress. The prosecution then has the burden of proving beyond a reasonable doubt that the accused person acted voluntarily and not under duress. If the prosecution is not able to exclude the possibility that the person was acting under duress, then the court must find them not guilty.
How is duress different in WA?
Until recently, WA had a very narrow definition of duress which required the person making the threat to have been physically present with the accused at the time of the alleged offence, to have made the threat to the accused themselves (and not to another person, like their child or partner) and for the harm threatened to have been immediate death or serious harm.
The WA legislation has now been changes and is now consistent with other Australian jurisdictions. It no longer requires that the person making the threat be physically present at the time of the offence. This recognises the role that technology plays in modern life and the reality that a threat made by phone or over the internet can be equally serious as one made in person.
Under common law, for the defence of duress to be successfully raised, the threat must have been sufficiently serious that a person of reasonable firmness and courage would have yielded to it. The WA legislation does not include this test, but it does require that the accused’s actions must have been a reasonable response to the threat. The common law of duress requires that the threat was still continuing at the time the accused’s actions were carried out. The WA provision does not require this.
When can duress not be argued?
Duress cannot be relied on where the accused is voluntarily associating with persons who are involved in unlawful activities where these threats are likely to be made such as where the accused is part of a drug syndicate.
At common murder, the defence duress is unavailable in relation to a charge of murder and to some types of treason. However, courts have allowed duress to be relied on as a defence to a charge of being an accessory to murder, in circumstances where the accused person maintains they were forced to help the principal offender with threats of death or grievous bodily harm.
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