Defence of Duress

What is Duress?

An act is said to be committed under duress if it is committed due to a threat of physical harm if the act is not done. To have acted under duress, the circumstances must have been such that the accused’s will was really and absolutely so constrained that he or she became a mere innocent instrument of the crime.

Where duress is available as a defence, and the prosecution cannot prove that the accused did not act under duress, he or she will have a complete defence to the offence charged.

To Which Crimes is Duress Available as a Defence?

Duress under common law is a defence to all criminal acts except for murder and some forms of treason. s9AG of the Crimes Act 1958 contains statutory provisions relating to the application of duress as a defence in cases involving murder, manslaughter, and defensive homicide (including attempts).

Onus of Proof

It is for the prosecution to prove, beyond reasonable doubt, that the accused was not acting under duress.

Elements of Duress

The prosecution can prove that the accused was not acting under duress by proving any of the following matters:

• That no-one was threatened with serious harm if the accused failed to commit the crime charged;
• That the threat was not present and continuing, imminent and impending;
• That the accused did not reasonably apprehend that the threat would be carried out;
• That it was not the threat that induced the accused to commit the crime charged;
• That, when free from the duress, the accused voluntarily exposed himself or herself to its application;
• That the accused could safely have prevented the execution of the threat; or
• That the circumstances were such that a person of ordinary firmness would not have been likely to yield to the threat in the way the accused did.