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Defence of 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 s/he became a mere innocent instrument of the crime. The accused’s act can be seen to have been induced by a threat made by a third person.

It is for the prosecution to prove beyond reasonable doubt that the accused was not acting under duress. 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 charged offences which would lead to an acquittal.

To which offences 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. Section 9AG of the Crimes Act 1968 contains statutory provisions relating to the application of duress as a defence in cases involving murder, manslaughter and defensive homicides. This includes attempts of these offences also.

Elements of duress

The prosecution must prove that the accused was not acting under duress by way of one 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 themselves 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