Duress in Victoria: A Complete Defence Under the Crimes Act 1958

The defence of duress in Victoria recognises that, in narrowly defined circumstances, a person who commits what would otherwise be a criminal offence should not be held legally responsible because they were compelled by threats of harm. While the concept appears simple, the statutory test is strict and carefully applied by courts.

This article explains how duress operates under Victorian law, the requirements in section 322O of the Crimes Act 1958, the evidentiary burden, its limits in murder cases, and how courts approach the defence in practice.

The Statutory Framework: Section 322O

For offences committed on or after 1 November 2014, duress is governed by section 322O of the Crimes Act 1958. The statutory defence replaced the common law position for those offences.

Under section 322O:

• A person is not guilty of an offence if the conduct was carried out under duress.
• The accused must reasonably believe that a threat of harm has been made and will be carried out unless an offence is committed.
• The accused must reasonably believe that committing the offence is the only reasonable way to avoid the threatened harm.
• The conduct must be a reasonable response to the threat.

The defence is unavailable where the threat is made by or on behalf of a person with whom the accused voluntarily associates for the purpose of violent conduct.

In murder cases, the accused must believe the threat is to inflict death or really serious injury.

The structure of the provision shows that duress is not about sympathy or pressure in a general sense. It is about legally defined compulsion.

Duress Is a Complete Defence

Duress is a complete defence. If successfully raised and not disproved by the prosecution, it results in an acquittal. It does not reduce liability. It removes it entirely.

The Victorian Court of Appeal in DPP v Parker (a pseudonym) (2016) 258 A Crim R 527 clarified how the reasonableness elements of statutory duress are to be assessed. The Court held that when determining whether the accused’s belief in the threat, and in the necessity of committing the offence, was reasonable, the jury must assess reasonableness by reference to a hypothetical reasonable person placed in the accused’s circumstances and sharing relevant personal characteristics. The decision emphasised that duress may apply even where the physical act is deliberate, provided the accused acted because of threats that effectively overbore their will within the meaning of the statutory test.

The Elements of Duress in Victoria

1. Reasonable Belief in a Threat of Harm

The accused must reasonably believe that a threat of harm has been made and will be carried out unless the offence is committed. This requirement contains both subjective and objective elements. The belief must actually be held by the accused. It must also be reasonable in the circumstances as perceived by them.

2. The Only Reasonable Way to Avoid the Harm

The defence requires that committing the offence was the only reasonable way to avoid the threatened harm. If other realistic and lawful options were available, duress will fail. Courts examine whether the accused could have escaped, sought assistance, or contacted police. If a reasonable alternative existed, the statutory threshold is not met.

3. Reasonable Response to the Threat

Even where a threat exists, the accused’s conduct must be a reasonable response to that threat. The proportionality of the response is central to the analysis. The defence will not excuse conduct that is grossly disproportionate to the threatened harm.

4. Voluntary Association Limitation

Section 322O(3) excludes the defence where the threat is made by or on behalf of a person with whom the accused is voluntarily associating for the purpose of violent conduct. This prevents members of criminal enterprises from relying on internal coercion to escape liability.

Duress in Murder Cases

Duress is significantly restricted in cases of murder. Section 322O(4) provides that the defence only applies if the accused believes the threat is to inflict death or really serious injury. This reflects the seriousness of homicide and the law’s reluctance to excuse intentional killing unless the threat itself involves the gravest harm.

Evidentiary Burden and the Prosecution’s Obligation

An accused bears an evidentiary burden to raise duress. Once properly raised, the prosecution must disprove the defence beyond reasonable doubt.

Section 322I(1) of the Crimes Act 1958 requires the prosecution to eliminate any reasonable possibility that the accused acted under duress. The High Court’s approach in Taiapa v The Queen, (2009) 240 CLR 95 provides guidance on this standard. The Court stated that the question is whether, on the evidence most favourable to the accused, a reasonable jury could fail to be satisfied beyond reasonable doubt that the defence is negatived.

This is a demanding burden for the prosecution, but it only arises once credible evidence supporting duress is before the court.

Duress and Family Violence

Victorian law expressly recognises that family violence may be relevant when assessing duress. Section 322P of the Crimes Act 1958 permits evidence of family violence to be considered in determining whether the accused reasonably believed a threat existed and whether their response was reasonable.

This is significant because threats in abusive relationships often occur within a broader pattern of coercion and control. A history of violence can inform whether a threat was credible and imminent from the accused’s perspective.

However, family violence does not automatically establish duress. The statutory elements must still be satisfied.

When Duress Fails: Martin v The Queen

The decision in Martin v The Queen [2010] VSCA 153, illustrates how strictly courts apply the defence. In that case, the accused argued she committed armed robbery and drug offences due to threats and violence from her partner. The Victorian Court of Appeal rejected the defence. The Court found that there was no sufficient evidence that she committed the offences because of a threat that would be carried out unless she offended. It also noted that there were opportunities to avoid participation and inconsistencies in her account.

The case highlights two key principles. First, credibility is critical. Second, the requirement that the offence be the only reasonable way to avoid harm is rigorously examined.

From Common Law to Codification

Before legislative reform, duress in Victoria was governed by common law principles. Amendments introduced through the Crimes (Homicide) Act 2005 and later reforms consolidated the defence into statutory form within the Crimes Act 1958. For offences committed on or after 1 November 2014, section 322O governs the field.

Codification clarified the structure of the defence but did not lower its threshold.

A Practical Perspective

Duress is one of the most difficult defences to establish in Victorian criminal law. It requires:

• Clear evidence of a genuine and reasonable belief in a threat.
• Proof that no reasonable alternative existed.
• A response proportionate to the threat.
• Absence of voluntary criminal association.

Courts carefully scrutinise claims of duress to ensure that the defence does not excuse conduct that was ultimately a matter of choice rather than compulsion.

The statutory framework seeks to achieve an appropriate balance. It protects those whose autonomy has been genuinely overborne by threats of serious harm, while preventing misuse in cases where alternative conduct was realistically available.

Conclusion

Duress in Victoria, governed by section 322O of the Crimes Act 1958, is a complete defence that excuses criminal liability where conduct is carried out under compulsion. The defence is tightly defined and strictly applied. Courts require a reasonable belief in a threat of harm, no reasonable alternative, and a proportionate response. In murder cases, the threshold is even higher.

While the defence acknowledges human vulnerability in the face of serious threats, it remains confined to exceptional circumstances. Only where the accused truly had no reasonable choice will the law excuse criminal conduct on the basis of duress.