The Defence of Duress (NSW)

The defence of duress operates where an accused commits a crime only because they were forced by threats of death or serious injury to themselves or others and are left with no reasonable way to avoid the threat except by committing the offence.

Duress is a complete defence, meaning if the defence is accepted, the person will be not criminally liable for their actions. Duress is not an available defence for charges of ‘murder’, ‘attempted murder’ and some treason offences. 

How offences are proven:

In order for a person to be found guilty of any offence, the Prosecution must prove every element of the offence to the standard of beyond a reasonable doubt. 

The ‘elements’ of an offence are the ingredients that make up the offence. All offences contain physical elements (such as driving a motor vehicle, hitting or slapping another person, or being in possession of a drug) and mental or ‘fault’ elements (such as intent, recklessness or knowledge). When the Prosecution is unable to prove each and every element of the offence to the standard of beyond a reasonable doubt, the person charged should be found not guilty.

Even if the Prosecution can satisfy all the elements of an offence to the standard of beyond reasonable doubt, the person charged may raise a defence to the charge which, if accepted, means they are not criminally liable and therefore not guilty of the offence. 

The ‘Test’: 

The defence of duress arises from case law. The case of R v Abusafiah (1991) 24 NSWLR 531 describes the defence of duress as:

“In duress, the relevant act is done only because the accused has lost his free choice to refrain from doing the act, in that he did the act because he feared that the consequences of the threat were greater than those flowing from the crime he commits. His act can be said to have been induced by the threat (made by a third person; it should be noted and not the victim) only in the most general sense; there is no loss of self-control… Duress is a complete defence leading to an acquittal” 

The defence of duress will be made out where the person’s actions were performed:

1. Because of threats of death or really serious injury to themselves or a member of their family, 
2. Those threats were of such a nature that a person:
   1. Of ordinary firmness and strength of will, 
   2. Of the same maturity and sex as the accused, and 
   3. In the accused’s position
3. Would have given into them and committed the crime demanded of them. 

Limitations on the Defence of Duress:

The Belief in the Threat

To satisfy the defence of duress, the accused’s belief in the threat must be based on reasonable grounds as per Graham [1982] 1 All ER 801. 

Immediacy of the Threat or Ineffective Threats

If the accused was able to avoid the threat or render the threat ineffective, they will be unable to rely on the defence of necessity. Where the Defendant had a reasonable opportunity to re-assert his or her will, the availability of the defence of duress will be called into question. If an accused person fails to avail themselves of an opportunity reasonably open for their will to be re-asserted the defence will not be available. This limitation will often require consideration of the extent to which the accused sought Police assistance in response to the threat, however, failure to seek Police protection does not mean that duress is unavailable. 

Objective Test – The Person of Ordinary Firmness, Same Maturity and Sex as Accused and In the Accused’s Position

This aspect of the defence requires the jury to consider the response of a reasonable person of ordinary firmness and strength of will, being of the same sex and maturity as the accused, in the same circumstances in which the accused found themselves when receiving the threats. It requires the trier of fact to examine the actions of the accused in a sensible and common-sense way and consider whether a person of ordinary firmness in the accused’s situation with the accused’s characteristics would have acted in the same way. 

Principles:

The accused bears the onus (responsibility) of raising the defence of duress and of satisfying the Court that they were acting under duress to the standard of the balance of probabilities. This means that the accused must present evidence to the Court and convince the Court that it was more likely than not that their actions were performed because of threats of death or serious injury to themselves or a family member and that a person with their characteristics would have given into the demands and committed the crime. 

Once the defence of duress is raised by the accused, the Prosecution can dispute the defence by cross-examining or testing the Defendant’s evidence. This may involve the Prosecution challenging one of the elements of the defence such as that the Defendant’s actions were not because of threats made to themselves or a family member, or that a person with the same qualities as the accused would not have given into the demands and committed the offence. For the Prosecution to disprove the defence of duress they must satisfy the Court to the standard of beyond a reasonable doubt that the Defendant was not acting under duress. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.