Duress

Duress is an absolute defence to a charge heard. Unlike self-defence, it is still a defence found only in the common law.

Duress is an absolute defence to a charge heard. Unlike self-defence, it is still a defence found only in the common law.

Like self-defence, it falls to the Crown to, once the defence is raised, prove beyond a reasonable that the accused conduct was not the product of duress.

it is necessary, however, that “the threat must be of death or serious injury to the accused or his family” and further that “the threat was of such gravity that a person of ordinary firmness of mind … would have yielded to the threat in the way that the accused did.” This necessarily involves consideration of the seriousness of the conduct alleged when weighed against the seriousness of the threat made.

It is also necessary to prove that the impugned conduct was in fact a product of the duress. Frequently the court has seen duress raised in circumstances where it is by no means clear that the accused would not, based upon their previous conduct, have carried out the acts in question without the threat upon which they accused places reliance.

 

Lawrence

R v Lawrence [1980] 1 NSWLR 122

“In the uncertain state of the law, a view well open is that the defence of duress will not be available where a person, by his earlier fault, when free from duress, has exposed himself to the later threats: R v Hurley and Murray. Thus if a person joins an illegal organization when not under duress, the defence will not be available if he is compelled to continue, and to commit a crime. If the position were otherwise, in the present case an anomalous situation would arise.”

“The issue of duress having been raised by the evidence of De Graaff, the Crown had to negative it beyond reasonable doubt in accordance with R v Steane”

“On an ultimate analysis, the question whether there was a reasonable opportunity for the mind to reassert itself involves the same objective considerations as are involved in the question whether the threats themselves were such as an average person of ordinary firmness of mind would have acted as did the accused.”