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.
R v Lawrence  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.”
R v Abusafiah (1991) 24 NSWLR 531
“Before turning to the application for leave to appeal against sentence, I propose to suggest a form in which directions should be given whenever there is evidence in a case from which it could be inferred that there is a reasonable possibility that the accused acted under duress. In my opinion, the jury should in such a case be directed first in relation to the ingredients of the offence charged (including the voluntary nature of the acts of the accused), secondly in relation to the specific acts of the accused alleged to constitute that offence, and then thirdly in relation to duress. The directions relating to duress should be along the following lines:”
The Queen v. Runjanjic, The Queen v. Kontinnen (1992) 56 SASR 114  SASC 3427
“The learned judge ruled the proffered evidence [on the mental vulnerability of the appellant] to be inadmissible on the ground that the test is objective and that expert evidence of the state of mind of the appellants was therefore irrelevant. I do not think that that is a sound basis for excluding the evidence. In the first place it ignores the subjective aspect of the test. Even if the evidence had no bearing on the objective aspect, it would be relevant to the question whether the wills of these appellants were in fact overborne”
R v Pimentel  NSWCCA 401
The matters which the Crown must negative when an issue of duress is raised are:
Moffitt P (who agreed with Nagle CJ at CL and Yeldham J)
Where the threat is of personal violence, there is a threshold question, namely: Are there any objective limitations on the availability of the defence of duress which depend on the quality of the threats, and of the acts otherwise criminal, and the circumstances which confront the person threatened who commits the crime under the influence of the threats? Will any threat of any harm, or serious harm, of a personal nature suffice for the commission of any crime, no matter how serious omitting, of course, murder by the person who kills?
age and sex, in like circumstances, would have done the acts.
Nagle CJ at CL and Yeldham J
In this matter I have had the benefit of reading in draft form the judgment of Hunt J. I agree with that judgment.
I agree with the orders proposed by Hunt J and generally with his reasons. There is one matter to which I would make a particular reference.
The appellant (Monzer Mohammed Abusafiah) was found guilty by a District Court jury of a charge of armed robbery. Judge Armitage QC set a minimum term of four years penal servitude with an additional term of one year and four months.
The Crown case was that, in August 1988, the appellant alighted from a parked car and assaulted the victim, accusing him of having stolen money and demanding its return. He pushed the victim against a wall, produced a knife (about 16 centimetres in length) and threatened the victim with it, again demanding money. When the victim continued to assert that he had no money, the appellant struck him across the face. The victim ultimately surrendered his coat to the appellant, who re-entered the car and it was driven away by another male person. A female was also a passenger in the rear seat. A nearby resident who saw the incident recorded the registration number of the car.
At 534 and 535
At the trial, and despite a substantial attack made upon the credit of the police witnesses concerning the quality of their investigation, the appellant gave evidence and conceded that he had in fact done what the Crown witnesses alleged that he had done. In his evidence, the appellant said that the man El Atar had told him that he needed the car and that he was to accompany El Atar on a drive. El Atar drove from Lakemba to Redfern, where he picked up the female passenger. He then drove to Kings Cross, where the car was parked and the three of them visited a steak house for some beer. El Atar next instructed the appellant to wait in a coffee shop while he and the female entered a hotel. They were away for an hour. El Atar appeared to be under the influence of drugs when they returned, and he was telling the female not to worry because he would get the money. They sat in the car in the same positions as before, and El Atar told the appellant that he wanted him to do a favour for him.
El Atar was upset, and he told the appellant that he wanted revenge from a man who had ripped him off in relation to three grams of heroin. The revenge sought was the taking of money and a key from the man, with violence. The appellant could not remember the man's name. El Atar explained that he was himself facing a number of charges, he was on parole, and he was known to this man. He did not want any more trouble from the police. They spoke for fifteen to twenty minutes. The appellant protested that he could not do the favour, he had never done this before in his life. El Atar abused him, calling him a coward. Then, according to the appellant's evidence, El Atar threatened the appellant. He grabbed him by the arm and shook him, saying: “You don't listen to what I am telling you, I am going to shoot you.” He took a revolver from the belt of his trousers, and pointed it at the appellant. The appellant just “freaked out”, and was unable to say anything. He had seen the weapon before, but he had never been threatened with it before. El Atar told him that he had to do the favour for him, and the appellant said that he would. El Atar moved the car to another street. As they drove, El Atar told the appellant not to worry, that he would look after him. The appellant continued to protest, saying that he could not do it, he had never done it before. El Atar told him that, when he pointed the man out to him, he was to shout at him, hit him, ask him where the money belonging to El Atar's brother was and take the money.
El Atar stopped in the middle of the road and indicated a man about 5 metres away as the man who had ripped him off. He shouted at the appellant and handed him a knife. The appellant immediately opened the door and alighted from the car. The armed robbery then took place in the manner described by the victim in evidence. The appellant had felt “shocked to death”. El Atar shouted to him from the car to hurry, as the police were coming. The appellant took the victim's coat and re-entered the car. He handed the coat and the knife to El Atar, who was still in the driver's seat. They drove to Campsie. At Campsie, El Atar and the female left with the coat, and the appellant returned home.
At 541 and 542
I do not agree that provocation and duress are truly analogous issues.
Each does, of course, introduce an objective test of reasonableness, in order to ensure that accused persons with sensitivities falling outside the ordinary or common range of human temperaments are not permitted to escape responsibility for their actions: R v Enright  VR 663 at 669; R v Hill  1 SCR 313 at 343; Stingel v The Queen (at 327). But beyond that, it seems to me, there is no true analogy. In common law provocation, there must be a loss of self-control (as a result of the victim's conduct) inducing the accused's intention to kill or to inflict grievous bodily harm. 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 by the victim) only in the most general sense; there is no loss of self-control. Provocation is also a partial defence only, in that it reduces the crime of murder to manslaughter. Duress is a complete defence, leading to an acquittal.
The relevant direction in relation to the objective test should therefore be that the Crown must establish that there is no reasonable possibility that a person of ordinary firmness of mind and will would have yielded to the threat in the way the accused did. It was conceded before this Court that a direction in those terms would be unobjectionable. There is nothing in either R v Hurley and Murray or R v Lawrence which requires a different direction to be given, as this particular issue did not arise for determination in either case.
Before turning to the application for leave to appeal against sentence, I propose to suggest a form in which directions should be given whenever there is evidence in a case from which it could be inferred that there is a reasonable possibility that the accused acted under duress. In my opinion, the jury should in such a case be directed first in relation to the ingredients of the offence charged (including the voluntary nature of the acts of the accused), secondly in relation to the specific acts of the accused alleged to constitute that offence, and then thirdly in relation to duress. The directions relating to duress should be along the following lines:
“(1) The Crown, as I have said, must establish that the acts of the accused constituting the offence were done by him voluntarily. That those acts were in fact done would in most cases lead to the conclusion that they were done voluntarily. In the present case, however, it has been argued that you should not come to that conclusion because, it is said, the accused acted under duress or coercion.
(2) The accused does not have to establish that he did act under duress. The Crown must establish that the acts of the accused were done voluntarily and, in order to do so, it must eliminate any reasonable possibility that he acted under duress.
(3) It is always somewhat difficult to give directions upon the issue of duress in a way which completely avoids any suggestion that the accused has raised that issue by way of a defence to the charge. You must nevertheless keep it firmly in mind at all times that it is the Crown which must eliminate any reasonable possibility that the accused acted under duress.
(4) What the Crown must establish is one or the other of two things. It does not have to establish both of them. The first is that, when the accused did those acts, there is no reasonable possibility that he did so by reason of a threat that death or really serious physical harm would be inflicted upon him [IF RAISED or upon his family ETC] if he did not do those acts.
(5) If the Crown has failed to eliminate that particular reasonable possibility, it must establish in relation to any such threat which may reasonably have been made that there is no reasonable possibility that such was its gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to that threat in the way in which the accused did.
(6) The Crown has to establish one or the other of those two things. It does not have to establish both of them. If it establishes either one or the other of them, and if you conclude from the whole of the evidence that the acts of the accused alleged to constitute the offence were done by him voluntarily, then you should go on to consider the other ingredients of the offence which I have already defined for you.
(7) If, however, the Crown has not established either of those two matters relating to duress, or if you have not concluded from the whole of the evidence that the acts of the accused alleged to constitute the offence were done by him voluntarily, then you must find him not guilty of that offence.”
"Our basic submission is that there are certain behaviour patterns displayed by women who are battered in the way these women have been battered and it leads to certain inabilities to handle situations in the way ordinary people would, and in brief what they have undergone is beyond ordinary experience and the jury would require assistance from someone like Dr Fugler to explain. The sort of behaviour patterns that in general patterns Mr Fugler would talk about would be that it starts with what he described as a role induction whereby they become accustomed to violence and begin to rationalize violence. It is associated with a loss of self-esteem and confidence which robs them of the ability to cope with infliction of violence in the way that an ordinary person would. Violence becomes normal. Then there is the effect of long term fear arising out of threats of death or severe injuries over a period of time. Mr Fugler says that leads to a type of dependence where they become dependent upon their assailant. He says their emotional responses are blocked and the expectation of violence which is abnormal to an ordinary person becomes normal to them. Their anxiety level robs them of the ability to make decisions and that is an important aspect of the evidence from the psychologist."
Crown contended that the evidence was not relevant. I do not agree. To deny the jury evidence which prima facie would assist the application of the test for duress is in my opinion not justified on the principles above referred to. I consider that the defence should have been permitted to call Mr Fugler.
Chief Justice and the authorities, articles and the texts to which he has referred convince me that expert evidence is admissible in the right circumstances in cases where a "battered wife" raises duress, self-defence or provocation. In case the word "raises" is capable of ambiguity I mention that I remember that the onus is always on the Crown to negate duress, self-defence or provocation. I say, "in the right circumstances" because the question whether such expert evidence is admissible in any particular case will depend on proof of the right facts. But as a general proposition I think we may now say that the "battered wife syndrome" has become "an organised branch of knowledge in which" a person may qualify as an expert (Clarke v Ryan (1960) 103 CLR 501-502 per Menzies J; see too per Dixon CJ at p.491).
"That between 1 September 1996 and 5 January 1997, at Port Stephens in the State of New South Wales and elsewhere, was knowingly concerned in the importation into Australia of prohibited imports to which s 233B of the Customs Act 1901 applied, to wit narcotic goods consisting of a quantity of cannabis resin, being not less than the commercial quantity applicable to cannabis resin."
37. For such a threat to be effective it must be continuing and be seen to be continuing and such threat will not be continuing and effective if the accused has a reasonable opportunity to render the threat ineffective: R v Williamson  2 NSWLR 281 at 283, 300.