What is the Legal Defence of Duress?
The duress defence applies when an act is committed because there is a threat of physical harm if the act is not done. It is the legal recognition that sometimes people have to commit an offence in order to avoid threatened harm.
In Victoria, duress is a complete legal defence to all criminal offences (except some forms of treason and terrorism). However, it should be noted that in the case of murder, duress only applies if the complainant made a threat to kill or seriously injure the accused (DPP v Parker (2016)).
A person can rely on the duress defence if the threat of harm is made towards them or someone they are responsible for. However, it cannot be relied upon if the threat is made by or on behalf of a person that the accused is voluntarily associating with to carry out other violent crime.
At common law, the threat needed to be ‘present and continuing, imminent and impending’. This means that the threat needed to be immediate, but the harm did not. The carrying out of the threat may be delayed because of the circumstances. Further, the threatener does not necessarily have to be present when the offence is committed. However, a fear of reprisal (where no actual threat is made) is not enough to amount to duress. Now, s 322O of the Crimes Act 1958 (Vic) no longer requires this. However, if the accused knows the threat has expired, it is unlikely their conduct will be considered reasonable.
The accused does not have to dispute that they committed the offending act. They only need to demonstrate through evidence that, at the time of committing the act, they were responding to a physical threat if they did perform the offending act. Once the defence has been raised, the prosecution must prove beyond a reasonable doubt that the accused acted voluntarily and was not acting under duress. If the prosecution fails to do so, the accused must be fully acquitted of the charge.
Duress in Victorian Criminal Law
There have been three distinct stages of law in relation to duress in Victoria:
- Prior to 2005, the legal defence of duress existed solely in common law.
- Between 23 November 2005 and 1 November 2014, section 9AG of the Crimes Act 1958 (Vic) legislated the offence of ‘Defensive Homicide’. This effectively provides a statutory defence of duress in relation to homicide offences committed between these dates. Please see ‘Defensive Homicide’ for more information.
- On and after 1 November 2014, duress has existed as a statutory defence to almost all criminal offences in Victoria (s322O of the Crimes Act 1958 (Vic)).
Therefore, the common law must be applied if:
- There is evidence of duress in a non-homicide case prior to 1 November 2014; or
- There is evidence of duress in a homicide case prior to 23 November 2005.
The common law states that a person acts under duress when the circumstances are such that “their will was really and absolutely so constrained that he or she became a mere innocent instrument of the crime” (R v Dawson ).
Section 322O of the Crimes Act 1958 (Vic) applies to any offence (homicidal or non-homicidal) on or after 1 November 2014.
Proving Duress in Court
The accused carries the evidentiary burden in relation to the defence of duress. This means that if the accused wishes to raise the defence, they must call evidence that establishes duress.
Once the defence of duress has been raised, the prosecution carries the reverse onus of disproving duress. That is, the prosecution must prove beyond a reasonable doubt that the accused acted voluntarily and free from duress. R v Hurley  dictates that the prosecution will be successful in doing so if they can prove that:
- No-one was threatened with serious harm if the accused failed to commit the crime charged;
- The threat was not present, continuing, imminent and impending;
- The accused did not reasonably apprehend that the threat would be carried out;
- It was not the threat that induced the accused to commit the crime charged;
- When free from the duress, the accused voluntarily exposed himself or herself to its application;
- The accused could safely have prevented the execution of the threat; or
- 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.
At common law, the question is whether the jury, acting reasonably, on the version of events most favourable to the accused would fail to be satisfied beyond a reasonable doubt that the accused was not acting under duress (Taiapa v R (2009).
If the prosecution fails to disprove duress, the accused must be fully acquitted of the charge.
Obtaining Legal Advice
Duress is a complex issue and requires professional consideration. If you have been charged or are under investigation for allegedly committing a criminal offence, please contact our team at Sher Criminal Lawyers. We will help you achieve the best possible outcome by applying our extensive legal experience and expertise. One of our criminal law specialists will assess whether duress or any other defence is relevant to your case before planning a unique and calculated legal strategy. We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.