The defence of duress is a legal concept that can provide a full defence to most criminal charges in New South Wales. It applies in situations where an accused person committed an offence because they were essentially forced or coerced to do so under the threat of death or serious harm.

If you are facing criminal charges and believe you acted under duress, it’s crucial to understand how this defence works, its key requirements, and the limitations of its application. This comprehensive guide will explore the defence of duress under NSW criminal law, providing insights into the legal definition, elements that must be proven, the burden of proof, and when the defence cannot be relied upon.

Legal Definition of Duress in NSW

Under NSW law, duress is defined as a situation where a person commits a criminal offence because of threats of death or serious harm made against them or their family. The duress must have been so severe that a person of ordinary firmness and strength of will could not have resisted it.

Elements Required to Establish Duress as a Defence

To successfully raise the defence of duress, the accused must prove on the balance of probabilities that:

1. They were threatened with death or serious harm to themselves or their family if they did not commit the offence.
2. The threat was of such gravity that a person of ordinary firmness and strength of will would have yielded to it in the way the accused did.
3. The threat was continuing, imminent and impending at the time of the criminal act.
4. They did not, by fault on their part when free from duress, expose themselves to its application.
5. Committing the crime was the only reasonable way they could avoid the threatened harm.

Essentially, the accused must show that an ordinary person in their situation would have had no realistic choice but to commit the offence to avoid the threatened consequences. The threat must have effectively overborne the accused’s will.

The Onus of Proof in Duress Cases

Once the accused has sufficiently raised the defence of duress, the onus shifts to the prosecution to disprove it beyond reasonable doubt. This means the prosecution must prove that at least one of the above elements was not present.

If the prosecution cannot negate the defence of duress beyond reasonable doubt, the accused is entitled to an acquittal, even if the prosecution can prove all elements of the offence itself. This underscores the high bar set for the prosecution in duress cases.

However, it’s important to note that merely raising duress is not enough – the accused bears an evidentiary burden to sufficiently raise the defence on the balance of probabilities before the onus shifts. Vague assertions or mere speculation about threats will not meet this threshold.

Key Requirements for a Successful Duress Defence

To establish a successful defence of duress, several key requirements must be met. These criteria are essential for demonstrating that the accused acted under extreme pressure and should not be held criminally responsible for their actions.

Nature and Gravity of the Threat

One of the most critical elements in a duress defence is the nature and severity of the threat made against the accused or their family. The threat must be of death or serious harm, sufficient to overpower the will of a person of ordinary firmness and courage. Mere threats of minor injury or property damage are not enough to support a duress defence.

For example, if an accused person was threatened with a gun and told their family would be harmed if they did not commit a crime, this would likely be considered a grave enough threat to potentially establish duress. However, a threat to spread rumours or cause minor property damage would not meet the threshold.

Response to the Threat

Another key factor is whether the accused’s response to the threat was reasonable given the circumstances. The law recognises that people may act differently when faced with extreme pressure, but their actions must still be proportionate to the threatened harm.

Courts will consider factors such as the accused’s age, sex, health, and mental condition when assessing the reasonableness of their response. For instance, a frail elderly person might be more easily compelled by threats than a young, fit adult.

If the accused’s actions went beyond what was necessary to avoid the threatened harm, this could undermine a duress defence. Responding to a threat of assault by committing murder, for example, would likely be seen as excessive.

No Reasonable Escape Option

For duress to be established, the accused must have had no safe avenue of escape or opportunity to seek help from authorities. If there was a reasonable way to avoid committing the crime without risking the threatened harm, then the defence of duress would fail.

This requirement ensures that the criminal act was truly a last resort. Courts will look at whether the accused had chances to contact the police, escape the situation, or take other steps to neutralise the threat before resorting to crime.

However, the law does not expect people to take heroic or reckless actions. Refusing to commit a minor theft when faced with credible death threats, for instance, would not be considered a reasonable escape option.

Establishing these key requirements is crucial for a successful duress defence. Accused individuals must present compelling evidence of a severe threat, a proportionate response, and no safe alternatives. Experienced criminal defence lawyers can assess the specific facts of a case to determine whether these criteria are met and guide the accused through the complex legal process.

Limitations and Restrictions on the Defence of Duress

While the defence of duress can be raised in many criminal cases, there are certain limitations and restrictions on its availability. It’s crucial to understand these exclusions, as they can significantly impact the viability of a duress defence.

Excluded Offences

The defence of duress is not available for certain serious crimes under NSW law. These excluded offences include:

• Murder
• Attempted murder
• Some forms of treason

This means that even if an accused person was threatened with death or serious harm to commit one of these crimes, they cannot rely on the defence of duress to avoid criminal responsibility. The law considers these offences to be so grave that they cannot be excused under any circumstances.

However, it’s important to note that duress can still be argued as a defence to being an accessory to murder. If an accused person was forced to assist in a murder under threats of death or serious injury, they may be able to raise duress as a defence to the charge of accessory to murder.

Voluntary Exposure to Duress

Another key restriction on the defence of duress relates to situations where the accused voluntarily exposed themselves to the risk of compulsion. If a person willingly associates with individuals or organisations known to engage in criminal activities, they may not be able to rely on duress as a defence.

For example, if someone joins a criminal gang and is later threatened by other gang members to commit an offence, a court might find that they voluntarily put themselves in a position where such threats were foreseeable. In these cases, the defence of duress could be excluded due to the accused’s voluntary association with the criminal enterprise.

The rationale behind this limitation is that individuals who choose to involve themselves in criminal activities should not be able to avoid responsibility for their actions by claiming they were compelled by threats that were reasonably foreseeable given their voluntary involvement.

Commonwealth Offences and Duress Explained

The defence of duress is available for all Commonwealth criminal offences under Section 10 of the Criminal Code 1995 (Cth). This means that if a person commits a Commonwealth offence while under duress, they may not be criminally responsible for their actions.

Legal Framework Under Commonwealth Law

Section 10 of the Criminal Code Act 1995 (Cth) outlines the specific provisions for the defence of duress under Commonwealth law. For the defence to succeed, the accused must establish that:

1. A threat had been made that would result in the accused’s death or serious harm, or the death or serious harm of a family member.
2. The accused reasonably believed that the threat would be carried out unless an offence was committed.
3. The criminal conduct was a reasonable response to the threat in the circumstances as the accused perceived them.
4. The accused did not voluntarily put themselves in a position where they could be subjected to duress, such as by associating with criminals or engaging in criminal activity.

The onus is on the prosecution to prove beyond reasonable doubt that the accused was not acting under duress once the defence has been raised. If there is a reasonable possibility that the accused acted under duress, they must be acquitted.

It’s important to note that the Commonwealth provisions differ slightly from the common law defence of duress. Under the common law, the threat must be continuing, imminent and impending. However, the Commonwealth Code does not explicitly require the threat to be ongoing at the time of the offence.

The availability of duress as a defence to all Commonwealth offences recognises that people may be forced into committing crimes against their will in extreme circumstances. By providing a legal avenue to excuse such conduct, the law aims to balance the need for justice with an understanding of human frailty in the face of grave threats.

Conclusion

The defence of duress is a complex area of criminal law in NSW. While it can provide a complete defence to many criminal charges, there are significant limitations and restrictions on its application.

To successfully raise duress, an accused must show they committed the offence due to a serious threat of death or really serious injury, the threat was continuing and impending, and their response was reasonable given the circumstances. The onus is on the prosecution to disprove duress beyond a reasonable doubt once the accused has sufficiently raised the defence.

However, duress is not available as a defence to some of the most serious crimes, including murder and certain offences under the Criminal Code Act 1995 (Cth). Voluntarily associating with persons or organisations where such threats are likely to be made can also preclude relying on duress.

Ultimately, whether duress applies in a given case is a complex assessment based on the unique facts and circumstances. If you are facing criminal charges and believe you acted under duress, it is crucial to seek advice from an experienced criminal defence lawyer. They can evaluate your case, advise on the availability of the defence, and represent you in court proceedings.

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