Defence of Duress
Duress is a complete defence to all criminal offences. An act is committed under duress if it is committed due to an immediate threat of physical harm if the act is not done. This defence recognises that sometimes people commit offences to avoid threatened harm.
Duress operates to excuse a person that acts voluntarily and deliberately but under compulsion ( DPP v Parker [2016] VSCA 101). A person must reasonably believe that a threat of harm has been made and will be carried out if an offence is not committed. The conduct must be a reasonable response to the threat and the only reasonable way the threatened harm can be avoided.
The defence is only available to the offence of murder if the accused ‘believes the threat is to inflict death or really serious injury.’ see Crimes Act 1958 s 322O(4)
In Victoria, s 3220 of the Crimes Act 1958 currently covers the defence of duress and applies to all offences committed on or after 1 November 2014. Prior to 2005, duress in Victoria was governed by the common law. The Crimes (Homicide) Act 2005 and the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 introduced the new duress provisions into the Crimes Act 1958. Initially s 9AG of the Crimes Act 1958 was introduced, which was later repealed by s 3220 of the act.
Statutory duress has replaced the common law defence of duress for all offences committed on or after 1 November 2014 ( see Crimes Act s 322Q). Common law duress however applies to all offences committed prior to 23 November 2005 and non- homicide cases committed prior to 1 November 2014.
To run the defence of duress is not easy. If you think the defence might apply to you, then do yourself a favour and call experienced criminal defence lawyers that have run, and won criminal cases based on this defence.
Meaning of Duress
Duress is threats, violence, constraint, or other action used to coerce someone into doing something against their will or better judgement. To have acted under duress, the circumstances must have been such that the accused’s will was really and absolutely controlled, that s/he became a mere innocent instrument of the crime.
In Victoria, the defence is provided for under section 322O of the Crimes Act 1958 (Vic):
- A person is not guilty of an offence in respect of conduct carried out by the person under duress.
- A person carries out conduct under duress if—
- the person reasonably believes that—
- subject to subsection (3), a threat of harm has been made that will be carried out unless an offence is committed; and
- carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and
- the conduct is a reasonable response to the threat.
- the person reasonably believes that—
- A person does not carry out conduct under duress if the threat is made by or on behalf of a person with whom the person is voluntarily associating for the purpose of carrying out violent conduct.
- This section only applies in the case of murder if the person believes that the threat is to inflict death or really serious injury.
Evidence Required to Establish the Defence
There is an evidentiary burden on an accused to raise the defence. When duress is raised, it is up to the prosecution to prove that the act did not occur under duress. The prosecution must eliminate any reasonable possibility that the accused acted under duress – see s 322I(1) Crimes Act 1958.
To prove the accused did not act under duress, the prosecution must disprove one or more of the following elements:
- The accused reasonably believes that a threat of harm has been made;
- The accused reasonably believes that the threat will be carried out unless an offence is committed;
- The accused reasonable believes that carrying out the conduct is the only reasonable way the threatened harm can be avoided;
- The conduct is a reasonable response to the threat;
- The threat was not made by or on behalf of a person with whom the accused is voluntary associating for the purpose of carrying out violent conduct.
The test is whether, on the version of evidence most favourable to the accused, a jury, acting reasonably, could fail to be satisfied beyond reasonable doubt that the accused was not acting under duress: Taiapa v The Queen [2009].
Duress and Family Violence
Evidence of family violence can be raised by the defence to establish that an offence was committed under duress – see 322P of the Crimes Act 1958.
