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.
In Victoria duress is available for all criminal charges except for murder (unless the threat is to inflict death or significant serious injury see Parker (a Pseudonym) v The Queen [2016]) and some forms of treason.
This defence is used when the accused does not dispute that they committed the act constituting the offence, but that when they committed the act they were under an immediate physical threat if the act was not done. The threat must be present and continuing, imminent and impending. It is not enough for the accused to feel fear of reprisal – an actual threat must be made.
Its rationale is based on the law’s compassion towards an accused who is faced with the choice of two evils, that of committing the crime charged or suffering the harm threatened. The defence is a particular form of the defence of necessity.
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):
(1) A person is not guilty of an offence in respect of conduct carried out by the person under duress.
(2) A person carries out conduct under duress if—
(a) the person reasonably believes that—
(i) subject to subsection (3), a threat of harm has been made that will be carried out unless an offence is committed; and
(ii) carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and
(b) the conduct is a reasonable response to the threat.
(3) 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.
(4) 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.
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].
