Duress, this defence is used when the Accused does not dispute that they committed the act constituting the offence, but rather when 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 – an actual threat must be made.
If the defence of duress is raised, it is up to the Prosecution to prove that the act did not occur under duress.
Duress is available for all criminal charges except for murder (unless the threat is to inflict death or significant serious injury) and some forms of treason.
Section 9AG of The Crimes Act 1958
Duress
(1) A person is not guilty of a relevant offence in respect of conduct carried out by him or her under duress.
(2) A person carries out conduct under duress if and only if the person reasonably believes that—
(a) subject to subsection (3), a threat has been made that will be carried out unless an offence is committed; and
(b) carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and
(c) the conduct is a reasonable response to the threat.
(3) However, 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 threat is to inflict death or really serious injury.
