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Duress refers to situations where you have been threatened or intimidated into committing a crime against your will.

Duress will be raised where there is evidence that:

1. An actual threat was made

You may have to show evidence that a threat was made, for example, text messages or phone conversations, or give evidence in court about the threat and how it was made.

The threat can be either express or implied, and it does not matter whether the threat was actually able to be carried out – as long as you genuinely believed that the threat was real.

2. The threat was serious enough to justify your actions

The threat must be shown to be either a death threat or a threat of serious injury against yourself or your family.

The threat must also be so serious that it would have caused an ordinary person of your gender and maturity to act in the same way in those circumstances.

It must be shown that your own free will was overridden by the threat, so that you did not actually intend to perform the acts.

3. The threat must be acting on your mind at the time of the offence

If it is shown that the threat is no longer ‘acting on your mind,’ for example, where you are no longer worried about the threat, or where there is some other factor which influences your actions (such as revenge, or the possibility of a financial benefit), your defence may not be successful.

4. The threat was ‘continuing’

If there was an opportunity for you to avoid the threat, for example, by reporting the incident to police, your defence may not be accepted.

How Does It Work?

A person acts under duress, and therefore involuntarily, if that person’s actions were performed because of threats (express or implied) of death or really serious injury to the person or their family.

The threats must be of such a nature that a person of ordinary firmness and strength of will, that is, a person of the same maturity and sex as the Accused person, and in the Accused person’s position, would have yielded to them.

Its Application

The Accused person does not have to establish that his or her actions were done under duress.

The Crown must establish that the acts of the Accused person were done voluntarily, and in order to prove that the Accused person did act voluntarily, the Crown must eliminate any reasonable possibility that the Accused person acted under duress.

To use the defence of duress, the accused must call evidence about the following:

  • The making of an actual threat and the content of the threat e.g. the threat of death or serious injury to the accused person or his family;

  • That the accused acted as he or she did because of the threat which was acting on his or her mind at the time of the criminal act. For duress to be established, the threat must be continuing. A threat will not be continuing and effective if the Accused person has a reasonable opportunity to render the threat ineffective.

If you raise the defence of duress, the prosecution will then have to prove beyond a reasonable doubt that you were not acting under duress, that the threat was not serious enough to justify your actions, that the threat was not continuing, or that your actions were not those of a reasonable person in the circumstances.

If your defence is accepted in court, you will be found ‘not guilty.’ However, you will not be able to raise the defence of duress when you have been charged with murder or manslaughter.

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