Duress as a Defence

In some of our articles we discuss the possibility of arguing duress as a defence to a criminal charge. Whilst the ability to raise duress will depend heavily upon the circumstances of your case, this article provides a definition of duress and discusses its application and operation. If you intend to raise duress as a defence to your charge, it is imperative that you consult a legal practitioner as soon as practicable.

Duress – Offences alleged post 1 November 2014

A person is not guilty of a criminal offence if they have carried out the conduct necessary for the offence under duress.[1] Conduct under duress is where a person carries out an act in response to:

• A reasonable belief;
• That a threat of physical harm was made; and
• Believed that the threat will be carried out if the conduct is not done.[2]

Duress alters the accused’s mental state and operates to excuse a person for a criminal offence committed under compulsion.[3] This is because the intention to commit the crime was induced by the threat of physical harm. However, the conduct or act done must be a reasonable response to the threat.[4] For example, being forced to rob a bank whilst under a threat of being killed (such as having a gun to one’s head) could result in an acquittal for a robbery offence. If you are charged with murder, duress only applies if the threat involved infliction of death or really serious injury.[5]

Duress is a complex defence but it is also a complete defence and if established will result in an acquittal. It is your responsibility to raise duress as a factor in your case by presenting evidence that suggests the existence of duress,[6] but the Police are required to prove beyond reasonable doubt that you did not carry out conduct under duress.[7]

Common Law Duress – Offences alleged pre 1 November 2014

For offences alleged to have been committed before November 2014, common law duress may apply. [8] Common law duress does not apply to homicide or treason charges unless alleged to have been committed before 23 November 2005.

Elements of Common Law Duress

If you raise common law duress as a possible defence to a criminal charge, the Police must prove one of the following elements beyond reasonable doubt to negate the defence:[9]

• No individual was threatened with serious harm should the act not be carried out;
• The threat made was not present, continuing, impending or imminent (e.g. effective when the alleged crime was being carried out);
• You did not believe the threat would be carried out;
• The threat did not induce you to commit the crime;
• If once free from duress, you voluntarily engaged in criminal conduct;
• You could have reported the matter to Police; or
• A reasonable person in the same circumstance and subject to the threat would not have induced the conduct.[10]

Statutory Duress – Offences alleged 23 November 2005 – 1 November 2014

If you have been charged with a murder, manslaughter or defensive homicide offence alleged to have occurred between 23 November 2005 and 1 November 2014, statutory duress defence may be available providing that the threat involved death or serious harm.[11]

[1] Crimes Act 1958 (Vic) s 322O(1); R v Dawson [1978] VR 536.
[2] Crimes Act 1958 (Vic) s 322O(2).
[3] DPP v Parker [2016] VSCA 101 [54].
[4] Crimes Act 1958 (Vic) s 322O(2)(ii).
[5] Crimes Act 1958 (Vic) s 322O(4).
[6] Crimes Act 1958 (Vic) s 322I(1).
[7] Crimes Act 1958 (Vic) s 322I(2).
[8] Crimes Act 1958 (Vic) s 322Q.
[9] R v Harding [1976] VR 129.
[10] R v Hurley [1967] VR 526.
[11] Crimes Act 1958 s 9AG (now repealed by s 322O); R v Gould [2007] VSC 420.