DEFENCE OF DURESS

BY : NUR HANA ROSHIDA BT HAIRUDIN (231700)

WHAT IS DURESS? ◦ Unlawful threat of harm exerted upon a person to compel that person to perform an act

that he or she ordinarily would not do and the action is against his or her will.

◦ Duress is an excusatory defence.

◦ Defence of duress - criminal defendants who were forced to commit a crime under threat or because of the actual use of violence.

◦ The defence of duress is provided under section 94 of the Penal Code.

◦ The defence of duress may apply when acts of violence, or threats of violence and harm , are inflicted on the defendant

SECTION 94 OF PENAL CODE

ELEMENTS FOR DEFENCE OF DURESS

◦ There must a threat of death or serious bodily harm.

◦ The threat must be immediate or imminent.

◦ The threat must create a reasonable fear in the defendant.

◦ There must be no reasonable means for the defendant to escape the threat except

by committing the crime / not expose to the threat voluntarily

DOES PERSUASION ENOUGH TO SUSTAIN A DEFENCE OF DURESS ?◦ Annoyance and persuasion are not enough to sustain a defence under the terms of

duress.

◦ It requires that the violence or threat of violence completely and reasonably overcame the courage of the defendant - as it would have overcome the courage of any person of normal courage

◦He or she lost control of his will power and essentially acted involuntarily and is thus not liable for his actions.

◦ Some factors must be taken into account when determining what the defendant's normal level of courage should have been, including his or her age, weight, height, health, temper and disposition.

◦ A person commits a crime because he is compelled to do it by threats at the time of doing it, and the threat cause reasonable apprehension that instant death will results. The threat directed to himself if he does not compel with it.

◦ As long as the doer did not of his own accord, or short of reasonable apprehension of instant death(though reasonable apprehension of harm still exists), place himself in the situation by which he became the subject to such constraint.

◦Defence of duress can be used in any crime except murder, attempted to murder, offences included in Chapter VI ( offences punishable with death ) and offences included in Chapter VI A of Penal Code.

CASE 1 : Mohd Yusof bin Hj Ahmad v PP

◦ FACTS OF THE CASE- Appellant is guilty of trafficking 2700grammes of cannabis- Deemed to be in possession and knowledge of the said drugs - He admitted that he carried 2 bags containing cannabis to Padang Besar.- He did it under the threat from a male, who is Thai national in a hotel in Sadau, Thailand. - The man threatened him with a pistol, ordered him to carry the 2 bags across the border to railway station.

◦ IT WAS HELD THAT - S94: there must be reasonable fear, at the very time, of instant death.- Person who do criminal act from fear of anything other than instant death, do them at their peril, not protected by section 94.- If an offence is completed when all danger of instant death has been removed, the person

committing the offence is not protected under section 94.- If the accused on his own accord places himself in a situation by which he becomes a subject to

the threats, even if it is a death threat, section 94 does not apply - Appellant had complied with the request to carry the 2 bags to the railway and reached the

station, placed the bags on the platform and gone to purchase ticket to leave Padang Besar. He had been carrying the drug for 1 and half hour without making any attempt to seek for help.

- Although the Thai was 20 feet away on the platform when he last saw him, there are people at the public place, and there are officers from whom he can seek for help. (there is no reasonable apprehension of death)

- The duress was no longer instant, imminent, extreme and persistent.- The moment he placed the bag and purchase ticket, mission completed under no such duress

present or continue.- Conviction confirmed.

CASE 2 : Subramaniam v PPFACTS OF THE CASE :◦ Appallent was found guilty for being in possession of 20 rounds of ammunition

contrary to Emergency Regulations.- He raised the defence that :- he had been captured by terrorists, trained and given ammunition - at the material times he was acting under duress - at the time of his capture he intended to surrender. - with such intention he came to the place where he was found

◦ IT WAS HELD THAT :- At first, it was submitted that as there was no communist around, there was no duress.

- S94: instant, imminent death, and it must be reasonable and must be supported with evidence. Very subjective.

- In order to plead for the defence of duress to be upheld, the duress must be imminent, extreme and persistent

- However, Privy Council held that since, he was found in jungle, he is no way near to the any village or place with public, the threat is still imminent to him. The terrorists may return anytime.

- He had had a reasonable apprehension of instant death

- The court has extended the meaning of ‘imminent’. - imminent = near, at hand

CONCLUSIONA person forced to commit crimes through appalling threat and had no opportunity for any other effective choice other than committing it, and his action was in fact, is morally involuntary, deserve no blame.

THANK YOU

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