duress

DURESS

DEFINITION

* The defence of duress comprises a plea by the defendant that he or she had committed the

crime under a threat of physical harm to the defendant or to some other person should the

defendant refuse to comply with the threatener’s wishes. [Hurley and Murray [1967] VR

526]

* A useful formulation of the general defence of duress is contained in the Irish case

‘Attorney-General v Whelan’ [1934] IR 518 @ 526

“ [T]hreats of immediate death of serious personal violence so great as to overbear the

ordinary power of human resistance should be accepted as a justification for acts which

would otherwise be criminal......Where the excuse of duress is applicable it must...be clearly

shown that the overpowering of the will was operative at the time of the crime was actually

committed, and, if there were reasonable opportunity for the will to reassert itself, no

justification can be found in antecedent threats”

PROOF

* Duress is not an affirmative defence.

* If duress is available, the defendant must satisfy the evidentiary burden, but once this is

satisfied, the prosecution must negative the defence beyond reasonable doubt.

* If the defendant succeeds in defence of duress, he/she is entitled to an acquittal, “without

stigma of a conviction” [Howe v R [1987] 1 AC 417]

SCOPE OF THE DEFENCE

* The defence is available for most offences, including manslaughter.

* Duress is not available for offences of:

1. Murder [R v Brown(1986) 43 SASR 33]. In addition, in Blackstone’s commentaries it is

stated:

“...though a man may be violently assaulted, and hath no other possible means of escaping

death, but by killing an innocent person; this fear and force shall not acquit him of murder;

for he ought rather to die himself, than escape by murder of an innocent.”

2. Attempted murder [ R v Gotts [1992] 2 AC 412] where the House of Lords decided

that there was no justification in logic, morality and law for allowing the defence of duress

to a person charged with attempted murder since it was not available to a person charged

with murder.

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3. In SA and Vic, an accessory to murder cannot rely upon duress [R v Brown [1968]

SASR 467; R v Harding [1976] VR 129]

HOWEVER in NSW, in ‘McConnell v R’ [1977] 1 NSWLR 714, it was stated obiter, that an

accessory to murder could rely on duress., however this is in conflict with the House of Lords

case of Howe

“ Duress might be a defence in a murder trial to participants who were NOT participants in

the first degree.” [Moffa J]

* Authority - Howe v R [1987] 1 AC 417 ~ The defendants in 2 separate trials were

separately convicted of, inter alia, murder in circumstances where the defence raised was that

the killing of the victims was carried out in fear for their own lives and under duress. The

defendants were part of a criminal gang, and were instructed by their leader to commit the

crimes.

- It was held that duress was NOT a defence to murder where the defendant had actually

killed the victim OR participated in the murder as a principal in the second degree in order to

protect his own life or that of his family. Where the defence of duress is available, the test to

be applied is whether the threat was of such gravity that it might well have cause a reasonable

man placed in the same situation to act in the same way as the defendant had acted AND

whether a sober person of reasonable firmness sharing the defendant'’ characteristics would

have responded to the threat by taking part in the killing.

ELEMENTS OF THE DEFENCE

Threat

*Those threats which have been recognised for the purposes of duress are threats of:

1. death and grievous bodily harm [Hurley and Murray {1967} VR 526]

* Authority - Hurley and Murray v R [1967] VR 526 ~ The defendant’s assisted 2 prison

escapees who had taken shelter in Hurley’s home where he live with his wife and an elderly

boarder. One of the prison escapees instructed Hurley to obtain a car and find safe place in

Sydney for them under the threat that if he did not assist, horrible consequences would occur.

His de facto was held as a hostage while Hurley did these things.

- The defendants relied on duress based on a fear for the safety of Hurley. his de facto and the

elderly boarder, however both defendant’s were convicted.

- It was held that where a person who voluntarily made himself a party to a criminal

enterprise without threat of death or serious violence, his criminal conduct would not be

excused by alleging duress ~ hence duress was not available.



- However during the course of the case several statements were made relating to when a

defendant could plead duress.

“Duress was not confined to cases where threats were made against the accused. Threats

made to the accused’s wife, children of immediate family were sufficient” [in citing an

American case]

“threats made known to the accused to kill or cause GBH to any human being can be

sufficient for the defence of duress.”

- Hence, threats of death or GBH are sufficient for the defence of duress.

2. lawful threats eg, where the threatened is a child or could plead insanity

3. imprisonment [R v Lawrence (1980) 32 ALR 72]

4. torture causing intense pain but without residual injury [Goddard v Osborne (1978) 21

ALR 189]

* Authority - Goddard v Osborne (1978) 21 ALR 189 ~ The defendant was convicted of

presenting false forms to the Department of Social Security. The magistrate accepted

evidence that her husband forced her to commit the crime, and frequently beat and threatened

her. However the magistrate found that she could have avoided committing the offence by

complaining to the police or leaving her husband.

- On appeal, this decision was reversed. It was held that:

“The threats in this case were threats sufficient to overpower a woman’s will.’

- It was also suggested that a threat of an unknown quantum of violence could be just as

intimidating or more so than a threat of a particular quality.

- It was also held that the determination of her marriage as an alternative was not a required,

and that the police could not have provided effectual protection 24 hours a day and a

complaint to them might not have saved her from the beating she feared.

5. harm to a third party [Hurley and Murray {1967} VR 526]

Threat must be present/immediate and continuing

* Generally a threat must be present and continuing for a defendant to rely on duress. This

requirement has been interpreted realistically, recognising that a threat may be present, even

if the threatener has no direct physical control over the defendant at the time the defendant

commits the crime.



* Authority - Hudson and Taylor v R [1971] 2 All ER 244 ~ The two defendants were

charged with perjury when they gave false evidence at the trial of one Wright on the charge

of wounding. They were called upon to give evidence identifying Wright as the attacker.

They pleaded duress in that they were threatened with violence by a group of men if they

testified against Wright and there was evidence that one of the men was present in the gallery

at the trial.

- The defendants were convicted on the grounds that the “threat of death or serious personal

injury must be a present or immediate threat.”

- On appeal it was held that the requirement to duress was that the threat should be effective

in overbearing the will of the defendant at the moment when the crime was committed and

that the person threatened had no opportunity for delaying tactics. It would not preclude the

defence even though the threatened injury might follow instantly but after an interval.

- Further it was open to the Crown to prove that the defendant, having regard to age and

circumstances, failed to take a reasonable opportunity to negative the threat.

- The appeal was allowed, and the threats were held to be “sufficient and immediate.”

TESTS FOR DURESS

* Authority - R v Brown (1986) 43 SASR 33 ~ This cases stated that there is a subjective and

an objective aspect of the test of duress. There is a question whether the will of the accused

was actually overborne. There is then the further question of whether the will of a person of

reasonable firmness might similarly be overborne.

Subjective test - The defendant’s power of resistance must have been overborne by the

threats made.

Objective test - comprises of two elements [Lawrence v R [1980] 1 NSWLR 122]

1. An average person of ordinary firmness of mind, of a like age and sex in the

circumstances would have done the acts

2. There was no reasonable was of avoiding the threat

* Authority - R v Lawrence [1980] 1 NSWLR 122 ~ A number of the defendants were

convicted of conspiring to import a large quantity of cannabis into Australia. One of the

defendants asserted that he initially entered into the venture innocently, and that after he

became aware of the true purpose of the voyage, he was compelled by threats to continue.

- The defendant pleaded duress but was convicted. he appealed on the grounds that the test

of duress was subjective.



- It was held the defence of duress was and OBJECTIVE test, the same as the one stated

above.

“The law of duress relevant to the present case is as follows:

(1)..... the defence of duress will be available provided an average person of ordinary

firmness of mind or age and sex in like circumstances would have done the acts.

(2) where it appears that the accused person fails to avail himself of an opportunity

reasonable open to him, for his will to be reasserted the defence will NOT be available to

him. Answer to this question will depend ton whether an average person of ordinary

firmness to mind of like age and sex in the like circumstances involving like risks in

respect of the alternatives open would have availed himself of the opportunity in question.

(3) The extent to which it will be appropriate to hive directions to the jury......will depend on

the facts of the particular case and the conduct of the trial.”

* Authority - Abusafiah (1991) 24 NSWLR 531 ~ The defendant threaten a man with a knife

and demanded money. The defendant said he only did this because someone else told him

and threaten him with a gun. The victim had wronged the person threatening.

- It was held that “to convict there must be no reasonable possibility that the gravity of

threats to a person of ordinary firmness and will and of the same sex and maturity of the

person would yield to the threats.”

- His appeal was dismissed.

* Authority - R v Runjanjic and Kotinnen (1991) 56 SASR 114 ~ The defendants, two

women were persuaded to lure the victim to a place where one, Hill was to abuse and beat her

as she was suspected of having stole from one of the defendants. The defendants were

greatly under the influence of Hill who had forced them both into prostitution. The

defendant’s claimed they only agreed to the plan as they feared being beaten.

- The defendant’s were convicted of a false imprisonment and of causing GBH with the intent

to do GBH

- On appeal, expert evidence was adduced as to the effect that ‘battered woman syndrome’

would have on the defendants.”



“...it starts with a role of induction whereby they become accustomed to violence and begin

to rationalise with violence. It is associated with a loss of self esteem and confidence which

robs the, of the ability to cope with infliction of violence in the way that an ordinary person

would, Violence becomes normal., Then there is the effect of long term fear arising out of

threats of death or severe injuries.....that leads to a type of dependence where they become

dependent on their assailant......their emotional responses are blocked.....their anxiety level

robs them of the ability to make decisions.”

- ‘Battered Woman Syndrome’ is also described as ‘learned helplessness. she cannot predict

or control the occurrence of acute outbreaks of violence and often clings to hope that the

kind and loving phases will become the norm.’

It was held that evidence of ‘battered woman syndrome might offer an explanation why a

woman of reasonable firmness might not escape participation

NOTE: Failure to seek police protection due to the reasonable belief that such aid would be

ineffectual, will NOT necessarily exclude the defence [R v Brown (1986) 43 SASR 33]



duress

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