Duress

What Is Duress?

The defence of duress involves an extremely serious threat to an accused or their family that is found to be the cause of the Accused person’s conduct constituting the criminal offence.

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.

Other defences

• Claim of right
• Honest and reasonable mistake
• Intoxication
• Necessity
• Self-defence