Duress is a full defence and if established, the accused will be acquitted of the offence charged. Generally, duress may be raised by an accused as a defence to unlawful conduct when that conduct was committed in response to a threat of death or serious harm.
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The position with Commonwealth (federal) offences is provided for in Section 10 of the Criminal Code 1995 (Cth). Specifically, duress will be available if the accused can establish that they reasonably believed that:
- a threat has been made that will be carried out unless an offence is committed; and
- there is no reasonable way that the threat can be rendered ineffective; and
- the conduct is a reasonable response to the threat.
For the actual provision see the Commonwealth Criminal Code section 10.2.
For all other offences committed in NSW, excepting murder and attempted murder, duress will be made out if it can be established that:
- a threat was made that overborn the will of defendant
- a person of ordinary firmness of mind and will, of like age and sex, in like circumstances, would have yielded to threat in like way
- there was no reasonable way of avoiding the threat.
The court considers the accused person’s unlawful conduct in light of the alleged threat. In doing so, the court looks at the nature of the threat made and whether an ordinary person in the position of the accused person would have acted similarly. Whether an ordinary person would have acted similarly is assessed through consideration of how a person of the same age and sex in an analogous situation would have responded to the threat. This assessment takes into account whether there were any other available options before or at the time the offence was committed.
Once the defence of duress is sufficiently raised by an accused, the prosecution must disprove it beyond reasonable doubt.