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Duress
- By Student at Law
- Published 13/06/2007
- Sydney Uni 2006
- Unrated
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.
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.
* 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.
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
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.
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