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]