Published on 16/04/2007

Duress

DURESS

1.0 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]

“A person is not, in general, responsible for acts done by him under duress or coercion. Within certain limitations, if a person does acts which, when done voluntarily, amount to a crime, he will not be held criminally responsible for them if they were done because of a threat that death or really serious bodily harm would be inflicted upon him if he did not do those acts.

The principal limitation is that such a “defence” is available only where the threat was of such gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused person, would have yielded to that threat in the way that the accused did”, Hunt CJ at CL in Bassett (1994)

2.0 In General

A person who commits a crime as a result of fear induced by certain threats is excused from liability for this crime.

Duress occurs when the defendant was forced (by threat) to do the act forming the actus reus. This threat must be “threats of immediate death or serious personal violence”, as seen in AG v Whelan (1934).

Duress is available to all offences EXCEPT for murder.

3.0 Requirements

1. A threat to D requiring him to commit the offence he has been charged with;
2. D’s power of resistance/will overborne by the threats made (subjective test);
3. D must do the criminal acts required by the person making the threat while his will is overborne; and
4. The threats made must be of such a nature that the will of an ordinary person in the same situation would have been overborne by the threats (objective test)

4.0 Burden of Proof

* Not an affirmative defence (prosecution must disprove beyond reasonable doubt - Abusafiah)
* P must prove offence BRD
* Evidential onus on D, then
* Once D overcomes evidential onus, P must negative duress BRD
* 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]

* Arises from the common law, not the Crimes Act.

5.0 Nature of the Treat

            5.1 Inflict Violence

The defence of duress is usually based upon threats of death or grievous bodily harm.

DPP (NI) v Lynch [1975] - Threats to property are not sufficient. Duress is a defence to most crimes if the actor was acting under the threat of death or serious bodily harm:

Osborne v Goddard (1978) - threats of belting without any specified limits may also form the basis of the defence.

Hudson & Taylor [1971]

             5.2 Need not be a threat to harm D personally

The threat can be directed at the accused or at a third person, family member.

Hurley and Murray [1967] - “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]

             5.3 Threat must be present & continuing; NO avenue for escape

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

Hudson and Taylor [1971] - A threat of future, rather than present, violence is sufficient. Further, there was no avenue for escape at the moment of the crime.

The Facts: The two defendants were charged with perjury when they gave false evidence at the trial of one Wright on the charge of wounding. 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 decision: 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.

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

Williamson [1972] - Escape is a reasonable way that the threat can be rendered ineffective, thus it negate duress.

The Facts: Charged with assessory after the fact. The accused had to dispose of a body within a 4-day period after the murder or else he would be killed. He drove and dug the body during this 4-day period.

The Decision: Duress could not have been relied upon as he had opportunities of escape, in a sense he could have gone to police. However, there was evidence of a continuing threat and if there is duress, it is up to the jury to decide.

R v Abusafiah - There is a legal duty on the accused to escape from the person making threats should a reasonable opportunity to do so present itself.

             5.4 Threat must have been directed to procuring the commission of the crime

The threat must have compelled the accused to commit the criminal conduct, as seen in R v Dawson. The defence will not be made out in the situation where the accused independently decided to commit the offence.

Dawson (1978)

The Facts: Accused escaping from prison because of fear of his life as a result of threats made by fellow inmates was held not to have been committed under duress as it would not have applied.

             5.5 Exposure to duress as a result of fault on the part of D

At common law the defence of duress is not available to an accused that voluntarily enters a situation where duress may be predicated - R v Hurley and Murray

6.0 Tests for Duress

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, as seen in R v Brown (1986) 43 SASR 33

   1. Subjective test - The defendant’s power of resistance/will must have been overborne by the threats made.

D was genuinely procured to commit the crime out of fear. This is the subjective test. Lawrence [1980]

The facts: 14 men were charged with importing cannabis. McConnell was threatened not to tell or he would be killed. Under duress, McConnell was forced to do a second trip
The Decision: In court, the question was “was death or grievous bodily harm so great so as to override average human resistance? It was held that duress was unavailable in this instance because he had failed to go to the police before the second trip thus availing himself of the threat.

   2. Objective Test - The threats made must be of such a nature that the will of an ordinary person in the same situation would have been overborne by the threats

Comprises of 2 Elements (Lawrence v R [1980] )

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 way of avoiding the threat eg. Opportunity to escape

Lawerence v R - Objective test was proven to exist

The facts: The accused were charged with conspiracy to import a prohibited substance. One of the accused pleaded duress but it was quashed so he appealed on the grounds that the test is subjective not objective.
The Decision: The defence of duress was objective in that the defence was available where an average person of ordinary firmness of mind, of a like age and sex as the accused, would have carried out the acts charged in the similar case.

Abusafiah (1991) - Ordinary firmness of the mind

The facts: The defendant threatens a man with a knife and demanded money. The defendant said he only did this because someone else told him and threatened him with a gun.
The Decision: 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.”

R v Runjanjic and Kotinnen (1991) - Batters wife syndrome considered for reasonable firmness of the mind.

The facts: 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 Issue: Could Batters Wife Syndrome be considered in reasonable firmness of the mind?
The Decision: It was held that evidence of ‘battered woman syndrome might offer an explanation why a woman of reasonable firmness might not escape participation

Graham (1982) - When taking in account the objective test, it can be said that intoxication cannot be accounted for, as a reasonable man is compared to as what they would do if in a sober state.

“Whether a sober person of reasonable firmness of mind sharing the characteristics of the accused would not have responded as the accused person did (that is, and committed the crime)”

7.0 Marital Coercion

Common Law presumptions that certain crimes committed by a woman in the presence of her husband were coerced by him. Presumption abolished by statute in NSW

8.0 Case Law

1. Type of harm threatened

Hurley and Murray [1967] - Threat must encompass death or serious violence.

The Facts: 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.
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.
The decision: 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 - “threats made known to the accused to kill or cause GBH to any human being can be sufficient for the defence of duress.”

Warren, Coombes & Tucker (1996) - Duress under customary law

The Facts: 3 Aboriginal people bashed a journalist for filming on their land, as it was against customary law. They argued that they had to or else customary law would have punished them.

2. Present & continuing threat & Opportunity to escape

Hudson and Taylor [1971] - Discussed previously in Nature of Threat.

Escape avenue is only expected of D to resort to where it is reasonable to do this having regard to all circumstances in which D finds himself, having regard in particular to D’s age and to the risks involved utilising it.

Williason [1972] - Discussed previously in Nature of Threat

Hurley and Murray (1967) - Where the defendant has an avenue of escape. The defence of duress could not be available if D had means, with safety to himself, of preventing the execution of the threat.

Brown (1986) - Also accepted with qualification that police protection or intervention must be sought, if the chances exist.

- Failure to seek police protection due to the reasonable belief that such aid would be ineffectual, will NOT necessarily exclude the defence.

The Facts: Charged with attempting to sell 4kg of weed to detectives. He pleaded duress and it was the onus on the prosecution to negative duress beyond a reasonable doubt.
The Decision: No duress, as he had chances to seek police protection.

3. Reasonable Belief

There must be reasonable apprehension that the treat will be carried out. The common law requires that the accused believed on reasonable grounds that the threat would be carried out - R v Graham

R v Runjanjic and Kotinnen (1991) - 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 had reasonable belief and feared being beaten.

4. Ordinary Firmness

*Discussed previously in Objective test.

5.Voluntary involvement with criminal group

D will be regarded as having anticipated in the criminal enterprise/activities even if he later opts out and is placed under duress to continue on.

Calderwood & Moore - Duress is not available if you've joined a sinister group of men with illegal purposes.

The Facts: Moore had to steal a car and drive with Calderwood to a place and picked up a gun. They did a drive by and a man was killed in the process. They pleaded duress.
The Decision: Duress was not available, as they joined a group with sinister motives.

Palazoff [1986] - Knowledge of criminal activity is enough to negate duress defence.

The Facts: Accused leased a glasshouse to criminals, who grew weed but he thought they were growing vegetables. He was threatened with a gun if he told anyone the truth.
The Decision: He couldn’t rely on duress, as he knew they were bad people.

6. Murder & Attempted Murder Excluded

The defence is available for most offences, including manslaughter.
Duress is NOT available for offences of:

R v Brown(1986) - Murder

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.”

R v Gotts [1992] - Attempted murder

The Facts: Accused attacked his mother, was charged with attempted murder, effect is the same as the crime.
The Decision: 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.

Abbott [1977] - 1st Degree Murder

The Facts: Abbot lived in a commune, which was led by Malik. Abbot was forced to kill a member by Malik and was charged with murder as principal the 1st degree. Abbot pleaded duress.
The Decision: The defence of duress was not available to a principal in the 1st degree on a charge of murder.

Howe v R [1987] - Murder as a principal in the second degree

The Facts: 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.
The Decision: 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.

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 Ê

“ Duress might be a defence in a murder trial to participants who were NOT participants in the first degree.” [Moffa J]

The Facts: McConnell & 2 other persons were convicted of murder when they stabbed and downed a man. At the trail, two of the accused pleaded duress by McConnell.

Duress is available for offences of:

DPP (NI) v Lynch [1975] - Cannot rely on duress if D has committed the actus reus of murder (1st Degree Murder). An accessory after the fact can rely on duress though.