What is duress?
Duress is a possible defence to a criminal charge such as assault or affray, where the defendant argues that they were forced to act in this way by someone else under the threat of death or serious harm to the person, their family or dependants.
What factors are considered relating to the defence of duress?
The Criminal Trial Courts Bench Book recommends the following questions be asked when considering a defence of duress:
Question 1
Did the accused genuinely believe that if they did not act in this way, they or someone else (e.g. a family member) would soon be killed or seriously injured?
- What threats were made?
- What did these threats lead the accused to believe would happen?
If the court is satisfied beyond reasonable doubt that the answer to this question is “No”, then the defence of duress has failed and it is not necessary to proceed to the next question. If, however, it is determined at least a reasonable possibility that the accused may have been driven to act in this way, a second question must be considered:
Question 2
Would the threats have driven a reasonable person to act as the accused did? For example, if a person:
- Of ordinary firmness of mind and will, and
- Of the same sex and maturity as the accused:
- Was placed in the same setting and circumstances of which the accused was found, and
- Had the same knowledge that the accused had of the impending threat:
Would there be a reasonable possibility that this person would have yielded to the threats in the same way that the accused did?
If the Court is satisfied beyond reasonable doubt that the answer to this question is “no”, then the defence of duress has failed and it is not necessary to proceed to the next question. If, however, it is determined at least a reasonable possibility that the accused may have been driven to act in this way, a third question must be considered:
Question 3
Could the accused have avoided the effects of the duress by escaping from the threats without damage to themselves/the threatened person?
- Was a reasonable opportunity available to avoid the threats? For example, by going to the police or taking another course of action.
- Would a reasonable person (adhering to the characteristics described in question 2) have taken advantage of that opportunity and avoided or escaped from those threats?
If the court is satisfied beyond reasonable doubt that the answer to this question is “Yes”, then the defence of duress has failed. If the Court is not satisfied that the question should be answered “Yes”, then the accused is entitled to a verdict of “not guilty”.
What evidence is required for a defence of duress?
In order for duress to be successfully used as a defence, evidence needs to be provided that a serious threat (e.g. death or severe harm) was made against a person or their family, and that the threat was on the person’s mind when the act (e.g. assault) was committed. Evidence can take the form of testimonials and statements from witnesses, as well as any other documentation that supports the case.
What other possible defences are available?
If duress is not an appropriate defence given the particular circumstances, other possible defences include:
- Self-defence: as the name implies, this refers to actions taken to protect a person or their family from another person. It can also include situations where the person is trying to protect their property, or prevent unlawful trespass.
- Necessity: arguing that the actions were necessary to prevent greater harm from occurring. This can include emergency situations, for example pushing another person out of the way of oncoming traffic.
A skilled defence lawyer will be able to advise on the defence most appropriate to a particular case, and the best way to proceed.
