What is duress?

13 August 2023 in Criminal Law

Duress is a defence that can be raised in criminal cases where a person is forced to commit a crime against their will. The threat of harm or death must be imminent and unavoidable, and the defendant must have reasonably believed that the threat would be carried out if they did not comply.

Application of duress in NSW law

The defence of duress is available to defendants in NSW who have been coerced into committing a crime. It is most commonly used in cases of kidnapping, robbery and drug offences, where the defendant is forced to participate in criminal activity against their will. The defence can be raised in both indictable and summary offences and can result in a complete acquittal or a reduced sentence.

The defence of duress is available for all Commonwealth offences.

Burden of Proof

Once the defence of duress is raised, the burden falls on the prosecution to demonstrate beyond a reasonable doubt that the accused was not acting under duress, that the threat did not warrant the actions taken, that the threat was no longer present or that a reasonable person would not have acted in the same manner under similar circumstances.

The defence is not required to provide evidence that duress is applicable, which is known as a reverse onus.

Intent

In cases where the defence of duress is accepted, the accused will be considered to have possessed the necessary intent to commit the crime. Nevertheless, they will be deemed not guilty because that intent was solely formed under coercion from a threat.

Voluntariness

The defence of duress does not imply that the accused committed the act(s) involuntarily. Rather, an accused person who acted under duress did so voluntarily, but under restricted conditions. In contrast, someone who acts involuntarily lacks control of their actions, such as a person who sleepwalks.

Limitations of Duress

While the defence of duress is a recognised legal concept in NSW, it is subject to certain limitations. For example, the threat must be imminent and unavoidable, and the defendant must have believed that the threat would be carried out if they did not comply. Additionally, the defendant must not have contributed to the situation that led to the duress, such as by willingly associating with the person who threatened them.

The defence of duress is also not available in cases where the defendant had a reasonable opportunity to avoid the threat, such as by seeking police protection or leaving the situation altogether. The defence cannot be used in cases where the defendant was reckless or negligent in exposing themselves to the threat. It also cannot be used in murder, attempted murder and some treason cases.

How can BSM help?

If you are facing criminal charges and believe that you were coerced into committing a crime, you should speak with our team of experienced criminal lawyers to determine whether the defence of duress is available in your case.