Criminal Defence - Duress

The defence of duress involves an extremely serious threat to an accused or their family involving the death or serious injury of the accused or their family.  This defence is rarely raised in a criminal trial.

The test

To use the defence of duress, the accused must call evidence about the following:

• The making of an actual threat,
• That the threat must be of death or serious injury to the accused or his family,
• That 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, would have yielded to the threat in the way that the accused did, and
• That the accused acted as he did because of the threat which was still acting on his mind at the time of the criminal act.
• For such a threat to be effective it must be continuing and be seen to be continuing and such threat will not be continuing and effective if the accused has a reasonable opportunity to render the threat ineffective.

The onus of proof

The accused bears an evidentiary onus (call evidence that raises the defence). Once the accused discharges the evidentiary onus, the prosecution must prove that the accused acted voluntarily and in order to do so must eliminate any reasonable possibility that he acted under duress.

More technical information

Leading case

R v Abusafiah (1991) 24 NSWLR 531

Other principles

The court stated that the prosecution must establish one or the other of two things. It does not have to establish both of them. The first is that, when the accused did those acts, there is no reasonable possibility that he did so by reason of a threat that death or really serious physical harm would be inflicted upon him or upon his family if he did not do those acts.

If the prosecution has failed to eliminate that particular reasonable possibility, it must establish in relation to any such threat which may reasonably have been made that there is no reasonable possibility that such was its gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to that threat in the way in which the accused did.