To be found guilty of a criminal charge, the accused must have acted voluntarily and with the specific intent of committing a crime.

The defence of duress exists to protect people who are charged with an offence committed under threat of harm, either to themselves or another person, and the act was performed to avoid the threatened harm.

The law establishes that for the defence of duress to be raised, the threat of harm must be ‘present and continuing, imminent and impending’. For the defence of duress to be upheld, the accused must demonstrate through evidence that at the time of committing the act, they were responding to a physical threat of harm or reprisal if they did not perform the offending act.

While the defence of duress is an absolute defence for most criminal charges, in the case of murder, the accused must show that accused was threatened with being killed or seriously injured.

The evidentiary burden of proof for duress lies with the accused, meaning it is up to the person charged with an offence and claiming the presence of duress to prove they were, in fact, acting only because of the presence of a threat of harm.

Once raised, it is up to the prosecution to then disprove the presence of duress. They will be successful if they can prove:

  • There was no threat of harm to the accused or someone under their responsibility if they did not commit the crime they are charged with;

  • The threat of harm to the accused or someone they were responsible for was not ‘present, continuing, imminent and impending’;

  • The accused did not reasonably believe that the threat of harm would be carried out if they did not commit the crime they are charged with;

  • The accused voluntarily exposed themselves to duress through their actions;

  • The accused could safely have prevented the execution of the threat of harm;

  • The accused could have safely refused to yield to the threat of harm and the performance of the criminal act.

Charged with a Criminal Offence or Under Investigation?

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