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Defence of Duress

Defence of Duress

The defence of duress is an excusatory defence. Meaning, what the defendant has done wrong is accepted but it is argued that they should not be to blame due to the circumstances in which the crime was committed. Under the defence of duress there are two different types, duress by threats and duress of circumstances.

Duress by Threats

As defined in the case of A-G v Whelan, Duress by threats is when the accused was told to commit an offence because they were subject to threats of immediate death or serious personal violence that was so great to overbear the ordinary powers of human resistance. It is up to the jury in this case to decide whether or not the threat was sufficiently serious enough to warrant the defence of duress which is then balanced against the seriousness of the offence

Elements of the defence of duress by threat as stated in R v Hasan:

1. Specified crime-the threat must be accompanied by an order to commit a specified crime

2. Immediate threat

3. Threat of death or serious injury

4. Threat of violence must be to the defendant or a person for whom he has responsibility

5. Threat must be so great as to overbear the ordinary powers of human resistance-to determine this threat, the "Graham Test" is applied ( R v Graham):

a. The defendant must have a reasonable belief in the circumstances

b. This belief must have lead the defendant to have a good cause to fear death or serious injury would result if he did not comply

c. A sober person of reasonable firmness, sharing characteristics of the defendant might have acted as the defendant did

Limits on the defence of Duress:

  • Not applicable for crimes of murder, attempted murder or for an accessory to murder
  • Not applicable for crimes of treason
  • Not applicable where the defendant voluntarily, with knowledge of its nature, joined a violent criminal gang or terrorist organization
  • Not applicable where the defendant voluntarily joined a terrorist organisation
  • Not applicable where the defendant could reasonably have taken action, meaning there should have been an immediate threat of harm

Duress of circumstances

Duress of circumstances is a little different than duress by threats because this is more of a threat in that the circumstances dictate the crime rather than dictating the person. This grew out of the need for more flexibility. In this instance, a person may create the circumstances but they may not specify that a crime should be committed. The only requirement is that thre must be a sufficient connection between the threat and the crime. (R v Cole) This defence is available to all crimes except murder, attempted murder and those who assist in a murder. ( R v Pommell)

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