Duress

1. Duress James and Rebecca

2. Duress • Duress is unlawful pressure that is applied by one person to induce another person to do something against their own free will. • A defendant may be acquitted if they can show they acted against their will under unlawful pressure • Duress is a defense to all criminal offences except for murder and treason.

3. Requirements for Duress • The threat being of death or serious injury to the defendant or their family. • The average person of ordinary firmness of mind, of a like age and sex in the circumstances would have done the acts. • That the defendant acted the way they did due to the threat which was still acting on their mind at the time of the criminal act • For such a threat to be effective it must be continuing and be perceived to be continuing. Such a threat will therefore not be continuing and effective if the accused had a reasonable opportunity to render the threat ineffective. A person may also raise duress defense when force or violence is used to compel him to enter into a contract or to discharge.

4. Burden of Proof • Burden of Proof for establishing duress is on defendant. • Once burden is satisfied prosecution must prove defendant acted voluntarily beyond any reasonable doubt.

5. Tests for duress • Subjective • The defendant’s power of resistance must have been overborne by the threats made. • Objective • An average person of ordinary firmness of mind, of a like age and sex in the circumstances would have done the acts • There was no reasonable way of avoiding the threat

6. Cases - precedent • Lawrence v R [1980] 1 NSWLR 122] • Barton v. Armstrong [1976] AC 104 • R v Singh 1973 1 AER 122