Duress is a defence to most offences if the allegedly criminal act was committed due to a threat of physical harm if the act is not done. The situation must have been such that the accused’s will was so constrained that they became a mere innocent instrument of the criminal offending. The accused’s act can be seen to have been induced by a threat made by a third person.

The prosecution must prove beyond reasonable doubt that the accused was not acting under duress. Where duress is available as a defence, and the prosecution cannot prove that the accused did not act under duress, he or she will have a complete defence to the charged offences which would lead to an acquittal.

To which offences is duress available as a defence?

Duress under common law is a defence to all criminal acts except for murder and some forms of treason. Section 9AG of the Crimes Act 1968 contains statutory provisions relating to the application of duress as a defence in cases involving murder, manslaughter and defensive homicides. This includes attempts of these offences also.

The Elements of Duress

Prosecutors can prove that the accused was not acting under duress by proving one of the following matters:

  • no one was threatened with serious harm if the accused failed to commit the criminal offence;
  • the threat was not present and continuing, imminent and impending;
  • the accused did not reasonably apprehend that the threat being carried out;
  • it was not the threat that induced the accused to commit the criminal offence;
  • the accused voluntarily exposed themselves to the duress when they could have been free of it;
  • the accused while remaining safe could have prevented the execution of the threat; or
  • a person of ordinary firmness would not have been likely to yield to the threat in the way the accused did.