Duress

Duress

1. Duress of Threats

   • Subjective element: D must reasonable believe that as a result of threats (actions or words) that there was good cause to fear death or serious injury if they did not commit the offence.
     • Defense will only apply if the threat is directed at a close family member or someone who they would reasonably be regarded as being responsible for (Wright)
     • Threat must be of death or serious injury and the D must reasonably believe that it is capable of being carried out immediately or almost immediately with little doubt that evasive action could be taken (Hasan)
     • Financial pressure or threat to disclose secrets such as sexual orientation are insufficient on their own as are threats to property. However, the threat of death or serious injury need not be the only motivation behind D's acts (Valderrama-Vega)
     • The offence must be a nominated one (Cole)
     • Immediacy and evasive actions extenuating circumstances may however be taken into account such as age and the belief that official protection will not suffice (Hudson and Taylor)
     • The D must have reasonable belief that death or serious injury will occur (Cairns)
   • Objective element: It must be shown that the sober person of reasonable firmness sharing some of the same characteristics as the accused would have acted in the same way
     • The D will be compared with a person of reasonable firmness. The characteristics attributed to the 'sober person of reasonable firmness' includes age, sex etc. but not excessive vulnerability, timidity or pliability or a low IQ (Bowen)
     • It is not available to those who join gangs, if they know they might be under pressure to commit an offence (Sharp)
     • The defense will still be successful if there is no evidence of any violence prior to the threat (Shepherd)

2. Duress of Circumstances

   • Subjective element: The accused was forced to act as they did, because - as a result of what they reasonably believed in the circumstances - that death or serious injury would result
     • The threat need not come from a person but it must arise from an external source (Quayle)
     • It is D's belief of the existence of a threat that counts (Cairns)
     • The defence could be left to the jury provided that the D's reasonably believed they were in immediate peril (Abdul-Hussain)
     • The threat must be imminent - if not the defence will fail (Cole)
     • If the threat has passed the defence will fail
     • The CA stated that if there were no possible explanations for the delay of the success of the defence or otherwise is a matter for the jury to decide (Pommell
     • There must be no opportunity to escape the threat (Hudson and Taylor)
   • Objective element: It must be shown that the sober person of reasonable firmness sharing some of the same characteristics as the accused would have acted in the same way
     • The D will be compared with a person of reasonable firmness. The characteristics attributed to the 'sober person of reasonable firmness' includes age, sex etc. but not excessive vulnerability, timidity or pliability or a low IQ (Bowen)
     • The defence is not available for murder (Howe) or attempted murder (Gotts)