Can I Use A Defence of Duress in NSW for Assault Charges?

There are a number of different assault charges, and they vary according to the seriousness of the offence, and the likely penalties you will face if convicted.

Some assault charges such as common assault are considered summary offences, and carry less harsh penalties than more serious indictable offences, such as assault causing grievous bodily harm.

If you are facing assault charges, it is important to seek legal advice from an experienced criminal lawyer, so that you can prepare the best possible defence, and reduce the likelihood of receiving a prison sentence.

There are various different defences to an assault charge, and your lawyer will be able to advise you which is the most appropriate in your specific circumstances.

The three most common are self-defence, necessity, and the defence of duress. NSW magistrates and judges may look more leniently on you if you can demonstrate that you committed the offence for one of these three reasons, and in some cases, you may be able to avoid conviction altogether.

What is duress?

To use the defence of duress in NSW, you must argue that you were forced to perform an act of assault by someone else under the threat of death or serious harm.

If you decide to use duress as a defence, you will be presumed to be not guilty, and it is up to the prosecution to therefore prove beyond a reasonable doubt that there was no possibility the offence was committed under duress, or that you failed to take advantage of any opportunities to call for help or escape the situation.

You can be found guilty if the prosecution can demonstrate that your behaviour was not consistent with that of a ‘reasonable person’ under the circumstances.

What evidence will I need for a defence of duress in NSW?

If you have been accused of assault and want to use duress as your defence, you will need to provide evidence of a threat made against you, or against your family.

This threat must be serious, such as death or severe harm, and you will need to be able to provide evidence that the threat was on your mind when you committed the assault.

Evidence can take the form of testimonials and statements from witnesses, as well as any other documentation that supports your case.

Your lawyer can advise you on what evidence you will need to produce in your particular situation.

What other defences are there?

If a defence of duress is not appropriate in your circumstances, there are a couple of other common defences that might be successful, including self-defence and necessity.

Self-defence is where the assault was necessary to protect yourself or another person. It can also include situations where you were trying to protect your property, or prevent unlawful trespass.

Necessity is where an assault takes place because you believed it necessary at the time to protect yourself from death or serious injury.

This can include emergency situations where you might have pushed another person out of the way, for example.

For necessity to be used as a defence against assault, you need to be able to prove that there were exceptional circumstances surrounding the offence.

The right defence for your case will depend on the specific details of your case, and how severe the assault.

Your defence lawyer can talk you through the options, and advise you on the best way to proceed.