The Legal Defence of Duress In New South Wales

20/09/2023

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In the hit 2004 film Collateral, Jamie Foxx’s character ‘Max’ is forced to act as getaway driver for a hit man (played by Tom Cruise).

Max complies to the hit man’s demands due to what he perceives to be an imminent risk to his life, despite thereby involving himself in serious criminal activity.

The law in New South Wales law make clear that a person is not criminally responsible for conduct which would otherwise amount to a crime if he or she was under a serious, imminent, ongoing and unavoidable actual threat to the safety of him or herself, or to someone close to them, and the actions were justified in the circumstances.

This is known as the ‘legal defence of duress‘ and it is a full defence to nearly all criminal charges in our state.

Here is an outline of the defence of duress in New South Wales.

The elements of duress

The law makes clear that duress is available where a person engaged in otherwise criminal conduct due to a well-grounded fear of death or grievous bodily harm to themselves, an immediate family member or somebody else to whom they felt responsible.

Three broad elements need to be satisfied for the defence to be made out:

The defendant’s will was overborne by a threat of death or grievous bodily harm,
A person of ordinary firmness of mind in the same circumstances would have succumbed to this threat in such a way, and
The defendant could not reasonably have otherwise rendered the threat ineffectual.

In the event evidence of these three elements is raised, the onus then shifts to the prosecution who must prove beyond a reasonable doubt that the defence does not apply in the circumstances.

If the prosecution is unable to discharge this onus, the defendant must be acquitted; in other words, found not guilty of the offence.

Limitations on the defence

The defence of duress is not available in cases murder, attempted murder or treason, but is available for manslaughter.

The defence is also unavailable where the defendant was part of a criminal organisation or wilfully put themselves in a position to be coerced into committing criminal offences; see Nguyen v R [2008] NSWCCA 22 at [40]).

Overborne by a threat

Determining whether the defendant’s will was overborne by a threat is a subjective, factual test.

He or she must have reasonably believed the threat would be carried out, and must have been induced to commit the crime due to the threat; Smith J in R v Hurley and Murray (1967) V.R. 526.

In DPP for Northern Ireland v Lynch [1975] AC 653, the defendant was directed by members of the Irish Republican Army (IRA) to drive them to a specific location in Belfast. One of the men in the car, was known by the defendant to be a violent and dangerous, which caused him to comply.

The members of the IRA ended up killing a police constable and the defendant was charged with aiding and abetting the murder.

The defence of duress was rejected at trial.

However, on appeal, the House of Lords found the defence of duress was indeed available, as when the defendant decided to acquiesce and drive the IRA members, he was acting to save his life without being certain this would lead to the death of another.

The threat does not need to be immediate.

In the recent case of Rowan (a pseudonym) v R [2022] VSCA 236, repeated acts of domestic violence (including sexual violence) against the defendant were considered sufficient for the defence of duress as they constituted a continuing and ever-present threat.

An ordinary person would have succumbed to the threat

Determining whether a person of ordinary firmness of mind would have succumbed to the threat is an objective test, but one which can take into account certain subjective features of the defendant.

The key question is whether the defendant could not reasonably have been expected to resist in the circumstances; see R v Abusafiah (1991) 24 NSWLR 531.

Applying this test requires imagining an ordinary person in the defendant’s situation at the time, including their limited knowledge of the circumstances.

The assessment involves giving the ordinary person the characteristics with the defendant, including but not limited to their age, gender, intellectual ability and life and relationship experiences.

However, Kyrou and Niall JJA recently clarified in Rowan v The King [2022] VSCA 236, that consideration of characteristics should not go into features of ‘personality’ of the defendant, as this would dilute the objective nature of the test.

No means to avoid

The final element of duress is that the defendant did not have any means to avoid the threat being carried out.

In R v Dawson [1978] VR 536, the defendant escaped from prison due to threats by fellow prisoners.

Duress was found not to be available as a defence, firstly, because the individuals making the threats did not demand the escape and, secondly, because there was a viable opportunity to alert prison authorities of the threat.

The court will generally reject a claim of duress if the defendant could have safely prevented to the execution of the threat by reasonable steps.

But for the defence to be precluded on this ground, the opportunity to escape must have been capable of being performed with reasonable safety.

Where the carrying out of the threat can be prevented by reporting the matter to police, not doing so could mean the defence of duress is not available.

However, an exception exists for situations of domestic and family violence, where the defendant is likely not to consider going to authorities as a means of escape; see R v Runjanjic (1991) 56 SASR 114.

Going to court for a criminal matter?

If you are going to court over a criminal case, call Sydney Criminal Lawyers anytime on 9261 8881 to arrange a free first conference during which one of our experienced defence lawyers will assess the case, advise you of your options and the best way forward, and fight for the optimal outcome.