12. Duress - Exam Summary PDF

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Not in Crimes Act – Duress Offence established at common law, not in the crimes act, the total defence - walk free. The offence arises when a person/s threatens the defendant that unless they do as they say and commit an offence the defendant or another person will be killed or suffer very serious harm. Example – go rob the petrol station with this knife otherwise I’ll blow your kids head off Cannot be raised as a defence to murder and attempted murder. It is a particular form of the necessity defence and is a complete defence, resulting in acquittal. The Elements for Duress are defined in: Abusafiah 1.

Subjective - Did the defendant perform the acts by reason of the threat that death or really serious physical harm would be inflicted upon him or his family if he did not do those acts?

2.

Objective - Was the threat of such gravity that a person of ordinary service of mind and will and with the same sex and maturity of the accused have yielded to the threat in the same way.

Must satisfy both limbs. Considering any risks associated with avoidance: failure to seek police protection due to a reasonable belief that such aid would be ineffectual will not necessarily exclude the defence (Brown (1986)).

Subjective Did the defendant perform the acts by reason of the threat that death or really serious physical harm would be inflicted upon him or his family if he did not do those acts? •

Accused must reasonably please apprehend that threat will be carried out and have no means of preventing - Hudson & Taylor (1971)

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You must show at swim not voluntary he was virtually a slave – Lawrence

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Therefore, the threat [INSERT] was/was not enough so as to overbear D’s will, so that D was incapable of acting independently R v Palazolf (1986)

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*Convicted of armed robbery, being in a joint criminal enterprise with another man. Argued he was forced to participate because he had a gun pointed at him. Appeal was dismissed – Abusafiah

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requiring the prosecution to eliminate any reasonable possibility that the accused acted under duress (R v Abusafiah

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A person of ordinary firmness would be likely to yield to the threat the same way - Lawrence

Threat of death or GBH to a human being if the accused fail to do the act • Offence should be reasonably appropriate to the level of the threat (policy reasons) and the types of threats are not limited – Lawrence

Objective Was the threat of such gravity that a person of ordinary service of mind and will and with the same sex and maturity of the accused have yielded to the threat in the same way. •

You just look at the same sex and maturity of a reasonable person and ask what they do the same thing?

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The objective element should not take into account a reasonable person with all of the characteristics of the defendant only the age and sex

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Average person of ordinary firmness of mind, of a like age and sex, in like circumstances, would have done the acts -Lawrence (drugs on boat from Thailand), upheld in Abusaah

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Did the defendant have a reason of belief no choice

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Threat must be death or very serious injury to the defendant or member of the defendants family

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The threat must be present and a continuing threat - did the defendant have an opportunity to escape or not commit crime did the defendant have an opportunity to inform the police – Hudson & Taylor (1971)

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Need not be a threat too harm accused personally - Hudson & Taylor (1971)

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Confirmed characteristics of the defendant only the age and sex - Abusaah

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Not relevance to the defence if the defendant was particularly immature for his age – Makrynikos

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Voluntary involvement in a criminal enterprise negates defence of duress -Palazoff

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No real means of preventing the execution of the threat like taking “evasive action” e.g. seeking police protection or opportunity to re-assert -Lawrence (on boat)

Runjanjic and Kontinnen (1991): expert evidence as to effect of BWS on D, i.e. why D wouldn’t seek protection/escape, deemed relevant to both subjective and objective tests. This case was an appeal against conviction. The appellants, both women, were found guilty on charges of false imprisonment and causing grievous bodily harm with intent. The (female) victim was lured to the home of one of the appellants which the latter shared with a male associate (Hill). Over a period of days the victim was detained against her will and subjected to physical abuse. Both appellants were involved in luring the victim to the home abovementioned and there was evidence that both were party to the detaining and abuse of the victim. The evidence before the jury indicated a history of dominance and habitual violence by Hill towards both appellants. The appellants sought to call expert evidence on the "battered woman syndrome". The trial judge ruled the evidence inadmissible by reason of the objective component of the test of duress. The appellants appealed against conviction on two grounds: (i) that the jury's verdict was unsafe; and (ii) that the trial judge's ruling on the admissibility of evidence relating to the ''battered woman syndrome" was wrong

No clear authority if the defence can be raised in respect of constructive murder, but Howe & Gotts cases said NO. •

Does not apply to murder as it would result in one persons life been regarded as more valuable than another person’s life- Howe

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Does not apply to attempted murder- Gotts...