The Defence of Duress in the ACT

By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 14 April 2026.

In the ACT, a person has a defence to a criminal charge if they acted under duress. This defence is set out in section 40 of the Criminal Code 2002. Understanding the defence of duress is crucial for anyone facing criminal charges in the Australian Capital Territory, as it can provide complete exoneration when properly established. This page outlines the defence of duress in the ACT, examining its legal requirements, limitations, and practical application in criminal proceedings.

What is duress?

Duress exists when a serious threat is made to a person or a member of their family and the person does an act in an attempt to avoid having the threat carried out. The threat often involves immediate death or serious injury but can also relate to future harm or violence to others. This criminal law defence recognises that human behaviour can be fundamentally altered when faced with severe threats or coercion.

The defence of duress is based on a recognition that in some situations people carry out acts under circumstances where their will is overborne, and they do not have a choice. In this situation, a person should not be held criminally responsible for their actions because they were essentially forced to act against their normal moral and legal inclinations.

The defence of duress is rarely raised in a criminal trial and even more rarely succeeds. This is primarily due to the strict legal requirements that must be satisfied and the high evidentiary burden placed on defendants seeking to rely on this defence.

Types of Threats Covered by Duress

Under ACT criminal law, duress can involve various forms of threats, including immediate physical violence, threats of future harm, threats against family members, or threats against other persons for whom the accused feels responsible. The key element is that the threat must be sufficiently serious to override the accused person's free will and normal decision-making capacity.

Definition

Section 40 of the Criminal Code 2002 provides that a person is not criminally responsible for an offence if they carry out the physical elements of the offence under duress. This statutory defence creates a complete defence to criminal liability, meaning that if successfully established, it results in an acquittal rather than merely reducing the severity of the charge.

A person carries out conduct under duress only if they reasonably believe that:

• a threat has been made and will be carried out unless an offence is committed; and
• there is no reasonable other way to escape the threat; and
• the conduct is a reasonable response to the threat.

Reasonableness Test

The reasonableness test applied in duress cases is both subjective and objective. The court must consider whether the accused person genuinely believed the threat would be carried out (subjective test) and whether a reasonable person in similar circumstances would have acted in the same way (objective test). This dual approach ensures that the defence is not available to those who overreact to minor threats or who fail to explore reasonable alternatives.

Immediacy of Threat

While the threat does not need to be immediate in the sense of being carried out within seconds or minutes, there must be a sufficient connection between the threat and the criminal conduct. The ACT courts have recognised that duress can operate even when there is some temporal gap between the threat and the compelled action, provided the accused had no reasonable opportunity to seek help or escape the coercive situation.

When is the defence of duress not available?

A person cannot rely on the defence of duress if a threat is made by or on behalf of a person with whom they are voluntarily associating in order to carry out conduct of the kind the offence involves. For example, if the accused is part of a criminal organisation that commits a certain type of offences, they cannot rely on duress in relation to these offences.

This limitation prevents criminals from claiming duress when they have voluntarily placed themselves in situations where they might be compelled to commit crimes. The policy rationale is that individuals who choose to associate with criminal elements assume the risk of being coerced into criminal activity by their associates.

Voluntary Association Principle

The voluntary association principle requires careful examination of the circumstances leading to the accused's involvement with criminal associates. Courts will consider factors such as the nature of the relationship, whether the accused knew of the criminal propensities of their associates, and whether they could reasonably have foreseen being compelled to commit crimes.

The onus of proof

The accused bears the evidentiary onus for the defence of duress. This means that the accused must call evidence that raises the defence. Once the accused has raised duress, the prosecution must prove beyond reasonable doubt that the accused acted voluntarily and eliminate any reasonable possibility that they acted under duress.

This burden of proof arrangement reflects the general principle in criminal law that while the prosecution must prove guilt beyond reasonable doubt, the accused must provide some evidence to support any defence they wish to rely upon. The evidentiary burden on the accused is relatively low – they need only adduce evidence that could reasonably support the defence, not prove it conclusively.

Elements Required to Establish Duress

To successfully establish the defence of duress in the ACT, several key elements must be proven through credible evidence presented to the court.

Threat of Death or Serious Harm

The threat must involve death or really serious physical harm to the accused or another person. Minor threats, threats of property damage alone, or threats of non-violent consequences are generally insufficient to establish duress. The ACT courts have consistently held that the threatened harm must be of such gravity that it would overcome the will of an ordinary person of reasonable firmness.

No Reasonable Means of Escape

The accused must demonstrate that they had no reasonable alternative but to commit the offence. This includes considering whether they could have sought police protection, escaped the threatening situation, or taken other lawful action to avoid the threat. The availability of reasonable alternatives will defeat a duress defence even if the accused genuinely believed they had no choice.

Proportionality of Response

The criminal act committed under duress must be proportionate to the threat faced. While exact equivalence is not required, there must be some reasonable relationship between the gravity of the threatened harm and the seriousness of the crime committed. Committing murder to avoid a threat of minor assault would likely be deemed disproportionate.

Practical Considerations and Legal Strategy

When considering whether to raise duress as a defence, several practical factors must be carefully evaluated by both the accused and their legal representatives.

Documentation and Evidence

Establishing duress often requires substantial evidence beyond the accused's testimony. This may include witness testimony, medical evidence of physical or psychological harm, communications showing the threats, and expert evidence about the accused's mental state. The collection and preservation of such evidence is crucial for a successful duress defence.

Timing of Disclosure

The timing of when duress is first mentioned can affect the credibility of the defence. Courts may view with suspicion claims of duress that are only raised late in proceedings or after other defences have failed. Early disclosure and consistent accounts strengthen the credibility of duress claims.

Case law

In the 1991 decision of R v Abusafiah, Justice Hunt said:

"In duress, the relevant act is done only because the accused has lost his free choice to refrain from doing the act, in that he did the act because he feared that the consequences of the threat were greater than those flowing from the crime he commits … Duress is a complete defence leading to an acquittal."

The court also stated that in order for the defence of duress to fail, the prosecution must