Compulsion in Tasmania
The defence of compulsion in Tasmania is the defence that is known as duress in other jurisdictions. It is codified in section 20 of the Criminal Code Act 1924. Compulsion provides a defence to some criminal offences in Tasmania where a person can show that they were essentially ‘forced’ to carry out the acts making up the offence. Compulsion cannot be relied on as a defence to certain very serious offences. This article outlines the defence of compulsion in Tasmania.
What is compulsion in Tasmania?
Under section 20, a person acts under compulsion if they do an act only because they are being subjected to threats of death or serious harm if they do not comply, by a person who is actually present at the commission of the offence.
When is compulsion not a defence?
A person cannot rely on compulsion as a defence to a charge of murder, treason, piracy, attempted murder, rape, forcible abduction, robbery offences, causing grievous bodily harm or arson (section 20). Similar exceptions exist under common law, which holds that the defence of duress cannot be argued in relation to a charge of murder or some forms of treason due to their very serious nature.
A person cannot rely on compulsion as a defence if they were a party to an association or conspiracy with the person making the threat that rendered them subject to compulsion. Under the common law, this is known as ‘duress foreseen’, where a person has voluntarily consorted with criminals and exposed themselves to such compulsion.
Who bears the onus of proof?
The accused bears the onus of raising the defence of compulsion and adducing evidence to support it. Once compulsion has been raised, the onus is on the prosecution to prove that the accused was not acting under compulsion.
How do you establish compulsion?
The Tasmanian Criminal Code Act provides little guidance on how the defence of compulsion is to be applied. However, in other jurisdictions, courts require an accused to call evidence that shows that they were subjected to threats of serious harm if they did not commit the offence. To be acquitted because of compulsion, an accused must show that:
- A threat was made of serious harm or detriment by a person in a position to carry out the threat;
- The accused must have reasonably believed that they could not escape the carrying out of the threat;
- The actions done in response to the threat must have been ‘proportionate’ to the harm or detriment threatened.
R v Abusafiah
The leading case on the defence of duress is the 1991 New South Wales Supreme Court decision of Abusafiah. In that case, Abusafiah was charged with robbery and claimed that he carried out the offence under duress after being threatened with a gun. He claimed he feared he would be bashed or killed if he did not comply.
The court held that the relevant test in a case where duress is raised is whether the threat was of a magnitude that the accused could not reasonably have been expected to resist in the circumstances.
The defence of compulsion is related to, and may overlap with, the defence of self-defence in situations where an accused is compelled to commit criminal offences in order to escape more dire consequences.
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