The Defence of Duress in the ACT

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. This page outlines the defence of duress in the ACT.

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.

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.

The defence of duress is rarely raised in a criminal trial and even more rarely succeeds.

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.

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.

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.

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.

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 establish one or the other of two things.

• That there is no reasonable possibility that the accused did the acts to avoid a threat of death or really serious physical harm being inflicted upon him or upon his family if he did not do those acts.
• That there is no reasonable possibility that the threat was so serious that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to the threat in the way the accused did.

If the prosecution cannot prove either of those things, the defence of duress succeeds.

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