Duress

Landmark case

Unavailable for murder

Unavailable for attempted murder

x

1. Death/Serious Injury

D may only rely on duress to avoid death or serious physical injury. Threat to cause pain is insufficient.

The totality of threats may be considered when deciding whether harm feared was serious.

Fear of psychological harm is insufficient

x

2. Direction

D's criminal conduct must be in response to fear for safety for: a) D's immediate family b) someone close to D c) A person for whose safety D reasonably regards himself as responsible

x

3. Response

1) Did D honestly and reasonably believe in the efficacy of the threats? 2) Would a sober person of reasonable firmness, sharing D's characteristics, have acted as D?

Drug addiction is not a characteristic that can be shared

____ is not a characteristic that can be shared

Relevant characteristics include age, sex, pregnancy, physical disability and mental illness

The belief needn't be correct

x

4. Causation

Coercer must direct D to commit a particular offence. No direction to commit = no defence

A threat accompanied by a direction to rob any bank is insufficient

x

5. Evasion

The defence fails if D reasonably could have avoided committing the crime

Where D does not take evasive action due to a personal circumstance, the defence fails

x

6. Self-Inducement

D may not rely on duress where he voluntarily associates with others engaged in criminal activity and knew, or ought reasonably have known, there was a risk of being subject to any compulsion by threats of violence.

If threats of violence were unforeseeable, the defence is available, even if D engaged in criminal activity