What does it mean to be under duress? Imagine being forced to do something against your will, the weight of coercion crushing your sense of autonomy. This is the chilling reality of duress, a state where threats, violence, or manipulation rob individuals of their free choice.
From the boardrooms of high-stakes negotiations to the desperate scenarios of hostage situations, duress casts a long shadow, impacting individuals, families, and even entire societies. In this article, we delve into the complexities of duress, exploring its various forms, the psychological impact it leaves, and the legal implications it carries.
We will also shed light on navigating these challenging situations and seeking legal advice when faced with the coercive grip of duress.
What Does the Law Say?
A person under duress allows them to escape from criminal charges due to coercion. However, the law surrounding duress varies slightly across Australian states.
- ACT & WA: The focus is on the defendant’s reasonable belief of a threat and lack of alternatives. Duress for murder is excluded. (ACT: Section 40, Criminal Code 2002 / WA: Section 32, Criminal Code)
- Victoria: Similar to ACT/WA, but duress for murder is only allowed if the threat was deadly. (Section 322O, Crimes Act 1958)
- Queensland: Uses the term “compulsion” with similar conditions to duress. It doesn’t apply to murder, serious harm offences, or those involving criminal organizations. (Section 31, Criminal Code 1899)
- New South Wales: Requires a threat of serious harm, a reasonable response, and no alternative. Duress isn’t applicable to murder, attempted murder, or specific treason charges. (Common Law)
Is Duress A Common Law Defence?
Yes. A person who claims that he/she was under duress allows them to argue they shouldn’t be held criminally responsible if they were forced to commit it under an immediate threat of serious harm. An accused who wishes to rely on the defence of duress bears an evidentiary onus. This means they must call evidence that raises the defence. This defence involves a two-pronged test:
- Subjective Test: Did the defendant genuinely believe the threat of death or serious injury was real?
- Objective Test: Was the threat so overwhelming that the accused acted voluntarily to avoid threatened harm even if they had ordinary firmness of mind and will?
It’s important to note that murder is an exception. Being under duress cannot be used as a defence for murder. However, a more recent statutory defence of duress exists. This one focuses on whether the defendant:
- Reasonably believed a threat would be carried out unless they committed the crime.
- Had no reasonable way to avoid the threat.
- Responded in a proportionate manner to the severity of the threat.
Important Caveats:
- This statutory defence doesn’t apply if the threat came from someone the defendant voluntarily associating for the purpose of criminal activity.
- Certain criminal offences, like murder, are also excluded.
- In cases involving family violence, the court considers the specific dynamics of that situation when evaluating the reasonableness of the defendant’s actions under pressure.
Being under pressure offers a lifeline for those caught in a terrifying situation, but its application hinges on demonstrating a genuine and overwhelming fear for oneself or others.
Limitations of the Duress Defence
Duress isn’t a guaranteed escape hatch in criminal cases. There are situations where it won’t work. For example, if the threat seems fake, wasn’t that serious compared to the crime, or if it was over before the crime happened, the defence falls apart.
The court also considers if the defendant’s fear was reasonable, if they had another reason for the crime, or if they put themselves in that situation. Additionally, if there was a chance to escape or a normal person wouldn’t have given in, the defence crumbles.
In short, the court weighs the details of the threat and the defendant’s actions to see if duress holds up.
Under Duress: Common Scenarios
1. Threats of Imminent Bodily Harm: A well-established instance of duress is the application of imminent physical harm. This could encompass a scenario where an individual is compelled to relinquish property, such as an automobile, through the threat of violence.
For instance, a perpetrator might demand, “Surrender the keys, or face the consequences!” In this situation, the threat of physical injury coerces the individual to act involuntarily, thereby engaging in criminal act.
2. Coercion with Threats to Life: The potential consequences can become even more severe. A medical professional, bound by their ethical obligation to preserve life, might be forced into a precarious situation. A criminal leader, by threatening the doctor’s family, essentially holds their loved ones captive. This extreme form of coercion eliminates the doctor’s capacity for independent decision-making.
3. Economic Duress: Financial hardship can exert significant pressure. A small bakery owner, facing financial difficulties, might be threatened by a larger competitor with a price increase. Refusal by the bakery owner could trigger a price war, ultimately driving them out of business. The economic threat, in this case, can be as compelling as a physical one.
Under Duress: Other Forms
4. Duress Within an Intimate Relationship: The application of being under pressure extends beyond interactions with strangers. A scenario may involve a partner being subjected to manipulation or threats by their significant other. The abuser might coerce the victim into stealing money or committing identity theft through fear of emotional or physical abuse.
5. Cult Indoctrination and Coercion: Cults have the ability to exert powerful psychological control over their members. A cult leader might pressure a follower to steal funds or commit fraud for the benefit of the cult. The follower’s fear of punishment or indoctrination can effectively remove their ability to make free choices.
Another instance of acting under pressure is when a person carries his/her Will against their own wishes. Read this article to learn more.
Did You Act Under Duress Recently?
JB Solicitors, being a criminal and family law firm, can definitely assist clients who claim to have acted under duress when committing a crime. Here’s how:
- Evaluating the Duress Claim: JB Solicitors’ criminal lawyers will assess the details of your situation to see if duress applies. They’ll examine the nature of the threat, its severity compared to the crime, and if there was an opportunity to escape it.
- Building a Strong Defence: If duress is a viable defence, JB Solicitors will help gather evidence to support your claim. This might involve witness testimonies, documenting the threat (within reasonable possibility), or establishing your efforts to avoid the situation.
- Negotiating with the Prosecution: JB Solicitors can leverage the duress defence in plea bargains with the prosecution. By presenting a strong case for duress, they might be able to negotiate for reduced charges or lighter sentences.
- Court Representation: If the case goes to trial, JB Solicitors will represent you in court. They will argue the validity of your duress defence and present the evidence they gathered to convince the judge or jury.
Contact us today if you need help with your criminal law matter.
