Defence of Duress in Australian Criminal Law

The defence of duress is a recognized legal defence in Australian criminal law that applies when you are forced to commit a crime due to threats of serious harm or death. It acknowledges that, in extreme situations, people may act unlawfully to protect themselves or others from immediate danger.

This article will outline the legal definition of duress, the key elements required to prove it, its limitations, and how it is applied different across Australian states and territories.

If you are facing charges and believe duress played a role, Faraj Defence Lawyers are experts in developing strong, strategic defences to help you protect your rights and achieve the best outcome.

What is the Defence of Duress?

The defence of duress in Australian criminal law applies when you commit a criminal offence because you were subject to immediate and serious threats of harm or death. It recognizes that your actions, though unlawful, were carried our under extreme pressure, leaving you with no real choice.

Duress excuses criminal liability where your conduct was not voluntary but driven by coercion. For this defence to succeed. The threat must be serious, specific, and imminent, and your response must be directly linked to avoiding that harm.

It is important to distinguish duress from other defences.

• Self-defence involves protecting yourself or others from immediate danger.

• Necessity involves committing a crime to prevent greater harm, often without external threats.

• Duress, by contrast, involves an external person forcing you to offend through threats.

Laws around duress differ across Australian states and territories. Faraj Defence Lawyers understand these variations and can advise you on how duress may apply in your case

Types of Duress

Duress can take different forms, depending on the nature and source of the threat. While all forms involve coercion, courts assess each differently based on the circumstances and how they impact your ability to act freely.

• Physical Duress: This is the most recognised form in criminal law. It occurs when you are threatened with immediate physical harm or death unless you commit a crime. For example, you are forced at gunpoint to drive someone away from a crime scene. If the threat was credible and immediate, you may be excused under the defence of duress.

• Economic Duress: While more commonly used in civil cases, economic duress may arise when someone uses financial threats to compel criminal behaviour. However, it is rarely accepted in criminal defence unless it involves a threat of serious harm. For example, being blackmailed into committing fraud under threat of financial ruin is unlikely to qualify unless accompanied by threats or violence.

• Duress by Circumstances: This applies when external conditions, rather than a person, create a threatening situation compelling you to commit an offence. For example, you drive without a licence to escape a violent situation. If the threat was serious and imminent, duress by circumstances may apply. 

Legal Elements of the Defence of Duress

Key Elements Required to Prove Duress

To successfully rely on the Defence of Duress in Australian criminal law, you must prove four essential elements. Courts can carefully assess this criterion to determine whether your actions were truly involuntary and justified under the circumstances.

Immediacy of the Threat
The threat must be imminent and specific, leaving you no time to seek help or escape. General or future threats, 

Threats of Serious Harm of Death
The threat must involve serious physical injury or death to you or someone close to you. Emotional or financial pressure alone is not sufficient. 

No Voluntary Exposure to Risk 
You must not have willingly placed yourself in a situation where you were likely to be coerced. For example, joining a criminal gang and then claiming duress is unlikely to succeed. 

Proportionality
Your response to the threat must be reasonable and proportionate. The crime committed must not be grossly disproportionate to the threat faced.

EXAMPLE: R V HURLEY AND MURRAY (1967)
In this case, the accused claimed they assisted in a robbery under threat of death. The court accepted the defence, as the threats were immediate, serious, and left them no reasonable alternative. 

Burden of Proof in Duress Cases

In duress cases, once you raise the defence and provide sufficient evidence suggesting duress may have occurred, the burden of proof shifts to the prosecution. From that point, the prosecution must prove beyond reasonable doubt that duress dud not apply to your actions. 

This means the court will only convict you if the prosecution can show that:

• No real or immediate threat existed

• The threat was not serious enough, 

• You had a safe alternative to committing the offence, or 

• You acted voluntarily or disproportionately.

To support a duress defence, evidence may include:

• Witness testimonies 

• Psychological or medical reports

• Phone records, messages, or surveillance footage 

Is Duress a Complete Defence?

Yes, duress is a complete defence in Australian criminal law. If successfully proven, it can lead to a full acquittal, meaning you are found not guilty of the offence. This is because duress negates the element of voluntary intention, which is essential for most criminal convictions. 

Complete vs Partial Defence A complete defence like duress results in full acquittal if accepted by the court. However, a partial defence may reduce the severity of a charge but still result in a conviction. However, duress is not accepted in all cases and is excluded as a defence for certain serious crimes in some jurisdictions.

Limitations and Exceptions to the Defence of Duress

When Duress Does Not Apply

While the defence of duress can excuse criminal liability in many cases, there are important limitations where it will not apply, even if threats are present. 

• Murder Cases: In NSW, duress is not available as a defence to murder. Courts have help that taking an innocent life, even under threat, is not legally justifiable. For example, in R v Palazoff (1986), the court confirmed that duress cannot be used to excuse murder, if the accused was threatened with death. 

• Voluntary Criminal Association: If you voluntarily place yourself in a situation where you are likely to face coercion; such as joining a violent gang, you may be barred from claiming duress.

• Failure to Escape: Duress is unlikely to succeed if you had a reasonable opportunity to escape or seek help but chose not to. Courts expect you to take all available steps to avoid committing a crime. 

• Political or Ideological Pressure: Generalized pressure or fear of social or political consequences does not qualify as duress. The threat must be immediate, personal and specific. 

When Is Duress Most Likely to Succeed?

Courts are more likely to accept a duress defence when the surrounding circumstances clearly show that your actions were driven by genuine, immediate, and unavoidable threats of serious harm or death. 

• Immediate and Inescapable Threat: The threat must be present and urgent, leaving no time to seek help or escape. Courts assess whether a reasonable person in your position would have felt compelled to act in the same way. 

• Harm Greater than the Crime Committed: The harm you were threatened with must be more serious than the crime you were forced to commit. For example, committing a minor property offence to avoid serious injury may be justified. 

• No Realistic Alternative: You have had no safe or lawful way to avoid the threat. If the court finds you had a reasonable alternative and chose to offend anyway, the defence will likely fail. 

Duress vs. Other Legal Defences

The defence of duress is often confused with other legal defences, but each has distinct legal foundations and applications. 

Duress vs. Necessity 
Both defences involve committing a crime to avoid harm, but duress arises from external threats by another person, while necessity stems from natural or circumstantial pressures.

• An example of duress can involve a person telling you to commit a crime of they will kill you, whereas an example of necessity is driving without a licence to get someone to a hospital during an emergency. 

Duress vs. self defence 
Self-defence involves protecting yourself or others from an immediate physical threat, usually by using force. Whereas, duress involves being forced to commit an offence unrelated to self-protection.

Duress vs. Coercion, Undue Influence, and Diminished Responsibility.

• Coercion and undue influence are broader legal concepts often used in contract law, not criminal defences. 

• Diminished reasonability is used primarily in homicide cases to argue a reduced mental capacity, not external pressure. 

How Courts Assess Duress 
Courts assess whether the threat was credible, immediate, and unavoidable, and whether a reasonable person would have acted similarly. If the claim appears exaggerated or self-serving, it may be rejected as an excuse rather than a legitimate defence.

Duress Defence Laws in Different Australian States

NSW, Victoria & Queensland

The Defence of Duress is recognized in NSW, Victoria, and Queensland, but each state applies it differently depending on whether it is governed by statue or common law, and how its courts interpret key elements. 

• New South Wales: In NSW, duress is a common law defence, meaning it has been shaped by judicial decisions rather than statute. The courts follow key ruling such a R v Abusafiah (1991), which clarified that that threat must be immediate and serious, and that a reasonable person in the same position would have acted similarly.

• Victoria: Duress is governed by statute in Victora under Section 322O of the Crimes Act 1958 (VIC). It explains the defence, outlining that a person is not guilty of an offence if they acted under duress caused by threats of harm, provided their actions were a reasonable response. 

• Queensland: In Queensland, duress is also a statutory defence, detailed under Section 31 of the Criminal Code Act 1899 (QLD). It applied to most offences, except for murder and some serious crimes, and follows a structured test for assessing compulsion and necessity. 

Other States & Territories

The Defence of Duress is acknowledged across WA, SA, TAS, NT, and ACT, with each jurisdiction applying its own legal standards and interpretations. 

• Western Australian (WA): In WA, duress is defined under Section 32 of the Criminal Code Act Compilation Act 1913 (WA). The defence applies when an individual commits an offence under a belief that: 

  • A threat has been made. 

  • The threat will be executed unless the offence is committed. 

  • Committing the act is necessary to prevent the threat. 

  • The act is a reasonable response to the threat. 

  However, this defence is not available if the threat originates from someone with whom the accused is voluntarily associating for criminal purposes.

• South Australia (SA): SA follows common law principles regarding duress. The defence requires that the accused acted due to an immediate threat of death or serious injury, with no reasonable escape, and that the response was proportionate to the threat. Duress is not a defence to murder in SA.

• Tasmania (TAS): Tasmania operates under the Criminal Code Act 1924 (TAS), this recognises duress as a defence when an individual is compelled to commit an offence due to threats of immediate death or serious harm. The threat must be present and continuous at the time of the offence, and the accused must have no reasonable way to avoid it.

• Northern Territory (NT): In the NT, duress is addressed in the Criminal Code Act 1983 (NT). The defence applies when the accused commits an act under threats of harm, believing that the threats will be carried out if the act is not done, and there is no reasonable way to escape the threat. Certain serious offences, such as murder, may exclude the availability of this defence.

• Australian Capital Territory (ACT): The ACT defines duress under Section 40 of the Criminal Code 2002 (ACT). An individual is not criminally responsible if they act under duress, defined by:

  • A reasonable belief that a threat has been made and will be carried out unless an offence is committed.

  • No reasonable way to escape the threat.

  • The conduct being a reasonable response to the threat.

  Similar to other jurisdictions, the defence is unavailable if the threat comes from someone with whom the accused is voluntarily associating for criminal activities.

Why Legal Representation is Critical in Duress Cases

Proving duress in a criminal case can be legally challenging. You must demonstrate that you under a real, immediate, and serious threat, had no reasonable alternative, and that your actions were a proportionate response. Courts will closely examine your claim to ensure it is not comply being used as an excuse to justify criminal behaviour. 

Due to these complexities, having the right legal strategy is essential. An experienced lawyer can gather crucial evidence and present an argument that supports your version of events. 

At Faraj Defence Lawyers, we specialise in duress defence cases and understand how to navigate the legal system effectively. Contact us today to discuss your matter and find out how we can help you achieve the best possible outcome.

Need Legal Help? Contact Faraj Defence Lawyers

If you are facing criminal charges and believe you acted under duress, it is critical to get expert legal advice as early as possible. Proving duress involves meeting strict legal requirements, and without the right legal support, your defence may be rejected, leading to serious consequences. 

At Faraj Defence Lawyers, we are highly experienced in criminal defence law, including complex cases involving the defence of duress. We understand how courts assess these claims and will work with you to gather the necessary evidence, and develop a strong legal argument to protect your rights. 

Our team will guide you through every step of the legal process, ensuring the best possible outcome for your case. Contact Faraj Defence Lawyers today for a confidential consultation and let us assist you.