Duress
The defence of duress identifies that a person cannot be held criminally responsible for an offence they commit if they have been coerced or threatened to do so.
There are three elements that the defence of duress comprises of:
1. The accused was driven by the alleged threats to act as they did because they held a genuine belief that if they did not comply that they or someone else would be killed, or seriously injured.
The accused must demonstrate that actual threats were made against them. This could include text messages, phone calls, emails, etc.
The nature of the threats must be so serious in nature, so as to warrant the accused to carry out the conduct that they were demanded to do.
Threats can be implied rather than expressed, so long as the accused held the genuine belief that there would be imminent danger of death or serious injury to themselves or someone else such as their family if they did not act the way they did.
Duress can still be established if this belief was mistaken.
2. Those threats would have forced a reasonable person of the same maturity and sex as the accused to act as the accused did.
A reasonable person of ordinary firmness and strength of will, of the same maturity and sex of the accused, would have responded to the threats in the circumstances the accused faced in the same way they did.
Both the nature of the threats and the surrounding circumstances known to the accused concerning the person or people making the threats would have affected a reasonable person’s reaction to them in the same way as the accused.
3. The accused could not have rendered the threat ineffective.
The threat had to have been affecting the mind of the accused at the time they carried out their conduct. If the threat is not continuing and the accused was no longer worried about it whilst committing a crime, then duress cannot be established.
The accused should not have had a choice between rendering the threat ineffective or responding to the threat through the demanded conduct.
In the case the threat can be rendered ineffective, the accused will not be acting under duress if they had the opportunity to avoid the threats such as by reporting it to the police.