Defence of Duress in Queensland

What is the defence of duress?

Section 31 of the Criminal Code 1899 (Qld) provides for the defence of duress.

In certain circumstances, a person is not criminally responsible for an offence if they can show that they were ‘forced’ to commit an offence by another person.

In Queensland, this defence is also referred to as ‘compulsion’.

 

What must be proven to establish duress?

An act is not unlawful if it was reasonably necessary to resist actual (and unlawful) violence threatened to the defendant, or another person in their presence.

It can also be established if the defendant can show that they committed the offence because:

• they themselves; or
• their property; or
• another person who was present; or
• the property of the other person who was present was threatened with serious harm or detriment, by a person in a position to carry out the threat, if they failed perform a particular act.

Two things must be kept in mind here though:

• the defendant has to have reasonably believed that they (or the other person present) could not have escaped what was threatened in some other way; and
• what they did was reasonably proportionate to the harm, or detriment, that was threatened.

 

Who has the burden of establishing the defence (i.e. Who has to prove duress)?

An accused person who wishes to rely on the defence of duress bears an evidentiary onus.

This means that he or she must, either by the cross-examination of the prosecution witnesses, or by calling evidence (or a combination of the two), produce material to the Court that makes duress a live issue.

Once the accused has succeeded in doing that, the prosecution then have the task of seeking to exclude the defence.

In other words, after duress has been properly raised, the prosecution have the job of trying to prove beyond a reasonable doubt that the accused acted voluntarily and was not compelled to act as they did.

 

When can the defence of duress not be raised?

The defence of duress cannot be successfully argued in relation to certain very serious charges.

Some examples of offences where the defence of duress is not available include crimes of:

• treason;
• murder;
• piracy;
• attempted piracy; or
• offences that contain grievous bodily harm to the person of another (or an intention to cause such harm) as an element.

In Director of Public Prosecutions v Lynch the House of Lords held that the defence is available to an accessory to murder (i.e. a person who helps or assists a murderer before or after the commission of the offence), if the defendant has been subjected to threats of serious violence or death against himself, or his friends or family, if he refused to commit the offence.

Having said that, in Abbott v R the Privy Council held that the defence is not available to the main offender (as distinct from an accessory) in a murder.

This area of law can be quite complex, and the information above should only be seen as a broad guide.

 

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