To print this article, all you need is to be registered or login on Mondaq.com.
We often get asked by our clients what defences are available to
them when they have been charged. If you are able to raise a
defence successfully, it often means that you are found not guilty
of a charge or charges.
The defence of duress has been a part of the law in Victoria for
a long time. Originally it was part of the common law before being
introduced into legislation in 2005. It’s successfully been
made out in cases involving jail escapes, drugs and manslaughter.
What is duress?
You might think you already know what duress means, however it
has a specific meaning under the law which might not be what you
To engage in conduct under duress, a person must do something in
response to a threat of physical harm. That ‘something’
they do would ordinarily be a crime. For example, a person accused
of a crime might raise the defence of duress in a situation where they
have been told by someone to rob a bank, and if they don’t rob
the bank they will be beaten up or seriously harmed. They then rob
the bank to avoid the physical threat of harm they have been told.
Inevitably they are charged with robbery of the bank. It is after
they are charged that they raise duress as a defence.
It might sound simple however it can be difficult to raise
duress as a defence and it’s something you should get legal
advice about before pursuing. The court and the prosecution will
want to interrogate your arguments especially in front of a jury.
For example, the court will want to know things like, how seriously
you took the threat of harm and whether it was likely the threat
was carried out. They might also want to know whether you had other
options or if the harm could have been avoided. They might ask why
you didn’t call the police instead of robbing the bank or ask
for help from someone else.
Duress can be raised in the context of family violence offending. The law is
sympathetic to people who have engaged in conduct where the
‘duress’ involves being exposed to family violence. For
example, an accused person might argue that they physically
assaulted their partner because they ‘reasonably believed that
a threat of harm has been made that will be carried out unless an
offence is committed’. This is similar to a self-defence argument that an accused person
might also want to make. An example might be that an accused person
is married to someone who has physically assaulted and verbally
abused them over a number of years. The verbal abuse includes
making threats to kill. Over time, the physical abuse gets worse
and gets to a point where, combined with the threats to kill, the
accused person reasonably believes that they are in danger of being
killed by their partner. The next time their partner physically
abuses them, they retaliate with a weapon and are then charged by
In a jury trial, the jury will be directed by the
judge on how to take this into account when they are deciding
whether an accused person is guilty of the crimes they have been
charged with. The accused person might be acquitted on the basis
that they have successfully been able to make out the defence of
duress in the context of their family violence relationship.
The case of R v Martin  VSCA 153 is a good
example of how raising the defence of duress can go terribly wrong.
This case was an appeal from the County Court where the accused had
unsuccessfully argued that the defence of duress was made out.
The applicant, Ms Martin, argued through her lawyers that she
was under duress when committing the offences of armed robbery and
possession of a drug of dependence. She claimed that she had
committed these crimes because she was afraid the co-accused, and
her boyfriend at the time, would commit further robberies to obtain
money for drugs. She said that he was threatening to do this,
believed he had just committed a robbery and was being physically
violent towards her. To prevent him from committing further
robberies, Ms Martin said that she proposed to the co-accused that
they should rob one of their friends instead. They then went and
Ms Martin was unsuccessful in making out the defence of duress
for a handful of reasons. Firstly, Ms Martin gave many different
accounts of the above story in her record of interview and when she
gave evidence in court. The court also found that important parts
of her duress argument were missing – for example there was
evidence that she had been physically violent to the victim which
did not accord with her account that she had been under duress.
Most importantly the court found that there was no evidence she
engaged in the offending due to a threat being made against her by
the co-accused and that there were several opportunities where she
could have avoided participation in the robbery altogether. It also
didn’t help that she had admitted to lying in her initial
interview with police.
What happens if I can establish that duress has been made
Duress is a complete defence to a charge and, if you are able to
establish that your conduct occurred under duress, you will be
found not guilty of the charge.
It is a worthwhile defence to explore in the right circumstances
because it might mean you are acquitted of the charges against you.
However, you should always think carefully and speak to a lawyer
before making any decisions about your case including raising any
POPULAR ARTICLES ON: Criminal Law from Australia