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8.11 - Common Law Duress

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Introduction

  1. Prior to 2005, duress in Victoria was governed solely by the common law. This situation has been altered by the passage of the Crimes (Homicide) Act 2005 and the Crimes Amendment (Abolition of Defensive Homicide) Act 2014, which introduced duress provisions into the Crimes Act 1958 (s9AG, now repealed, and s322O respectively).
  2. Section 9AG of the Crimes Act 1958 applies to homicide offences committed on or after 23 November 2005 and before 1 November 2014. [1]
  3. Section 322O of the Crimes Act 1958 applies to all offences committed on or after 1 November 2014.
  4. It is still necessary to apply the common law when there is evidence of duress in non-homicide cases committed before 1 November 2014. It is also necessary to rely on the common law in relation to homicides committed before 23 November 2005.
  5. Subdivision 1AAA of the Crimes Act 1958, including section 9AG, was introduced by the Crimes (Homicide) Act 2005. It had the effect of abrogating common law defences, including duress, to homicide offences and replacing them with statutory versions (Babic v The Queen (2010) 28 VR 297 [52]).
  6. The Crimes Amendment (Abolition of Defensive Homicide) Act 2014 abolished the common law defence of duress with respect to all offences committed on or after 1 November 2014 (Crimes Act 1958 s322Q).
  7. If the accused is charged with both homicide and non-homicide offences, committed before 1 November 2014, it will be necessary to give multiple directions about duress. The jury will need to be charged about statutory duress in relation to the homicide charges, and common law duress in relation to any other charges (see R v Pepper (2007) 16 VR 637; [2007] VSC 234; DPP v McAllister [2007] VSC 315 for similar issues that arise in the context of self-defence).
  8. This topic outlines the common law defence of duress. For information concerning the statutory provisions, see Statutory Duress (From 1/11/14) and Statutory Duress (23/11/05 - 31/10/14).

    What is Duress?

  9. An act is said to be committed under duress if it is committed due to a threat of physical harm if the act is not done (R v Dawson [1978] VR 536).
  10. Duress does not destroy the will or the effective power to exercise it. It merely alters the direction of its exercise (R v Harding [1976] VR 129).
  11. To have acted under duress, the circumstances must have been such that the accused’s will was really and absolutely so constrained that he or she became a mere innocent instrument of the crime (R v Dawson [1978] VR 536; R v Darrington [1980] VR 353).
  12. Where duress is available as a defence, and the prosecution cannot prove that the accused did not act under duress, he or she will have a complete defence to the offence charged (R v Japaljarri (2002) 134 A Crim R 261).

    Duress and Voluntariness

  13. As duress implies a deliberate choice to break the law (although under constrained circumstances), it is incorrect to treat duress as related to the voluntariness requirement (R v Palazoff (1986) 43 SASR 99).
  14. People who act under duress are therefore not excused because they acted involuntarily. They are excused because of the wrongfulness of the threat (R v Palazoff (1986) 43 SASR 99).

    Duress and Intent

  15. In a true duress case, the accused will have had the necessary intent to commit the crime, but will be found not guilty due to the fact that he or she formed that intent due to a threat (R v Harding [1976] VR 129 per Murphy J; R v Palazoff (1986) 43 SASR 99).

    To Which Crimes is Duress Available as a Defence?

  16. Duress is a defence to all criminal acts except for murder and some forms of treason (R v Harding [1976] VR 129; R v Goldman (No 4) (2004) 147 A Crim R 472; Attorney-General v Whelan [1934] IR 518; R v Hurley [1967] VR 526; R v Tawill [1974] VR 84).
  17. In Australia the defence has been applied to:

    Duress and Murder

  18. It is clear that duress is not available on a charge of murder where the accused did the actual killing (R v Japaljarri (2002) 134 A Crim R 261; R v Evans (No 1) [1976] VR 517; R v Darrington [1980] VR 353).[2]
  19. However, it is unclear whether duress is available to a person who was present at the killing and aided or abetted the crime (a "principal in the second degree"), or who was not present but counselled or procured the killing (an "accessory before the fact"):
  20. While the matter has not been authoritatively settled by a Victorian court, the issue has been the subject of judicial discussion in two recent cases:
  21. Even if duress is not available as a defence to people who aid, abet, counsel or procure murder, it may be available to accessories after the fact (as they have committed an offence against justice, rather than an offence against the person or the State) (Fairall and Yeo, 2005, p 141).

    Attempted Murder

  22. The question whether duress is a defence to attempted murder has not been authoritatively resolved in Australia (R v Japaljarri (2002) 134 A Crim R 261; R v Goldman (No 4) (2004) 147 A Crim R 472).
  23. In R v Gotts [1992] 2 AC 412 a majority of the House of Lords held that duress is not a defence to attempted murder.
  24. However, in R v Goldman (No 4) (2004) 147 A Crim R 472 Redlich J followed the decision of the minority in Gotts (and the Canadian judgments of R v Hibbert [1995] 2 SCR 973 and Paquette v R (1976) 30 CCC (2d) 417), holding that duress is a defence to attempted murder.

    Manslaughter

  25. Duress is available as a defence to a charge of manslaughter (R v Evans (No 1) [1976] VR 517; R v Harding [1976] VR 129).
  26. This means that a judge will need to charge the jury about duress in a case where the accused is charged with murder, but manslaughter is available as an alternative verdict (R v Evans (No 1) [1976] VR 517; R v Harding [1976] VR 129).

    Other Heinous Crimes

  27. It has traditionally been held that duress is a defence to all crimes other than murder and "any other crime so heinous as to be excepted from the doctrine" (R v Hurley [1967] VR 526; R v Darrington [1980] VR 353; R v Dawson [1978] VR 536; R v Emery (1978) 18 A Crim R 49; R v Zaharias (2001) 122 A Crim R 586; R v Japaljarri (2002) 134 A Crim R 261).
  28. The other "heinous" crimes to which duress is denied as a defence seems to have been limited to some serious forms of treason (R v Goldman (No 4) (2004) 147 A Crim R 472).

    Onus of Proof

  29. It is for the prosecution to prove, beyond reasonable doubt, that the accused was not acting under duress (R v Smyth [1963] VR 737; R v Harding [1976] VR 129; R v Emery (1978) 18 A Crim R 49; R v Zaharias (2001) 122 A Crim R 586).
  30. This is sometimes expressed as requiring the prosecution to eliminate any reasonable possibility that the accused acted under duress (R v Abusafiah (1991) 24 NSWLR 531).
  31. In some cases the fact that the accused was acting under duress may be raised as a "reasonable excuse" to a statutory offence, rather than as a defence in its own right (see e.g., R v Tawill [1974] VR 84; R v Daher [1981] 2 NSWLR 669). Depending on the terms of the relevant provision, in such cases the onus may be on the accused to prove that he or she was acting under duress (and therefore had a reasonable excuse).

    Elements of Duress

  32. The prosecution can prove that the accused was not acting under duress by proving any of the following matters (each of which are discussed below):
    1. That no-one was threatened with serious harm if the accused failed to commit the crime charged;
    2. That the threat was not present and continuing, imminent and impending;
    3. That the accused did not reasonably apprehend that the threat would be carried out;
    4. That it was not the threat that induced the accused to commit the crime charged;
    5. That, when free from the duress, the accused voluntarily exposed himself or herself to its application;
    6. That the accused could safely have prevented the execution of the threat; or
    7. That the circumstances were such that a person of ordinary firmness would not have been likely to yield to the threat in the way the accused did (R v Hurley [1967] VR 526. See also R v Darrington [1980] VR 353; R v Dawson [1978] VR 536; R v Emery (1978) 18 A Crim R 49; R v Zaharias (2001) 122 A Crim R 586; R v Japaljarri (2002) 134 A Crim R 261).

    Someone was Threatened with Harm if Crime Was Not Committed

  33. The first way the prosecution can prove that the accused was not acting under duress is by establishing that no-one was threatened with serious harm if the accused failed to commit the crime charged (R v Hurley [1967] VR 526).
  34. This can be done by proving either:

    A Threat Must Have Been Made

  35. It is not sufficient that the accused felt fear. A threat must have been made (see, e.g., R v Darrington [1980] VR 353; R v Japaljarri (2002) 134 A Crim R 261).
  36. The threat may have been made by words or actions (including actual violence) (see, e.g., R v Emery (1978) 18 A Crim R 49; R v Harding [1976] VR 129 per Murphy J).

    The Threat Must Have Been of Sufficient Magnitude

  37. In some cases it seems to have been suggested that the threat must have been of death or serious personal violence (see, e.g., R v Smyth [1963] VR 737; R v Hurley [1967] VR 526; R v Darrington [1980] VR 353; R v Dawson [1978] VR 536; R v Japaljarri (2002) 134 A Crim R 261).
  38. However, it has also been suggested that a threat of imprisonment may be sufficient (R v Harding [1976] VR 129 per Murphy J).
  39. While it is not clear whether duress can be constituted by threats of damage to property (R v Harding [1976] VR 129 per Murphy J), such threats are unlikely to be of suitable severity (Director of Public Prosecutions (Northern Ireland) v Lynch [1975] AC 653). There are no known Victorian cases in which it has been suggested that the accused acted under duress due to a threat to property.
  40. The defence is not limited to threats made against the accused him or herself. The defence may be made out if the accused acted to avoid threatened death or harm to another person (see, e.g., R v Hurley [1967] VR 526; R v Harding [1976] VR 129 per Murphy J; Attorney-General v Whelan [1934] IR 518; R v Abusafiah (1991) 24 NSWLR 531).

    The Demand Must Have Been to Commit the Offence Charged

  41. The demand must have been to commit the offence charged. Duress will not be a defence if the accused committed a different offence due to his or her fear of the threatener (R v Dawson [1978] VR 536; R v Lorenz (1998) 146 FLR 369).

    Threat Must Be Present and Continuing, Imminent and Impending

  42. The second way the prosecution can prove that the accused was not acting under duress is by establishing that the threat was not present and continuing, imminent and impending (R v Hurley [1967] VR 526).
  43. While the coercion must be immediate, the threat need not be of immediate harm (R v Hurley [1967] VR 526; R v Emery (1978) 18 A Crim R 49).
  44. Thus, while the threat must be effective at the moment the crime is committed, the carrying out of the threat may be delayed because of particular circumstances (R v Dawson [1978] VR 536).
  45. While the threat need not be of immediate harm, it is not clear whether it must at least be of imminent harm – or whether threats to be carried out in the future will suffice so long as the accused’s will is overborne by the threats at the time that he or she commits the criminal act (R v Harding [1976] VR 129 per Murphy J).
  46. The threatener need not be present when the offence is committed, as long as the threat remains present and continuing, imminent and impending (R v Hurley [1967] VR 526; R v Emery (1978) 18 A Crim R 49).
  47. Thus, where the threat is to take a hostage’s life if the accused does not commit the offence, the defence of duress may be raised even if the kidnappers were not present when the offence was committed (see, e.g., R v Hurley [1967] VR 526).

    Accused Feared the Threat Would Be Carried Out

  48. The third way the prosecution can prove that the accused was not acting under duress is by establishing that the accused did not reasonably apprehend that the threat would be carried out (R v Hurley [1967] VR 526; R v Emery (1978) 18 A Crim R 49).
  49. This can be done by proving that:

    The Threat Induced the Accused to Commit the Crime

  50. The fourth way the prosecution can prove that the accused was not acting under duress is by establishing that it was not the threat that induced the accused to commit the crime charged (R v Hurley [1967] VR 526).
  51. While the threat must have directly provoked the commission of the crime with which the accused is charged, it need not have completely overborne the accused’s will (R v Dawson [1978] VR 536).
  52. The crime must only have been committed because of the duress. The defence will not be available if the crime was committed for other reasons as well (R v Zaharias (2001) 122 A Crim R 586; R v Abusafiah (1991) 24 NSWLR 531; R v Hurley [1967] VR 526; R v Dawson [1978] VR 536)
  53. In considering whether the threat induced the accused to commit the crime, the jury should consider the nature of the threats made, and the accused’s knowledge of the character and reputation of the person making them (see, e.g., R v Abusafiah (1991) 24 NSWLR 531).
  54. Where it is alleged that the accused was acting to protect a third party, it will be for the jury to determine whether he or she was acting under duress. In making this determination, the jury may take into account factors such as the strength of the accused’s attachment to the third party (see, e.g., R v Hurley [1967] VR 526).

    Voluntary Exposure to Duress

  55. The fifth way the prosecution can prove that the accused was not acting under duress is by establishing that, when free from the duress, the accused voluntarily exposed himself or herself to its application (R v Hurley [1967] VR 526).
  56. This will be the case if the accused voluntarily joined or associated with a criminal organisation, or became a party to a criminal enterprise knowing of its criminal purpose. In such circumstances the accused cannot rely upon the defence of duress in respect of any offence committed in response to coercion arising out of his or her association with the organisation, or his or her participation in the criminal enterprise (R v Hurley [1967] VR 526).
  57. The accused must have joined the enterprise or organisation voluntarily. The defence will remain available if he or she was coerced into joining the enterprise or organisation (R v Hurley [1967] VR 526. See also R v Emery (1978) 18 A Crim R 49).

    Safe Escape

  58. The sixth way the prosecution can prove that the accused was not acting under duress is by establishing that the accused could safely have prevented the execution of the threat (R v Hurley [1967] VR 526).
  59. This will be the case if the accused did not avail him or herself of any reasonable opportunity to escape or avoid the threatened conduct being performed (R v Dawson [1978] VR 536; R v Goldman (No 5) [2004] VSC 292; R v Hurley [1967] VR 526; R v Darrington [1980] VR 353).
  60. For the defence to be precluded on this ground, the opportunity to escape must have been capable of being performed with reasonable safety. The accused need not avail him or herself of the opportunity to escape if it was not reasonable in light of the threats made (R v Dawson [1978] VR 536; R v Hudson [1971] 2 QB 202; R v Smyth [1963] VR 737).
  61. If escaping from the immediate presence of the person making the threat would not have rendered the threat ineffective, reliance on the defence will not be precluded because the accused failed to escape. For example, if the threat was to cause death or serious injury at some time in the near future, failing to take advantage of an opportunity to escape would not preclude reliance on the defence (R v Abusafiah (1991) 24 NSWLR 531).
  62. The question of whether or not a safe means of escape was available to the accused is to be determined according to an objective standard, using the perspective of the reasonable person (R v Goldman (No 5) [2004] VSC 292; R v Besim [2004] VSC 168).
  63. When considering the perspective of the reasonable person, the circumstances in which the accused found him or herself are relevant and should be taken into account (R v Goldman (No 5) [2004] VSC 292).
  64. Where the carrying out of the threat can be prevented by reporting the matter to the authorities, a failure to do so may preclude the accused from relying upon the defence (see, e.g., R v Dawson [1978] VR 536).
  65. However, if the accused failed to report the situation to the police on the grounds that he or she reasonably believed police protection to be ineffective against the threatener, the defence of duress might still succeed.
  66. Evidence of battered woman syndrome may be relied upon to explain why a woman of ordinary firmness did not escape the threatening situation by seeking police protection (R v Runjanjic (1991) 56 SASR 114). See "Duress and Battered Woman Syndrome" below.

    Person of Ordinary Firmness Would Have Been Likely to Yield

  67. The seventh way the prosecution can prove that the accused was not acting under duress is by establishing that the circumstances were such that a person of ordinary firmness would not have been likely to yield to the threat in the way the accused did (R v Hurley [1967] VR 526; R v Zaharias (2001) 122 A Crim R 586; R v Dawson [1978] VR 536).
  68. This "objective test" restricts the defence of duress to circumstances in which the accused can be viewed objectively as having acted to avoid serious harm (R v Hurley [1967] VR 526).
  69. What is involved in the objective test is an evaluation of the behaviour of the accused by reference to a standard of reasonableness, not a prediction as to the way in which particular individuals may behave. The law requires the accused to have the self-control reasonably expected of the ordinary citizen in his or her situation (R v Abusafiah (1991) 24 NSWLR 531).
  70. The question is whether the accused could not reasonably have been expected to resist in the circumstances (R v Abusafiah (1991) 24 NSWLR 531).
  71. It is not clear what characteristics the jury should consider the ordinary person to have. In NSW it has been assumed that, in light of Stingel v R (1990) 171 CLR 312, it is only the accused’s age, sex and maturity that should be taken into account (see, e.g., R v Abusafiah (1991) 24 NSWLR 531). However, Stingel was decided in the context of provocation, and it is possible that different considerations apply in relation to duress (as noted in R v Zaharias (2001) 122 A Crim R 586 and R v Abusafiah (1991) 24 NSWLR 531).
  72. In considering the objective test, the jury should consider the nature of the threats made, and the accused’s knowledge of the character and reputation of the person making them (see, e.g., R v Abusafiah (1991) 24 NSWLR 531).
  73. Where the threat is not against the accused personally (e.g., where the accused’s family is threatened), the jury must determine whether a threat of that nature would be likely to coerce or compel a person of ordinary firmness of character to yield by committing the crime in question (R v Abusafiah (1991) 24 NSWLR 531).
  74. While traditionally the test was framed as whether or not the person of ordinary firmness "would" have been likely to yield (R v Hurley [1967] VR 526), in Victoria it is permissible to use "could" or "might" instead (R v Zaharias (2001) 122 A Crim R 586; R v Lanciana (1996) 84 A Crim R 268).

    Duress and Battered Woman Syndrome

  75. Battered woman syndrome is not a defence in its own right (R v Lorenz (1998) 146 FLR 369).
  76. However, evidence that an accused suffered from the psychological condition of battered woman syndrome may be relevant to the defence of duress (R v Lorenz (1998) 146 FLR 369).
  77. Specifically, evidence of the existence of this syndrome may be used:

    When to Charge the Jury about Duress

  78. The need for a direction on duress will depend on whether the defence has indicated that duress is in issue or whether there are substantial and compelling reasons for directing on duress in the absence of any request (Jury Directions Act 2015 ss14 - 16).
  79. At common law, the judge was required to direct the jury about duress if the evidence is such that it might lead a reasonable jury to decide that the accused committed the relevant act under duress (R v Evans (No 1) [1976] VR 517; R v Harding [1976] VR 129).
  80. The question was whether, on the version of events most favourable to the accused that is suggested by the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the accused was not acting under duress (Taiapa v R (2009) 240 CLR 95. See also Martin v R (2010) 28 VR 579).
  81. The issue of duress may be raised at any time during the trial (R v Zaharias (2001) 122 A Crim R 586).
  82. While duress is not a defence to murder at common law, the judge must instruct the jury about duress in a murder trial if manslaughter is available as an alternative verdict, and the evidence is such that it might lead a reasonable jury to decide that the accused committed the relevant act under duress (R v Evans (No 1) [1976] VR 517; R v Harding [1976] VR 129).

    Content of the Charge

  83. There is no single formulation that must be followed when charging a jury about duress. What is required is instructions expressed with sufficient clarity that the jury could be left in no doubt with respect to the principles that they must apply to the task before them (R v Zaharias (2001) 122 A Crim R 586).
  84. While the elements spelt out in R v Hurley [1967] VR 526 provide a useful foundation for a charge, in most cases it is neither necessary nor desirable to use every word in it or to explain every element (R v Emery (1978) 18 A Crim R 49).
  85. For example, where the crime charged is not murder or any other excepted crime, no reference to the exclusion of such crimes should ordinarily be made (R v Emery (1978) 18 A Crim R 49).
  86. It is essential that the facts are related to the relevant issues (R v Emery (1978) 18 A Crim R 49).
  87. Judges should take care to instruct the jury in the context of the evidence and issues raised in the trial (R v Zaharias (2001) 122 A Crim R 586). The question of duress should be placed in its factual setting, and considerations that may assist the jury to reach its conclusion should be identified (R v Goldman (No 5) [2004] VSC 292; R v Emery (1978) 18 A Crim R 49).
  88. While not a misdirection, the jury should not be told to examine the evidence relating to duress with great care and scrutiny (due to the ease with which it can be invented). The question whether an accused’s claim that he or she was acting under duress is plausible enough to raise a reasonable doubt is exactly the kind of matter which juries are well-equipped to deal with, without the need for any special direction (R v Goldman [2007] VSCA 25).

    Charging About the Onus of Proof

  89. It should be made clear that the accused does not have to establish that he or she acted under duress. It is for the prosecution to negate duress beyond reasonable doubt (R v Zaharias (2001) 122 A Crim R 586; R v Emery (1978) 18 A Crim R 49; R v Abusafiah (1991) 24 NSWLR 531).
  90. The jury may be directed about the onus of proof in any of the following ways:
  91. It is desirable to tell the jury that it is always difficult to give directions upon the issue of duress in a way which completely avoids any suggestion that the accused must prove the defence. However, the jury must always keep it in mind that it is the prosecution which must eliminate any reasonable possibility that the accused acted under duress (R v Abusafiah (1991) 24 NSWLR 531).
  92. Judges may refer to duress as a "defence", so long as the true incidence of the burden of proof is made clear (R v Lanciana (1996) 84 A Crim R 268).
  93. A judge should not use the wording of Smith J’s judgment in R v Hurley [1967] VR 526 when directing the jury, as it may cause the jury to incorrectly believe that the onus of proving the relevant matters is on the accused (R v Emery (1978) 18 A Crim R 49).
  94. The judge should not say that the prosecution has "merely" to prove, beyond reasonable doubt, that the accused did not act under duress. The use of the word "merely" is unnecessary and misplaced (R v Williams [1998] 4 VR 301).

    Charging About the Objective Test

  95. The judge should clearly explain to the jury that for duress to fail due to the objective test, the prosecution must establish that there is no reasonable possibility that a person of ordinary firmness of mind and will could have been compelled by the threat in the way the accused was (R v Lanciana (1996) 84 A Crim R 268),
  96. The judge should explain that, when determining this issue, the jury should have regard not only to the nature of the threat and its proportion to the crime committed, but also to any circumstances known to the accused concerning the person making the threat, which may reasonably have affected the ordinary person’s reaction to it (R v Abusafiah (1991) 24 NSWLR 531; R v Goldman (No 5) [2004] VSC 292).
  97. It is important that the directions in relation to the objective test are consistent. For example, if the charge refers to threats which "could" compel a person of ordinary firmness to act in a certain way, subsequent references should be stated in the same terms to avoid confusion (R v Lanciana (1996) 84 A Crim R 268)
  98. Judges should avoid use of the term "the average person". The usual formulation is "the person of ordinary firmness of mind and will". That is a much wider concept than the "average person", and includes a greater range of differing temperaments (R v Abusafiah (1991) 24 NSWLR 531).
  99. Where the threat is directed to another person, the judge should explain that duress may operate if such a threat would be likely to compel the person of ordinary firmness of character to yield by committing the crime in question (R v Abusafiah (1991) 24 NSWLR 531).

    Charging About Opportunities to Escape

  100. The question for the jury to determine in relation to the issue of escape is whether a person in the accused’s circumstances, and acting reasonably, would have taken one of the opportunities available to render the threat ineffective (R v Goldman (No 5) [2004] VSC 292).
  101. When directing the jury about this issue, they should be told to have regard to all of the circumstances and any risks associated with any course of action which would have rendered the threat ineffective (R v Goldman (No 5) [2004] VSC 292).
  102. The jury must consider whether such a course of action was reasonably safe, or whether it was likely to expose the accused to the very danger from which he or she was seeking to escape (R v Goldman (No 5) [2004] VSC 292).
  103. In deciding whether a reasonable person in the accused’s position would have availed themselves of the opportunity to escape, the jury should also take into account the fact that the circumstances may not have provided the accused with time to give calm and measured consideration to the course of conduct that was open to him or her (R v Goldman (No 5) [2004] VSC 292).
  104. As there is no legal "obligation" on the accused to escape, it would be preferable for the judge to avoid use of the term "obligation" in the charge (R v Abusafiah (1991) 24 NSWLR 531).

    Charging About the Use of the Evidence for Other Purposes

  105. In some cases it may be necessary to direct the jury that evidence raised to support the defence of duress may also be used when determining whether or not the elements of the offence have been met (R v Darrington [1980] VR 353; R v Harding [1976] VR 129; R v Evans (No 1) [1976] VR 517).
  106. A direction on the use of evidence of coercion for this purpose may be required even where a direction on duress is not (R v Darrington [1980] VR 353).
  107. Where evidence of coercion can be used both for the purposes of proving duress, as well as due to its evidentiary significance for proving another matter, it is important that clear instructions be given so that the jury does not confuse the two issues (R v Darrington [1980] VR 353).

    Duress and Marital Coercion

  108. In cases where a married woman is charged with an offence other than treason or murder, and she raises evidence that her actions (or inaction) were the result of coercion by her husband, the judge may also need to instruct the jury about the statutory defence of marital coercion (Crimes Act 1958 s336(2)).

    Use of Evidence of Duress to Disprove Elements of the Offence

  109. Evidence which is relevant to the issue of duress may also be relevant to the determination of the elements. For example, the fact that the accused was threatened may help to explain the acts that he or she performed, and thus may influence the inferences the jury are willing to draw on the issue of mens rea (see, e.g., R v Darrington [1980] VR 353; R v Harding [1976] VR 129; R v Goldman (No 4) (2004) 147 A Crim R 472).
  110. In such cases the judge should:

    Notes

[1] If the date of the victim’s death differs from the date on which the actus reus was committed, the relevant date for determining whether the provisions of the Crimes (Homicide) Act 2005 apply is the date of death (R v Gould (2007) 17 VR 393; [2007] VSC 420).

[2] For murders committed on or after 23 November 2005, duress is a defence. See Statutory Duress (From 1/11/14) and Statutory Duress (23/11/05 - 31/10/14).

Last updated: 29 June 2015

In This Section

8.11.1 - Charge: Common Law Duress

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings