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

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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 Crimes (Homicide) Act 2005 and the Crimes Amendment (Abolition of Defensive Homicide) Act 2014, which introduced duress provisions into the Crimes Act 1958. These provisions were s 9AG, now repealed, and s 322O respectively.
  2. This topic covers the defence of duress in s 322O of the Crimes Act 1958, which applies to all offences committed on or after 1 November 2014. [1]
  3. Section 9AG of the Crimes Act 1958 applies to homicide offences committed on or after 23 November 2005 and before 1 November 2014. See Statutory Duress (23/11/05 – 31/10/14).
  4. The common law defence of duress applies to non-homicide cases committed before 1 November 2014, and to all offences committed before 23 November 2005. See Common Law Duress.

    Section 322O of the Crimes Act 1958

  5. Section 322O of the Crimes Act 1958 states:

    Duress

    (1) A person is not guilty of an offence in respect of conduct carried out by the person under duress.

    (2) A person carries out conduct under duress if—

    (a) the person reasonably believes that—

    (i) subject to subsection (3), a threat of harm has been made that will be carried out unless an offence is committed; and

    (ii) carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and

    (b) the conduct is a reasonable response to the threat.

    (3) A person does not carry out conduct under duress if the threat is made by or on behalf of a person with whom the person is voluntarily associating for the purpose of carrying out violent conduct.

    (4) This section only applies in the case of murder if the person believes that the threat is to inflict death or really serious injury.

    Abolition of Common Law Duress

  6. Statutory duress has replaced the common law defence for all offences committed on or after 1 November 2014 (Crimes Act 1958 s 322Q).
  7. However, the common law defence of duress applies to non-homicide cases committed before 1 November 2014 and to all offences committed before 23 November 2005. See Common Law Duress.

    Duress: Voluntariness and Intent

  8. Under s 322O, conduct is carried out under duress if it is committed in response to a perceived threat of harm that the accused reasonably believes will be carried out if the offence is not committed (Crimes Act 1958 s 322O).
  9. Duress under s 322O, as under the common law, does not destroy the will of the accused or his or her effective power to exercise it. It merely alters the direction of its exercise (see R v Harding [1976] VR 129, 141-143).
  10. As duress implies a deliberate choice to break the law (although under constrained circumstances), it is incorrect to treat duress as related to voluntariness or intention (see R v Palazoff (1986) 43 SASR 99, 105; R v Harding [1976] VR 129, 141, 169).
  11. However, where duress is available as a defence, the accused will have a complete defence to the offence charged (Crimes Act 1958 s 322O(1)).
  12. The defence of duress therefore operates to excuse a person who acts voluntarily and deliberately, but under compulsion (see DPP v Parker [2016] VSCA 101 [54]).

    Relevant Offences

  13. Duress under s 322O is a defence to all criminal offences (Crimes Act 1958 s 322O(1)).
  14. In the case of murder, the defence only applies if the accused ‘believes that the threat is to inflict death or really serious injury’ (Crimes Act 1958 s 322O(4)). In contrast, at common law, duress was not available as a defence to murder or to some forms of treason. For more information, see Common Law Duress.

    Onus of Proof

  15. The accused has the evidential onus to raise duress by ‘presenting or pointing to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish’ that defence (Crimes Act 1958 s 322I(1)).
  16. Once the accused satisfies that evidential onus, the legal onus is on the prosecution to prove beyond reasonable doubt that the accused did not carry out the conduct under duress (Crimes Act 1958 s 322I(2)).

    Elements of Statutory Duress

  17. To prove the accused did not act under duress, the prosecution must disprove one or more of the following five elements:

    i. The accused reasonably believes that a threat of harm has been made;

    ii. The accused reasonably believes that the threat will be carried out unless an offence is committed;

    iii. The accused reasonable believes that carrying out the conduct is the only reasonable way the threatened harm can be avoided;

    iv. The conduct is a reasonable response to the threat;

    v. The threat was not made by or on behalf of a person with whom the accused is voluntary associating for the purpose of carrying out violent conduct.

  18. The meaning of ‘reasonably believes’ and each of these five elements is discussed below.

    The meaning of ‘reasonably believes’ under s 322O

    Subjective and objective aspects

  19. The predecessor to s 322O, Crimes Act 1958 s 9AG (now repealed), required the accused to reasonably believe that: ‘a threat has been made that will be carried out unless an offence is committed; and carrying out the conduct is the only reasonable way that the threatened harm can be avoided; …’ (Crimes Act 1958 s 9AG(2)(a)-(b)).
  20. Under s 9AG (and by analogy under s 322O), reasonable belief means that:
  21. The Court of Appeal has held that:

    The phrase ‘the person reasonably believes’ in its natural meaning requires regard be had to the characteristics of the accused. The words connote what an accused might reasonably believe in the circumstances in which the accused found himself or herself having regard to the personal characteristics of the accused. They encompass the subjective belief of the accused, informed by the personal characteristics of the accused with an objective overlay in the form of reasonableness which allows community standards to be taken into account when assessing the culpability of an accused (DPP v Parker [2016] VSCA 101 [58]).

    Assessing reasonableness – Characteristics of the accused

  22. As noted above, when determining whether a belief is reasonable, the court must take into account any characteristics of the accused that might have affected his or her appreciation of the circumstances (DPP v Parker [2016] VSCA 101 [8]).
  23. Evidence of family violence, where duress in the context of family violence is in issue, is expressly allowed to be taken into account for this purpose (Crimes Act 1958 s 322P). That means that the effects of family violence may bear on a person’s belief and its reasonableness (DPP v Parker [2016] VSCA 101 [44], [53]). See ‘Duress and Family Violence’ below for more information.
  24. Other relevant characteristics of the accused that may have affected his or her perception of circumstances include his or her sex and maturity, as was the position at common law (see DPP v Parker [2016] VSCA 101 [27]).
  25. However, self-induced intoxication is expressly excluded as a characteristic of the accused that may be taken into account in determining the reasonableness of a belief under the duress provision in s 322O. In determining whether a reasonable belief existed, the relevant standard is a person who is not intoxicated (Crimes Act 1958 ss 322T(2), 322T(4)). See ‘Duress and Intoxication’ below for more information.

    Assessing reasonableness - Circumstances of the accused

  26. Under the previous duress provision, s 9AG(2) of the Crimes Act 1958, the jury was required to assess the elements of duress (all of which were ‘reasonable belief’ elements) ‘by reference to the circumstances as a reasonable person, possessing the personal characteristics of the accused, would have perceived them to be’ (DPP v Parker [2016] VSCA 101 [8]).
  27. This indicates that the ‘reasonable belief’ elements of s322O should be assessed in the same way.

    (i) Reasonable belief that a threat of harm has been made

  28. The first matter the jury should consider is whether the prosecution has shown that the accused did not reasonably believe that a threat of harm was made (Crimes Act 1958 s 322O(2)(a)(i)).
  29. As noted above, this requires considering whether the accused subjectively believed a threat was made and whether this belief was objectively reasonable. See ‘The meaning of “reasonably believes” under s 322O’ above.
  30. The common law requirements for duress included that a threat was made. In contrast, s 322O(2)(a)(i) of the Crimes Act 1958 requires the accused to reasonably believe that a threat of harm has been made instead.
  31. In determining whether the accused reasonably believed that a threat had been made, the jury should consider both the words and actions of the allegedly threatening party (see, e.g., R v Emery (1978) 18 A Crim R 49, 51; R v Harding [1976] VR 129, 161).
  32. This part of duress does not consider the level of harm threatened. That is a matter considered as part of the fourth element: whether the conduct was a reasonable response to the threat (Crimes Act 1958 s 322O(2)(a)(ii)).
  33. In addition, in cases of murder, the accused must believe the threat is of death or really serious injury (Crimes Act 1958 s 322O(4)).
  34. Under the common law, the relevant threat was not limited to threats made against the accused but to ‘a human being’ (see, eg, R v Hurley [1967] VR 526, 543 (Smith J); R v Harding [1976] VR 129, 169 (Murphy J); R v Emery (1978) 18 A Crim R 49, 55-56; R v Dawson [1978] VR 536, 538, 541; R v Abusafiah (1991) 24 NSWLR 531, 537). There is no reason to assume that the Crimes Act 1958 has narrowed the class of people who may be threatened for the purpose of this defence.

    (ii) Reasonable belief that the threat will be carried out unless an offence is committed

  35. The second matter the jury should consider is whether the prosecution has shown that the accused did not reasonably believe that the threat of harm would be carried out unless an offence was committed (Crimes Act 1958 s 322O (2)(a)(i)).
  36. This is equivalent to the common law element that the accused must have reasonably apprehended that the threat would be carried out (see R v Hurley [1967] VR 526, 543 (Smith J); R v Emery (1978) 18 A Crim R 49, 55, 57).
  37. As noted above, this requires considering whether the accused subjectively believed that the threat would be carried out unless an offence is committed and whether this belief was objectively reasonable. See ‘The meaning of “reasonably believes” under s 322O’, above.
  38. At common law, the person posing the threat of harm must have demanded that the accused committed the particular offence with which he or she is charged (R v Dawson [1978] VR 536, 538; R v Lorenz (1998) 146 FLR 369, 376-7; see also R v Martin (2010) 28 VR 579 [10]-[12]). For example, under the common law, duress was not available to an accused who had escaped from prison following a threat on his life by another inmate. The accused had chosen to escape contrary to the wishes of the threatener, rather than on their instruction, so the escape was not the ‘particular offence nominated by the person making the threats’ (R v Dawson [1978] VR 536, 538).
  39. However, under s 322O(a)(i), the accused must reasonably believe that a threat has been made that will be carried out unless an offence is committed. The provision does not require that the person making the threat demanded that the accused carry out the offence with which the accused is charged, or any offence at all. It is sufficient that the accused reasonably believed that an offence would need to be committed to prevent the threat being carried out. For example, if an accused’s partner threatens to kill her unless she comes up with money on short notice, and the accused has no lawful way to access that money, she may reasonably believe that she will be killed unless she steals the money.
  40. For the purposes of the charge, this charge book refers to ‘the offence’ for this element, because the offence committed will be the one the accused believed was necessary to avoid the threat, even if it was not the offence the person making the threat demanded.

    (iii) Reasonable belief that carrying out the conduct is the only reasonable way to avoid the threatened harm

  41. Section 322O(2)(a)(ii) states that conduct will be carried out under duress only if the accused reasonably believes that carrying out the conduct is the only reasonable way that the threatened harm can be avoided.
  42. As noted above, this requires considering whether the accused subjectively believed that carrying out the conduct was the only reasonable way to avoid the threatened harm and whether this belief was objectively reasonable. See ‘The meaning of “reasonably believes” under s 322O’, above.
  43. When considering this issue, the jury should consider whether the accused knowingly passed up a reasonable opportunity to negate or nullify the threat.
  44. For example, an opportunity to escape may be a reasonable way to avoid the threatened harm in some circumstances, but would not necessarily make the threat ineffective in others. If the threat involved harm to be inflicted in the future, for example, or to someone other than the accused, failing to take an opportunity to escape would not necessarily prevent the accused from relying on the defence (see R v Abusafiah (1991) 24 NSWLR 531, 538).
  45. Similarly, an opportunity to report the threat to the police may be a reasonable way to avoid the threatened harm, unless the accused reasonably believed police protection to be ineffective against the person making the threats or that the police protection may be initially effective but would not save the accused from threatened violence at a later stage. This may be the case where family violence is in issue, for example (see R v Runjanjic (1991) 56 SASR 114, 120-122; R v Lorenz (1998) 146 FLR 369, 376).
  46. In considering whether the accused reasonably believed that carrying out the conduct was the only reasonable way to avoid the threatened harm, the jury should consider the accused’s knowledge of the character and reputation of the person perceived to have made the threat, as well as the nature of the perceived threat (see, eg, R v Abusafiah (1991) 24 NSWLR 531, 534-535). This may be relevant in the context of family violence, see ‘Duress and Family Violence’ below for more information.
  47. Family violence may influence the accused’s belief in the availability of opportunities to escape, report, or otherwise avoid the harm, and the reasonableness of that belief. See ‘Duress and Family Violence’ below for more information.
  48. Under the common law, the threat must have been ‘present, continuing, imminent and impending’. It was the threat rather than the harm threatened that must have been present, continuing and imminent; that is, the compulsion of the threat must have been active at the time the offence was committed (R v Hurley [1967] VR 526, 543 (Smith J); R v Emery (1978) 18 A Crim R 49, 55-57; R v Dawson [1978] VR 536, 537-538, 541).
  49. Under the Crimes Act 1958, this is no longer a discrete requirement. However, where the accused knows that a threat has expired, he or she is unlikely to be able to reasonably believe that carrying out the conduct is the only reasonable way that the threatened harm can be avoided.
  50. Under the common law, the threat must have induced the accused to commit the offence (R v Hurley [1967] VR 526, 543 (Smith J); R v Dawson [1978] VR 536, 538, 541). If the accused had an alternative motive to commit the offence, it was less likely that the threat induced the accused to commit it (see R v Zaharias (2001) 122 A Crim R 586 [42]-[44]).
  51. It seems unlikely that the accused could reasonably have believed that the conduct was the only reasonable way to avoid the threatened harm if the threat did not directly provoke the commission of the offence. However, s 322O(2)(a)(i) does not use the language of the threat ‘inducing’ the accused to act, and the courts have not considered whether the section retains this common law element.

    (iv) Reasonable response to the threat

    Objective test

  52. Section 322O(2)(b) requires that the accused’s conduct ‘is a reasonable response to the threat’.
  53. Under the previous duress provision in s 9AG (which only applied to homicide offences), this element considered whether the accused reasonably believed that the conduct was a reasonable response to the threat.
  54. In obiter comments when considering s 9AG, the Court of Appeal remarked that, in comparison to that earlier provision, the current reasonable response requirement under s 322O(2)(b) is an ‘entirely objective assessment’ (DPP v Parker [2016] VSCA 101 [49]).
  55. The Explanatory Memorandum says the following in respect of s 322O(2)(b) (at 9):

    However, in contrast to section 9AG, new section 322O makes clear that the third element of duress (whether the accused's conduct is a reasonable response to the threat) is objective. Requiring an accused's conduct to have been an objectively reasonable response in the circumstances is designed to ensure that the defence only applies in appropriate cases (i.e. where there are objectively appropriate reasons to excuse such conduct).

  56. Section 322O(2)(b) therefore requires the jury to ask whether the accused’s response to the threat, viewed objectively, was reasonable.
  57. The statutory defence of self-defence under s 322K also requires that the accused’s conduct was a ‘reasonable response’. This is an objective test in which the reasonableness of the accused’s response (not that of a reasonable person) is assessed (see R v Katarzynski [2002] NSWSC 613; R v Forbes [2005] NSWCCA 377; Ward v R [2006] NSWCCA 321).
  58. The test under the common law defence of duress was whether a person of ordinary firmness would have been likely to yield to the threat in the way the accused did or, in other words, whether the accused could not reasonably have been expected to resist in the circumstances. As part of this test, the ‘person of ordinary firmness’ shared the accused’s characteristics, such as age, gender and maturity (R v Hurley [1967] VR 526, 543 (Smith J); R v Zaharias (2001) 122 A Crim R 586 [68]-[70]; R v Dawson [1978] VR 536, 538, 541; R v Abusafiah (1991) 24 NSWLR 531, 544-546; Oblach v R (2005) 65 NSWLR 75 [78]-[79]; R v Garde-Wilson [2005] VSC 441 [32]).
  59. However, given the wording of s 322O(2)(b), and by analogy with the self-defence provision in s 322K, the jury should consider the reasonableness of the accused’s response, not that of a hypothetical reasonable person assumed to possess the accused’s characteristics.

    Reasonable response to which threat?

  60. There are two possible interpretations available for the term ‘the threat’ in s 322O(2)(b):
  61. There are indicia in the Act pointing in each direction.
  62. In favour of the subjectively perceived threat approach, the reference to ‘the threat’ and the position of those words in the section suggest that it is pointing back to the threat referenced in s 322O(2)(i), which the accused reasonably believed would be carried out unless an offence was committed. Otherwise, the jury would be asked to consider the reasonableness of the response in relation to a different threat than the one which the accused reasonably believed he or she faced.
  63. In favour of the objective threat approach, it is relevant to note that in contrast to s 322O, the self-defence provision in s 322K (introduced at the same time as s 322O) states that the accused’s conduct must be ‘a reasonable response in the circumstances as the person perceives them’. The omission of those words in s 322O (and also in s 322R for sudden and extraordinary emergency) suggest that a different approach must be taken for duress and emergency than for self-defence.
  64. In addition, as noted above, the Court of Appeal in DPP v Parker [2016] VSCA 101 at [49] described the new test as ‘entirely objective’. However, the Court also suggested ‘a symmetry between the duress and the self-defence provisions’ in s 322O and s322K, both of which separate the belief-based requirements of those defences from an ‘objective’ element that the response be reasonable (see [50]).
  65. As a matter of prudence, the model charge adopts the subjectively perceived threat approach, as this presents the lower risk of injustice to an accused.
  66. The subjectively perceived threat approach means that the jury should ask whether the accused’s conduct in committing the offence was a ‘reasonable response’ to the threat as perceived by the accused.

    Proportionality of the response to the threat

  67. Under the other objective statutory tests mentioned above (eg, s 322K(2)(b) of the Crimes Act 1958, s 418(2) of the Crimes Act 1900 (NSW) and s 10.4(2) of the Commonwealth Criminal Code), the reasonableness of the response should also be assessed in terms of the objective proportionality of the conduct to the perceived situation (Flanagan v R [2013] NSWCCA 320 [78]-[79]; Oblach v R (2005) 65 NSWLR 75 [51]-[54]; R v Katarzynski [2002] NSWSC 613 [23]).
  68. It is likely that the reasonable response element in s 322O(2)(b) also includes a requirement that the accused’s response is objectively proportionate to the perceived threat.
  69. As under the common law test for duress, the jury should consider the nature and magnitude of the threats made and the accused’s knowledge of the character and reputation of the person making them (see R v Abusafiah (1991) 24 NSWLR 531, 534-535).
  70. Under the common law, where the threat is not against the accused personally but, for example, the accused’s family is threatened instead, the jury must determine whether a threat of that nature would be likely to compel a person of ordinary firmness to commit the crime (R v Abusafiah (1991) 24 NSWLR 531, 537). The jury could take into account factors such as the strength of the accused’s attachment to the third party (see, eg, R v Hurley [1967] VR 526, 542-543 (Smith J)). These factors are likely to remain relevant to assessing the reasonableness of the accused’s response under s322O(2)(b).

    Family violence

  71. Under the common law, expert evidence on ‘battered women’s syndrome’ was admissible in deciding whether a woman of reasonable firmness in the domestic situation of the accused women would have acted the way she did (R v Runjanjic (1991) 56 SASR 114, 120-122; see also R v Lorenz (1998) 146 FLR 369, 376).
  72. Along with the first legislative version of duress introduced by the Crimes (Homicide) Act 2005, and the replacement version introduced by the Crimes Amendment (Abolition of Defensive Homicide) Act 2014, family violence provisions were introduced that specifically stated that evidence of family violence may be relevant in deciding whether conduct was carried out under duress. See ‘Duress and Family Violence’ below for more information.
  73. Discussing the 2005 provision, the Court of Appeal noted that evidence of family violence ‘may go to … objective reasonableness and so be used in determining whether or not the actions taken by an accused were a reasonable response to the threat’ (DPP v Parker [2016] VSCA 101 [40]).
  74. However, the Court also said that since the 2014 provision (s 322O) introduced a purely objective test for the ‘reasonable response’ element, evidence of family violence ‘will not bear on whether the response was reasonable’ (DPP v Parker [2016] VSCA 101 [53]).
  75. These two statements in Parker are difficult to reconcile.
  76. The approach taken in this charge book is that the fourth element of duress must be assessed against the threat as perceived by the accused. Therefore evidence of family violence that bears on the accused’s perception of the threat will be relevant. As at common law, this presumably includes the accused’s knowledge of the character and reputation of the person making the threat (see R v Abusafiah (1991) 24 NSWLR 531, 534-535).
  77. However, the effects of family violence that may have affected the particular accused’s response, such as the long term psychological impact of coercive and controlling violence will not be relevant when assessing the reasonableness of that response to the perceived threat.

    (v) Voluntary association with the maker of the threat

  78. The accused’s conduct is not carried out under duress if the threat compelling the conduct is made by or on behalf of a person with whom the accused is ‘voluntarily associating for the purpose of carrying out violent conduct’ (Crimes Act 1958 s 322O(3)).
  79. Section 322O(3) applies to voluntary association, which in this context means where the accused freely chose to associate, without being subject to threats or other coercion, into associating with the person making the threat.
  80. Section 322O(3) is similar to the common law condition: ‘the accused did not, by fault on his part when free from the duress, expose himself to its application’ (R v Hurley [1967] VR 526, 543; R v Emery (1978) 18 A Crim R 49, 55-56; R v Dawson [1978] VR 536, 538, 541). Under the common law the accused could not rely on the defence if he or she freely chose to associate with any criminal organisation or became a party to a criminal enterprise (see R v Palazoff (1986) 43 SASR 99, 101 (Zelling ACJ)).
  81. Under s 322O(3), however, there is the additional requirement that the organisation or enterprise was intended to carry out violent conduct. It will not apply when the accused has associated with others for the purposes of committing non-violent conduct or offences.
  82. Section 322O(3) does not state clearly whether duress is excluded following association for the purpose of any violent conduct. As a matter of prudence, this charge book adopts the approach that s322O(3) is not engaged where the accused is compelled under duress to commit violent conduct which is different from that which formed the purpose of the voluntary association with the other person.
  83. This is an approach similar to that taken under the Commonwealth Criminal Code s 10.2(3)), which states: ‘[duress] does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.’
  84. However, caution should be exercised in relation to this issue as Victorian courts have not considered s322O(3).

    Duress and Murder

  85. Where the accused is charged with murder, the defence of duress under s 322O will only apply where the accused ‘believes that the threat is to inflict death or really serious injury’ (s 322O(4)).
  86. This requirement exists separately from the requirement that the accused must reasonably believe that a threat of harm has been made. Unlike the first element of duress, this threshold requirement is purely subjective.
  87. A judge will only need to direct a jury about this threshold requirement in cases of murder.
  88. Under the common law, duress was not available on a charge of murder (although it may have been available where the accused did not do the actual killing). However, the statutory defence of duress introduced by s 9AG of the Crimes Act 1958 related to homicide offences, including murder, committed on or after 23 November 2005 and before 1 November 2014. The current provision, s 322O, applies to all offences committed on or after 1 November 2014.

    Duress and Intoxication

  89. Section 322T(2)-(3) of the Crimes Act 1958 states that:

    (2) If any part of a defence to an offence relies on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated.

    (3) If any part of a defence to an offence relies on reasonable response, in determining whether that response was reasonable, regard must be had to the standard of a reasonable person who is not intoxicated.

  90. Section 322T(2) means that any self-induced intoxication by the accused cannot be taken into account in deciding whether he or she holds a reasonable belief in a threat of harm that will be carried out unless an offence is committed, or that carrying out the conduct is the only reasonable way to avoid the threatened harm.
  91. Section 322T(3) means that any self-induced intoxication by the accused cannot be taken into account in deciding whether the accused’s conduct was a reasonable response to the threat.
  92. Section 322T(4) provides that where the intoxication is not self-induced, regard must be had to the standard of a reasonable person intoxicated to the same extent as the person concerned. See ss322T(5)-(6) for the definition of ‘self-induced intoxication’.
  93. For more information, see Statutory Intoxication.

    Duress and Family Violence

  94. The Crimes Amendment (Abolition of Defensive Homicide) Act 2014 added provisions concerning ‘family violence’. These provisions substantially replicate those introduced into the Crimes Act 1958 by the Crimes (Homicide) Act 2005, but are applicable to all offences rather than limited to homicide offences.
  95. Sections 322J and 322P of the Crimes Act 1958 and Part 6 of the Jury Directions Act 2015 explain how evidence of family violence may be relevant to whether conduct was carried out under duress.
  96. Section 322J(2) defines family violence “in relation to a person” as “violence against that person by a family member”.
  97. A person’s “family member” is defined broadly in s322J(2) and includes:
  98. “Violence” is also defined broadly in s322J(2) to mean:
  99. A single act may amount to ‘abuse’ for the purpose of the definition of violence (s322J(3)). A number of acts that form part of a pattern of behaviour may also amount to “abuse” for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial (s322J(3)).
  100. Section 322P provides that evidence of family violence may be relevant in determining whether a person has carried out conduct under duress, in circumstances where duress in the context of family violence is in issue (Crimes Act 1958 s 322P).
  101. Section 322J states that ‘Evidence of family violence, in relation to a person,’ includes evidence of:

    (a) the history of the relationship between the person and a family member, including violence by the family member towards the person or by the person towards the family member or by the family member or the person in relation to any other family member;

    (b) the cumulative effect, including psychological effect, on the person or a family member of that violence;

    (c) social, cultural or economic factors that impact on the person or a family member who has been affected by family violence;

    (d) the general nature and dynamics of relationships affected by family violence, including the possible consequences of separation from the abuser;

    (e) the psychological effect of violence on people who are or have been in a relationship affected by family violence;

    (f) social or economic factors that impact on people who are or have been in a relationship affected by family violence.

  102. See ‘Chapter 4: Evidence of Relationship and Family Violence’ in the Victorian Law Reform Commission’s Defences to Homicide: Final Report for a more detailed discussion of the relationship between duress and family violence, and the use which can be made of the evidence outlined above. [2]

    Family Violence and Duress: Jury Directions

  103. The Crimes Amendment (Abolition of Defensive Homicide) Act 2014 introduced a new Part 7 into the Jury Directions Act 2013. On 29 June 2015, these provisions were revised and relocated to Part 6 of the Jury Directions Act 2015.
  104. Part 3 of the Jury Directions Act 2015 does not apply to Part 6 of the Act.
  105. Part 6 of the Jury Directions Act 2015 applies to any trial commencing on or after 29 June 2015, regardless of the date of any alleged offence.
  106. For the purposes of Part 6, “family violence” has the same meaning as in s322J(2) of the Crimes Act 1958 (see ‘Duress and Family Violence’ above)
  107. The trial judge must give the jury preliminary directions on family violence, in accordance with s59 of the Jury Directions Act 2015, if the defence counsel requests such directions, unless there are good reasons for not doing so (Jury Directions Act 2015 s 58). The judge may give the statutory directions if the accused is unrepresented and the judge considers it in the interests of justice to do so (Jury Directions Act 2015 s 58(3)).
  108. The judge must give the statutory directions on family violence as soon as practicable after the request is made and the judge may give the direction before any evidence is adduced in the trial. The directions may be repeated at any time during the trial (Jury Directions Act 2015 s 58(4)-(5)).
  109. The directions must include all of the following (Jury Directions Act 2015 s59):

    (a) self-defence or duress (as the case requires) is, or is likely to be, in issue in the trial; and

    (b) as a matter of law, evidence of family violence may be relevant to determining whether the accused acted in self-defence or under duress (as the case requires); and

    […]

    (d) in the case of duress, evidence in the trial is likely to include evidence of family violence committed by another person against the accused or a third person.

  110. The following directions under s 60 may also be sought and, if sought, must be given unless there are good reasons for not doing so:

    (a) that family violence—

    (i) is not limited to physical abuse and may include sexual abuse and psychological abuse;

    (ii) may involve intimidation, harassment and threats of abuse;

    (iii) may consist of a single act;

    (iv) may consist of separate acts that form part of a pattern of behaviour which can amount to abuse even though some or all of those acts may, when viewed in isolation, appear to be minor or trivial;

    (b) if relevant, that experience shows that—

    (i) people may react differently to family violence and there is no typical, proper or normal response to family violence;

    (ii) it is not uncommon for a person who has been subjected to family violence—

    (A) to stay with an abusive partner after the onset of family violence, or to leave and then return to the partner;

    (B) not to report family violence to police or seek assistance to stop family violence;

    (iii) decisions made by a person subjected to family violence about how to address, respond to or avoid family violence may be influenced by—

    (A) family violence itself;

    (B) cultural, social, economic and personal factors;

    (c) that, as a matter of law, evidence that the accused assaulted the victim on a previous occasion does not mean that the accused could not have been acting […] under duress […] in relation to the offence charged.

    Duress and Marital Coercion

  111. Section 336 of the Crimes Act 1958 provides for the defence of marital coercion. While similar to duress, marital coercion is a distinct defence that applies in limited circumstances.
  112. Marital coercion allows a women to be acquitted of a criminal offence that she committed because her husband coerced her to do so through pressure or threats, if the coercion is ‘sufficient to cause a woman of ordinary good character and normal firmness of mind, placed in the circumstances in which the woman was placed, to conduct herself in the manner charged’ (Crimes Act 1958 s 336(3)).
  113. Unlike duress, which is available as a defence to all offences and to any accused person, marital coercion is not available for the offences of treason or murder and is available only to married women.
  114. The Victoria Law Reform recommended retaining the defence of marital coercion in acknowledgment of the high rate of violence by men against their female partners, and the difficulties which women experience in seeking protection against it. In murder cases, however, the more rigorous requirements of the duress defence apply (Victoria Law Reform Commission, Defences to Homicide: Final Report, 2004, 122).

    When to Charge the Jury about Duress

  115. The judge must direct the jury about duress if the accused indicates that duress is in issue or if the judge considers that there are substantial and compelling reasons to direct the jury about duress despite the absence of a request (Jury Directions Act 2015 ss 11, 16). See Directions under Jury Directions Act 2015.
  116. In criminal proceedings where duress in the context of family violence is in issue, Part 6 of the Jury Directions Act 2015 specifies certain directions that may be given early in the trial. See ‘Family Violence and Duress: Jury Directions’ above and Directions under Jury Directions Act 2015.
  117. At common law, the judge was required to direct the jury about duress if the evidence was 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; Taiapa v R (2009) 240 CLR 95; [2009] HCA 53 [5]; R v Harding [1976] VR 129).
  118. 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; [2009] HCA 53 [5]; see also Martin v R (2010) 28 VR 579 [14]-[15]).
  119. Under the common law, the issue of duress could be raised at any time during the trial (R v Zaharias (2001) 122 A Crim R 586).

    Content of the Charge

  120. There is no single formulation that must be followed when charging a jury about duress (Jury Directions Act 2015 s 6). 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 [56]).
  121. The burden of proof should be made very clear to the jury. They should be told that the accused can only be convicted if the prosecution has proved beyond reasonable doubt that he or she did not carry out the conduct under duress (Crimes Act 1958 s 322I).
  122. In most cases it is neither necessary nor desirable to explain every element of the defence in a charge (R v Emery (1978) 18 A Crim R 49, 56).
  123. 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 [56]). 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 (see R v Goldman (No 5) [2004] VSC 292 [6]; R v Emery (1978) 18 A Crim R 49, 56-57).
  124. 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 [30]).

 

[1] For homicide offences, if the date of the victim’s death differs from the date on which the actus reus was committed, the relevant date for determining which provisions apply is the date of death (see R v Gould (2007) 17 VR 393; [2007] VSC 420).

[2] This Report can be downloaded at http://www.lawreform.vic.gov.au/projects/defences-homicide/defences-homicide-final-report

Last updated: 4 August 2016

In This Section

8.9.1 - Preliminary Directions: Duress in the Context of Family Violence (Jury Directions Act 2015)

8.9.2 - Charge: Statutory Duress (From 1/11/14)

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

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

8.11 - Common Law Duress

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