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

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[This charge should be given if there is evidence from which a jury might infer that the accused was acting under duress when s/he committed any offence on or after 1 November 2014.

The charge should be given immediately after directing the jury about the relevant offence.]

Introduction

In this case the defence alleged that NOA was acting under duress when s/he [insert relevant act]. I therefore need to give you some directions about “duress”. [1]

The defence of duress was introduced into the law a long time ago to allow for human frailty. It recognises that sometimes ordinary people will be compelled to commit crimes to avoid threatened harm. When the defence of duress applies, the law excuses them from responsibility given the circumstances.

This means that, even if you are satisfied that the prosecution has proven all of the elements of [insert offence] beyond reasonable doubt, NOA will not be guilty of that offence if s/he acted under duress.

Because the prosecution must prove the accused’s guilt, it is for the prosecution to prove, beyond reasonable doubt, that NOA was not acting under duress. It is not for NOA to prove that s/he did act under duress.

Unfortunately, it is always difficult to give directions about duress in a way which completely avoids any suggestion that it is a matter for the accused to prove. However, it is important to remember that the accused does not have to prove anything. You must keep in mind at all times that it is the prosecution who must remove any reasonable possibility that the accused acted under duress.

So before you can find the accused guilty of [insert offence], you must be satisfied, beyond reasonable doubt, that the prosecution has proven all of the elements of the offence and has negated the defence of duress.

Elements of duress

There are five [for murder: six] ways in which the prosecution can negate the defence of duress. I will list them for you, and then examine each one in detail. [2]

The prosecution must satisfy you beyond reasonable doubt of at least one of the following:

One, the accused did not reasonably believe that a threat of harm had been made.

[If the accused is charged with murder, add the following shaded item]

Two, the accused did not believe that the threat was to inflict death or serious injury.

[Two / Three], the accused did not reasonably believe that the threat would be carried out unless the offence was committed.

[Three / Four], the accused did not reasonably believe that his/her conduct in committing the offence was the only reasonable way to avoid the threatened harm.

[Four / Five], the accused’s conduct in committing the offence was not a reasonable response to the threat.

[Five / Six], the accused voluntarily associated with the maker of the threat for the purposes of carrying out the violent conduct.

If the prosecution can prove any of these matters beyond reasonable doubt, then they will have negated the defence of duress. In such circumstances, if you are also satisfied that the prosecution has proven, beyond reasonable doubt, all of the elements of [describe offence], then s/he will be guilty of that offence.

I will now examine each of these matters in more detail.

Reasonable belief in a threat of harm

The first way the prosecution can negate the defence of duress is by proving that the accused did not reasonably believe that a threat of harm had been made.

The prosecution can prove this in one of two ways.

One – Has the prosecution proved that NOA did not believe that a threat of harm had been made?

For the purpose of this question, you must consider all NOA’s personal characteristics and all the circumstances as he/she perceived them.

OR Two – If you decide that the accused might have believed that a threat of harm was made, has the prosecution proved that such a belief would not be reasonable?

When you are deciding whether NOA’s belief was reasonable, you must consider whether a reasonable person, with such personal characteristics of the accused as might have affected his/her understanding of the circumstances, might have believed that a threat of harm had been made.

In doing this, you must consider the circumstances as a reasonable person, with the personal characteristics of the accused, would have perceived them to be.

[If it is alleged that the accused was intoxicated, insert the direction relating to a ‘reasonable belief’ of the accused from either Charge: Statutory Intoxication (Self-induced) or Charge: Statutory Intoxication (self-induced contested), as relevant.]

[Summarise arguments and evidence on NOA’s relevant characteristics].

[If the threat was made against someone other than the accused, add the following shaded section].

The threat does not have to be a threat of harm to the accused [himself/herself]. Here, NOA says that the threat was [describe threat].

The prosecution alleged that the accused did not reasonably believe that a threat of harm had been made. [Summarise prosecution arguments and evidence. The charge should clearly identify whether the argument is (i) that the accused did not believe that a threat was made; and/or (ii) that the accused’s belief that a threat was made was not reasonable.]

The defence denied this, arguing [summarise defence evidence and/or arguments].

Threat to inflict death or serious injury

[If the accused is charged with murder, add the following shaded section]

The second way the prosecution can negate the defence of duress is by proving that that the accused did not believe that the threat was to inflict death or serious injury.

The prosecution alleged that that was the case here. [Summarise prosecution arguments and evidence.]

The defence denied this, arguing [summarise defence evidence and/or arguments].

Reasonable belief that the threat will be carried out unless the offence is committed

The [second / third] way the prosecution can negate the defence of duress is by proving that the accused did not reasonably believe that the threat would be carried out unless the offence was committed.

This requires the prosecution to prove that NOA did not reasonably believe that [identify threatener] would actually [identify threat] if s/he did not [describe offence].

Again, the prosecution can prove this in one of two ways.

One – Has the prosecution proved that NOA did not believe that the threat would be carried out unless the offence was committed?

Again, for this question, you must consider all NOA’s personal characteristics and all the circumstances as he/she perceived them.

OR Two – If you decide that the accused might have believed that the threat would be carried out unless the offence was committed, has the prosecution proved that such a belief would not be reasonable?

When you are deciding whether NOA’s belief was reasonable, you must consider whether a reasonable person, with such personal characteristics of the accused as might have affected his/her understanding of the circumstances, might have believed that the threat would be carried out unless the offence was committed.

When you are deciding whether NOA’s belief was reasonable, you must consider the circumstances as a reasonable person with all the personal characteristics of the accused would have perceived them to be.

[If it is alleged that the accused was intoxicated, insert the direction relating to a ‘reasonable belief’ of the accused from either Charge: Statutory Intoxication (Self-induced) or Charge: Statutory Intoxication (self-induced contested), as relevant.]

Remember, [summarise arguments and evidence on NOA’s relevant characteristics].

One matter to consider is whether the perceived threat was still active at the time the accused committed the offence. If the prosecution can prove that the accused did not reasonably believe that the threat was still active at the time the offence was committed, the defence of duress will fail.

[If the alleged threat was to commit harm in the future, add the following shaded section.]

This does not mean that the threat must have been to harm [identify threatened party] immediately if NOA did not commit the offence. The defence of duress does not fail simply because the threat was to harm [him/her/someone else] in the future. The issue here is whether the accused reasonable believed that the threat – whatever its nature – was still active at the time the crime was committed.

[If the threatener may not have been present at the time the offence was committed, add the following shaded section.]

This does not mean that the person who made the threat must have been present when the offence was committed. The issue is whether the accused reasonably believed that the threat was still present and continuing at that time. Threats can still be active, even if the person who made them is not physically present.

[Summarise prosecution arguments and evidence. The charge should clearly identify whether the argument is (i) that the accused did not actually believe that the threat would be carried out; and/or (ii) that the accused’s belief was not reasonable.]

The defence denied this, arguing [summarise defence evidence and/or arguments].

Reasonable belief that committing offence was the only reasonable way to avoid the threatened harm

The [third / fourth] way the prosecution can negate the defence of duress is by proving that the accused did not reasonably believe that his/her conduct in committing the offence was the only reasonable way to avoid the threatened harm.

Again, the prosecution can prove this in one of two ways.

One – Has the prosecution proved that NOA did not believe that committing the offence was the only reasonable way to avoid the threatened harm?

Again, for this question, you must consider all NOA’s personal characteristics and all the circumstances as he/she perceived them.

OR Two – If you decide that the accused might have believed that committing the offence was the only reasonable way to avoid the threatened harm, has the prosecution proved that such a belief would not be reasonable?

When you are deciding whether NOA’s belief was reasonable, you must consider whether a reasonable person, with such personal characteristics of the accused as might have affected his/her understanding of the circumstances, might have believed that the threat would be carried out unless the offence was committed.

When you are deciding whether NOA’s belief was reasonable, you must consider the circumstances as a reasonable person with all the personal characteristics of the accused would have perceived them to be.

[If it is alleged that the accused was intoxicated, insert the direction relating to a ‘reasonable belief’ of the accused from either Charge: Statutory Intoxication (Self-induced) or Charge: Statutory Intoxication (self-induced contested), as relevant.]

Remember, [summarise arguments and evidence on NOA’s relevant characteristics].

The prosecution argue that NOA could have [describe the actions the accused could have taken to prevent the threat, e.g., “escaping when…” or “reporting the matter to the police”].

For the prosecution to succeed on this basis, it is not enough to prove that NOA could have [describe action]. The prosecution must prove that no reasonable person, with those characteristics of the accused might have affected his/her understanding of the circumstances, could think that committing the offence was the only reasonable way to avoid the threatened harm.

You should take into account the fact that there may not have been time for calm and measured consideration in the circumstances.

[Where the accused’s knowledge of the threatener’s reputation may have influenced his or her response, add the following shaded section.]

In determining this issue, you should consider the nature of the threats made, as well as NOA’s knowledge of the character and reputation of [identify threatener].

[Summarise prosecution arguments and evidence.] The defence denied this, arguing [insert defence arguments and evidence].

Reasonable response to the threat

 Warning! There is little to no Victorian jurisprudence on this element. Please refer to Statutory Duress.

The [fourth / fifth] way the prosecution can negate the defence of duress is by proving that the accused’s conduct in committing the offence was not a reasonable response to the threat.

In deciding this issue, it does not matter if NOA was mistaken in his/her perception of the threat. You must look at the threat which NOA believed s/he faced. You must then consider whether NOA’s conduct was a reasonable response to that perceived threat.

In determining this issue, you should consider the nature and seriousness of the threat as NOA perceived it and the proportionality of the crime committed to that threat. You should also take into account anything that NOA knew about [identify threatener], which may have affected how s/he perceived the threat.

In this case the prosecution alleged that, in the circumstances, it was not reasonable to respond to the perceived threat in the way NOA did. [Summarise prosecution arguments and evidence]. The defence denied this, arguing [summarise defence argument and evidence].

Again, you should take into account the fact that there may not have been time for calm and measured consideration in the circumstances.

[If it is alleged that the accused was intoxicated, insert the direction relating to a ‘reasonable response’ of the accused from either Charge: Statutory Intoxication (Self-induced) or Charge: Statutory Intoxication (self-induced contested), as relevant.]

Voluntary association with the maker of the threat

 Warning! There is no Victorian jurisprudence on this element yet. Judges should seek submissions from counsel when directing the jury about this element.

The [fifth /sixth] way the prosecution can negate the defence of duress is by proving that that the accused voluntarily associated with the maker of the threat for the purposes of carrying out the violent conduct involved in [the accused’s alleged offence]. [3]

This will be the case if, for example, the accused voluntarily joined or associated with an organisation, or became party to an enterprise knowing of its purpose to carry out [specify the violent conduct allegedly carried out]. In such circumstances, the accused cannot rely on duress as a defence to any offences s/he commits in response to threats arising out of his/her association with the organisation, or his/her participation in the enterprise. Because s/he voluntarily put him/herself in a position where such threats could be made, s/he is held responsible for the consequences.

[If the accused may have been coerced into joining the relevant organisation or enterprise, or may not have known of its violent purpose, or if the association may have been for a different purpose than to carry out the conduct allegedly committed, add the following shaded section.]

It is important to note that the prosecution can only negate the defence of duress this way if it proves that the accused voluntarily exposed himself/herself to the duress. This will not be the case if s/he [was coerced into joining the organisation or enterprise in the first place / did not know that the organisation or enterprise s/he was joining had a violent purpose / joined the organisation or enterprise for a different purpose than to carry out] [specify the violent conduct allegedly carried out].

In this case the prosecution alleged that NOA voluntarily exposed himself/herself to duress by [summarise prosecution arguments and evidence.] The defence denied this, arguing [summarise defence arguments and evidence].

Family Violence

[If there is evidence of family violence involving the accused and the person making the threat, add the following shaded section. If the existence or extent of family violence is in issue, this direction will need to be modified to account for the prosecution’s onus of disproving the reasonable possibility that the accused had been subject to family violence.] [4]

In this case you have heard evidence of family violence between NOA and [identify the person making the threat]. [Insert evidence and/or arguments].

The law says that where the accused has allegedly [insert relevant act] in circumstances where family violence is alleged, the following matters may be relevant to deciding whether the prosecution has negated the defence of duress:

[Where there is evidence of one or more of the following matters (listed in Crimes Act 1958 s322J(1), the judge should identify the evidence and relate it to the facts in issue:

(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.]

In this case, the defence has submitted that this evidence shows that NOA was acting under duress when s/he [insert relevant act and arguments]. The prosecution denied this was the case, alleging [insert relevant evidence and/or arguments].

Summary

To summarise, even if you decide that all of the elements of [insert offence] have been proven beyond reasonable doubt, you may find that NOA was not guilty of that offence because s/he was acting under duress.

Before you can find NOA guilty of [insert offence], you must therefore be satisfied not only that all of the elements have been proved, but also that the prosecution has proven, beyond reasonable doubt, at least one of the following five [for murder: six] matters:

One – that the accused did not reasonably believe that a threat of harm had been made;

[If the accused is charged with murder]

Two – that the accused did not believe that the threat was to inflict death or serious injury;

[Two / Three] – that the accused did not reasonably believe that the threat would be carried out unless the offence was committed;

[Three / Four] – that the accused did not reasonably believe that his/her conduct in committing the offence was the only reasonable way to avoid the threatened harm;

[Four / Five] – that the accused’s conduct in committing the offence was not a reasonable response to the threat; or

[Five / Six] – that the accused voluntarily associated with the maker of the threat for the purposes of carrying out the violent conduct.

If the prosecution cannot prove at least one of these matters beyond reasonable doubt, then you must find NOA not guilty of [insert offence].

[1] This charge only addresses the defence of duress. It is possible that the evidence in question may also have relevance to the determination of the elements (see, e.g., R v Darrington [1980] VR 353, 369-370; R v Harding [1976] VR 129).

[2] If any of these methods of negating duress are not relevant in the circumstances of the case, they should be deleted and the charge modified accordingly.

[3] See Statutory Duress, it is currently unclear whether the purpose of the association must be to carry out the violent conduct allegedly committed, or whether association for the purposes of carrying out any kind of violent conduct will negate the defence.

[4] Note: for criminal proceedings where duress in the context of family violence is in issue, Part 6 the Jury Directions Act 2015 applies and certain preliminary directions may need to be given to the jury (see Jury Directions Act 2013, ss 58 – 60). See Preliminary Directions: Duress in the Context of Family Violence (Jury Directions Act 2015).

Last updated: 4 August 2016

See Also

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

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