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8.10.1 - Preliminary Directions: Duress in the Context of Family Violence (Jury Directions Act 2015) (23/11/05 - 31/10/14)

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[This charge should be given, unless there are good reasons for not doing so, when:

If the accused is unrepresented and does not request a direction on family violence, this charge can be given if it in the interests of justice to do so.

This charge must be given as soon as practicable after a request has been made in terms of s58 of the Jury Directions Act 2015 and may be given before any evidence is adduced in the trial.]

Introduction

In this case, duress in the context of family violence [is/is likely to be] in issue. I therefore need to give you some directions about "duress" and “family violence”.

The law recognises that sometimes people will be compelled to commit crimes to avoid threatened harm. The law says that a person may act under duress if:

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

The law recognises that evidence of “family violence” may be relevant in deciding whether the accused acted under duress. “Family violence” includes all kinds of physical, sexual and psychological abuse by one family member towards another.

Examples of evidence of family violence include:

Evidence in this case is likely to include evidence of family violence committed by another person against [the accused/a third person].

Considerations

[All or specified parts of the following shaded section must be included:]

Family violence is not limited to physical abuse and can include sexual abuse and psychological abuse.

Family violence can involve intimidation, harassment and threats of abuse.

Family violence can consist of a single act.

Family violence can also consist of separate acts that form part of a pattern of behaviour. Those separate acts can, when looked at together, amount to abuse even though some or all of those acts may, when looked at separately, appear to be minor or trivial.

Experience shows that people may react differently to family violence and there is no typical, proper or normal response to family violence.

Experience also shows that it is not uncommon for a person who has been subjected to family violence to stay with an abusive partner after the family violence starts, or to leave and then return to the partner, or not to report family violence to police or seek assistance to stop family violence.

Experience also shows that family violence itself and cultural, social, economic and personal factors can influence decisions made by a person who is subjected to family violence about how to address the family violence or how to respond to or avoid it.

The law recognises that if the accused assaulted the victim on a previous occasion that does not mean that the accused could not have been acting under duress when [he/she] [insert relevant conduct].

Last updated: 23 September 2016

See Also

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

8.10.2 - Charge: Statutory Duress (23/11/05 - 31/10/14)