The Devil Made Me Do It: Duress in NSW

In part two of our recent post regarding news of the elderly drug mules, we discuss their potential defence. They argued they were forced to commit their crimes by criminal groups, in an effort to recoup the life savings they were scammed. But is this enough to keep them from the potentially dire legal consequences they face?

Duress is a complete defence in NSW, which means that if it is proven before the Court, the accused can be acquitted of their charge.

Duress is generally argued when someone is induced to break the law at the behest of another, and their will is overborne by the threat of infliction of violence on the accused (or in some cases, another person associated with the accused) unless they commit the criminal act they are charged with.

In NSW, duress is an available defence for charges ranging from assault, larceny, and manslaughter. However, it is not available for more some serious offences, such as murder or attempted murder.

For duress to be successfully used as a defence, there must be evidence that a serious threat (e.g. death or severe harm) was made against a person or someone they know, and that the threat was on the person’s mind when the offence was committed.

What factors constitute the defence of duress?

A person who acts under duress will not be held criminally responsible if it is satisfied before the Court that:

i. The accused genuinely believed that if they did not act in this way, they or someone else (e.g., a family member) would soon be killed or seriously injured;

ii. The threat(s) would have driven a reasonable person to act as the accused did; And

iii. The accused could not have avoided the effects of the duress by escaping from the threats without damage to themselves/the threatened person?

For duress to succeed as a defence, the threats must be capable of overbearing the mind of a person of ordinary firmness of character. The case of R v Abusafiah (1991) confirms that the test here is whether an ordinary person would have yielded to the threat.

In this case, as far as we know, there was no threat or death or serious personal injury; rather, only the permanent loss of their money. If that is correct, then the duress defence will be unsuccessful, but of course may be used in mitigation on sentence.

If you or someone you know believe you have been subject to duress, you may wish to seek professional advice.

Contact us to speak to a skilled legal representative on 02 8080 7585.

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