We often get asked by our clients what defences are available to them when they have been charged. If you are able to raise a defence successfully, it often means that you are found not guilty of a charge or charges.
The defence of duress has been a part of the law in Victoria for a long time. Originally it was part of the common law before being introduced into legislation in 2005. It's successfully been made out in cases involving jail escapes, drugs and manslaughter.
What is duress?
You might think you already know what duress means, however it has a specific meaning under the law which might not be what you think.
To engage in conduct under duress, a person must do something in response to a threat of physical harm. That 'something' they do would ordinarily be a crime. For example, a person accused of a crime might raise the defence of duress in a situation where they have been told by someone to rob a bank, and if they don't rob the bank they will be beaten up or seriously harmed. They then rob the bank to avoid the physical threat of harm they have been told. Inevitably they are charged with robbery of the bank. It is after they are charged that they raise duress as a defence.
It might sound simple however it can be difficult to raise duress as a defence and it's something you should get legal advice about before pursuing. The court and the prosecution will want to interrogate your arguments especially in front of a jury. For example, the court will want to know things like, how seriously you took the threat of harm and whether it was likely the threat was carried out. They might also want to know whether you had other options or if the harm could have been avoided. They might ask why you didn't call the police instead of robbing the bank or ask for help from someone else.
Duress can be raised in the context of family violence offending. The law is sympathetic to people who have engaged in conduct where the 'duress' involves being exposed to family violence. For example, an accused person might argue that they physically assaulted their partner because they 'reasonably believed that a threat of harm has been made that will be carried out unless an offence is committed'. This is similar to a self-defence argument that an accused person might also want to make. An example might be that an accused person is married to someone who has physically assaulted and verbally abused them over a number of years. The verbal abuse includes making threats to kill. Over time, the physical abuse gets worse and gets to a point where, combined with the threats to kill, the accused person reasonably believes that they are in danger of being killed by their partner. The next time their partner physically abuses them, they retaliate with a weapon and are then charged by police.
In a jury trial, the jury will be directed by the judge on how to take this into account when they are deciding whether an accused person is guilty of the crimes they have been charged with. The accused person might be acquitted on the basis that they have successfully been able to make out the defence of duress in the context of their family violence relationship.
The case of R v Martin  VSCA 153 is a good example of how raising the defence of duress can go terribly wrong. This case was an appeal from the County Court where the accused had unsuccessfully argued that the defence of duress was made out.
The applicant, Ms Martin, argued through her lawyers that she was under duress when committing the offences of armed robbery and possession of a drug of dependence. She claimed that she had committed these crimes because she was afraid the co-accused, and her boyfriend at the time, would commit further robberies to obtain money for drugs. She said that he was threatening to do this, believed he had just committed a robbery and was being physically violent towards her. To prevent him from committing further robberies, Ms Martin said that she proposed to the co-accused that they should rob one of their friends instead. They then went and did this.
Ms Martin was unsuccessful in making out the defence of duress for a handful of reasons. Firstly, Ms Martin gave many different accounts of the above story in her record of interview and when she gave evidence in court. The court also found that important parts of her duress argument were missing - for example there was evidence that she had been physically violent to the victim which did not accord with her account that she had been under duress. Most importantly the court found that there was no evidence she engaged in the offending due to a threat being made against her by the co-accused and that there were several opportunities where she could have avoided participation in the robbery altogether. It also didn't help that she had admitted to lying in her initial interview with police.
What happens if I can establish that duress has been made out?
Duress is a complete defence to a charge and, if you are able to establish that your conduct occurred under duress, you will be found not guilty of the charge.
It is a worthwhile defence to explore in the right circumstances because it might mean you are acquitted of the charges against you. However, you should always think carefully and speak to a lawyer before making any decisions about your case including raising any defences.