Denial of free will in the face of threats or intimidation can be a defence against a criminal charge.
So, you’ve been charged with a criminal offence, but you have an explanation or reason for offending – a serious threat was made to you or your family, and you had no choice but to commit a crime.
What is Duress?
The law recognises that there can be times when we can’t act according to our free will, such as in the face of threats and intimidation. This is where an experienced criminal lawyer will raise the defence of duress to avoid any criminal responsibility.
To be successful in raising the defence of duress, your lawyer must show through the evidence that:
- There was an actual and immediate threat of death or severe injury to you or a family member.
- The threat was so serious that a person in your position would have succumbed to the threat.
- There was nothing else you could do to render the threat ineffective (like reporting the threat to the Police).
Who Proves It?
For the defence to be considered, the magistrate must accept that your lawyer has provided enough evidence that, on the balance of probabilities, each of these elements can be made out. It is then the prosecutor’s burden to prove beyond reasonable doubt that these elements are not made out. This is called the reverse burden of proof.
It is often difficult for the prosecution to rebut the defence of duress when it has been well established by the defence lawyer during the hearing, particularly in circumstances where your lawyer has not given notice to the prosecution that you intend to raise the defence of duress at the hearing.
When is Duress Available?
The defence of duress is available for almost every offence. It is a “full defence”, which means that the court will find that even though you committed the offence, a verdict of not guilty must be entered as you were not criminally responsible for your actions. However, this defence cannot be raised for serious offences like murder, treason and some Commonwealth terrorism offences. The defence can also not be relied upon if you were involved in a criminal organisation and should have reasonably foreseen that such a threat might be made to you.
An example of the duress defence
Foye Legal has successfully argued a duress defence at a hearing in the Cooma Local Court for our client, who had been charged for having a mobile phone while in custody. Lawyer Jamie Coleman represented a man who was an inmate at the Cooma Correctional Centre in June 2021 when he was charged with the offence. The defendant said he had been stood over by three large inmates who demanded he hold a mobile phone for them or he would be “put in a body bag”. A mobile phone was found in our client’s cell following a routine search a week later.
The man didn’t know exactly where the phone was hidden, never used the phone, and told officers the phone wasn’t his. However, given that the phone was found in our client’s cell, and he had no cellmates, the prosecution had a strong argument that the phone was in his possession based on exclusive control of its use.
At the hearing, Ms Coleman raised the defence of duress and submitted to the magistrate that our client could not be held criminally responsible for his actions because he was not acting of his own free will. While the prosecution opposed the submission, the magistrate ultimately found in favour of our client that there had been duress and entered a verdict of not guilty.
This case provides a clear example of how the duress defence can be powerful in defending criminal charges. If you believe that you have been charged with a crime that you committed because you were acting under duress, it is critical that you see a lawyer right away. Contact our experienced team today to arrange an initial consultation.