Contents
INTRODUCTION ................................................................................................................................................ 2
WHAT IS DURESS? ............................................................................................................................................ 3
DURESS AND VOLUNTARINESS............................................................................................................................ 3
DURESS AND INTENT........................................................................................................................................... 3
TO WHICH CRIMES IS DURESS AVAILABLE AS A DEFENCE? ............................................................ 3
DURESS AND MURDER ........................................................................................................................................ 4
ATTEMPTED MURDER ......................................................................................................................................... 5
MANSLAUGHTER................................................................................................................................................. 5
OTHER HEINOUS CRIMES .................................................................................................................................... 5
ONUS OF PROOF................................................................................................................................................ 5
ELEMENTS OF DURESS ................................................................................................................................... 6
SOMEONE WAS THREATENED WITH HARM IF CRIME WAS NOT COMMITTED ...................................................... 6
A Threat Must Have Been Made .................................................................................................................... 7
The Threat Must Have Been of Sufficient Magnitude .................................................................................... 7
The Demand Must Have Been to Commit the Offence Charged .................................................................... 7
THREAT MUST BE PRESENT AND CONTINUING, IMMINENT AND IMPENDING ...................................................... 7
ACCUSED FEARED THE THREAT WOULD BE CARRIED OUT ................................................................................ 8
THE THREAT INDUCED THE ACCUSED TO COMMIT THE CRIME ........................................................................... 8
VOLUNTARY EXPOSURE TO DURESS ................................................................................................................... 9
SAFE ESCAPE ...................................................................................................................................................... 9
PERSON OF ORDINARY FIRMNESS WOULD HAVE BEEN LIKELY TO YIELD ....................................................... 10
DURESS AND BATTERED WOMAN SYNDROME .................................................................................... 11
WHEN TO CHARGE THE JURY ABOUT DURESS.................................................................................... 11
CONTENT OF THE CHARGE ........................................................................................................................ 12
CHARGING ABOUT THE ONUS OF PROOF ........................................................................................................... 12
CHARGING ABOUT THE OBJECTIVE TEST .......................................................................................................... 13
CHARGING ABOUT OPPORTUNITIES TO ESCAPE ................................................................................................ 14
CHARGING ABOUT THE USE OF THE EVIDENCE FOR OTHER PURPOSES ............................................................. 14
DURESS AND MARITAL COERCION .................................................................................................................... 15
USE OF EVIDENCE OF DURESS TO DISPROVE ELEMENTS OF THE OFFENCE............................ 15
1
8.11.1 - Common Law Duress1
8.11.1.1 - Bench Notes
Introduction
1.
Prior to 2005, duress in Victoria was governed solely by the common law.
This situation has been altered by the passage of the Crimes (Homicide) Act
2005 and the Crimes Amendment (Abolition of Defensive Homicide) Act
2014, which introduced duress provisions into the Crimes Act 1958 (s9AG,
now repealed, and s322O respectively).
2.
Section 9AG of the Crimes Act 1958 applies to homicide offences committed
on or after 23 November 2005 and before 1 November 2014.2
3.
Section 322O of the Crimes Act 1958 applies to all offences committed on
or after 1 November 2014.
4.
It is still necessary to apply the common law when there is evidence of
duress in non-homicide cases committed before 1 November 2014. It is
also necessary to rely on the common law in relation to homicides
committed before 23 November 2005.
5.
In addition, as the Crimes (Homicide) Act 2005 did not explicitly abrogate
common law duress in homicide cases, there may be some occasions in
which it remains necessary to rely on the common law in relation to
homicides which were committed on or after 23 November 2005 and before
1 November 2014. In practice, this will only be necessary if, on the facts of
the case, the common law would be more favourable to the accused.
6.
The Crimes Amendment (Abolition of Defensive Homicide) Act 2014
abolished the common law defence of duress with respect to all offences
committed on or after 1 November 2014 (Crimes Act 1958, s322Q).
7.
If the accused is charged with both homicide and non-homicide offences
committed before 1 November 2014, it will be necessary to give multiple
directions about duress. The jury will need to be charged about statutory
duress in relation to the homicide charges, and common law duress in
relation to any other charges (see R v Pepper [2007] VSC 234; DPP v
McAllister [2007] VSC 315 for similar issues that arise in the context of
self-defence).
8.
These notes outline the common law defence of duress. For information
concerning the statutory provisions, see Statutory Duress: Bench Notes
1
This document was last updated on 29 June 2015.
If the date of the victim’s death differs from the date on which the actus reus was
committed, the relevant date for determining whether the provisions of the Crimes
(Homicide) Act 2005 apply is the date of death (R v Gould [2007] VSC 420).
2
2
(Topic Not Yet Complete).
What is Duress?
9.
An act is said to be committed under duress if it is committed due to a
threat of physical harm if the act is not done (R v Dawson [1978] VR 536).
10. Duress does not destroy the will or the effective power to exercise it. It
merely alters the direction of its exercise (R v Harding [1976] VR 129).
11. To have acted under duress, the circumstances must have been such that
the accused’s will was really and absolutely so constrained that he or she
became a mere innocent instrument of the crime (R v Dawson [1978] VR
536; R v Darrington [1980] VR 353).
12. Where duress is available as a defence, and the prosecution cannot prove
that the accused did not act under duress, he or she will have a complete
defence to the offence charged (R v Japaljarri (2002) 134 A Crim R 261).
Duress and Voluntariness
13. As duress implies a deliberate choice to break the law (although under
constrained circumstances), it is incorrect to treat duress as related to the
voluntariness requirement (R v Palazoff (1986) 43 SASR 99).
14. People who act under duress are therefore not excused because they acted
involuntarily. They are excused because of the wrongfulness of the threat
(R v Palazoff (1986) 43 SASR 99).
Duress and Intent
15. In a true duress case, the accused will have had the necessary intent to
commit the crime, but will be found not guilty due to the fact that he or she
formed that intent due to a threat (R v Harding [1976] VR 129 per Murphy
J; R v Palazoff (1986) 43 SASR 99).
To Which Crimes is Duress Available as a Defence?
16. Duress is a defence to all criminal acts except for murder and some forms
of treason (R v Harding [1976] VR 129; R v Goldman (No 4) (2004) 147 A
Crim R 472; Attorney-General v Whelan [1934] Ir R 518; R v Hurley [1967]
VR 526; R v Tawill [1974] VR 84).
17. In Australia the defence has been applied to:

Manslaughter (R v Evans (No 1) [1976] VR 517);

Drug offences (R v Lawrence [1980] 1 NSWLR 122; R v Brown (1986)
43 SASR 33; R v Palazoff (1986) 43 SASR 99);

Prison escape (R v Smyth [1963] VR 737; R v Dawson [1978] VR
3
536);

Contempt of court (R v Garde-Wilson (2005) 158 A Crim R 20).
Duress and Murder
18. It is clear that duress is not available on a charge of murder where the
accused did the actual killing (R v Japaljarri (2002) 134 A Crim R 261; R v
Evans (No 1) [1976] VR 517; R v Darrington [1980] VR 353).3
19. However, it is unclear whether duress is available to a person who was
present at the killing and aided or abetted the crime (a “principal in the
second degree”), or who was not present but counselled or procured the
killing (an “accessory before the fact”):

Initially, it was held that in Victoria duress was not available to
principals in the second degree (R v Harding [1976] VR 129).

The House of Lords subsequently held that duress was a defence to a
person charged with murder as a principal in the second degree
(Director of Public Prosecutions (Northern Ireland) v Lynch [1975] AC
653).

Although somewhat disapproving of the decision in Lynch, the
Victorian Supreme Court felt obliged at the time to follow the House of
Lords decision, and overruled Harding (holding that duress is denied
only to the actual killer) (R v Darrington [1980] VR 353).

Subsequently, the House of Lords overruled its own decision in Lynch,
holding that duress is not a defence to principals in the second degree,
nor is it a defence to an accessory before the fact (R v Howe [1987]
AC 417. See also R v Brown [1968] SASR 467).
20. While the matter has not been authoritatively settled by a Victorian court,
the issue has been the subject of judicial discussion in two recent cases:

In R v Japaljarri (2002) 134 A Crim R 261 the court stated that, due to
Darrington, duress may be available on a charge of murder where the
accused is a principal in the second degree. However, they also noted
that the House of Lords had overruled its own decision in Lynch.

In R v Goldman (No 4) (2004) 147 A Crim R 472 Redlich J noted that,
had the Court in Darrington had the benefit of the High Court’s
guidance about when it was acceptable to depart from House of Lords
decisions (that was subsequently given in Cook v Cook (1986) 162
CLR 376), it would have followed Harding instead (as Lynch was not
perceived to be based upon established principles of common law).
For murders committed on or after 23 November 2005, duress is a defence. See
Statutory Duress: Bench Notes (Topic Not Yet Complete).
3
4
21. Even if duress is not available as a defence to people who aid, abet, counsel
or procure murder, it may be available to accessories after the fact (as they
have committed an offence against justice, rather than an offence against
the person or the State) (Fairall and Yeo, 2005, p 141).
Attempted Murder
22. The question whether duress is a defence to attempted murder has not
been authoritatively resolved in Australia (R v Japaljarri (2002) 134 A Crim
R 261; R v Goldman (No 4) (2004) 147 A Crim R 472).
23. In R v Gotts [1992] 2 AC 412 a majority of the House of Lords held that
duress is not a defence to attempted murder.
24. However, in R v Goldman (No 4) (2004) 147 A Crim R 472 Redlich J
followed the decision of the minority in Gotts (and the Canadian judgments
of R v Hibbert [1005] 2 SCR 973 and Paquette v R (1976) 30 CCC (2d)
417), holding that duress is a defence to attempted murder.
Manslaughter
25. Duress is available as a defence to a charge of manslaughter (R v Evans
(No 1) [1976] VR 517; R v Harding [1976] VR 129).
26. This means that a judge will need to charge the jury about duress in a case
where the accused is charged with murder, but manslaughter is available
as an alternative verdict (R v Evans (No 1) [1976] VR 517; R v Harding
[1976] VR 129).
Other Heinous Crimes
27. It has traditionally been held that duress is a defence to all crimes other
than murder and “any other crime so heinous as to be excepted from the
doctrine” (R v Hurley [1967] VR 526; R v Darrington [1980] VR 353; R v
Dawson [1978] VR 536; R v Emery (1978) 18 A Crim R 49; R v Zaharias
(2001) 122 A Crim R 586; R v Japaljarri (2002) 134 A Crim R 261).
28. The other “heinous” crimes to which duress is denied as a defence seems to
have been limited to some serious forms of treason (R v Goldman (No 4)
(2004) 147 A Crim R 472).
Onus of Proof
29. It is for the prosecution to prove, beyond reasonable doubt, that the
accused was not acting under duress (R v Smyth [1963] VR 737; R v
Harding [1976] VR 129; R v Emery (1978) 18 A Crim R 49; R v Zaharias
(2001) 122 A Crim R 586).
30. This is sometimes expressed as requiring the prosecution to eliminate any
reasonable possibility that the accused acted under duress (R v Abusafiah
(1991) 24 NSWLR 531).
5
31. In some cases the fact that the accused was acting under duress may be
raised as a “reasonable excuse” to a statutory offence, rather than as a
defence in its own right (see e.g., R v Tawill [1974] VR 84; R v Daher
[1981] 2 NSWLR 669). Depending on the terms of the relevant provision, in
such cases the onus may be on the accused to prove that he or she was
acting under duress (and therefore had a reasonable excuse).
Elements of Duress
32. The prosecution can prove that the accused was not acting under duress by
proving any of the following matters (each of which are discussed below):
i)
That no-one was threatened with serious harm if the accused failed to
commit the crime charged;
ii)
That the threat was not present and continuing, imminent and
impending;
iii)
That the accused did not reasonably apprehend that the threat would
be carried out;
iv)
That it was not the threat that induced the accused to commit the
crime charged;
v)
That, when free from the duress, the accused voluntarily exposed
himself or herself to its application;
vi)
That the accused could safely have prevented the execution of the
threat; or
vii) That the circumstances were such that a person of ordinary firmness
would not have been likely to yield to the threat in the way the
accused did (R v Hurley [1967] VR 526. See also R v Darrington
[1980] VR 353; R v Dawson [1978] VR 536; R v Emery (1978) 18 A
Crim R 49; R v Zaharias (2001) 122 A Crim R 586; R v Japaljarri
(2002) 134 A Crim R 261).
Someone was Threatened with Harm if Crime Was Not Committed
33. The first way the prosecution can prove that the accused was not acting
under duress is by establishing that no-one was threatened with serious
harm if the accused failed to commit the crime charged (R v Hurley [1967]
VR 526).
34. This can be done by proving either:

That no threat was made (R v Zaharias (2001) 122 A Crim R 586; R v
Dawson [1978] VR 536);

That the threats made were not of a sufficient magnitude (R v Gibb
[1983] 2 VR 155; R v Hurley [1967] VR 526; R v Harding [1976] VR
129); or
6

That the demand made was not to commit the offence charged (R v
Dawson [1978] VR 536; R v Lorenz (1998) 146 FLR 369).
A Threat Must Have Been Made
35. It is not sufficient that the accused felt fear. A threat must have been made
(see, e.g., R v Darrington [1980] VR 353; R v Japaljarri (2002) 134 A Crim
R 261).
36. The threat may have been made by words or actions (including actual
violence) (see, e.g., R v Emery (1978) 18 A Crim R 49; R v Harding [1976]
VR 129 per Murphy J).
The Threat Must Have Been of Sufficient Magnitude
37. In some cases it seems to have been suggested that the threat must have
been of death or serious personal violence (see, e.g., R v Smyth [1963] VR
737; R v Hurley [1967] VR 526; R v Darrington [1980] VR 353; R v
Dawson [1978] VR 536; R v Japaljarri (2002) 134 A Crim R 261).
38. However, it has also been suggested that a threat of imprisonment may be
sufficient (R v Harding [1976] VR 129 per Murphy J).
39. While it is not clear whether duress can be constituted by threats of
damage to property (R v Harding [1976] VR 129 per Murphy J), such
threats are unlikely to be of suitable severity (Director of Public
Prosecutions (Northern Ireland) v Lynch [1975] AC 653). There are no
known Victorian cases in which it has been suggested that the accused
acted under duress due to a threat to property.
40. The defence is not limited to threats made against the accused him or
herself. The defence may be made out if the accused acted to avoid
threatened death or harm to another person (see, e.g., R v Hurley [1967]
VR 526; R v Harding [1976] VR 129 per Murphy J; Attorney-General v
Whelan [1934] Ir R 518; R v Abusafiah (1991) 24 NSWLR 531).
The Demand Must Have Been to Commit the Offence Charged
41. The demand must have been to commit the offence charged. Duress will
not be a defence if the accused committed a different offence due to his or
her fear of the threatener (R v Dawson [1978] VR 536; R v Lorenz (1998)
146 FLR 369).
Threat Must Be Present and Continuing, Imminent and Impending
42. The second way the prosecution can prove that the accused was not acting
under duress is by establishing that the threat was not present and
continuing, imminent and impending (R v Hurley [1967] VR 526).
43. While the coercion must be immediate, the threat need not be of immediate
harm (R v Hurley [1967] VR 526; R v Emery (1978) 18 A Crim R 49).
7
44. Thus, while the threat must be effective at the moment the crime is
committed, the carrying out of the threat may be delayed because of
particular circumstances (R v Dawson [1978] VR 536).
45. While the threat need not be of immediate harm, it is not clear whether it
must at least be of imminent harm – or whether threats to be carried out in
the future will suffice so long as the accused’s will is overborne by the
threats at the time that he or she commits the criminal act (R v Harding
[1976] VR 129 per Murphy J).
46. The threatener need not be present when the offence is committed, as long
as the threat remains present and continuing, imminent and impending (R
v Hurley [1967] VR 526; R v Emery (1978) 18 A Crim R 49).
47. Thus, where the threat is to take a hostage’s life if the accused does not
commit the offence, the defence of duress may be raised even if the
kidnappers were not present when the offence was committed (see, e.g., R
v Hurley [1967] VR 526).
Accused Feared the Threat Would Be Carried Out
48. The third way the prosecution can prove that the accused was not acting
under duress is by establishing that the accused did not reasonably
apprehend that the threat would be carried out (R v Hurley [1967] VR 526;
R v Emery (1978) 18 A Crim R 49).
49. This can be done by proving that:

The accused did not fear that the threat would be carried out; or

That the accused did not have reasonable grounds for that fear (see,
e.g., R v Emery (1978) 18 A Crim R 49).
The Threat Induced the Accused to Commit the Crime
50. The fourth way the prosecution can prove that the accused was not acting
under duress is by establishing that it was not the threat that induced the
accused to commit the crime charged (R v Hurley [1967] VR 526).
51. While the threat must have directly provoked the commission of the crime
with which the accused is charged, it need not have completely overborne
the accused’s will (R v Dawson [1978] VR 536).
52. The crime must only have been committed because of the duress. The
defence will not be available if the crime was committed for other reasons
as well (R v Zaharias (2001) 122 A Crim R 586; R v Abusafiah (1991) 24
NSWLR 531; R v Hurley [1967] VR 526; R v Dawson [1978] VR 536)
53. In considering whether the threat induced the accused to commit the
crime, the jury should consider the nature of the threats made, and the
accused’s knowledge of the character and reputation of the person making
them (see, e.g., R v Abusafiah (1991) 24 NSWLR 531).
8
54. Where it is alleged that the accused was acting to protect a third party, it
will be for the jury to determine whether he or she was acting under
duress. In making this determination, the jury may take into account
factors such as the strength of the accused’s attachment to the third party
(see, e.g., R v Hurley [1967] VR 526).
Voluntary Exposure to Duress
55. The fifth way the prosecution can prove that the accused was not acting
under duress is by establishing that, when free from the duress, the
accused voluntarily exposed himself or herself to its application (R v Hurley
[1967] VR 526).
56. This will be the case if the accused voluntarily joined or associated with a
criminal organisation, or became a party to a criminal enterprise knowing of
its criminal purpose. In such circumstances the accused cannot rely upon
the defence of duress in respect of any offence committed in response to
coercion arising out of his or her association with the organisation, or his or
her participation in the criminal enterprise (R v Hurley [1967] VR 526).
57. The accused must have joined the enterprise or organisation voluntarily.
The defence will remain available if he or she was coerced into joining the
enterprise or organisation (R v Hurley [1967] VR 526. See also R v Emery
(1978) 18 A Crim R 49).
Safe Escape
58. The sixth way the prosecution can prove that the accused was not acting
under duress is by establishing that the accused could safely have
prevented the execution of the threat (R v Hurley [1967] VR 526).
59. This will be the case if the accused did not avail him or herself of any
reasonable opportunity to escape or avoid the threatened conduct being
performed (R v Dawson [1978] VR 536; R v Goldman (No 5) [2004] VSC
292; R v Hurley [1967] VR 526; R v Darrington [1980] VR 353).
60. For the defence to be precluded on this ground, the opportunity to escape
must have been capable of being performed with reasonable safety. The
accused need not avail him or herself of the opportunity to escape if it was
not reasonable in light of the threats made (R v Dawson [1978] VR 536; R
v Hudson [1971] 2 QB 202; R v Smyth [1963] VR 737).
61. If escaping from the immediate presence of the person making the threat
would not have rendered the threat ineffective, reliance on the defence will
not be precluded because the accused failed to escape. For example, if the
threat was to cause death or serious injury at some time in the near future,
failing to take advantage of an opportunity to escape would not preclude
reliance on the defence (R v Abusafiah (1991) 24 NSWLR 531).
62. The question of whether or not a safe means of escape was available to the
accused is to be determined according to an objective standard, using the
9
perspective of the reasonable person (R v Goldman (No 5) [2004] VSC 292;
R v Besim [2004] VSC 168).
63. When considering the perspective of the reasonable person, the
circumstances in which the accused found him or herself are relevant and
should be taken into account (R v Goldman (No 5) [2004] VSC 292).
64. Where the carrying out of the threat can be prevented by reporting the
matter to the authorities, a failure to do so may preclude the accused from
relying upon the defence (see, e.g., R v Dawson [1978] VR 536).
65. However, if the accused failed to report the situation to the police on the
grounds that he or she reasonably believed police protection to be
ineffective against the threatener, the defence of duress might still succeed.
66. Evidence of battered woman syndrome may be relied upon to explain why a
woman of ordinary firmness did not escape the threatening situation by
seeking police protection (R v Runjanjic (1991) 56 SASR 114). See “Duress
and Battered Woman Syndrome” below.
Person of Ordinary Firmness Would Have Been Likely to Yield
67. The seventh way the prosecution can prove that the accused was not acting
under duress is by establishing that the circumstances were such that a
person of ordinary firmness would not have been likely to yield to the
threat in the way the accused did (R v Hurley [1967] VR 526; R v Zaharias
(2001) 122 A Crim R 586; R v Dawson [1978] VR 536).
68. This “objective test” restricts the defence of duress to circumstances in
which the accused can be viewed objectively as having acted to avoid
serious harm (R v Hurley [1967] VR 526).
69. What is involved in the objective test is an evaluation of the behaviour of
the accused by reference to a standard of reasonableness, not a prediction
as to the way in which particular individuals may behave. The law requires
the accused to have the self-control reasonably expected of the ordinary
citizen in his or her situation (R v Abusafiah (1991) 24 NSWLR 531).
70. The question is whether the accused could not reasonably have been
expected to resist in the circumstances (R v Abusafiah (1991) 24 NSWLR
531).
71. It is not clear what characteristics the jury should consider the ordinary
person to have. In NSW it has been assumed that, in light of Stingel v R
(1990) 171 CLR 312, it is only the accused’s age, sex and maturity that
should be taken into account (see, e.g., R v Abusafiah (1991) 24 NSWLR
531). However, Stingel was decided in the context of provocation, and it is
possible that different considerations apply in relation to duress (as noted
in R v Zaharias (2001) 122 A Crim R 586 and R v Abusafiah (1991) 24
NSWLR 531).
10
72. In considering the objective test, the jury should consider the nature of the
threats made, and the accused’s knowledge of the character and reputation
of the person making them (see, e.g., R v Abusafiah (1991) 24 NSWLR
531).
73. Where the threat is not against the accused personally (e.g., where the
accused’s family is threatened), the jury must determine whether a threat
of that nature would be likely to coerce or compel a person of ordinary
firmness of character to yield by committing the crime in question (R v
Abusafiah (1991) 24 NSWLR 531).
74. While traditionally the test was framed as whether or not the person of
ordinary firmness “would” have been likely to yield (R v Hurley [1967] VR
526), in Victoria it is permissible to use “could” or “might” instead (R v
Zaharias (2001) 122 A Crim R 586; R v Lanciana (1996) 84 A Crim R 268).
Duress and Battered Woman Syndrome
75. Battered woman syndrome is not a defence in its own right (R v Lorenz
(1998) 146 FLR 369).
76. However, evidence that an accused suffered from the psychological
condition of battered woman syndrome may be relevant to the defence of
duress (R v Lorenz (1998) 146 FLR 369).
77. Specifically, evidence of the existence of this syndrome may be used:

To explain why the accused’s will was overborne; and

To argue that a woman of ordinary firmness, if placed in the same
position as that of the accused, would have committed the acts
constituting the offence with which the accused was charged (R v
Runjanjic (1991) 56 SASR 114. See also Rice v McDonald (2000) 113
A Crim R 75).
When to Charge the Jury about Duress
78. The need for a direction on duress will depend on whether the defence has
indicated that duress is in issue or whether there are substantial and
compelling reasons for directing on duress (Jury Directions Act 2015 ss11 16).
79. At common law, the judge was required to direct the jury about duress if
the evidence is such that it might lead a reasonable jury to decide that the
accused committed the relevant act under duress (R v Evans (No 1) [1976]
VR 517; R v Harding [1976] VR 129).
80. The question was whether, on the version of events most favourable to the
accused that is suggested by the evidence, a jury acting reasonably might
fail to be satisfied beyond reasonable doubt that the accused was not acting
under duress (Taiapa v R [2009] HCA 53. See also Martin v R [2010] VSCA
11
153).
81. The issue of duress may be raised at any time during the trial (R v Zaharias
(2001) 122 A Crim R 586).
82. While duress is not a defence to murder at common law, the judge must
instruct the jury about duress in a murder trial if manslaughter is available
as an alternative verdict, and the evidence is such that it might lead a
reasonable jury to decide that the accused committed the relevant act
under duress (R v Evans (No 1) [1976] VR 517; R v Harding [1976] VR
129).
Content of the Charge
83. There is no single formulation that must be followed when charging a jury
about duress. What is required is instructions expressed with sufficient
clarity that the jury could be left in no doubt with respect to the principles
that they must apply to the task before them (R v Zaharias (2001) 122 A
Crim R 586).
84. While the elements spelt out in R v Hurley [1967] VR 526 provide a useful
foundation for a charge, in most cases it is neither necessary nor desirable
to use every word in it or to explain every element (R v Emery (1978) 18 A
Crim R 49).
85. For example, where the crime charged is not murder or any other excepted
crime, no reference to the exclusion of such crimes should ordinarily be
made (R v Emery (1978) 18 A Crim R 49).
86. It is essential that the facts are related to the relevant issues (R v Emery
(1978) 18 A Crim R 49).
87. Judges should take care to instruct the jury in the context of the evidence
and issues raised in the trial (R v Zaharias (2001) 122 A Crim R 586). The
question of duress should be placed in its factual setting, and
considerations that may assist the jury to reach its conclusion should be
identified (R v Goldman (No 5) [2004] VSC 292; R v Emery (1978) 18 A
Crim R 49).
88. While not a misdirection, the jury should not be told to examine the
evidence relating to duress with great care and scrutiny (due to the ease
with which it can be invented). The question whether an accused’s claim
that he or she was acting under duress is plausible enough to raise a
reasonable doubt is exactly the kind of matter which juries are wellequipped to deal with, without the need for any special direction (R v
Goldman [2007] VSCA 25).
Charging About the Onus of Proof
89. It should be made clear that the accused does not have to establish that he
or she acted under duress. It is for the prosecution to negate duress
12
beyond reasonable doubt (R v Zaharias (2001) 122 A Crim R 586; R v
Emery (1985) 18 A Crim R 49; R v Abusafiah (1991) 24 NSWLR 531).
90. The jury may be directed about the onus of proof in any of the following
ways:

The prosecution must prove, beyond reasonable doubt, that the
accused did not act under duress;

The prosecution must establish that there is no reasonable possibility
that the accused acted under duress; or

The prosecution must eliminate any reasonable possibility that the
accused acted under duress (R v Lanciana (1996) 84 A Crim R 268; R
v Zaharias (2001) 122 A Crim R 586).
91. It is desirable to tell the jury that it is always difficult to give directions
upon the issue of duress in a way which completely avoids any suggestion
that the accused must prove the defence. However, the jury must always
keep it in mind that it is the prosecution which must eliminate any
reasonable possibility that the accused acted under duress (R v Abusafiah
(1991) 24 NSWLR 531).
92. Judges may refer to duress as a “defence”, so long as the true incidence of
the burden of proof is made clear (R v Lanciana (1996) 84 A Crim R 268).
93. A judge should not use the wording of Smith J’s judgment in R v Hurley
[1967] VR 526 when directing the jury, as it may cause the jury to
incorrectly believe that the onus of proving the relevant matters is on the
accused (R v Emery (1985) 18 A Crim R 49).
94. The judge should not say that the prosecution has “merely” to prove,
beyond reasonable doubt, that the accused did not act under duress. The
use of the word “merely” is unnecessary and misplaced (R v Williams
[1998] 4 VR 301).
Charging About the Objective Test
95. The judge should clearly explain to the jury that for duress to fail due to the
objective test, the prosecution must establish that there is no reasonable
possibility that a person of ordinary firmness of mind and will could have
been compelled by the threat in the way the accused was (R v Lanciana
(1996) 84 A Crim R 268),
96. The judge should explain that, when determining this issue, the jury should
have regard not only to the nature of the threat and its proportion to the
crime committed, but also to any circumstances known to the accused
concerning the person making the threat, which may reasonably have
affected the ordinary person’s reaction to it (R v Abusafiah (1991) 24
NSWLR 531; R v Goldman (No 5) [2004] VSC 292).
97. It is important that the directions in relation to the objective test are
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consistent. For example, if the charge refers to threats which “could”
compel a person of ordinary firmness to act in a certain way, subsequent
references should be stated in the same terms to avoid confusion (R v
Lanciana (1996) 84 A Crim R 268)
98. Judges should avoid use of the term “the average person”. The usual
formulation is “the person of ordinary firmness of mind and will”. That is a
much wider concept than the “average person”, and includes a greater
range of differing temperaments (R v Abusafiah (1991) 24 NSWLR 531).
99. Where the threat is directed to another person, the judge should explain
that duress may operate if such a threat would be likely to compel the
person of ordinary firmness of character to yield by committing the crime in
question (R v Abusafiah (1991) 24 NSWLR 531).
Charging About Opportunities to Escape
100. The question for the jury to determine in relation to the issue of escape is
whether a person in the accused’s circumstances, and acting reasonably,
would have taken one of the opportunities available to render the threat
ineffective (R v Goldman (No 5) [2004] VSC 292).
101. When directing the jury about this issue, they should be told to have regard
to all of the circumstances and any risks associated with any course of
action which would have rendered the threat ineffective (R v Goldman (No
5) [2004] VSC 292).
102. The jury must consider whether such a course of action was reasonably
safe, or whether it was likely to expose the accused to the very danger
from which he or she was seeking to escape (R v Goldman (No 5) [2004]
VSC 292).
103. In deciding whether a reasonable person in the accused’s position would
have availed themselves of the opportunity to escape, the jury should also
take into account the fact that the circumstances may not have provided
the accused with time to give calm and measured consideration to the
course of conduct that was open to him or her (R v Goldman (No 5) [2004]
VSC 292).
104. As there is no legal “obligation” on the accused to escape, it would be
preferable for the judge to avoid use of the term “obligation” in the charge
(R v Abusafiah (1991) 24 NSWLR 531).
Charging About the Use of the Evidence for Other Purposes
105. In some cases it may be necessary to direct the jury that evidence raised to
support the defence of duress may also be used when determining whether
or not the elements of the offence have been met (R v Darrington [1980]
VR 353; R v Harding [1976] VR 129; R v Evans (No 1) [1976] VR 517).
106. A direction on the use of evidence of coercion for this purpose may be
14
required even where a direction on duress is not (R v Darrington [1980] VR
353).
107. Where evidence of coercion can be used both for the purposes of proving
duress, as well as due to its evidentiary significance for proving another
matter, it is important that clear instructions be given so that the jury does
not confuse the two issues (R v Darrington [1980] VR 353).
Duress and Marital Coercion
108. In cases where a married woman is charged with an offence other than
treason or murder, and she raises evidence that her actions (or inaction)
were the result of coercion by her husband, the judge may also need to
instruct the jury about the statutory defence of marital coercion (Crimes
Act 1958 s336(2)). See Marital Coercion: Bench Note (Topic Not Yet
Complete) for further information.
Use of Evidence of Duress to Disprove Elements of the Offence
109. Evidence which is relevant to the issue of duress may also be relevant to
the determination of the elements. For example, the fact that the accused
was threatened may help to explain the acts that he or she performed, and
thus may influence the inferences the jury are willing to draw on the issue
of mens rea (see, e.g., R v Darrington [1980] VR 353; R v Harding [1976]
VR 129; R v Goldman (No 4) (2004) 147 A Crim R 472).
110. In such cases the judge should:

Direct the jury about the relevance the evidence has to any of the
elements of the offence; and

Direct the jury that, if they accept that one of the elements of the
offence has not been proven because of that evidence, they must
acquit the accused, even if all of the elements of the defence of duress
have not be met (R v Hurley [1967] VR 526).
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