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Duress

Duress involves the use of threats to coerce someone into committing a particular crime. The threat must be of death or really serious injury to the accused or to their family. The defence of duress is not a very common defence in criminal trials.

The test

For the defence of duress to be successful, the following must be shown:

  • That the accused was driven by threats to commit an offence because the accused genuinely believed that if they did not act in this way, either they or a member of their family would soon be killed or very seriously injured;
  • That the threat would have driven a reasonable person to act as the accused did; and
  • That the accused could not have avoided the effects of the duress by escaping from the threats without committing the offence.

The onus of proof

The accused bears an evidentiary onus to raise the defence of duress. Once the accused discharges the evidentiary onus the prosecution must negative the defence of duress beyond a reasonable doubt.

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