When Should the Defence of Duress (in Australian Jurisdictions) Be Available to an Accused Who Has Contributed to the Circumstances of His/Her Own Defence?

Abstract

Duress is a criminal law defence, available in all nine Australian criminal jurisdictions, that operates to completely excuse a defendant of criminal responsibility where that defendant has only committed a criminal offence in response to serious threats made by another person. In order to ensure an application consistent with its rationale, and to prevent abuse of the defence, duress has traditionally been subject to a number of strict limitations. One of these restrictions, again found in all Australian jurisdictions although subject to a number of different formulations, is a limitation of the defence to defendants who have not in some way contributed to the circumstances of duress (for example, by choosing to associate with violent persons or professional criminals who later violently threaten the accused into participating in a crime). In this article I note the problems with the current Australian formulations of the restriction, and then develop a new proposal to be employed throughout all nine jurisdictions. In a case where an accused joins a terrorist or a mafia organisation in full knowledge of the group’s criminal objectives and violent methods, denying the defence of duress appears no more than basic common sense. However, there may be less certainty in cases at the margins, such as where the accused only learns of the group’s true nature after a violent threat has been made, or where the crime committed in response to the threats is manifestly outside the group’s normal pattern of offending. In these kinds of cases, my proposed restriction will seek to balance fairness to the individual accused, with protection of the public and ensuring punishment for accused persons who are sufficiently culpable for the offence committed.