In Western Australia, the defence of duress may be open to a person who has committed a criminal offence in certain limited circumstances. If successfully relied upon, an accused will not be held criminally responsible for any act or omission.
As outlined in section 32 of the Criminal Code (WA) there are a number of elements that must be proven before duress can be enlivened. These include:
(a) The person believes
i. A threat has been made;
ii. The threat will be carried out unless an offence is committed; and
iii. The act or omission is necessary to prevent the threat from being carried out; and
(b) The act or omission is a reasonable response to the threat in the circumstances as the person believes them to be; and
(c) There are reasonable grounds for the relevant beliefs about the threat and circumstances surrounding the response.
In reviewing the defence of duress, it can be broken down into 2 categories.
The first category is the subjective test – that is, the person who carried out the act or omission must believe that a threat was made, that the threat will be carried out unless the offence is committed and it is necessary to do the act or make the omission to prevent harm.
However, what safeguards the unfettered use of this defence is the objective test. The evaluation of what is objectively reasonable must be evaluated by a person of ordinary firmness of mind and will, and of the same age as the accused. In other words, if you were to put yourself in the shoes of the accused, armed with the same knowledge as the accused at the time of the commission of the offence, would it have been reasonable if you acted in a similar way?
The objective test is assessed by the trier of fact. In a Magistrates Court setting, a magistrate is both the trier of law and fact. In a jury trial, the objective test would be left to the jury to determine whether duress could be relied upon.
Does Duress Apply to Everyone?
A person who voluntarily associates with the person making the threat or has engaged in unlawful activities where it is reasonably foreseeable that such an act or omission is a likely consequence cannot rely on duress.
Section 32(3) provides that the defence of duress is not available if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of:
a. Doing an act or making an omission of the kind in fact dine or made by the person under duress; or
b. Prosecuting an unlawful purpose in which it is reasonably foreseeable such a threat would be made.
What is a Threat?
In the case of Lau v The State of Western Australia it was held that threat holds its natural and ordinary meaning. Whilst not exhaustive, a threat could include: an intention to kill or injure or cause loss or damage to property.
Reasonable Response
The test of what is reasonable is an objective test. It must be considered against the circumstances in which the accused found themselves, including what they knew or ought to have reasonably known.
What is relevant here is that proportionality is not a relevant consideration when assessing whether the response was reasonable. In Marchesano it was viewed that the determination of the reasonableness of the act or omission as a response to a threat involves consideration of the nature and quality of the act or omission in the context of:
a. The nature and quality of the threat
b. The severity of the consequences when undertaking the act or making the omission
c. Existence of any available alternative course of action
d. The circumstances as the accused believes them to be.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Canberra (02 5104 9640) and Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.
