10.2 Duress

Duress excuses a person who is compelled to commit an offence by threats. Chapter 2 abrogates many of the common law restrictions on the defence.²⁵⁶ Unlike the common law, the Code does not limit duress to circumstances involving a threat of death or serious injury. There is no restriction on the nature of the threatened harm.

The Model Criminal Code Officers Committee accepted the view advanced by Professor Stanley Yeo:

Once a person is under the influence of a threat, whatever he or she does depends on what the threatener demands. The crime demanded might be trivial or serious, but it has no necessary connection with the type of threat confronting the accused. Policy reasons would, however, insist that the accused’s response was reasonably appropriate to the threat.²⁵⁷

Like common law, Chapter 2 imposes an objective standard, limiting the class of those who can rely on the defence. There are three objective criteria, each of which employs the concept of reasonableness as a limit on the defence:

• The threat must be real or reasonably apprehended as real: Unlike s10.4 Self defence,²⁵⁸ duress is not available to a defendant who is unreasonably mistaken in their apprehension of harm;
• The threat must be unavoidable: The defence is barred if reasonable measures to avoid or neutralise the threat were available to the defendant;
• The defendant’s response to the threat must be reasonable in the circumstances: The defence of duress is barred if commission of an offence in compliance with the demand was not a reasonable response to the threat.

It  is implicit in the last of these criteria that individuals faced with a threat  of harm must sometimes endure the threatened harm rather than comply with the demand and commit the offence.

These criteria displace the common law test, which limits duress to circumstances in which a “person of ordinary firmness of mind” might have reacted in the same way as the defendant.²⁵⁹

Common law does not permit a defence of duress to excuse murder or attempted murder. In its report on Chapter 2, the Model Criminal Code Officers’ Committee argued that there was no principled ground limiting  the application of the defence in this way. The objective criteria, which require reasonable belief in the threat, and a reasonable response, should ensure that…the defence could not be lightly invoked”²⁶⁰ when murder or attempted murder are in issue. Though the Committee’s recommendation was not expressed in any of the provisions of Chapter 2, it has been accepted by the Commonwealth. In Chapter 4 of the Code, 71.2 Murder of a UN or associated official imposes no barrier against reliance on a defence of duress.

The defence is not available when the threat is made by a person, or their agent, with whom the defendant has joined an association for the purpose of engaging in conduct of the same kind as that demanded. Common law and the Griffith Code place a similar, though apparently more restrictive limitation on the defence. They would deny a defence of duress when the defendant joined an association with another in the awareness of a risk that co-ercion might be employed to induce participation in an offence.²⁶¹ The Chapter 2 defence of duress, by contrast, is barred only if the defendant shares the purpose of the principal to engage in criminal conduct of that kind.