The defence that most people think of as ‘duress’ is known as ‘compulsion’ in Tasmania. The defence of compulsion applies where a person was essentially ‘forced’ to carry out a criminal act by another person. This page outlines the defence of compulsion in Tasmania.
Legislation
The defence of compulsion is contained in section 20 of the Criminal Code 1924. Under that provision, a person is not guilty of an offence if they acted under compulsion due to threats of death or grievous bodily harm from a person actually present at the commission of the offence where the accused believed the threat would be carried out if they did not comply.
When compulsion does not apply
An accused person cannot rely on the defence of compulsion if they are charged with piracy, treason, murder, attempted murder, rape, robbery, arson, causing grievous bodily harm or forced abduction.
A person cannot rely on compulsion if they were involved in an association or conspiracy with the person who made the threat. Where a person chooses to consort with criminals and expose themselves to compulsion to commit criminal acts, this is known as ‘duress foreseen’.
Onus of proof
The term ‘onus of proof’ refers to which party bears the burden of proving a matter in a court proceeding. While the defence of compulsion must be raised by the defence and the defence must adduce evidence to support the defence, the prosecution then bears the onus of proving that the offence was not committed under compulsion.
Elements of compulsion
In order to find a person not guilty on the basis of compulsion, a court must be satisfied of the following:
- A threat was made to the accused of serious harm or death by a person who was in a position to carry the threat out
- The accused reasonably believed there was no other way to avoid the threat being carried out
- The accused’s actions were proportionate to the harm that was threatened.
Self-defence
In some cases, the defence of compulsion may overlap with the defence of self-defence where a person commits an act in order to escape serious harm.
Case law
The 1991 New South Wales Supreme Court decision of R v Abusafiah is the leading case on duress in Australia. In that matter, Abusafiah was charged with robbery and argued that he acted in response to being threatened with a gun. He maintained he believed he would be seriously harm or killed if he did not comply.
The court found that the test for duress is whether the threat was of a magnitude that the accused person could not reasonably have been expected to resist.
In the 1980 New South Wales Supreme Court decision of R v Lawrence, the court made the following statement about the defence of duress.
“On an ultimate analysis, the question whether there was a reasonable opportunity for the mind to reassert itself involves the same objective considerations as are involved in the question whether the threats themselves were such as an average person of ordinary firmness of mind would have acted as did the accused.”
Conclusion
Compulsion is a complete defence, meaning that where it is accepted it will result in an acquittal. This is because the law recognises that individuals should not be held criminally responsible for acts carried out solely out of fear of another person.
The defence of duress is defined differently in different states. While in some jurisdictions, it only extends to threats of physical harm, in others it can be argued in relation to threats to destroy or damage property provided the accused’s act was proportionate to the threat.
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