In Western Australia, the defence of duress provides legal protection for individuals who commit offences under the threat of serious harm or death. This defence acknowledges that, in some circumstances, a person may act unlawfully to avoid a greater danger. Below, we explore the legal framework surrounding duress, citing Section 32 of the Criminal Code Act Compilation Act 1913 (WA).
What is Duress?
Duress is a legal defence that applies when a person is forced to commit a crime because they reasonably fear immediate and serious harm if they do not comply. It recognises that the accused’s actions were not voluntary but were instead driven by coercion.
In Western Australia, the statutory basis for duress is detailed in Section 32 of the Criminal Code Act Compilation Act 1913. This section outlines the conditions under which the defence may apply and the limitations that accompany it.
Key Requirements for the Defence of Duress
To successfully raise duress as a defence, the following legal elements must be satisfied:
- Existence of a Threat (Section 32(1)(a))
- The accused must have been threatened with death or grievous bodily harm.
- The threat can be directed at the accused or another person (e.g., a family member).
- Immediacy and Continuity of Threat (Section 32(1)(b))
- The threat must be present and continuous throughout the offence, leaving no opportunity for the accused to safely escape or seek help.
- It does not apply if the threat was avoidable through reasonable means.
- Proportionality of Response (Section 32(1)(c))
- The accused’s response to the threat must be proportionate.
- The actions taken must not exceed what is necessary to avoid the harm.
- Reasonable Belief (Section 32(1)(d))
- The accused must have reasonably believed the threat would be carried out if they did not comply.
- The belief is assessed against the standard of an ordinary person in the same situation.
Limitations of the Defence of Duress
While duress can be a valid defence, it is not available in certain circumstances:
Exclusion for Certain Offences (Section 32(3))
Duress cannot be claimed as a defence for serious crimes, such as murder, attempted murder, or treason.
This exclusion reflects the principle that some crimes are too severe to justify under duress.
Voluntary Association with Criminal Activity (Section 32(2))
The defence is not available if the accused willingly placed themselves in a situation where threats or coercion were foreseeable, such as joining a criminal organisation.
Burden of Proof
Once duress is raised as a defence, the burden shifts to the prosecution to disprove it beyond a reasonable doubt. They must demonstrate that:
- The threat did not exist.
- The accused had reasonable opportunities to escape or report the threat.
- The accused’s actions were disproportionate to the harm threatened.
Case Review: de la Espriella-Velasco v The Queen [2006] WASCA 31
This case explores the use of duress as a defense in criminal law, focusing on whether threats of harm can justify serious drug offenses. It highlights the legal requirements for duress, including immediacy of threat and lack of alternatives, and demonstrates how courts assess such claims.
Background
- Charges: De la Espriella-Velasco was convicted of importing and possessing illegal drugs in large quantities.
- Defense Argument: He claimed he acted under duress, stating that drug traffickers had threatened to kill him and his family if he did not comply.
- Key Context:
- The threats were linked to organized crime, involving drug smuggling operations.
- He argued that the danger was imminent and left him with no safe options to refuse participation.
Appeal Arguments
The appellant raised two primary issues on appeal:
- Improper Jury Instruction:
- He argued the judge failed to explain to the jury that duress applies only if he had no reasonable opportunity to escape the threats.
- Assessment of Alternatives:
- The appellant claimed the jury should have been told to consider whether he could have:
- Reported the threats to police.
- Sought protection or assistance instead of complying.
- The appellant claimed the jury should have been told to consider whether he could have:
Outcome
- Appeal Dismissed: The Western Australia Court of Appeal rejected the arguments and upheld the conviction.
- Reasoning:
- The trial judge properly instructed the jury about duress.
- The appellant failed to prove he had no other way to avoid the threats, such as contacting law enforcement.
- Duress must involve immediate danger, and the threats in this case were not shown to be unavoidable at the time of the offense.
Legal Principles Highlighted
This case clarified important standards for the defense of duress:
- Immediate Threats Required: The threat must pose imminent danger of death or harm.
- No Reasonable Escape: The accused must prove they couldn’t report or avoid the threat through lawful means.
- Strict Application for Serious Crimes: Courts impose high thresholds for duress, especially in cases like drug trafficking, to prevent misuse of the defense.
The de la Espriella-Velasco case reinforces that duress is a narrow defense in criminal law. Defendants must clearly prove:
- Immediacy of the threats.
- Lack of safe alternatives.
The decision sets a precedent for applying duress strictly, particularly for organized crime cases involving serious offenses.
Why Legal Advice is Essential
Duress is a complex area of law that requires careful examination of the circumstances surrounding the alleged offence. At WN Legal, we specialise in criminal defence and provide clear, practical advice to help clients navigate these challenges.
If you are facing criminal charges and believe you acted under duress, contact us for a confidential consultation. We are committed to protecting your rights and ensuring the best possible outcome.
**Please Note**
The material provided here is for informational use only and does not constitute binding legal advice. You should not use this information as a replacement for an individual consultation with a trained legal professional.
