Duress

Question 1

What is duress by threats?

Answer 1

Duress is defined as where a defendant commits a crime because they were forced.

Question 2

What is the Graham Test?

Answer 2

The first stage involves determining if the defendant should have resisted the threats.

Question 3

What are the two parts of the Graham Test?

Answer 3

1. Subjective: Did the defendant act because they reasonably believed that they (or another) would suffer death or serious injury?
2. Objective: Would a sober person of reasonable firmness, sharing the defendant’s characteristics, have responded by committing a criminal offence?

Question 4

What characteristics are relevant in the objective part of the Graham Test?

Answer 4

Relevant characteristics include age, pregnancy, physical disability, and mental disability. (Bowen)

Question 5

What is the second stage of duress by threats?

Answer 5

The threat must be of death or serious injury; threats against property are not sufficient. (Valderama)

Question 6

What is the third stage of duress by threats?

Answer 6

The threat must be against the defendant or someone they are responsible for.(wright)

Question 7

What is the fourth stage of duress by threats?

Answer 7

The threat must be immediate, so the defendant does not have time to alert authorities. (Batchelor)

Question 8

What is the fifth stage of duress by threats?

Answer 8

The defendant must have committed a crime that was nominated by the person making the threat, with a direct link between the threat and the crime.(Cole)

Question 9

What is the side rule regarding self-induced duress?

Answer 9

If the defendant brought the pressure on themselves, such as by joining a gang, they lose the defence. (Hasan)

Question 10

What is the conclusion regarding success in arguing duress by threats?

Answer 10

If successful, the defendant achieves complete acquittal.

Question 11

What is duress by circumstance?

Answer 11

Duress by circumstance (necessity) is where the defendant commits a crime because they were forced by their circumstances.

Question 12

What is the core test for duress by circumstance?

Answer 12

1. The act was done to avoid a consequence that could not otherwise be avoided, inflicting inevitable and irreparable evil on themselves or others. (Re A)
2. No more was done than reasonably necessary.
3. The evil inflicted was not disproportionate to the evil avoided.

Question 13

What additional legal requirements must be proven in court for duress by circumstance? (Martin)

Answer 13

The accused must have acted reasonably and proportionately to avoid a threat of death or serious harm from an objective point of view.

Question 14

How is the Graham Test applied again in duress by circumstance?

Answer 14

1. Subjective: Did the defendant act because they reasonably believed that they (or another) would suffer death or serious injury? (Cairns)
2. Objective: Would a sober person of reasonable firmness, sharing the defendant’s characteristics, in the same circumstance, have committed the offence?

Question 15

What is the conclusion regarding success in arguing duress by circumstance?

Answer 15

If successful, the defendant achieves complete acquittal.