[6-150] Introduction

Last reviewed: June 2024

It is for the judge to rule if there is evidence of duress to be left to the jury. Where duress is raised the onus is on the Crown to prove beyond reasonable doubt that the accused was not acting under duress.

When duress is raised in a Commonwealth matter, refer to note 9 at [6-170].

[6-160] Suggested direction

Last reviewed: June 2024

In this case, the Crown has to prove beyond reasonable doubt that the accused was not acting under duress when [outline relevant circumstances]. It is not for the accused to prove that their actions were done under duress.

The law recognises that in some cases someone who commits what would otherwise be a crime should be excused for having done so. It recognises that we are human beings and that sometimes people really don’t have a choice — their choices have been overborne by a serious threat to either them or their family. The law would prefer that no one commits a crime but the defence of duress is a concession to human frailty.

But it is important that you understand that it is not a concession to individual frailty. People cannot escape punishment if they give in to threats that are not serious. We expect people to act as reasonable human beings if they are threatened and also expect people to have the strength of character to be able to resist some threats. If there is some reasonable way to avoid the threat such as reporting the matter to the police then people are expected to do that and not give in to the threat and commit a crime.

There are three elements which make up duress. A person acts under duress, and therefore will not be held to be criminally responsible if that person’s actions were performed:

  • because of threats of death or really serious injury to themself or a member of their family;

  • those threats were of such a nature that a person:

    • of ordinary firmness and strength of will,

    • of the same maturity and sex as the accused, and

    • in the accused’s position;

  • would have given in to them and committed the crime demanded of them.

Those three elements are necessary before duress exists. If the Crown has proved beyond reasonable doubt that just one of the elements is missing then duress will be eliminated as an issue.

I will explain the three elements in some more detail.


Was the accused driven by [the alleged threats] to act as they did because the accused genuinely believed that if they did not act in this way, [they/member of the accused’s family etc] would be killed or seriously injured?

In considering this question, you will have to decide what threats [if any] were made and, if they were, what they led the accused to believe would happen. The threats may not be expressed, they may be implied. In this case [describe circumstances]. If the accused genuinely believed that there was an imminent danger of death or serious injury, it would not matter if that belief was, in fact, mistaken. What matters when you look at this question is what the accused believed would happen. Did they believe that [they or their family] would be killed or seriously injured if they did not do what they said was demanded of them.

[Summarise submissions of the Crown and the accused in relation to question 1].


Would those threats have forced a reasonable person to act as the accused did?

This question is more complicated and requires you to look at the response of a reasonable person of ordinary firmness and strength of will, and of the same sex and maturity as the accused, to the threats facing the accused, and in the circumstances in which the accused found themself.

When you come to consider this question, you must have regard not only to the nature of the threats, but also to any circumstances known to the accused concerning the person(s) making the threats, which may have affected a reasonable person’s reaction to them, as well as the actual circumstances in which they were made. [set out defence case]

This is something you examine in a sensible and common sense way. You have to recognise that it is one thing to consider what a reasonable person would do when you are sitting in a jury room with people around you and the ability to think through the alternatives in a relaxed way. But it is another thing for a reasonable person to think about how they would respond to threats in the circumstances the accused said they found themselves in.

You place a reasonable person of ordinary firmness of mind and will, and of the same maturity and sex as the accused, in the accused’s position, that is, in the setting and circumstances in which the accused found themself and you attribute to that reasonable person the knowledge the accused had of the person(s) offering the threats.

You then ask yourselves whether, taking all those matters into account, the Crown has satisfied you, beyond reasonable doubt, that a reasonable person would not have yielded to the threats in the way the accused did.

[Summarise the submissions of the Crown and the accused in relation to question 2].


Could the accused have rendered the threat ineffective [for example, by going to the police and/or …]?

I said before that we would prefer that people did not commit crimes even in response to threats. If the accused had a choice between giving in to the threat and rendering it ineffective then the law says the person should take the second option. Even when a person is faced with threats which they believe will be carried out unless they commit a crime, they are not acting under duress if they could have avoided the threats by doing something else, such as reporting the matter to police.

[Summarise the Crown and defence submissions in relation to question 3].

If the Crown has disproved any of these three elements beyond reasonable doubt, then the defence of duress has failed. If the Crown has failed to disprove any of them, then the accused is entitled to a verdict of “not guilty”.

In short, the Crown will have succeeded in eliminating duress as an issue if it has proved beyond reasonable doubt any of these three things:


The accused was not forced to do what they did because of threats of death or really serious injury to [themself/a family member];



The threats were not of such a nature that a reasonable person with the attributes of the accused and who was in the position of the accused would have given in to them and done what they did;



The accused could have rendered the threat ineffective by doing something else instead of doing what they did.

[6-170] Notes

Last reviewed: June 2024

In R v Lawrence [1980] 1 NSWLR 122, the Court of Criminal Appeal comprehensively dealt with the defence of duress, and trial judges are advised to re-read the judgments in that case before summing up in a trial where duress is raised. See also R v Hurley and Murray [1967] VR 526; R v Abusafiah (1991) 24 NSWLR 531 and R v Pimentel [1999] NSWCCA 401. The general principles concerning duress at common law were discussed at [28]–[29] and [32]–[36] in Taiapa v The Queen (2009) 240 CLR 95.


Duress of circumstances (that is, where a person is driven to commit a crime by force of circumstances) is considered in R v Pommell [1995] 2 Cr App Rep 607, and R v Abdul-Hussain [1999] Crim LR 570. It was confirmed in The King v Anna Rowan – A Pseudonym [2024] HCA 9 that duress of circumstances was not part of the common law in Australia: [47]–[49] and [83]–[86], [88]. See and compare Necessity at [6-350].


For a discussion of what constitutes a relevant “threat” for duress at common law, see The King v Anna Rowan – A Pseudonym [2024] HCA 9 at [37]–[43]. The High Court upheld the Victorian Court of Appeal’s decision in Rowan (a pseudonym) v R [2022] VSCA 236 at [154]–[156] that a continuing or ever present threat which is subsisting at the time of the offence (as distinct from a specific threat in close temporal proximity to the offending) can be sufficient if, in all other respects, the defence of duress can be made out. The accused must have, due to the threat, lost their freedom to refrain from committing the charged offence.


Duress can extend to threats directed beyond the accused or an immediate member of the accused’s family to someone for whom the accused might reasonably feel responsible. See, for example, R v Conway [1989] 88 Cr App Rep 159, where the threat was to a passenger in the accused’s car; see also R v Brandford [2016] EWCA Crim 1794 at [32], [46].


“Battered woman syndrome” may be relevant to a defence of duress: R v Runjanjic (1991) 56 SASR 114.


Australian authorities suggest that duress may be available as a defence to attempted murder: R v Goldman [2004] VSC 291; cf R v Gotts [1992] 2 AC 412.


In R v Bowen [1996] 2 Cr App Rep 157, guidance is given as to the characteristics of the accused with which a reasonable person should be invested for the purposes of resolving question 2 in [6-160]. Examples are given such as youth, pregnancy, physical disability, recognised mental illness or psychiatric condition.


There is a limitation on the availability of the defence when a person is part of a criminal organisation or where they otherwise put themselves in a position where they may be coerced to commit criminal offences: R v Hurley [1967] VR 526 at 533; Hasan [2005] UKHL 22; Nguyen v R [2008] NSWCCA 22 at [40]; R v Qaumi (No 63) [2016] NSWSC 1216 at [30]–[35]; R v Qaumi (No 64) [2016] NSWSC 1269 at [40]–[43]. Note, however, that in R v Qaumi (No 64), Hamill J observed that he considered that in Nguyen v R the court had overstated the nature of the limitation: R v Qaumi (No 64) at [42].


Although the cases use the expression “voluntariness” in relation to duress, that expression is not used in the same sense as that expression is used in automatism. If a case involves both duress and automatism, this distinction should be made clear to the jury.

Duress in Commonwealth cases


Section 10.2 of the Criminal Code (Cth) codifies the defence of duress for an accused charged with a Commonwealth offence. It is important when adapting the form of the direction in [6-160] for a Commonwealth offence, that regard is had to the precise terms of s 10.2 and also s 13.3 of the Code. See Mirzazadeh v R [2016] NSWCCA 65 and Oblach v R (2005) 65 NSWLR 75 at [66]. As to the operation of s 13.3 see The Queen v Khazaal (2012) 217 CLR 96 at [74]–[78].