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• Rationale Of The Defence
• Principles Of Duress
• One Defence Or Two?

9. Duress

152 FOR CENTURIES THE COMMON LAW HAS RECOGNISED a defence of

duress by threats.[228] This defence has been available where the defendant has committed an offence because he or she was threatened with death or serious bodily harm by another human being if he or she did not commit the offence. An example is a bank teller compelled at gunpoint to open a safe and hand over the bank’s money to a robber. More recently, the common law has recognised another form of duress, duress of circumstances.[229] Duress of circumstances occurs when the defendant commits an offence, not because of coercion, but because perilous circumstances exist that will cause death or serious bodily harm to the defendant if the offence is not committed. An example is a defendant who trespasses in order to escape from a rabid dog.

153 The defence of duress may be relevant to battered defendants who are compelled to commit a criminal offence either because of threats by the batterer or because of circumstances arising from the battering relationship.

RATIONALE OF THE DEFENCE

154 Duress[230] has sometimes been treated as negating the mens rea of the offence.[231] However, it is now generally accepted that when a person commits an offence under duress all the elements of the offence are present but the presence of duress prevents the law from treating what the defendant did as a crime.[232] The defence of duress instead acts as an excuse on the grounds that the law should show compassion for human weakness in the face of pressure that overstrains human nature and that no one could withstand.[233]

155 Duress of circumstances is sometimes referred to as necessity and the terms are often used interchangeably. However, some commentators use the term necessity more broadly to indicate a situation in which a person is faced with two evils, one involving committing an offence and the other some greater evil to that person or others.[234] This concept of necessity encompasses and goes beyond duress of circumstances. We discuss this broader concept in paragraphs 204–205 but otherwise our discussion of the defence of necessity is limited to duress of circumstances and the term has that meaning in this paper.

PRINCIPLES OF DURESS

156 The common law defence of duress requires that the defendant act under extreme pressure: he or she must have been in fear of death or of serious bodily harm.[235] The danger may have been to the defendant or (possibly) another person.[236] The threat must be of immediate or imminent harm,[237] or there must be no reasonable opportunity of getting effective police protection.[238] The defendant must have reasonably believed in the existence of the threat, this belief must have amounted to good cause for the defendant’s fear, and the defendant’s response must be one which might have been expected of a sober person of reasonable firmness.[239] The defendant’s criminal behaviour must be a reaction to the duress.[240] Those who voluntarily put themselves in the position of being subject to duress cannot avail themselves of the defence.[241] Duress is not a defence to murder or some forms of treason.[242]

ONE DEFENCE OR TWO?

157 As noted above, duress of circumstances and duress by threats seem to differ only as to the source of the peril. Lord Hailsham of Marylebone has pointed out that this distinction between them is:[243]

without a relevant difference, since on this view duress is only that species of the genus of necessity which is caused by wrongful threats. I cannot see that there is any way in which a person of ordinary fortitude can be excused from the one type of pressure on his will rather than the other.

158 The similar nature of the defences has been noted by other commentators. For example, Lord Simon of Glaisdale observed in his dissenting judgment in Director of Public Prosecutions v Lynch:[244]

In the circumstances where either “necessity” or duress is relevant, there are both actus reus and mens rea. In both sets of circumstances there is power of choice between two alternatives; but one of those alternatives is so disagreeable that even serious infraction of the criminal law seems preferable. In both the consequence of the act is intended, within any permissible definition of intention. The only difference is that in duress the force constraining the choice is a human threat, whereas in “necessity” it can be any circumstance constituting a threat to life (or, perhaps, limb).

159 This suggests that there is no reason to bifurcate the defence of duress according to the source of the peril. However, legislative development in New Zealand has continued the separation of the two types of duress. Section 24 of the Crimes Act 1961 creates a defence of “compulsion” that replaces the common law defence of duress by threats. Because of the need to discuss the effect of section 24, we divide the rest of the discussion into a chapter on duress by threats (which we will refer to as compulsion) and a chapter on duress of circumstances (which we will refer to as necessity). Nevertheless, we consider that any reform of the law should be based on recognition of the essential similarity of the two species of duress.