Duress by Threats

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DURESS BY THREATS INTRODUCTION The general nature of the defence of duress is that the defendant was forced by someone else to break the law under an immediate threat of serious harm befalling himself or someone else, ie he would not have committed the offence but for the threat. Duress is a defence because:- "...threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance should be accepted as a justification for acts which would otherwise be criminal." (Attorney-General v Whelan [1934] IR 518, per Murnaghan J (Irish CCA) The defendant bears the burden of introducing evidence of duress and it is then up to the prosecution to prove beyond all reasonable doubt that the defendant was not acting under duress. If a defence is established it will result in an acquittal. 1. THE THREAT The defence must be based on threats to kill or do serious bodily harm. If the threats are less terrible they should be matters of mitigation only. It is generally accepted that threats of violence to the defendant's family would suffice, and in the Australian case of R v Hurley [1967] VR 526, the Supreme Court of Victoria allowed the defence when the threats had been made towards the defendant's girlfriend with whom he was living at the time. The threats must be directed at the commission of a particular offence: In R v Coles [1994] Crim LR 582, the defendant was charged with committing a number of robberies at building societies. At his trial he sought to adduce evidence that he had acted under duress. The basis for the defence was that he had owed money to money-lenders who had threatened him, his girlfriend, and their child with violence if the money was not repaid. The trial judge ruled that the facts did not give rise to the defence as the threats had not been directed at the commission of a particular offence, but
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