Chapter 11: General defences - Duress of circumstances

Question 1

What are the 3 overview points to Duress of Circumstances

Answer 1

Excuse defence

• Type 2 (defence to a fully constituted crime)

Burden of proof (any case in this topic)

• Prosecution to disproof
• Beyond reasonable doubt

Question 2

What is the scope/nature of the denfece of duress of circumstances?

What is D trying to raise?

Answer 2

Pretty much defence of necessity couched in different terms

D essentially pleading that the circumstances (rather than person) forced them to do what he did

• Essentially arguing that it was necessary for them to act (necessity)

Question 3

What is there to note about duress of circumstances?

Answer 3

1. Duress of circumstance picks up from where duress (to a person) fell short
2. Raised when necessity can’t be used
3. It’s a wider use of defence, as there are less limitations (i.e. no requirement of balance of evils)

Question 4

What are 3 cases for Duress of Necessity?

Answer 4

• R v Willer [1986]
• R v Conway [1988]
• R v Carins [1999]

Question 5

R v Willer [1986]

Answer 5

Facts

1. D charged with reckless driving after he had driven very slowly on a pavement in order to escape from a gang who were obviously intent on doing something violent to D and his passengers
2. Trial judge ruled that defence of necessity was not available and convicted him
3. Appealed

Held

• COA held that while necessity was not available, defence of duress of circumstances should have been left to the jury

Question 6

R v Coway [1988]

Answer 6

Facts

1. D driving recklessly and pleaded necessity
2. On grounds that he drove as he did as his passengers feared an attack from 2 men who were approaching the car
3. Where in fact were police officers who were approaching the car to arrest the passengers
4. Trial judge did not leave defence of necessity or duress of circumstances to the jury

Held

1. COA quashed the conviction (regarding the decision in R v Willer as binding)
2. It saw the defence of necessity and duress of circumstances as a: “logical consequence of existence of the defence of duress as that term is ordinarily understood that is ‘do this or else’; thus it would be subject to the same limitations, namely that the harm sought to be avoided must be death or serious injury.”

Takeaway

• This is another choice of lesser of two evils

Question 7

R v Carins [1999]

Answer 7

Facts

1. D was driving in his car when a man stepped out in front of him
2. Man was drunk and decided to jump on his bonnet
3. D drove off with V on the car
4. D braked in order to driver over a speed ramp and V fell of onto the road
5. D carried on and drove over the V
6. Sustained serious injury
7. D convicted of inflicting GBH contrary to Section 20 OAPA 1861

Held

• Judge should have directed the jury that they must determine 2 questions -

1. Whether the accused was or might have been, compelled to act as he did because as a result of what the reasonably believed to be the situation, he had good cause to fear that if he failed to act so death or serious personal injury would result;
2. If so, would a sober person of reasonable firmness, sharing the characteristics would have responded to the situation in the way that the accused had acted?
   * If the answer to both was “yes”, then the defence of duress of circumstances would have been established
   * The judge must also direct the jury that it is incumbent (duty) on the crown to disprove the defence of circumstances (R v Rose [1998])