defence of duress Q1's

Question 1

Bowen

Answer 1

Trial judge allowed jury defence of duress, failed Low IQ direction
appeal to clarify law
Graham test- Low IQ not to be taken into account

Graham- reasonable person may be given certain characteristics if it made him more susceptible to pressure.. These include: Age pregnancy, serious physical disability, mental impairment.

Pliability, Vunerability, timidy and suceptability to threats were not to be taken into account. Nor could self intoxication.

Bowen clarified law in relation to objective test.
Offers a concession to human weakness by listing relevant characteristics of the person then lists others listed as irrelevant.

Question 2

what are the 5 characteristics Bowen allowed in relation to the reasonable person test

Answer 2

Age, Pregnancy, Serious Physical disability, PTSD and mental impairment.

Question 3

What are the 5 characteristics not allowed in Bowen

Answer 3

Pliability, vunerability, timidy and susceptability to threars are not relevant characteristics

Question 4

Hasan

Answer 4

HOL rejected ‘immediate/ imminent’ as per hudson and taylor

Preferred a more rigid interpritation that any threat must be immediate or almost immediate (13-20)

(facts) then HOL favoured the harsher approach than hudson and taylor
to argue police protection is inadequate would not longer sucseed.
D must take the oppertunity of a safe avenue of escape

Assosiation with violent gang members and foresight of being forced to engage in criminal activity.

Case appealed from COA, grounds for appeal because of misdirection by initial judge.

Question 5

Howe

Answer 5

Duress unavailable for murder
Halisham accepts the man of courage should be able to make the choice between the lesser of two evils (15-23)
Unjust to withdraw protection from innocent victims
Killing is not the lesser of two evils, D must act heroicly.

Duress by threats unavailable to a second party for murder
PS used to overrule Lynch
Consistency and predictability

Orbiter indicated the HOL did not favour the use of duress for attempted murder.
In the interests for consistency D should not use the defence for either
based upon sentencing principles for murder and attempted murder.