duress by threats

Question 1

what is duress by threats?

Answer 1

-a common law defence
-someone commits a crime because they were subject to a threat of death or serious injury

Question 2

what’s the purpose of the defence of duress by threats?

Answer 2

-d argues they were forced to commit a crime due to a direct threat
-‘founded on a concession to human frailty’
-available to all crimes other than murder, attempted murder and treason
-it’s rarely successful, as courts are reluctant to believe d couldn’t have walked away and sought help

Question 3

what is the definition of duress by threats?

Answer 3

1-2 part-graham test
2-must be either a threat of death or serious injury
3-can be a combo of threats but must have either death or serious injury involved
4-can include the d, their family, or people the d is responsible for (Wright)
5-if there’s a safe avenue of escape it must be pursued (r v gill)
6-the threat must be effective and operational when the d carries out the crime (Quayle)
7-must be a nexus between the crime nominated and the crime committed (Cole)
8-defence will usually fail if d associated with people who are known to make threats (sharp)

Question 4

what is the graham test?

Answer 4

1-was the d compiled to act because they reasonably believed they had a good reason to fear death or serious injury?
2-would a sober person of reasonable firmness, sharing the same characteristics as the d, have acted the same way?

Question 5

what is meant by ‘there must be either a threat of death or serious injury?

Answer 5

-a threat of psychological harm won’t suffice (baker)
-the threat must be convincing, so a person of reasonable firmness with the d’s characteristics would have given in (howe)
-the threat must be objectively reasonable and subjectively genuine (Hasan)
-in considering the d’s characteristics, pregnancy, serious physical disability or recognised mental illness may be relevant, age and gender will be taken into account, IQ won’t (Bowen)

Question 6

what is the reform proposal for duress by threats?

Answer 6

LC ‘a new homicide act 2005’
-should be a partial defence to murder

Question 7

key cases on duress by threats

Answer 7

-wright
-gill
-quayle
-sharp
-Cole
-baker
-hasan
-bowen
-howe