Duress Of Threats Flashcards
What does AG v whelan define a threat as
Threats of immediate death or serious personal violence are so great as to overbear the ordinary powers of human resistance
What must the nature of the threat be
Death or serious injury as in r v Singh where less threats will not be sufficient
Psychological threats are not sufficient baker and Wilkins
Are lesser threats to destroy property sufficent
No
Are threats to expose sexual immorality sufficent
No as shown in valderrama vega
What else does valderrama vega show and case facts
There can be a string of threats to include death or serious injury
Imported cocaine as death threats made and threatened to expose sexuality
Convicted at first instance but conviction quashed on appeal
Who can the threats be to
Yourself of family as stated in Martin
Case law has developed the use of the defence to who
Wife, girlfriend, mother or friends as decided willer and Conway
Who did Wright suggest the defence could be used for
Anyone who’s safety d reasonably regarded himself as responsible
What does r v Cole indicate and facts
D must be told what crime to commit
Moneylenders pressured d for money and threatened girlfriend and children he went and robbed 2 building societies
He was not told to rob so does not have a defence of duress
For d of t d must have been forced to commit a crime under threat of
Death or serious injury
If d voluntarily commits an offence to escape the consequence of threat is duress available
No
There has to be a sufficient what between threat issues and crime
Nexus (connection)
What offences is duress not available for
Murder
Attempted murder
Possible treason
Who is the burden of proof with
Prosecution although d must raise evidence of duress
What is the test for duress
A two stage test laid down in r v graham
Which case confirmed r v graham
Howe and bannister
Case facts of r v graham
Homosexual living with wife and boyfriend, boyfriend told d to hold end of rope to strangle wife
What is section 1a of Graham’s test
D must fear death or serious injury and have good cause to do so (subjective)
What is part 1b of graham test
The belief must be reasonable and genuine (hasan) and the jury must believe that death or serious injury was likely
What is part 2 of graham test
Would a similar, person sharing certain characteristics of d, sober person or reasonable firmness fear death or serious injury (objective)
Must must there be evidence to suggest
That d believed the duressor
What can the reasonable person be given when considering graham test
Certain characteristics of d if it made him more susceptiable to pressure
What do the certain characteristics include
Age Sex Pregnancy Serious physical disability Mental impairment Post traumatic stress disorder
Which case indicated post traumatic stress disorder could be considered
Bowen
