ND: Duress By Circumstances

Question 1

R v Willer

Answer 1

Origins

The jury should consider some type of duress in such circumstances

Question 2

R v Conway

Answer 2

Origins

Duress was available if, from an objective pov, D was acting to avoid a threat

Question 3

R v Pommell

Answer 3

Extent and availability

Whether duress of circumstances should be applies was a matter for the jury

Question 4

DPP v Davis

Answer 4

Extent and availability

Duress of circumstances is available even if D was intoxicated (drove to avoid being attacked)

Question 5

R v Cairns

Answer 5

Extent and availability

There was a reasonable perceived threat of death or serious injury

Question 6

Duress of circumstances plan

Answer 6

Common law defence. Most of its definition is based on decisions of judges rather than statute. - R v Willer, R v Conway

For this defence, the D was forces to react due to the circumstances they found themselves in, rather than a direct threat of death/serious injury. This defence has evolved to compensate for the restrictive nature of duress by threats.

Definition in Re A (Children) (Conjoined Twins: Surgical Separation) (2001):
An act, which would ordinarily be considered a crime, may excuse the D if they can show that:
- it was done to avoid consequences which could not have otherwise been avoided, and if they had been followed would’ve inflicted inevitable and irreparable evil upon themselves
- no more was done than was reasonably necessary
- the evil inflicted was not disproportionate to the evil avoided

Apply….

Two-part Martin test provided in R v Martin must be satisfied:
1) From an objective point of view, the accused acted reasonably and proportionately to avoid a threat of death/serious injury - R v Pommell, DPP v Davis, R v Cairns
2) The two-part Graham test applies and must also be satisfied

Apply…..

Conclusion - if all tests are satisfied, the defence may be available.