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The defence of duress is that the defendant was forced by someone else to break the law

The defence of duress is available in the statute books, and yet, it is rarely used. It may be because it is difficult to prove. An accused who relies on the defence of duress must prove that another person made a threat against him and that the threat involves the death or serious physical harm to the accused or his family.

The threat must have been serious that any reasonable person would have acted in the same way as the accused and would have committed a criminal act as a result of the threat.

For instance, an armed person enters the home of the accused (a bank manager) while his wife and children are in the house and threatens the accused that he will kill his wife and children unless he surrenders the keys and combination to the bank vault. In this instance, the bank manager may be criminally charged with being an accessory to the crime of robbery. If he is criminally charged, then he can raise the defence that he surrendered the keys and combination to the vault to those who robbed the bank.

This defence is rarely invoked because duress is difficult to prove. The accused has the duty to produce clear and convincing evidence of the threat, of the seriousness of the threat, and that his actions were not in any way voluntary or volitional. The accused must also prove that the seriousness of the threat pressed on his mind and resulted in his actions.

If the accused succeeds in discharging this duty to present clear and convincing evidence, then the prosecutor has the opportunity to rebut his evidence and prove that there was no threat;

  • or that if there was a threat, that it was not serious;
  • or that the threat did not involve the death or serious injury of the accused or his family.

The prosecutor can also present evidence that an average person of average firmness of mind, under a similar threat would not have acted similarly so as to commit a crime the way that the accused did.

The prosecution can also present evidence that even if a threat was made, the accused acted voluntarily and that his acts were not merely due to the threat made against him but was motivated by a criminal intent.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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