A person acts under duress, and therefore involuntarily, if that person’s actions were performed because of threats (express or implied) of death or really serious injury to being threats of such a nature that a person of ordinary firmness and strength of will, that is, a person of the same maturity and sex as the accused, and in the Accused’s position, would have yielded to them.
To use the defence of duress, the following is required, evidence of:
- The making of an actual threat;
- The nature of the threat being of death or serious injury to the accused or their family;
- The threat being of such gravity that a person of ordinary firmness of mind and will, and of the same sex and maturity as the accused, would have yielded to the threat in the way that the accused did;
- The accused acted as they did because of the threat which was still acting on their mind at the time of the criminal act.
- For the threat to be effective it must be continuing. A threat will not be continuing and effective if the accused has a reasonable opportunity to render the threat ineffective.
The Crown must establish that the acts of the Accused person were done voluntarily, and in order to prove that the Accused person did act voluntarily, the Crown must eliminate any reasonable possibility that the Accused person acted under duress.
Battered woman syndrome has been held to be relevant to a defence of duress.