The legal defence of duress in New South Wales

• Published date: 26 September 2023
• Law Firm: Sydney Criminal Lawyers
• Author: Mr Jarryd Bartle

In the hit 2004 film Collateral, Jamie Foxx's character 'Max' is forced to act as getaway driver for a hit man (played by Tom Cruise).

Max complies to the hit man's demands due to what he perceives to be an imminent risk to his life, despite thereby involving himself in serious criminal activity.

The law in New South Wales law make clear that a person is not criminally responsible for conduct which would otherwise amount to a crime if he or she was under a serious, imminent, ongoing and unavoidable actual threat to the safety of him or herself, or to someone close to them, and the actions were justified in the circumstances.

This is known as the ' legal defence of duress' and it is a full defence to nearly all criminal charges in our state.

Here is an outline of the defence of duress in New South Wales.

The elements of duress

The law makes clear that duress is available where a person engaged in otherwise criminal conduct due to a well-grounded fear of death or grievous bodily harm to themselves, an immediate family member or somebody else to whom they felt responsible.

Three broad elements need to be satisfied for the defence to be made out:

1. The defendant's will was overborne by a threat of death or grievous bodily harm,
2. A person of ordinary firmness of mind in the same circumstances would have succumbed to this threat in such a way, and
3. The...