Threats of physical or other forms of retribution from other members of the group may be made if the act is not carried out. Under Aboriginal customary laws an Aborigine may sometimes be expected or even required to inflict harm on another Aborigine who has committed a breach of customary laws. Duress Compared with Compulsion under Aboriginal Customary Laws. But there is no reason to think that the objective test for duress is any different from that for provocation.Ĥ30. The defendants in these cases were not Aboriginal, and there was no cause to refer to Aboriginality as a relevant characteristic or circumstance. In both Graham and Lawrence the analogy with the ‘new’ test for provocation was expressly drawn. The question therefore arises whether or not the objective test to be applied is an abstract one, having no regard to the defendant’s personal characteristics. This conclusion has been reached by both the English Court of Appeal and the New South Wales Court of Criminal Appeal. However it appears that an accused may not rely on duress unless a person of ‘ordinary firmness’ would have been coerced into doing what he did. Subjective or Objective Test? Neither the High Court nor the House of Lords has decided whether the test for duress is an objective one or is wholly subjective. Thus in a number of respects the common law allows the defence where the Codes do not. There is no provision making the defence available where the threat is of violence to a person other than the accused. Duress is specifically excluded as a defence for treason, murder, piracy or offences involving grievous bodily harm or an intention to inflict grievous bodily harm. The third party must however be in a position to carry out the threat. The Northern Territory Code refers to a threat to commit an offence against the person for which the offender may be sentenced to 7 years imprisonment, but it does not require the third party to be present at the scene of the crime. Under the Criminal Codes of Queensland, Western Australia and Tasmania, for duress to be available the threat has to be of immediate death or grievous bodily harm to the defendant by a third party who is present at the scene of the crime. Liability is attached to an offender in situations where there has been no free agency, no real ability to refuse to do the act which has brought the defend ant before the Court. The distinction it draws between principals and accessories to murder been criticised, for example on the ground that it undermines the fault basis of the criminal law. Abbott’s case has been followed in Australia, and it would seem that it reflects the Australian common law. However the Privy Council, by a different majority, held in Abbott v R that the defence is not available to a principal (as distinct from an accessory) to murder. In Director of Public Prosecutions v Lynch the House of Lords by a majority held that the defence is available to an accessory to murder, where the defendant has been induced to aid the principal by threats of violence or death against himself or his friends or family. The common law did not allow duress as a defence to murder or treason, on the theory that these crimes are so serious that they could not be excused. At common law, the defence of duress may be available if the defendant can show that the offence was committed because of a threat that serious violence would be inflicted on the defendant, his family or friends, if he refused to commit the offence. Scope and Basis of the Defence of Duress in Australia.
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