428. Scope and Basis of the Defence of Duress in Australia. 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. 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. In Director of Public Prosecutions v Lynch[67] 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. 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.[68] Abbott’s case has been followed in Australia,[69] and it would seem that it reflects the Australian common law. 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. 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.[70] 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.[71] 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. The third party must however be in a position to carry out the threat. 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. There is no provision making the defence available where the threat is of violence to a person other than the accused.[72] Thus in a number of respects the common law allows the defence where the Codes do not.[73]

429. 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. 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. This conclusion has been reached by both the English Court of Appeal[74] and the New South Wales Court of Criminal Appeal.[75] 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. In both Graham[76] and Lawrence[77] the analogy with the ‘new’ test for provocation was expressly drawn. The defendants in these cases were not Aboriginal, and there was no cause to refer to Aboriginality as a relevant characteristic or circumstance. But there is no reason to think that the objective test for duress is any different from that for provocation.

430. Duress Compared with Compulsion under Aboriginal Customary Laws. 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. Threats of physical or other forms of retribution from other members of the group may be made if the act is not carried out. Elizabeth Eggleston suggested that duress may be an appropriate defence in some situations where Aborigines act under their customary laws because of fear of death or physical harm. She referred in particular to the case of Skinny Jack (also known as Chimney Evans).[78] In that case a number of young Aboriginal men were exhorted to kill another Aborigine because the latter had broken their customary laws in selling a sacred item. The young men involved were threatened with a similar fate if they refused to carry out the orders. Eggleston noted however that as well as fear there may well have been other elements of Aboriginal culture that influenced the defendants in this case:

In the latter case the element of fear in the immediate situation is reinforced by the element of legitimacy and also there is more reason to believe that the threat will be a continuing one since the persons making the threats have access to powerful sanctions to back up their threats.[79]

In Eggleston’s view, duress is not a generally applicable defence in customary law cases, though it may be available in particular instances where the strength of the operation of customary laws may add reality to the threats. But suggestions have since been made for the extension of the defence of duress to cover cases where a person is ‘forced’ by his or her adherence to customary laws to commit an offence.[80] The difficulty with such proposals is that traditionally oriented Aborigines follow their customary laws, not just because of fear of punishment, but because of belief in their legitimacy. No doubt there is a sense in which someone could be said to be ‘coerced’ by sincere beliefs into doing an act, though only in some secondary sense of ‘coercion’.[81] However it is very doubtful whether the common law defence of duress can be said to apply in such circumstances in the absence of external pressure,[82] and the same appears to be true of its Code equivalents.[83] There will be situations involving Aboriginal customary laws where the defence of duress is appropriate. However there will also be situations where Aborigines have followed their customary law voluntarily without any external pressure being applied or having to be applied. In this situation it is inappropriate to seek to resolve the issue by artificially extending the defence of duress. The issue is rather whether Aboriginal customary laws should be accepted as a defence as such. This will be dealt with later in this Chapter.[84]

[67][1975] 1 All ER 913.

[68][1977] AC 755.

[69]Darrington v R [1980] VR 353.

[70]cf M Wasik, ‘Duress and Criminal Responsibility’ [1977] Crim L Rev 453; ATH Smith, ‘Defences of General Application: The Law Commission’s Report No 83(1) — Duress’ [1978] Crim L Rev 128; M Sornarajah, ‘Duress and Murder in Commonwealth Criminal Law’ (1981) 30 ICLQ 660. And cf R v McCafferty [1974] 1 NSWLR 89. The absurdly fine distinctions that may have to be drawn are demonstrated by R v Graham [1982] 1 WLR 294, where the Crown conceded that duress was available on a charge of murder.

[71]Qld and WA Codes, s 31(3); Tasmanian Code, s 39, 49.

[72]NT Code, s 40.

[73]cf R v Clark (1980) 2 A Crim R 90.

[74]R v Graham [1982] 1 WLR 294.

[75]R v Lawrence (1980) 32 ALR 72.

[76][1982] 1 WLR 294, 300 (Lord Lane CJ).

[77]See esp (1981) 32 ALR 72, 101 (Moffitt J). Nagle CJ and Yeldham J in substance agreed.

[78]Eggleston, 289-92, 296-7; cf ALRC DP 17, 38.

[79]Eggleston, 297.

[80]eg D Hore-Lacey, Submission 499 (14 November 1985) 7. But the Tasmanian Aboriginal Centre stated that duress should only be allowed as a defence where this was supported by ‘the expressed wishes of the Aboriginal community in question’: Submission 237 (10 April 1981) 11. Chief Justice Forster commented: I have sometimes been attracted to the opinion that a special sort of duress should be a defence to change … even involving homicide if the perpetuator was acting pursuant to tribal law. Submission 163 (24 April 1980).

[81]cf R v Old Barney Jungala, unreported, Northern Territory Supreme Court (Muirhead J) 8 February 1978, where Muirhead J commented: ‘There is no suggestion that [the defendant] intended to cause the death of this young woman and I accept the fact that he acted as he believed the law which he respected compelled him to do’. The defendant was convicted of manslaughter on grounds of lack of intent to kill, not duress.

[82]In R v Isobel Phillips, unreported Northern Territory Court of Summary Jurisdiction (Mr JM Murphy, SM) 19 September 1983, the defendant a woman from the Warumungu tribe, was required by Warumungu customary law to fight in public any woman involved with her husband. Warumungu law also set limits to the fight, which were not exceeded in this case. Anthropological evidence was called to show that the defendant was under a threat of death or serious injury if she did not respond. The Magistrate held that ‘a Warumungu woman of ordinary firmness would have carried out the instructions she was given … as the defendant did … The threats … are backed up by the sanctions of the Warumungu law, and she cannot as she remains in a Warumunga environment, evade these consequences’. Transcript of Decision11, 13. The charges were dismissed on the ground that the defence of duress applied.

[83]It has been suggested that the special defence of coercion to murder in the NT Code s 41 could apply to cases of ‘compulsion’ under Aboriginal customary laws. Commenting on s 41 the NT Attorney-General stated that the defence would be available to an Aborigine acting in accordance with his customary laws:

Section 41 of the Territory Code, relating to coercion, purposely made just such a defence available to persons, such as Aborigines, who may be forced through physical or mental pressure (their culture) to do what they would not otherwise do … Section 41 addresses the problem of their no longer being a discretion as (formerly) provided by section 6A of the Criminal Law and Consolidation Act.

Hon J Robertson, Submission 419 (17 May 1984).

But under s 41 the coercion must have been ‘of such a nature that it would have caused a reasonable person similarly circumstanced to have acted in the same or a similar way’. ‘Coercion’ is defined by s 1 to mean ‘physical or mental pressure forcing the person said to be coerced to do what he would not otherwise do’. There may be difficulties in claiming that a person’s beliefs or convictions constitute ‘mental pressure forcing [him] … to do what he would not otherwise do’. The point has not yet been decided by the courts.

[84]See para 442-53. A defence with some similarities to duress is necessity. If it does exist as a general defence at common law it applies only in restricted cases, of limited or no relevance to present purposes. It would not, for example, be open to a defendant to argue that it was ‘necessary’ to impose some traditional punishment because of the adverse consequences of not doing so, since these would (apart from cases of duress) be of an indirect or long-term character. cf R v Dudley & Stephens (1884) 14 QBD 273; Morgentaler v R (1975) 53 DLR (3d) 161; Howard, 412-417; Glanville Williams, 553-576. The same is true of the limited Code provisions concerning ‘extraordinary emergencies’: Qld, s 25; WA, s 25; NT s 33.