Defences+of+Duress+and+Necessity

**Duress**
Duress is a complete defence to all offences, except murder, attempted murder and some forms of treason.

R v Hurley laid out eight key points of duress:
 * 1) There must be a threat of death or grevious bodily harm against the defendant or someone else;
 * 2) the circumstances must be such that a person of ordinary firmness would have yielded to the threat in the way the defendant did;
 * 3) the threat was present and continuing, imminent and impending;
 * 4) the defendant reasonably apprehended that the threat would be carried out;
 * 5) the defendant was thus induced to commit the crime;
 * 6) the crime was not murder, nor any other crime so heinous as to be excepted from the doctrine;
 * 7) the defendant did not expose himself to the threat; and
 * 8) the defendant had no means, with safety to himself, of preventing the exception of the threat.

The defence bears the evidential burden of raising the defence, and then the legal burden falls upon the Crown to disprove any of the elements, beyond reasonable doubt.


 * The Threat**

The threat must be one of death of grevious bodily harm and directed at the defendant or some other human being per R v Hurley.

The threat must be present. However, threats of future harm can constitute a threat provided that they are present and continuing in a sense that they are operating on the mind of the defendant at the time of the commission of the offence per R v Hudson.

The threat must relate to the crime charged either directly or incidentally per R v Dawson.


 * The Subjective Element**

The defendant's will must be overborne by the threat at the time the crime was committed. They must subjectively believe that if they fail to commit the act then death or grevious bodily harm will be inflicted upon another.


 * The Objective Element**

The objective test is whether a person of 'ordinary firmness' would have yielded to the threat in the way that the defendant did per R v Abusafiah.

__Person of ordinary firmness__
 * The objective person with 'ordinary firmness' is invested with the same age and sex of the defendant. All other elements inherent with the defendant (e.g. intoxication, personality etc) are ignored.
 * According to R v Lawrence, the requirement should be that "an average person of ordinary firmness and mind... in like circumstances would have done the acts". Thus other factors may be taken into account as the objective person must be placed in 'like circumstances'.

__Proportionality__
 * There is a sense of proportionality in the objective test, int that the act of committing the crime must be proportionate to the threat posed.
 * Where the defendant fails to prevent the execution of the the threat when an opportunity to do so safely avails itself, the defence will be unavailable per R v Hurley.

**Necessity**
The basis of this defence is that the greater of two evils was avoided.

There are three key elements to the defence of necessity:
 * 1) The criminal act must have been done only in order to avoid certain consequences that would have inflicted irreparable evil upon the accused or someone he was bound to protect;
 * 2) the defendant must honestly believe on reasonable grounds the he or she (or someone he or she was bound to protect) was placed in a position of imminent peril; and
 * 3) the acts undertaken must be no greater than is reasonably necessary to avert the peril and must to cause a disproportionate amount of harm per R v Loughnan.