In Western Australia, duress is a complete defence to a criminal charge. It is found in section 32 of the Criminal Code Act 1913 (WA). If successfully established, the defence results in a full acquittal — the accused is not criminally responsible for the act or omission in question.
What Duress Means in Practice
Duress applies where a person commits an offence because they genuinely believed a threat had been made against them, that the threat would be carried out unless they committed the offence, and that committing the offence was necessary to prevent the threat from being carried out. The response to the threat must also have been reasonable in the circumstances as the person understood them, and there must have been reasonable grounds for holding those beliefs.
This is not a subjective test alone. The law requires both that the accused genuinely held those beliefs and that those beliefs were objectively reasonable. A person who panicked and overreacted to a minor or vague threat is unlikely to satisfy the test.
What the Prosecution and Defence Each Need to Establish
Once duress is raised as a defence, the prosecution bears the burden of disproving it beyond reasonable doubt. The accused does not need to prove duress — they need only raise it as a live issue on the evidence. The prosecution must then satisfy the court that the defence does not apply.
The key elements the court will examine are whether a genuine threat existed, whether the accused’s belief in the threat and its seriousness was reasonable, whether the offence committed was a proportionate and necessary response to that threat, and whether there were objectively reasonable grounds for the accused’s state of mind at the time.
The Voluntary Association Exception
Duress is not available in all circumstances. The defence is excluded where the threat comes from a person with whom the accused was voluntarily associating for the purpose of committing the same type of act, or for the purpose of carrying out an unlawful purpose in which it was reasonably foreseeable that such a threat might be made.
In plain terms — if you joined a criminal enterprise and were then threatened by a co-conspirator to carry out part of that enterprise, you cannot rely on duress as a defence. The law does not permit a person to claim protection from threats that arose from circumstances they chose to enter.
When Duress Is Most Commonly Raised
Duress arises most frequently in cases involving drug importation or supply, robbery, fraud, or other offences where the accused claims they were coerced by a third party — often someone with power over them through fear, violence, or exploitation. It is also raised in cases involving domestic violence situations where the accused committed an offence under direction or threat from an abusive partner.
The defence is fact-specific and heavily dependent on the credibility of the accused’s account. Courts scrutinise whether the threat was immediate, whether there was any reasonable opportunity to seek help or escape the situation, and whether the accused’s response was proportionate to what they faced.
Getting Legal Advice
Duress is a technically demanding defence that requires careful preparation and clear presentation of evidence. Raising it without proper legal advice risks undermining your credibility or failing to meet the legal threshold. If you or someone you know is facing a charge in Western Australia and believes duress may be relevant, early legal advice is essential.
Our criminal lawyers are available 24 hours a day, 7 days a week. Call 1300 331 331 for a free first consultation.