The Defence of Duress Under the Criminal Code (WA)

• Author: Michael Buss
• Position: President, Court of Appeal of Western Australia
• Pages: 172-195

172

THE DEFENCE OF DURESS UNDER

THE CRIMINAL CODE (WA)

MICHAEL BUSS1*

This article examines the historical origins and development of the codied criminal law of duress

in Western Australia with particular emphasis on the proper construction and application of s 32

of the Criminal Code (WA) as enacted by the Criminal Law Amendment (Homicide) Act 2008

(WA).

The Criminal Code Act 1902 (WA) (the 1902 Act) established a Code of Criminal

Law. Section 2 of the 1902 Act provided that on and from 1 May 1902 the

provisions contained in the Code set forth in the First Schedule to the 1902 Act

shall be the law of Western Australia ‘with respect to the several matters therein

dealt with’. The Code adopted substantially Sir Samuel Grifth’s draft Criminal

Code, which had been enacted in Queensland by the Criminal Code Act 1899

(Qld) (the Queensland Code).

By s 2 of the Criminal Code Act Compilation Act 1913 (WA) (the 1913

Compilation Act), the 1902 Act as amended was repealed, and the compiled Act

set forth in Appendix B to the 1913 Compilation Act was enacted under the title

of the Criminal Code Act 1913 (the WA Code).

I SIR SAMUEL GRIFFITH’S LETTER DATED

29 OCTOBER 1897

Sir Samuel Grifth sent his draft Criminal Code to the Attorney-General of

Queensland with a letter dated 29 October 1897.

In the letter Sir Samuel Grifth noted:

a) The pages of the draft were arranged in two columns, the proposed

provisions of the Code being printed in the right-hand column, and the

sources from which they were derived, or other analogous provisions,

being stated or referred to in the left-hand column.

b) Where the source was statute law, the corresponding provisions of the

statute were reprinted from Sir Samuel’s Digest of the Statutory Criminal

Law of Queensland of 1896.

c) In other cases, the sources or analogous provisions were indicated by

a reference to the section of the draft Bill introduced into the House of

Commons in 1880 (the 1880 Draft Bill), which was based on a Draft

Code of Criminal Law of 1879 prepared by Lord Blackburn, Justice

* President, Court of Appeal of Western Australia.

173

Barry (of Ireland), Justice Lush and Sir James Fitzjames Stephen, or

other authority to which Sir Samuel had had recourse, with such notes as

appeared to be desirable to elucidate any particular provision.

d) When the proposed provision was ‘undoubted Common Law’,

Sir Samuel had not thought it necessary to do more than say so.

II SECTION 31 OF THE WA CODE AS ENACTED BY THE

1902 ACT AND THE 1913 COMPILATION ACT

Section 31 of the WA Code, as enacted by the 1902 Act and the 1913

Compilation Act, provided, relevantly:

A person is not criminally responsible for an act or omission if he does

or omits to do the act under any of the following circumstances, that is

to say: -

(1) …

(2) …

(3) When the act is reasonably necessary in order to resist

actual and unlawful violence threatened to him, or to

another person in his presence;

(4) When he does or omits to do the act in order to save himself

from immediate death or grievous bodily harm threatened

to be inicted upon him by some person actually present

and in a position to execute the threats, and believing

himself to be unable otherwise to escape the carrying of

the threats into execution;

But this protection does not extend to an act or omission

which would constitute an offence punishable with death,

or an offence of which grievous bodily harm to the

person of another, or an intention to cause such harm, is

an element, nor to a person who has, by entering into an

unlawful association or conspiracy, rendered himself liable

to have such threats made to him.

…

Those provisions were identical to s 31(3) and s 31(4) of the Queensland Code,

as enacted in 1899.

Sir Samuel Grifth’s notes in his draft Criminal Code stated, in relation to the

proposed provision subsequently incorporated in s 31(3) of the WA Code:

Common Law.

Compare Bill of 1880 s.56.

Compare German Civil Code of 1896, s.221 [sic: s 227].