Common law defence

A defendant may raise the defence of duress where the immediate threat of death or serious personal violence was so great that it overcame the defendant's resistance to carrying out the criminal act. There is a subjective and objective test involved in assessing this defence.

Duress cannot be a defence to murder [ R v Howe [1987] AC 653].

For offences allegedly committed on or after 1 February 2021

Statutory defence of duress

It is a defence to a charge of an offence (other than a prescribed offence*) if at the time of carrying out the conduct constituting the offence, the defendant reasonably believed that a threat had been made that would be carried out unless:

objectively, the conduct was a reasonable response to the threat.

However, the statutory defence of duress will not apply if such a threat was made by or on behalf of a person with whom the defendant was voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.

The statutory defence of duress is not available for prescribed offences which include:

[see Criminal Law Consolidation Act 1935 (SA) s 15D]

From 29 March 2021

If a defendant asserts that the offence occurred in circumstances of family violence, the questions of whether the defendant reasonably believed that a particular threat would be carried out, or whether the defendant reasonably believed that particular conduct was the only reasonable way a particular threat could be avoided, or whether the particular conduct was objectively a reasonable response to a particular threat, are to be determined having regard to any evidence of family violence admitted during the course of trial. For the legislative definitions of circumstances of family violence, and evidence of family violence see sections 34V and 34W of the Evidence Act 1929 (SA)[Criminal Law Consolidation Act 1935 (SA) s 15B(2)-(3)].