The Paradox of Disallowing Duress as a Defence to Murder
| Date | 01 February 2014 |
| Published date | 01 February 2014 |
| DOI | 10.1350/jcla.2014.78.1.892 |
| Subject Matter | Article |
The Paradox of Disallowing
Duress as a Defence to Murder
Kenneth J. Arenson*
Abstract The common law has long recognised that what would otherwise
constitute murder should be reduced to the lesser offence of voluntary
manslaughter in instances where the accused was induced to kill because of
provocative conduct on the part of the deceased that does not amount to
lawful excuse or justification such as self-defence or defence of others. In
what is often termed as a reasonable concession to human frailty, the law
has opted to treat those who kill under such circumstances as less morally
blameworthy than those who kill in the absence of such provocation or
other mitigating circumstances such as a genuinely held, albeit objectively
unreasonable belief, that the use of deadly force was necessary in self-
defence or the defence of another person. In sharp contrast, the common
law has steadfastly declined to allow the defence of duress to be interposed
in like manner as a partial defence to the crime of murder. The discussion to
follow will examine whether this disparate treatment is justifiable in light of
the stated underpinnings of these defences. The discussion will conclude by
exploring various proposals for reform and the extent to which they are
likely to result in sanctions that are commensurate with the relative degrees
of moral culpability of those who seek to interpose these defences as
complete or partial defences to the crime of murder.
Keywords Provocation; Duress; Human frailty; Person of ordinary
firm ness
The common law defence of provocation can be traced back to the 17th
century.1 It was spawned out of a concession to human frailty or, if you
will, a recognition that ordinary persons can, in response to sufficient
provocation on the part of the deceased, resort to the use of deadly force
and commit what would otherwise constitute murder were it not for the
partial defence of provocation. The term ‘partial defence’ is used in this
context because a successful interposition of the defence requires a jury to
acquit on the charge of murder and instead convict on the lesser charge of
voluntary manslaughter that, unlike murder, was not a capital offence in
the 17th century.2 The requirements of the defence were enunciated by
King J in the following passage from R v The Queen:3
* Associate Professor, Deakin University School of Law, BA, University of Kentucky; JD,
University of Toledo, LLM, University of Edinburgh.
I wish to thank my research assistant, Nicole Rowan, for her excellent contribution to
this article.
1 For a judicial examination of the history of the defence, see Parker v The Queen (1963)
111 CLR 610 (Windeyer J). See also J. Horder, Provocation and Responsibility (Oxford
University Press: Oxford, 1992).
2 R v Hayward (1836) 6 C&P 157 at 159 (Tindall J).
3 R v The Queen (1981) 28 SASR 321.
The Journal of Criminal Law (2014) 78 JCL 65–79 65
doi:10.1350/jcla.2014.78.1.892
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