Duress

Based on the fact given, the issue is whether Hansom could raise a defence of
duress under S94 of penal code for his act on killing Dato Kaya due to a threat made by
Ganas to him.
In order for the prosecution to obtain a successful conviction, the prosecution must
prove that accused parties had committed the actus reus and the mens rea beyond
reasonable doubt. The actus reus is the guilty act and mens rea is the guilty mind of the
accused at the time the offence was carried.
However, there might be a defence applicable in this issue. Defence is needed to
reduce the sentences for the accused. Defence in under chapter IV in the Penal Code.
There are two types of exception under Penal Code, general and special exceptions.
Exceptions in Chapter iv of Penal Code provide defence to a criminal charge. The general
exceptions exculpate the offender by justifying the wrongful act or by excusing the offenders
act. This is known as excusatory defences. The effect of this defence is it destroys blame.
The act is wrongful but he has no mens rea. The theory behind this defence is that it is unfair
to hold the accused accountable because of accident, duress and various form of mistakes.
A defence based on an excuse negates the acteus reus accountability for the act. They
admit that the deed may be wrong but excuse the doer because he is not responsible for his
deed. These excusatory defences are for accident, duress, infancy, mistake and slight harm.
The general nature of the defence of duress is that the defendant was forced by
someone else to break the law under an immediate threat of serious harm befalling himself
or someone else, ie he would not have committed the offence but for the threat. The crucial
point is that the accused is not blameworthy and therefore the liability is inappropriate.
Section 94 of Penal Code provides that nothing is an offence which is done by a person who
is compelled to do it by threats, which, at the time of doing it, reasonably cause the
apprehension that instant death to that person will otherwise be the consequence the person
doing the act did not of his own accord,or from a reasonable apprehension of harm to
himself short of instant death, place himself in the situation by which he became subject to
such constraint except for a murder offences. There are four elements that must be satisfied
in order to establish defence of duress.
The first element is the threat must be of death. The basis of the defence must be
that the accused did not do what he did by reason of evil mind but by reason of having been
under threat of death. Second element is the threat must be an instant death where the
threat is so imminent, extreme and persistent and the accused doing the criminal act from
fear of anything but an instant death do them at their peril. Third element is the threat
directed at the person of accused himself. And the last element is the threat of instant death
must be present and continuing at the time of committing the crime.
However te defence of duress is subject to two restrictions which the first it is not
available for offences murder under section 302 and offences punishable with death under
chapter iv (offences against the state) and ViA(relating to terrorism). While the second
restriction is the defence is not available for a person who those voluntarily placed
themselves in the situations where they become subject to threats as provided in the
Explaination 1 to section 94. Explanation 1A person who, of his own accord, or by reason
of a threat of being beaten, joins gang-robbers knowing their character, is not entitled to the
benefit of this exception on the ground of his having been compelled by his associates to do
anything that is an offence by law.
In strengthening the secong restriction, there's an evident in DPP for Northern Ireland
v Lynch, The appellant was ordered by Meehan, a member of the IRA, to drive a car. The
appellant did not know Meehan personally but knew of his reputation. He knew that he would
be shot if he did not comply. Three armed men in combats and balaclavas got into the car
and the appellant drove them as directed. The three men then shot and killed a policeman.
The appellant was convicted of murder, the trial judge having ruled that the defence of
duress was not available in the circumstances.

Applying all these law to Hansoms facts, this clearly be seen that hansom fulfil all the
elements in a defence of duress in S94 as such he is been threatening of death from Ganas
by pointing a gun on his head and told him to kill datos Kaya where the threat is so imminent
and persistent that if hes not committing the offence, himself will be kill by Ganas and
caused him to kill Dato Kaya at the immediate time. However, the act of Hansom is subject
to the second restriction of S94 where he is on his own voluntary joined a hand of criminals
that have been made known to him the criminal offence to rob Dato Kaya. Therefore, as
been provided in Explaination 1, Hansom is not entitled to the defence of Duress on the
ground of he have been compelled with Ganass group to associates and do anything that is
offence by law.

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Based on the fact given, the issue is whether Hansom could raise a defence of

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