R v Qaumi (No 64)

In the case of R v Qaumi (No 64), the accused faced charges of attempted murder and was involved in activities with a criminal gang known as Brothers for Life. The crux of the dispute centred on the applicability of the defence of duress to the charges. The case was brought before the High Court of Australia, which was tasked with determining whether the accused could successfully invoke the defence of duress when he voluntarily joined a criminal organisation known for its violent activities and where the leaders used intimidation to maintain control over the members.

The primary legal issue was whether the defence of duress could be applied to offences such as attempted murder when the accused voluntarily joins a criminal group and subsequently finds himself in a position where he is compelled to commit crimes under threat of violence. A secondary issue was the nature of the test for duress: whether it should be objective, focusing on the circumstances as they would appear to a reasonable person, or subjective, taking into account the individual’s capacity to resist the threats.

The court found that the defence of duress, while traditionally a matter of common law, could be applicable even in cases involving criminal gangs, provided certain conditions were met. The court emphasised that while duress could be a mitigating factor, it was not available to those who voluntarily placed themselves in a position where they could be subject to coercion. The court adopted a flexible approach, considering both the objective and subjective elements of the defence. It concluded that while the UK approach might operate harshly in some circumstances, a more nuanced and flexible application of the defence was appropriate in Australia. The court ultimately determined that the accused could not rely on the defence of duress for the charges of attempted murder.