Where a defence of duress was raised the opportunity to escape had to be assessed at the time of the criminal conduct.Appeal against conviction with leave of the single judge. On 14 April 2001 at Middlesex Guildhall Crown Court, before HH Judge Karsten QC, the defendant ('S') was convicted of two counts of possession of class A drugs, namely heroin and crack cocaine, with intent to supply. On 26 April 2001 S was sentenced to a total of five years' imprisonment. On 16 May 2000 S was observed by police talking to two men on the streets. S was seen to put her hand to her mouth, spit into her hand and then put something in the hand of each man. S later met a black male ('J'), who put his arm around her and walked down street. The police officers called out to S and J, identifying themselves and telling them to stop. J ran away, S bent over and made a choking sound. One of the officers seized her and she eventually spat out 21 wraps of heroin and 27 wraps of crack cocaine. S gave a no comment interview. At trial it was the prosecution's case that S intended to supply the drugs. S contended that she acted under duress. She gave evidence that she lived with her boyfriend, J, and he was violent towards her. He was associated with the Yardies, he had once hit her on the head with a gun and had made threats to kill her. S denied giving anything to the two men. She said J had told her to meet him and told her to put the drugs into her mouth. J would have hit her if she had refused. S appealed conviction on the ground that the judge misdirected the jury that they should consider whether S could have previously escaped from the duress.HELD: (1) Given the principles set out in R v Hussain (1999) CLR 570, that an imminent peril of death or serious injury were essential elements to a defence of duress, the court had some doubt whether a defence ought to properly have been left to the jury. It might be said that the prospect of a punch in the face was not one giving rise to serious injury and evidence in relation to the threats to kill might not have given rise to sufficient imminent peril. However, as the matter was not argued the court would deal with the appeal on the basis that duress was properly left to the jury. (2) The direction the judge gave was a misdirection. The opportunity S had to escape during the course of the violent relationship was not such an opportunity to escape as the authorities required. Bearing in mind the criminal conduct S was required to engage in, the putting of drugs into her mouth was the moment the opportunity to escape had to be assessed.Appeal allowed. Retrial ordered.

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