13. Necessity - Exam Summary PDF

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Not in Crimes Act – Necessity The defence of necessity exists at common law (White (1987)) and is available for every offence except murder (Dudley and Stephens (1884)). R v Dudley & Stephens – (ship wreck – cannibalism) Necessity is not a charge to a defence charge of murder. It would value one life over another - if it had been grievous bodily harm could have use the defence of necessity. It is based on the notion that a person should not be held culpable for criminal acts where they are compelled due to sudden or extraordinary emergency. It is a complete defence, resulting in acquittal. You need to understand the difference between a necessity and duress - Necessity you choose to commit a criminal offence; Duress you don’t have a choice It’s the lesser of two evils you believe you’re forced into a situation because you could be facing death E.g. stealing a bike to escape from the person threatening you with the knife – the person didn’t tell you to steal the bike... D must satisfy the evidentiary burden to raise the defence of necessity; the prosecution must then negate the elements of the defence beyond reasonable doubt. The Elements for the Necessity are defined in: Loughnan 1. 2. 3.

The acts must have been done in order to avoid consequences that would have inflicted irreparable harm on D, or those D was bound to protect. D must honestly believe on reasonable grounds that placed in immediate peril. Acts done to avoid the peril must not be out of proportion to the peril to be avoided.

1. The act must have been done in order to avoid consequences that would have inflicted irreparable harm on D, or those D was bound to protect. •

There is no requirement that the threats be unlawful.

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The defendant must be responding to circumstances that involve the potential for death or very serious injury. If the defendant had other reasons for attempting to escape prison, the defence will not applyRogers

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Escapee from Pentridge, believed he was going to be killed that night, appeal unsuccessful-Loughnan [1981]

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Can’t apply to murder as it would value one life over another - Dudley & Stephens (shipwreck case)

2. D must honestly believe on reasonable grounds that placed in immediate peril. •

The threat can be real (capable of being demonstrated objectively to have existed), or imaginary (honestly and reasonably but mistakenly believed by D to exist).

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The defendant must believe honestly, on reasonable grounds, that the criminal actions are necessary in order to avoid death or very serious injury. The “relevant concept is of necessity, not expediency or strong preference” - Rogers

3. Acts done to avoid the peril must not be out of proportion to the peril to be avoided. Proportionality is the most important element out of the three elements. It is the reasonable person test. Would a reasonable person in the position of the Defendant have believed he had any alternative to do what the defendant did to avoid the peril? •

In determining whether the defendant believed, on reasonable grounds, his or her conduct was necessary to avoid death or very serious injury, “considerations of reasonableness and proportionality go hand in hand”, including whether or not there were other reasonable alternatives that could be taken, such as “bringing the threat to the attention of the prison authorities and seeking protection”- Rogers

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Were there other reasonable alternatives that could’ve been taken such as bringing the threat to the attention of the authorities or seeking protection - Rogers

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The defence will fail where D would have committed the offence independently of the threat.

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The response must be reasonable, necessary conduct, i.e. D had no other alternative, other than the response, to avoid the threat. #

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Another attempt escape case, unsuccessful. – D must honestly and on reasonable grounds that the criminal actions are necessary in order to avoid death or very serious injury - R v Rogers (1996)...