This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Defence of Necessity
All Code jurisdictions in Australia have a statutory version of the defence of necessity, which is in similar terms to the common law.
Section 41 of the Criminal Code 2002 is the ACT’s statutory version of the necessity defence.
It provides that a person is not criminally responsible for an offence if the person carries out the conduct required for the offence in response to circumstances of sudden or extraordinary emergency.
This applies only if the person reasonably believes that:
- circumstances of sudden or extraordinary emergency exist; and
- committing the offence is the only reasonable way to deal with the emergency; and
- the conduct is a reasonable response to the emergency.
Case law
In the decision of R v Rogers, the New South Wales Court of Criminal Appeal stated that the defences of necessity and self-defence were closely related. The court stated that the defences involved two common elements:
- an urgent situation of imminent peril must exist in which the accused must honestly believe on reasonable grounds that it is necessary for him to do the acts which are alleged to constitute the offence in order to avoid the threatened danger;
- those acts must not be disproportionate to the threatened danger.
Burden of proof
The accused must provide evidence that raises the defence. The prosecution must negative the defence beyond a reasonable doubt.
When will the defence of necessity succeed?
Courts have stated that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law. The law cannot leave people free to choose for themselves which laws they will obey or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.
Cases where the defence has succeeded include a doctor speeding to help a sick patient and a parent speeding when taking a sick son to hospital. However, a person who drove dangerously to escape a car driven by people with whom he had argued earlier did not receive the benefit of the defence.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.