Defence of Necessity


The defence of necessity applies in situation where

Definition

All of the 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 bears an evidentiary onus (that is, he or she has to call evidence that raises the defence). Once the accused discharges the evidentiary onus, the Prosecution must negative the defence of necessity 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.

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