DEFENCE OF NECESSITY (NSW)

The defence of necessity operates where circumstances bear upon the accused that induce them to break the law to avoid even dire consequences. Necessity is a complete defence, meaning if the defence is accepted, the person will be not criminally liable for their actions.

Necessity as a defence is similar but distinguishable from other defences such as self-defence and duress. The defence of necessity is not available for charges of  ‘murder’ or ‘attempted murder’. 

The defence of necessity can be argued in response to any criminal or traffic offence. Some examples of where the defence of necessity may be successfully argued are:

• Where a person charged with a speeding offence and was speeding to take a seriously injured person to hospital,  
• Where a person is charged with larceny or shoplifting after stealing an inhaler from the pharmacy to give to their child while having an asthma attack, 
• Where a person is charged with breaching their bail condition to not leave a residential address when the bailed address was on fire and burning down. 

How Offences Are Proven:

In order for a person to be found guilty of any offence, the Prosecution must prove every element of the offence to the standard of beyond a reasonable doubt. 

The ‘elements’ of an offence are the ingredients that make up the offence. All offences contain physical elements (such as driving a motor vehicle, hitting or slapping another person, or being in possession of a drug) and mental or ‘fault’ elements (such as intent, recklessness or knowledge). When the Prosecution is unable to prove each and every element of the offence to the standard of beyond a reasonable doubt, the person charged should be found not guilty.

Even if the Prosecution can satisfy all the elements of an offence to the standard of beyond reasonable doubt, the person charged may raise a defence to the charge which, if accepted, means they are not criminally liable and therefore not guilty of the offence. 

The Test: 

The defence of necessity arises from case law. The case of R v Loughnan [1981] VR 443 sets out the elements of the defence as:

1. The criminal act must have been done in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he or she was bound to protect, 
2. The accused must have honestly believed on reasonable grounds that he or she was placed in a situation of imminent peril, and
3. The acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. 

The defence of necessity involves two questions that must be answered:

1. Was the accused’s conduct in truth a response to a threat of death or serious injury? And,
2. If so, did the accused act honestly believing, on reasonable grounds, that it was necessary to do so to avoid the threatened death or serious injury?

Definitions:

Irreparable evil

The concept of irreparable evil refers to a situation that would amount to death or serious injury to a person, or to a harm that cannot be undone. It is not enough that the situation facing the accused would have resulted in an adverse or negative outcome. 

Honestly Believe on Reasonable Grounds

This aspect of the defence of necessity requires the accused to honestly believe on reasonable grounds that he or she was placed in a situation of immediate peril of an irreparable evil. In determining whether the accused was acting honestly and on reasonable grounds, the Court will consider the unique facts and circumstances of the matter leading up to the accused’s actions. 

Imminent peril

That the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril. The imminence and seriousness of the threat are important considerations to determine whether there was an imminent peril. In Southwark LBC v Williams it was pointed out that all successful cases of necessity deal with an urgent situation of imminent peril, so if there is an interval of time between the threat and its expected execution, it is very rare that the defence of necessity can succeed. 

Proportionality

This aspect of the defence requires the Court to consider the proportionality of the accused’s actions in response to the imminent threat that would cause irreparable evil. Where the accused’s actions are out of proportion with the threat of harm, the defence of necessity will not apply. 

Principles:

The accused bears the onus (responsibility) of raising the defence of necessity and of satisfying the Court that they were acting under necessity to the standard of the balance of probabilities. This means that the accused must present evidence to the Court and convince the Court that it was more likely than not that they were acting in response to a threat of death or serious injury and honestly believed on reasonable grounds that their conduct was necessary to avoid that threat. 

Once the defence of necessity is raised by the accused, the Prosecution will dispute the defence by cross-examining or testing the Defendant’s evidence. This may involve the Prosecution challenging one of the elements of the defence such as that the situation facing the accused did not amount to ‘irreparable evil’ or an ‘imminent peril’. For the Prosecution to disprove the defence of necessity they must satisfy the Court to the standard of beyond a reasonable doubt that the Defendant was not acting under necessity. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.