The Defence of Necessity

The defence of necessity is difficult to argue successfully. It generally applies in situations where a person committed an act that would normally amount to a criminal offence because of an extreme situation in which they or another person were in danger of being seriously harmed if they did not commit the act.

Self-defence or necessity?

In the 2006 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. These were:

• 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.

When can the defence of necessity be argued?

Some examples of where the defence of necessity may be successfully argued are:

• Where a person charged with speeding was exceeding the speed limit to get a seriously injured person to hospital;
• Where a person charged with criminal damage broke a window in order to get a baby out of a burning building;
• Where a person charged with breaking into a car was trying to rescue a dog that had been left locked in the car on a hot day;

The defence of necessity is unlikely to succeed in situations that fall short of a life-threatening emergency. Some examples are:

• Where a person is charged with urinating in public because there was no public toilet nearby;
• Where a person is charged with speeding to get to work on time;
• Where a person breaks into a shop to steal food or other necessities.

Onus of proof

The accused bears an evidentiary onus to raise the defence of necessity. This means that the defence must call evidence that raises the defence. Once the accused has raised the defence, the prosecution must negative the defence of necessity beyond a reasonable doubt. This means that the onus is on the prosecution to prove that the accused did not act out of necessity.

Why does the defence of necessity exist?

Courts have stated that the defence of necessity exists for cases where the circumstances overwhelmingly impel disobedience to the law and is limited to very rare and extreme situations. The law cannot leave people free to choose for themselves which laws they will obey and which they will disobey or to construct and apply their own set of values that are 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.

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