The Defence of Necessity (Qld)

In Queensland, legal defences to criminal offences are set out in the Criminal Code Act 1899 and in common law. A person charged with an offence may contest the charge by arguing they should not be held criminally responsible for an act or omission on the basis of a legal defence. This is different from contesting a matter on a factual basis (ie the alleged events did not occur). One of the available legal defences in Queensland is the defence of necessity, which is discussed in this article.

What is the defence of necessity?

The defence of necessity is what it sounds like: a person does an act or omission because it is necessary. An act may be necessary to:

1. avoid a certain circumstance that would cause death or injury to themselves or another;
2. avoid damage to property;
3. protect themselves or another from assault, grievous bodily harm or death.

The defence ordinarily arises in a situation where a person responds to an imminent threat to themselves or another.

What must be shown when relying on the defence of necessity?

In order to succeed in the defence of necessity, the defence must show that:

1. The act or omission was reasonably believed to have been necessary to prevent an unprovoked assault, grievous bodily harm or death or themselves or another person;
2. That their action was necessary to prevent the above;
3. That the action was proportionate to the threat.

Examples

Examples of situations in which the defence of necessity might be raised are listed below.

• A person drives at excessive speed in emergency circumstances, such as taking a seriously ill person to receive medical care in order to avoid death or serious injury.
• Driving under the influence of alcohol, in a dangerous manner or at excessive speed, to escape a bushfire.
• Assaulting another to prevent an unprovoked assault, grievous bodily harm or death.
• Causing grievous bodily harm or death to another to prevent the other from causing grievous bodily harm or death to the accused or to an innocent third party.
• Assaulting another to protect property from serious damage.
• Breaking a car window to remove a child or animal who is suffering heat exhaustion on a hot day.

Whilst this provides some examples, the list is not exhaustive. Each case must be considered on its own merits.

Reasonable Belief of Threat or Harm

In order to succeed in the defence of necessity, a person must reasonably believe that they are at risk of harm, grievous bodily harm or death.

In determining whether a person has a reasonable belief, courts must consider it objectively.  They must also consider whether that same belief would be held by an ordinary person of sound mind, had they been placed in the same situation and circumstances as the accused.

Proportionate to the Threat

As outlined above, the response to a threat must be proportionate. This means that a person can commit an act to the degree necessary to protect themselves and disarm the threat, but cannot be excused for acting beyond that level.

Burden of Proof

There is a reverse onus that applies to proving that the defence of necessity applies. This means that once the defence has raised the defence of necessity, the prosecution must prove beyond a reasonable doubt that the defendant did not act out of necessity.

The defendant will be acquitted of the act if the prosecution is unable to prove this.

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