Necessity

The accused chooses, rather than is ordered to commit a crim because it is perceived to be the lesser of the two evils. This is often due to external circumstances rather than human intervention

R v Rogers (1996) - claimed necessity due to threats of a life-threatening attack - failed

Facts: Appellant convicted of attempting to escape from lawful custody -Sentenced for a fixed term of 12 months - Appeals against conviction - Attempt showed a deal of planning - Appellant claim was on necessity - A prisoner previously threatening him was transferred to his centre
Held: The appellant only satisfied the first element of then Loughnan test and so necessity could not be put forward to the jury - The appellant failed on his appeal because there was available to him the alternative course of bringing the threat to the attention of the prison authorities and seeking protection - The appeal against conviction was dismissed

Loughnan [1981]   

Facts: The accused was charged for escaping from prison and pleaded necessity in that he feared for his life because other prisoners believed he was working for the prison officers as an informer. He was convicted when the judge refused to leave the issue of necessity to the jury.

Held: The defence could be raised if the accused acted to avoid consequences which would have inflicted irreparable evil upon himself or others whom he was bound to protect. Thus if there is an interval of time between the threat and its expected execution it will be very rarely if ever that a defence of necessity can succeed. The accused must have honestly believed upon reasonable grounds that he was in imminent peril and the acts done to avoid the peril must not have been out of proportion to the peril to be avoided. Appeal dismissed

The Elements

The elements of necessity were set out in Loughnan:

1. the criminal act or acts must have been done only in order to avoid certain circumstances which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect

          
2. The accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril. Ie. An urgent situation of imminent peril. If there is an interval of time between the threat and its expected execution it will be very rare if ever that a defence of necessity can succeed - Southbank LBC v Williams.

          
3. The acts done to avoid the imminent peril must not be out of proportion to the peril avoided: Would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril? - Rogers

* If have a claim in either duress or self-defence then you cannot claim necessity - R v Kitson
* In NSW the defence of necessity has been recognised at Common Law. Loughnan (1981)

Necessity and Murder

Dudley and Stephens (1884) - Necessity is not available for the crime of murder

Facts: The accused were charged with murder when they killed a boy and fed on his flesh after being cast adrift on the
high seas in an open boat, after being shipwrecked for some 20 days. They had decided to kill the boy in order to stay alive.
Held: The killing in the circumstances was murder and the defence of necessity could not be relied upon
 
4. Necessity and Abortion

* Necessity may be used as e defence in abortion where a medical practitioner performs an abortion in certain circumstances where it is ‘lawful’ to do so - s82 Crimes Act.
      
* A test accepted by lawyers and medical practitioners to determine the lawfulness of the termination of a pregnancy was set out in R v Wald (1971) and affirmed by CES v Superclinics.

* Wald Test - it is the medical practitioners assessment of the impact of the pregnancy on the woman, not the woman’s own assessment, that determines whether the pregnancy is lawful. Negligent advice resulting in loss of chance to have a lawful abortion would give rise to a claim in damages. The test may be constituted by social, economic and medical grounds.

5. Onus of Proof

* The Crown bears the onus of proving necessity, and the jury must be satisfied beyond reasonable doubt.
* The defence of necessity involves a claim by the accused that he or she was compelled to do what he or she did by reason of some extraordinary reason
* Necessity is sometimes described as justified because it is recognised that the law can on occasion be broken to avoid a greater harm than would occur obeying it. This is sometimes referred to as the “greater good” principle.
         
Mouse’s Case (1608) - concerned an action for trespass for throwing the plaintiff’s goods overboard from a barge. It was held that not only the crew but also other passengers could do this in order to lighten the barge and prevent it from capsizing in a storm. The rationale for this decision was that throwing the goods overboard was a lesser harm than the potential loss of lives.)

R v David’s [1960] – the defence of necessity to be made out, the accused must have believed on reasonable grounds that his actions were necessary to preserve the woman from serious danger to her life or her physical or mental health and that they were not out of proportion to the danger to be averted.

Martin [1989]

1. Was or might D have been impelled to act as he did because, as a result of what he reasonably believed to be the situation, he had good cause to fear that otherwise death or serious physical injury would result; and if so

2. whether a sober person of reasonable firmness, sharing the characteristics of D, would have responded to that situation by acting as D had acted

· Necessity may be a defence where a person does a criminal act by reason only of his mind being overborne by threats of death or serious bodily violence, to himself or another, such that an ordinary person of the like age and sex, would have done the act: Lawrence [1980]

· For Commonwealth offences, the defence is only available if

-circumstances of sudden or extraordinary 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

(Commonwealth Criminal Code section 10.3)

o The defence of necessity may assist a fireman driving through a red light - Buckoke v Greater London Council [1971]

o but not homeless squatters - London Borough of Southwark v Williams [1971]

o or murderers - Dudley and Stephens (1884)

o However it may be a defence to escape - Loughnan [1981]

o but there will usually need to be evidence that protection was not available - Rogers (1996)