Factors Affecting Liability II
Duress and Necessity
Necessity
A defence involving a plea by an accused that he or she was compelled to commit a criminal act by some imminent threat or danger present
Necessity operates where circumstances (natural or human threats) pressure the accused & induce him or her to break the law to avoid even more dire consequences
Three elements of the defence of necessity (Loughnan [1981])
i) the criminal act must be done in order to avoid consequences so serious that they would have inflicted irreparable evil on the accused or others
ii) the threat or danger must be imminent & immediate
iii) the response must be proportionate to the threat or danger & reasonable in the circumstances
Dudley & Stephens (1884) (Queen’s Bench)
Facts: Three men & a boy were cast away in an open boat for 18 days after their yacht had been shipwrecked. Weakened by starvation, Dudley & Stephens suggested to the third man that they should kill & eat the boy. He dissented, but they killed the boy anyway. All three men fed upon the body of the boy, only to be rescued four days after the killing. On charges for murder, they raised the defence of necessity.
Decision: The jury found that the men probably would have died had they not eaten the boy, that the boy probably would have died before them, & that at the time of the killing there was probably no appreciable way of saving life without taking this course of action.
Per Coleridge LJ: Necessity was no justification for murder in these circumstances.
Public policy reasons - it would be a great departure from morality & the principle would be dangerous because of the difficulty of measuring necessity & of selecting a victim
Consent, either directly or through the casting of lots, may have been a defence (unlikely now because of R v Brown [1993] – group of sadomasochists, cannot consent to harm above that which is more than trifling or transient)
Southwark v Williams [1971]
Facts: Defendants were in desperate need of housing & began squatting in some empty houses owned by the local council. They raised the defence of necessity.
Decision: Defendants failed. Per Denning L: “If hunger were once allowed to be an excuse for stealing, it would open a way through which all kinds of disorder and lawlessness would pass. So here. If homelessness were once admitted as a defence to trespass, no one’s house could be safe.”
Per Edmund-Davies: “The law regards with deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances…necessity can very easily become simply a mask for anarchy.”
Loughnan [1981]
Facts: A prisoner was convicted of escaping from prison & pleaded necessity on the grounds that he was told by another prisoner that he would be killed that night.
Decision: Three elements to the defence of necessity (see above)
Rogers (1996)
Decision: If the accused honestly believed on reasonable grounds that escape from prison was necessary in order to avoid threatened death or serious injury, then he would have an excuse.
White (1987)
Facts: A motorist was charged with speeding when he was trying to get his sick son medical treatment.
Decision: He succeeded.
Necessity is available as a defence to a strict liability statutory offence.
Re: A (Children) (2000) (English Court of Appeal)
Facts: A health authority & its doctors wanted clarification of their position in separating Siamese twins where one of the children would not survive the operation. The parents refused to consent to such an operation.
Decision: Per Ward LJ: “…the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid the threat of serious injury…the issue should be left (where available) to the jury who should be asked these two questions: first, was the accused, or may he have been, impelled to act as he did because as a result of what he believed to be the situation, he had good cause to fear that otherwise death or serious physical injury would result; second, if so would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted. If the answer to both those questions was ‘yes’ then the jury should acquit; the defence of necessity would have been established.”
Crimes Act s82
Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing; or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to penal servitude for ten years.
Wald (1971)
Decision: There is no legal wrongdoing where a miscarriage is produced by someone with an honest belief on reasonable grounds that termination of pregnancy was necessary to preserve the health and well-being of the woman during the currency of the pregnancy.
CES v Superclinics [1995] (NSWCA)
Facts: A woman, CES, claimed damages in tort against several doctors & Superclinics (the medical centre where the doctors worked) for failing to diagnose her pregnancy, & thus preventing her from obtaining a lawful abortion.
Trial judge held that any proposed termination would have been unlawful according to the principles stated in Wald & ss 82 or 83 of the Crimes Act, because her pregnancy was no danger to her physical or mental health. She appealed.
Decision: Appeal was allowed. Per Kirby: Expanded the Wald test from an honest & reasonable belief that the danger to the woman’s mental health may arise “at some time during the currency of the pregnancy” to include “after the birth of the child”.
Per Priestley JA: There was a real possibility that had the plaintiff been told of her pregnancy in time, she would have been advised that she was able to have a lawful abortion & would have had the abortion performed.
Policy reasons why courts have traditionally limited the application of the defence of necessity
· How do we quantify necessity? If we allow necessity as a defence for say, stealing a loaf of bread to feed a starving family, where do we draw the line? Who is to determine whether one man’s needs are greater than another man’s, so as to justify a criminal act in one instance but not another?
· How do we assess whether consequences are serious enough to justify the criminal act?
· Should we adopt a subjective or objective test? To what extent is the benefit of hindsight relevant?
· Difficulty of proof
- the onus lies on the prosecution to disprove necessity
- this can be particularly difficult, as the determination of necessity, particularly in crisis situations, may depend on information to which only the defendant is truly privy
- Floodgates argument
- necessity could open up attractive areas of criminal justification which might all too often be invoked
Duress
Duress is a particular form of the defence of necessity. An accused acts under duress, & therefore involuntarily, if his or her criminal acts were performed because of threats of immediate death or serious personal violence, of such a nature that a person of ordinary firmness would have yielded to them – Hurley [1967]
Hudson v Taylor [1971] (English Court of Appeal)
Facts: Two teenage girls were charged with perjury for giving false evidence at a criminal trial. Their defence was that a man who was present at the trial had, together with others, threatened that he would cut them to pieces unless they gave false evidence. The trial judge held that there was no defence of duress available because the accused were not subject to threats of immediate physical violence. They appealed.
Decision: They succeeded. Per Widgery LJ: Duress applies if the will of the accused has been overborne by threats of death or serious personal injury so that the commission of the alleged offence was no longer the voluntary act of the accused.
The trial judge was wrong on the issue of immediacy. The threats here were sufficiently compelling, because while the execution of the threats could not take place in a courtroom, they may be carried out in the street outside.
The accused must avail themselves of the opportunity reasonably open to them to render the threat ineffective (e.g. by seeking police protection). In deciding whether such an opportunity was open to the accused, the jury must have regard to his age & circumstances, and to any risks to him which may be involved in this course of action.
R v Lawrence (1980) (NSW CCA)
Facts: The navigator of a ship was not initially aware of the purpose of the voyage, which was the importation of drugs, but continued on after he had been threatened with physical violence. There was evidence that the accused could have fled & gone to the police on a number of occasions, but failed to do so.
Decision: He failed. The defence of duress is available provided the average person of ordinary firmness of mind, of like age & sex, and in like circumstances to the accused would have done the acts concerned.
If the accused fails to avail himself of an opportunity reasonably open to him for his will to be reasserted, the defence is not available. Where threats are for less than death or serious bodily violence, these may be matters for concern in mitigation.
Brown [1986] (SSCCA)
Facts: Accused was charged & convicted of being in possession (without reasonable excuse) of prohibited imports reasonably suspected of having been imported into Australia. At trial, Brown said that he was approached by an old associate to whom he owed money to be involved with selling drugs. In an unsworn statement, Brown said that the man threatened his son’s life.
Decision: His appeal was dismissed. Per King CJ: Brown had an opportunity to seek police protection for himself & his son, and therefore was no longer acting under duress.
The ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators & to seek the protection of the police. That must be assumed, under ordinary circumstances, to be an effective means of neutralising intimidation. If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation.
Hurley [1967]
Decision: Per Smith J: Eight point test on the defence of duress
i) the act must be done under a threat that death or grievous bodily harm will be inflicted unlawfully upon a human being if the accused fails to do the act
ii) a person of ordinary firmness of mind would have been likely to yield to the threat in the way the accused did
iii) the threat was present & continuing, imminent & impending
iv) the accused reasonably believed the threat would be carried out
v) the accused was hence induced to commit the crime charged
vi) the crime was not murder
vii) the accused did not expose himself to the crime when free from the duress
viii) the accused had no means of safety or protection against the execution of the threat
Abusafiah (1991) (NSW CCA)
Decision: Per Hunt J: The objective tests in provocation & duress are different.
In replying to duress, the Crown must establish that there is no reasonable possibility that the person of ordinary firmness of mind & will would have yielded to the threat in the way the accused did.
The ordinary person possesses only the age & sex of the defendant.
Lynch [1975] (House of Lords)
Facts: A well-known ruthless gunman ordered the accused to drive him & accomplices to a place where they killed a policeman. The accused remained in the car while the shooting took place, & drove the gunman away following the murder. Lynch testified that he believed that if he had disobeyed the gunman’s instructions he would have been shot.
Decision: The appeal was allowed. Majority held that duress is available to the principal in the second degree to murder.
Some threats might be so grave as to cause even the honest & reasonable person to participate in murder and the law must be based on the standards of the honest & reasonable person.
Per Lord Morris: If the intention of the accused & all that he did only came about because of the compulsion of duress, he would have a defence.
Abbott [1977] (Privy Council)
Decision: Court held by majority that although the defence of duress was available to a person who aids & abets murder (principal in the second degree), it is not available to the perpetrator of the murder (principal in the first degree).
Howe (1987) (House of Lords)
Decision: The test for duress is whether a sober person of reasonable firmness sharing the defendant’s characteristics would have responded to the threats by taking part in the crime.
Court overruled the earlier decisions on duress as a defence to murder.
Duress is not available to the principal in the first degree or the principal in the second degree to murder.