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Defences Necessity & Duress Notes

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8. Defences:Necessity & Duress Necessity The necessity defence is a complete defence which protects an accused who was compelled to break the law in order to avoid an even worse consequence. For policy reasons (especially the fear of opening up the floodgates), the application of the defence is extremely narrow and it is rarely ever argued successfully. The principles governing the defence are as follows: Elements of Necessity Now,

* Not a question of reaction of ordinary person, but whether the defendant honest belief was held on reasonable grounds.

* Hybrid test: part subjective, part objective.

* factors such as imminence and proportion are factual matters to be considered in determining reasonableness Traditionally, would a sober person of reasonable

*
firmness have so reacted?

* i.e., ordinary person of same age and sex as D.

1. The applicant was convicted on a charge of escaping from prison pursuant to the Community Welfare Services Act 1970 (Vic), s 132(1).

2. At his trial he argued that his only reason for escaping was to avoid being killed by his fellow inmates, asserting his belief that such an attack was to take place on the night of the escape.

3. He argued before the Full Court that the trial judge erred in refusing to allow the defence of necessity to be considered by the jury. Held, Appeal dismissed.There was no miscarriage of justice by the trial judge in refusing to leave the defence of necessity to the jury.

1. Rogers had spent many years in gaol and had been attacked and threatened on previous occasions.

2. He was convicted of attempting to escape from prison.

3. His defence was that he feared a life threatening attack was going to be committed on him and for that reason he was attempting to escape.

4. He gave evidence that he declined to be placed in protection because he considered that would place him in greater danger.

5. The trial judge ruled that the defence of necessity was not available to the appellant. Held, Appeal dismissed.The trial judge was correct in his conclusion because most importantly, there was available to the accused the alternative course of bringing the threat to the attention of the prison authorities and seeking protection.

The ultimate question whether the accused honestly believed on reasonable grounds that his course of action was necessary in order to avoid the peril he was threatened with: Rodgers (1996)
The seriousness of the harm which was being avoided: Loughnan [1981].

* The criminal act or acts must have been done only in order to avoid inevitable and irreparable evil.
The element of imminent peril: Loughnan [1981]

* The accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril: Loughnan [1981]

* But under Rogers test (as per Zecevic 1987), imminence not absolutely crucial, likely be important factual consideration.
The elements of proportion: Loughnan [1981]

* The act done to avoid the imminent peril must not be out of proportion to the peril to be avoided.

* Whether there were any other reasonable alternatives to the course of action taken by the defendant (extremely important): Rodgers (1996)

* Development of the notion of proportion:

* Traditionally, the defendant must choose least harmful response to threat, i.e., ask whether D's response objectively out of proportion to threat

* If threat is death and response is damage to property, it will be justified. For example, breaking window & stealing car to avoid fire death;

* However, killing an innocent person to escape imminent danger is not recognised in defence of necessity: Dudley & Stephens (1884)

* Now: similar Qs re excessive response

* Up to jury to decide if proportion crucial. Loughnan [1981] VR 443 There are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect. The other two elements involved, ... can for convenience be given the labels, immediate peril and proportion, although the expression of what is embodied in those two elements will necessarily vary from one type of situation to another. The element of imminent peril means that the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril. As Edmund Davies, LJ (as he then was) pointed out in Southwark LBC v Williams, supra, at p. 746, all the cases in which a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril. 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 element of proportion simply means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: 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 (1996) 86 A Crim R 542 1

8. Defences:Necessity & Duress

* (per curiam) In certain circumstances necessity can excuse conduct which would otherwise amount to the offence of escaping from lawful custody.

Loughnan [1981], applied.

Southwark London Borough Council v Williams and Anderson [1971], referred to.

* The issue in such a case is whether the accused honestly believed, on reasonable grounds, that escape from prison was necessary in order to avoid threatened death or serious injury.

Zecevic v DPP (Vic) (1987), applied.

* The relevant concept is of necessity, not expediency, or strong preference; the appellant must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law.

United States v Bailey (1979) , applied.

* Having regard to the availability of the protection system within prison, and the appellant's choice not to avail himself of that system, there was no viable issue of necessity for the jury to consider and the trial judge was correct to take the issue away from the jury.

1. The two defendants became shipwrecked by a storm.

2. They were forced to abandon their ship and were stranded in a small emergency boat with two others including a young cabin boy.

3. They had been stranded for 18 days.The food had ran out 7 days earlier and they had had no water for five days.

4. Dudley and Stephens agreed to draw straws to see which one of them would be killed so that the others could eat him.

5. The third man did not agree and the cabin boy was by this time too weak to take part in any decision.

6. As the third man had not agreed, the defendants decided that it would be better to kill the cabin boy as he was close to death and he had no family.

7. Dudley and Stephens cut the cabin boys throat. He was too ill to put up any resistance.

8. All three men fed on the boy and were rescued four days later.

9. On their return to England Dudley &
Stephens were charged with the boy's murder. Held, the defendants were convicted of murder.The defence of necessity was not allowed.They were sentenced to death but then granted a pardon by the Crown and served 6 months imprisonment.

Dudley & Stephens (1884) 14 QBD 273 Lord Coleridge, CJ

* Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called 'necessity'. But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it.....

* It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be 'No'. Some other principles from this case:

* The necessity which justifies homicide is of two kinds:

* the necessity which is of a private nature

* Query: what may be done for the safeguard of a man's own life?

* If a man be desperately assaulted and in peril of death, and cannot otherwise escape unless, to satisfy his assailant's fury, he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder.

* But if cannot otherwise save his own life the law permits him in his own defence to kill the assailant, for by the violence of the assault, and the offence committed upon him by the assailant himself, the law of nature, and necessity, hath made him his own protector cum debito moderamine inculpatae tutelae.

* the necessity which relates to the public justice and safety.

* Necessity is of three sorts:

* Necessity of conservation of life;

* Necessity of obedience;

* Necessity of the act of God or of a stranger. Definition of Necessity An act which would otherwise be a crime may be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or others whom he was bound to protect inevitable and irreparable 2

8. Defences:Necessity & Duress evil, that no more was done than was reasonably necessary for the purpose, and that the evil inflicted by it was not disproportionate to the evil avoided: Stephen's classic (1877) The defence of necessity operates where circumstances (natural or human threats( bear upon the accused which induce him or her to break the law to avoid even more dire consequences.

* Necessity sometimes called duress of circumstances. Burdens of proof

* Evidential burden on the defendant to raise necessity

* Crown to prove no necessity beyond reasonable doubt;
If the defendant successful, defendant acquitted Availability of the Defence of Necessity In terms of prison escape,the test for the defence is now whether the accused honestly believed on reasonable grounds that escape from prison was necessary in order to avoid threatened death or serious injury.

* Issues such as the imminence of the threat, whether in a prison escape the prisoner reported immediately to the proper authorities when out of danger, and whether there were any possible alternative courses of action available are now regarded as factual or evidentiary consideration: Loughnan (1981); Rogers (1996) When there is a real danger and a real possibility of death, a choice to avoid the danger may be a justifiable reason to commit the offence: White (1987) If it was the defendant who created the danger, for example, lighting bushfire, the defence of necessity is not available. Where the defence of necessity has been raised for the commission of the offence was political, unless there is imminent danger and the offence is inevitable, the defence is rarely successful: Dixon-Jenkins (1985); Limbo v Little (1989) Homelessness is not a justification for trespass: Southwark London Borough Council v Williams and Anderson [1971]
Necessity will not acquit a defendant who killed an innocent person in order to escape the danger: Dudley
& Stephens (1884) In exceptionally rare situations, the defence of necessity may justify a "lethally" medical treatment where choice is inevitable and reasonably necessary for the purpose of avoiding the more serious evil: Re A
[2000]
Prison Escape Old law: the defendant may lawfully escape from burning prison (if D surrenders self to authorities as soon as clear of fire): Loughnan (1981); Rogers (1996)

* Loughnan (1981):

* The defendant might have succeeded with plea of necessity, if D had just escaped from B Division of Pentridge Gaol, but instead D escaped from whole prison, intending to remove self permanently

* Rogers (1996)

* Crucial is necessity, not just expediency, or strong preference

* Defendant's decision to escape was a choice, in preference to other lawful alternatives, i.e., escape not necessary, as D could simply have told prison authorities and sought protection NB: different to 'duress' cause threat of death not coupled with "unless you do X crime" Driving Offences 3

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