Criminal Defence - Necessity

Criminal Defense - Necessity

The defence of necessity is a difficult defence to prove and usually applies to cases where people fear that they will be killed or will receive serious injuries. The actual test required to be proven is set out below.

Criminal Defense - Necessity - The test
In the 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:

1. 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.
2. Those acts must not be disproportionate to the threatened danger.

Criminal Defense - Necessity - Who has to prove what?
The accused bears an evidentiary onus (Call evidence that raises the defence). Once the accused discharges the evidentiary onus the prosecution must negative the defence of necessity beyond a reasonable doubt.

Criminal Defense - Necessity -More Technical information
The court stated that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values 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.