Defence of Necessity
The defence of necessity was used when the accused accepted they committed the act constituting the offence, but argued that it was necessary to avoid irreparable harm or to protect another person.
In raising this defence, the onus was on the accused to call evidence to prove that they were acting out of necessity.
The jury looked at the facts surrounding the offence, and the proportionality of the offending – i.e. they must compare the degree to which the law was broken with the ‘harm’ that needed to be avoided.
In R v Loughnan , the Full Court of the Supreme Court of Victoria held that the common law defence of necessity consisted of the following three elements:
- the criminal act must have been done for the purpose of preventing certain and irreparable harm from being inflicted upon the accused or someone s/he was legally obliged to protect;
- the accused must have honestly believed on reasonable grounds that s/ he (or someone s/ he was bound to protect) was placed in a position of imminent peril; and
- the acts undertaken must have been no greater than was reasonably necessary to avert the harm.
An example of the defence of necessity would be a traffic offence (e.g. speeding or careless driving) committed in the context of a medical emergency.
* In Victoria, the defence of necessity has been abolished and replaced by the statutory defence of ‘sudden and extraordinary emergency’: Crimes Act 1958 (Vic) ss 322R, 322S.