DEFENCES - necessity/necessity of duress Flashcards
what section is necessity and the two types
20(1)
necessity proper and duress if circumstances
what is necessity proper
when an individual commits an offence to prevent a greater harm, suhc as preserving life or seriosu physical harm
what is the legal context of necessity for both
it is not expressely stated in the crimes act however, 20(1) allows for common law defences as justifications or excuses, as used in r v harris
key principles of necessity proper
- necessary to avoid inevitable evil
- no harm inflicted than that that is reaonsbaly necessary
- eveil inflcited must b proportionate to evil avaoided
what is duress of circumstances
arises when a perosn facing imminent or peril death or serious injury, commits a proprotionate offence to prevent the danger withiut being morally culpable
what are the elements for duress of circumstances
- belief formed on reaosnbale grounds
- imminent peril of death or serious injury
- no realisitic choice but to dreak the law
- proportionality of the reposne
explain the first element of dressof crimstances
- belif formed on resoanble grounds
- the defendant must honetsly belive they are facing imminent or peril deth and this beleif must be formed on reasnbale gorunds
- if the threat comes from anotehr perosn this is notthe defence to use (complusion)
explain the secodn element of dressof crimstances
imminent peril of death or serious injury
the threat must involve imminent danger to life or serious injury
exlplain the third element to duress of cirmstanaces
no realisitic choice but to dreak the law
there must be clear connection between the threat and the unlawful action takens, cicumstances must leave no alternative to breaking the law, kapi
what is the fourth elemnt of duress of circumtsnaces
proportionality of the reposne
the breach of law must be proportionate to the danger faced amnd a reaosnbale sober perosn with the same charesterictics of th feendant woukd have responded smilar
subjective test of duress of circumstances
the defendants honets belief is assessed
objective test of duress of the cirucmstances
whether this belief was reasonbale is judged objectively
kapi v MOT facts
k was involved in a hit and run failed to stop as he belived he would get a hiding if he did as dangerous neighbourhood
kapi v mot issue
was duress available as a defence
kapi v mot held
duress not avail as K had no way of knowing wheether any imminent or peril existed or whetehr K actions would prevent such peril
ag v leason facts
L and otehr delefalted a satellity dome in the hope it would cut sigmnal and prevent damage from the second iraq war
Leason v ag issue
was duress avail
Leason v ag
Leason v ag held
no duress was not available as they had no was ofknwoing of any imminent or peril existing or whetehr their actions would prevent such peril
re a facts
conjoined twins would either both die or one would die if they separated
re a issue
could nessecity be applied
re a held
yes necessity could be appplied as the act was needed to avoid inevitable and irreprable evil
stesp for defences
- Determine if the actus reus (AR) and mens rea (MR) are met.
- If they are, examine the applicable defenses.
- There’s no point in considering defenses if AR and MR are not established.
- Identify the elements of the defense.
- Apply these elements to the specific facts of the case.
tips for the exam - necessity of duress:
typciually seen in situation where a perosn breaks a law to same someone like dirving under the influnece to save someoen
Police v Coll -full
In Police v Coll [2007] DCR 700, an 18-year-old drove his seriously injured friend to the hospital after an incident at a gathering. Unable to call for help and facing abuse, he committed traffic offenses. Charged with these offenses, he claimed duress of circumstances. The court upheld this defense, stating that his age and the emergency justified his actions.
R v Hutchinson - nexus between threat and breach - full
A man protested the Department of Conservation’s use of 1080 pellets by breaking into a building and pouring diesel on them, leading to convictions for burglary and wilful damage. The Court of Appeal ruled that his belief in imminent peril was not linked to his actions, as he had lawful alternatives, such as seeking judicial review, and allowing duress would improperly challenge a lawful decision on 1080 use.
Police v Kawiti -full
A defendant with a suspended license and a history of drinking drove to the hospital after an assault, fearing further harm. Convicted of driving while disqualified and excess blood alcohol, he raised the defense of necessity. The High Court affirmed that this defense was valid under the Transport Act, leading to his acquittal as the District Court viewed his situation as a non-human threat.
