DEFENCES - necessity/necessity of duress

Question 1

what section is necessity and the two types

Answer 1

20(1)
necessity proper and duress if circumstances

Question 2

what is necessity proper

Answer 2

when an individual commits an offence to prevent a greater harm, suhc as preserving life or seriosu physical harm

Question 3

what is the legal context of necessity for both

Answer 3

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

Question 4

key principles of necessity proper

Answer 4

• necessary to avoid inevitable evil
• no harm inflicted than that that is reaonsbaly necessary
• eveil inflcited must b proportionate to evil avaoided

Question 5

what is duress of circumstances

Answer 5

arises when a perosn facing imminent or peril death or serious injury, commits a proprotionate offence to prevent the danger withiut being morally culpable

Question 6

what are the elements for duress of circumstances

Answer 6

1. belief formed on reaosnbale grounds
2. imminent peril of death or serious injury
3. no realisitic choice but to dreak the law
4. proportionality of the reposne

Question 7

explain the first element of dressof crimstances
- belif formed on resoanble grounds

Answer 7

• 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)

Question 8

explain the secodn element of dressof crimstances
imminent peril of death or serious injury

Answer 8

the threat must involve imminent danger to life or serious injury

Question 9

exlplain the third element to duress of cirmstanaces
no realisitic choice but to dreak the law

Answer 9

there must be clear connection between the threat and the unlawful action takens, cicumstances must leave no alternative to breaking the law, kapi

Question 10

what is the fourth elemnt of duress of circumtsnaces
proportionality of the reposne

Answer 10

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

Question 11

subjective test of duress of circumstances

Answer 11

the defendants honets belief is assessed

Question 12

objective test of duress of the cirucmstances

Answer 12

whether this belief was reasonbale is judged objectively

Question 13

kapi v MOT facts

Answer 13

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

Question 14

kapi v mot issue

Answer 14

was duress available as a defence

Question 15

kapi v mot held

Answer 15

duress not avail as K had no way of knowing wheether any imminent or peril existed or whetehr K actions would prevent such peril

Question 16

ag v leason facts

Answer 16

L and otehr delefalted a satellity dome in the hope it would cut sigmnal and prevent damage from the second iraq war

Question 17

Leason v ag issue

Answer 17

was duress avail

Question 18

Leason v ag

Leason v ag held

Answer 18

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

Question 19

re a facts

Answer 19

conjoined twins would either both die or one would die if they separated

Question 20

re a issue

Answer 20

could nessecity be applied

Question 21

re a held

Answer 21

yes necessity could be appplied as the act was needed to avoid inevitable and irreprable evil

Question 22

stesp for defences

Answer 22

• 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.

Question 23

tips for the exam - necessity of duress:

Answer 23

typciually seen in situation where a perosn breaks a law to same someone like dirving under the influnece to save someoen

Question 24

Police v Coll -full

Answer 24

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.

Question 25

R v Hutchinson - nexus between threat and breach - full

Answer 25

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.

Question 26

Police v Kawiti -full

Answer 26

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.