LAWS1016 Necessity and Duress Flashcards
Necessity: Prison Escape Cases (Rogers)
Test: whether D honestly believed on reasonable grounds that the escape from prison was necessary in order to avoid threated death or serious injury.
3 relevant factual considerations of evidentiary significance:
a. whether acts of accused were proportionate to danger to be avoided
b. imminence of the threat
c. possible alternatives.
Necessity: Abortion Cases (Wald)
(1) For the operation to be lawful, D must have had an honest belief on reasonable grounds that what they did was necessary to preserve the woman involved from serious danger to their life or physical or mental health (social circumstances, economic demands etc.) which the continuance of the pregnancy would entail (not merely the normal dangers of childbirth).
(2) AND in light of the circumstances, the danger of the operation was not out of proportion to the danger intended to be averted.
Duress (Lawrence) Test
(1) It is reasonably possible that D only committed the offence because he was overborne by threats of death / serious bodily violence to himself or another (subjective test).
(2) AND an person of ordinary firmness of mind and will, of a like age and sex, in like circumstances, would have done the acts (objective test).
(3) AND the accused did not fail to avail himself of an opportunity reasonably open to him for his will to be reasserted / render the threat ineffective. (i.e. would an average person of ordinary firmness of mind, of like age, in like circumstances, have taken advantage of the opportunity?)
