Necessity Flashcards
There are two types of necessity defences, what are they?
The codified duress of circumstances and the common law defence of necessity proper.
General necessity defence is codified in section 20, however there are specific provisions, what are they?
Section 182 - Unborn Child
- Necessity can only be exercised as a defence if the death of the unborn child amounts to murder had it been born was necessary to save the life of the mother.
Section 183 - Means of Abortion
-Abortion by anyone other than a health practitioner is illegal and necessity will not suffice as a defence in those circumstances
Section 3(2) - Trespass Defence of necessity available to people in emergencies were it is necessary to keep oneself safe, the test for this is objective.
Section 61 - Medical Procedure
- If an operation is an emergency, and in the patients benefit, no consent is required. It is a necessity to perform the surgery
What are the restrictions of general defence of necessity codified in section 20?
In order to even consider raising the defence of necessity, the threat, that is what sparks the emergency, must not be from a human or from a lawful decision.
In addition, it is not available to charges of murder or attempted murder
What are the facts of Hutchison v R and the principles it distills with regards to the defence of necessity?
In Hutchison, the defendant disrupted a rodent poison supply drop that was legally permitted. He argued the defence of necessity but it was ruled that since the threat was legal, it should of been handled in a legal way.
It further laid out the requirements for successful raising of the defence: genuine belief on reasonable grounds that imminent peril of death or serious injury, there is no other choice, breach is proportionate and nexus in where the defendant was compelled to do the necessary act.
Why can the emergency not be from a human threat?
Section 24 is limited in this regard to funnel human threats towards the standover situations in section 20.
This has been critiqued as demonstrated in Friend v Police in where the defendant was under threat but not immediate enough to be a standover in s20 but safe enough to not constitute an emergency in s24.
Leaves a legal gap.
What does Police v Kawiti stand for with regards to duress of circumstances?
Women was domestically abused and committed driving infractions on the way to hospital, necessity withheld on that basis the threat was human but not threatening enough to constitute a standover for protection under s20.
Further illustrates the gap between s20 and s24.
What does the old case of Dudley & Stevenson say about the requirement that it cannot be raised in instances of murder or attempted murder?
The law cannot endorse the killing of an innocent individual under any circumstances no matter how logical. To do so would endorse tyrannical thinking such as sacrificing the few for the many.
Defence of necessity proper exists at common law and can alleviate charges of murder and attempted murder, what are the requirements?
If the act was necessary to avoid evil, was no more then necessary and was a proportionate response to evil then it is a choice of pure necessity between two evils.
See Re A, conjoined twins, one dies and takes the other with it, separation kills one but saves the other. Okay
