Elements of Necessity:
Re A (2001)
1. The act is needed to avoid inevitable and irreparable evil. 2. No more should be done than what is reasonably necessary for the purpose to be achieved. 3. The evil is inflicted must not be disproportionate to the evil avoided.
R v Perka (1984) CAN:
Crime arising out of emergency: -There must be a real emergency -Compliance with the law must be impossible -There must be no reasonable legal alternatives open to the accused -The harm threatened to be inflicted must be less than harm avoided -Situation must not be forseeable "Rests on realistic assessment of human weakness, recognising that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self preservation or of altruism, overwhelmingly impel disobedience. The objectivity of criminal law is preserved: such acts are wrong but in the circumstances they are excusable."
R v Dudley v Stephens (1884) UK
Defendant's killed and ate a cabin boy or faced starving to death themselves. Held: Necessity never a defence to murder, even if it is for self preservation.
Re F (Mental Patient Sterilisation) 1990
Must be urgent, or the defendant could turn to the authorities for help- no other plausible option.
Wilcox v Police (1994) NZ
NECESSITY IN NZ. OBJECTIVE STANDARD. Bunch of anti-abortion defendants went to hospital trying to stop women from getting abortion. Argued necessity as they were trying to save the lives of children. Held: Necessity includes reasonableness, whether a reasonable person would have thought it was necessary to do that. In this case, a reasonable person wouldn't have seen it necessary.
R v Bowen (1996) UK:
NECESSITY IN UK. The accused's characteristics to be taken into account. -Age and gender -Recognised psychiatric problems -Serious physical disabilities (on the basis they might inhibit self-protection) -Pregnancy
R v White (1987) AUS
Necessity in Australia. Accused speeding while taking sick son to doctor. Held: Public policy would allow a defence of necessity to a strict liability crime where the defendant has an honest and reasonable belief that they are avoiding a greater harm than the one they have committed. -The criminal act must have been done only to avoid certain consequences which would have inflicted irreparable harm The accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril -The acts done to avoid the imminent peril must not be done out of proportion to the peril to be avoided.
R v Martin 1989 UK
Necessity in England: Accused taking son to work because he had overslept- wife obsessively fearful that he would lose job. Accused scared wife would commit suicide if son lost job. Charged with driving while disqualified. Held: CA held defence should have been left to jury. The elements required were: -Objectively reasonable and proportionate reaction to avoid the threat of death/ GBH. -A sober person of reasonable firmness with accused's characteristics would have acted the same way.
