Necessity

Published by Geoff Harrison | 14 December 2024

Necessity is a common law defence where both the actus reus and mens rea of the offence are admitted; however, the law excuses the conduct based on the imminent peril that was faced by the accused. In R v Loughnan [1981] VR 443 at [448], it was held that the elements of the defence are:

(i) The criminal act must have been done in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he or she was bound to protect;

(ii) the accused must honestly have believed on reasonable grounds that he or she was placed in a situation of imminent peril and

(iii) the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.

The accused bears an evidentiary onus on the balance of probabilities as per s142 of the Evidence Act 1995.

Other Sources:

• Criminal Trial Courts Bench Book: Necessity

• Criminal Trial Courts Bench Book: Necessity Direction

Cases:

• Reg v Lawrence, Reg v Parkin, Reg v Cann, Reg v McCallum, Reg v De Graaff, Reg v Thelander [1980] 1 NSWLR 122

• R v Abusafiah (1991) 24 NSWLR 531

• Veira v Cook [2021] NSWCA 302 at [46] - [[48]

• Rowan (a pseudonym) v The King [2022] VSCA 236

• R v Loughnan [1981] VR 443 at [448]

• Taiapa v The Queen [2009] HCA 53

• R v Pimentel [1999] NSWCCA 401

• The King v Anna Rowan - A Pseudonym [2024] HCA 9

• R v Hurley and Murray [1967] VR 526

• R v Dawson [1978] VR 536

• R v Abdul-Hussain [1998] EWCA Crim 3528

• R v Martin [1988] EWCA Crim 2

• DPP of Northern Ireland v Lynch [1975] AC 653]

• R v Clarkson [1986] UKHL 4; [1987] AC 417 at 429