Back in 2004, 24-year-old Darwin man Lee Collinson was driving without a licence to his cousin’s home when pulled over by police. His explanation for driving was that he had to make urgent delivery:
“My cousin was about to [have sex with] this girl and he needed his bum bag because it had his condoms in it.”
The excuse did not wash with police, who charged him with unlicensed driving.
Collinson pleaded guilty in the Magistrate’s Court, where Magistrate David Loadman sarcastically remarked:
“Carrying condoms to a mate who is in desperate need must be something much better than the good Samaritan ever did…. I cannot imagine the scene. This woman, about to embrace passionately, is waiting for the condom arrival. Bizarre in the extreme.”
But the Magistrate did not stop there, stating that: “When the Poms ask Australians to define mateship, your circumstances could serve as a very good example.”
A $100 fine was to follow; but Mr Collinson was unrepentant, telling reporters after court:
“I don’t regret my actions and I would do it again. My cousin is like a brother to me.
“And at least he was practising safe sex. He was being responsible. He got the condoms and I think he had a good night.”
Although Collinson might make a good ‘wing man’, his explanation would not amount to a legal defence. However, there are circumstances where a person may be found not guilty on the basis that their otherwise unlawful act was committed out of ‘necessity’.
The Defence of Necessity
The common law defence of necessity says that a person is not guilty of a criminal offence if:
- They acted to avoid serious, irreversible ‘evil’ to themselves, or for someone they were bound to protect,
- They honestly and reasonably believed that they were in a situation of immediate peril, and
- Their actions were a reasonable and proportionate response to the situation.
If a defendant is able to raise a basis for the defence of necessity, the prosecution must then prove beyond reasonable doubt that the defence does not exist; R v Rogers (1996) 86 A Crim R 542.
Traffic Offences and Necessity
The defence of necessity is available for ‘strict liability’ offences, which are those where the prosecution does not need to prove a particular state of mind, such as intent or recklessness. These offences include negligent driving, negligent or reckless driving, speeding, and drink driving.
The case of White v R (1987) involved a man who drove at a speed of 88km/h in a 60km/h zone speed to get his ill son to a hospital. When pulled over, he did not tell police about the state of his son as he thought it would cause further delay.
Although the defendant’s son was not ‘in extremis’ (at the point of death), there was evidence to suggest that there was a real possibility that his condition could become life-threatening.
The judge accepted the defence of necessity was available in these circumstances, noting that:
“It was a choice to be made and he made it in order to avert, as he saw it, a real danger and a real possibility of death.”
The defence is similarly available in driving cases where the defendant drives recklessly or while intoxicated, provided that the actions were a ‘reasonable and proportionate response’ to the situation.
What About Other Criminal Cases?
The requirement of ‘reasonable and proportionate response’ means that it can be more difficult to establish the defence of necessity in serious criminal cases.
For example, the classic case of Dudley and Stephens (1884) set an extremely high bar in murder cases. In that case, a group of men had been stranded at sea for 20 days when they decided to kill and eat the cabin boy in order to survive. The court found that, even in those circumstances, the response was not sufficiently reasonable and proportionate.
In the case of R v Loughnan, a prison inmate attempted to use the defence of necessity against charges of escaping from lawful custody, arguing that he was compelled to escape because his fellow inmates were about to kill him after forming the view that he was an informant. The Victorian Supreme Court found that the defence of necessity was not available in these circumstances, as there were other avenues available.
Similarly in Rogers v R, the New South Wales Court of Criminal Appeal found that the defence was not available to an inmate who attempted to escape to avoid being killed in prison. In that instance, the inmate managed to pry open the doors of his cell, crawl onto the roof and down a drainpipe, but was finally apprehended when he tried to climb a tower. The Court held that:
“Bearing in mind the nature of the escape which was being attempted, the fundamental flaw in the appellant’s case on necessity was that there was available to him the alternative course of bringing the threat to the attention of the prison authorities and seeking protection.”
These cases illustrate that it can be difficult to establish the defence of necessity when it comes to extremely serious criminal cases, or where an alternative option may be available.