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Australian law recognises the value of dignity and respect for human life. This means that there are only limited circumstances where killing another person is excusable. Self-defence is probably the most well-known defence, but what about necessity? Can it ever be used as a defence to murder?
The defence of necessity essentially says that if a person commits a crime to escape an imminent threat, that person is not criminally responsible for the crime. It is different to another well-known defence called “duress”, which is where a person is forced by another to commit a crime.
In order to successfully raise the defence of necessity, you must show that:
Like other defences, if you raise the defence of necessity, it is then up to the prosecution to prove beyond reasonable doubt that the defence is not established. If the prosecution cannot do this, you must be found not guilty.
Necessity is rarely raised in criminal law, mainly because criminal charges arising from acts committed out of necessity are unusual; much more uncommon than, for example, those arising from self-defensive situations.
But can necessity ever be a defence to murder?
This question was considered in one very famous and controversial case in England back in 1884.
The case of R v Dudley and Stephens was well-publicised at the time and raises moral questions that still cause controversy today.
It concerned two sailors who were charged with murder – and both attempted to raise the defence of necessity. Dudley and Stephens were members of the crew on board a yacht, and while sailing around the Cape of Good Hope, found themselves shipwrecked after the storm.
Along with two other crew members, they escaped the wreck by leaving the main vessel using an open boat.
The boat drifted the open sea, thousands of miles from land. The only water they had was that which they caught in their oilskin capes. They survived the first few days on a tin of turnip, and then on a turtle they caught in open water. Their meagre supply of food soon ran out and the men were slowly dying from hunger and thirst.
After the twelfth day, they had nothing more to eat. By the eighteenth day, the men had eaten nothing for seven days and drank nothing for five.
It was then that Dudley and Stephens spoke with another man on board the ship, named Brooks, and suggested that perhaps one person should be sacrificed to save the rest; in other words, that they kill one passenger and eat him to survive.
Dudley suggested casting lots, but Brooks refused to consent. The fourth passenger on board, a teenager of about 17 or 18, was not consulted. His name was Parker.
Stephens and Dudley said that they had families to support back home, whereas Parker did not. They suggested it would be best to kill and eat him, in order to save their own lives.
They agreed to go ahead with their plan if they didn’t see a ship by the next morning.
The next morning dawned and there was no vessel in sight. Dudley and Stephens agreed to killing the youngster, but Brooks did not consent. By this time, Parker was lying at the bottom of the boat, quite helpless and unable to put up a fight.
Dudley told the boy his time had come, and with the assent of Stephens, put a knife to his throat and killed him. For the next four days, the three men fed off his body, until a passing ship finally rescued them.
But for these men, the relief of being rescued would have soon have worn off – when they found themselves charged with murder, which carried the death penalty.
If the men had not eaten Parker, they probably would not have survived long enough to be rescued. Parker was in a much weaker condition than the others and was likely to have died before them in any case.
It’s not hard to see why this case attracted enormous controversy at the time, as well as public sympathy for the plight of the men, but could their actions be legally justified?
The result was that both men were found guilty of murder.
In reaching their judgement, Their Honours remarked:
“By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or ‘what?… In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be no.”
The judges appreciated that the men were suffering terribly, and were unsure of their own survival. Yet they did not believe that even such an extreme situation would give a person the authority to decide who should live and who should die, or that extreme temptation would ever excuse a crime as serious as murder.
Dudley and Stephens were initially sentenced to death, although this was later commuted to six months imprisonment.
There is no legislative provision in NSW specifically excluding necessity as a defence to murder.
However, the defence has never been accepted in a murder case in Australia, and it is generally considered that it could not be established as a defence to murder; see R v Howe  AC 417.
In light of the decision in Dudley and Stephens, it is hard to imagine a situation where necessity could be successfully employed as a murder defence.