New Zealand Law/Criminal/Necessity

Definition

Person not necessarily entirely deprived of choice but choice btwn two evils:

(a) to allow harm; or

(b) break the law.

Commentary

1. Requires:

(a) situation of urgency or moral peril (imminent death or serious injury);

(b) compliance with the law to be impossible;

(c) harm to be proportionate;

(d) nexus between the peril and response (belief on reasonable grounds).

2. Necessity is a common law defence that is saved by s20 of the Crimes Act.

3. It is not available:

(a) to a charge of murder; or

(b) in the case of a threat of person not present (because the latter would contradict the defence of compulsion).

Cases

Perka v R

• Facts

1. P and others smuggling drugs by ship.
2. Ship's engine overheated, defendant and others were ‘forced’ to seek refuge in cave.
3. P relied on defence of necessity.
4. P was acquitted and the Crown appealed.

• Held, Supreme Court of Canada

1. Necessity is an excuse not a justification.
2. It is inappropriate to punish acts that are morally involuntary if not physically involuntary.
3. Act must be:

- to avoid direct and immediate danger;

- morally involuntary;

- inevitable and unavoidable; and

- proportionate.

1. The accused's fault, in bringing about the situation, is irrelevant.
2. Once the accused adduces sufficient evidence to raise defence, it is for the prosecution to prove beyond reasonable doubt that defence does not apply.

Kapi v Ministry of Transport

• Facts

1. Kapi hit parked car, charged with failing to stop.
2. He claimed that he feared being beaten up by Samoans even though no one was around.
3. Judge did not allow necessity to be put to the jury.
4. Kapi appealed.

• Held

1. s24 compulsion deals with necessity in so far as it concerns a fear of death or both.
2. Defence of necessity is unavailable in relation to a person not present.
3. Moreover, necessity requires an honest and reasonable belief.

Ruka v Dept of Social Welfare

• Facts

For 15 years, D claimed benefits as single person.

• Held

Battered women’s syndrome did not negate fraudulent intent but D’s relationship was not in the nature of marriage – there was no financial interdependence and no degree of companionship demonstrating an emotional commitment.

Police v Kawiti

• Facts

D drove drunk and disqualified – in unbearable pain and fearing further attack.

• Held

1. per Kapi - s24 limits the defence of necessity.
2. No one was actually present when D got in car, therefore defence of necessity unavailable.
3. However, defence of duress may be available – where danger of imminent death or serious injury to D or another. But response must be proportionate, and must be measure by reference to a sober person of reasonable firmness otherwise sharing the characteristics of D.

In re A

see In re A (Children)(Conjoined Twins: Surgical Separation) (2001) 2 WLR 480, 552-573

R v Hutchinson

• Facts

Def had sabotaged 1080 operation fearing serious harm to community through contaminated water supplies.

• Held

1. No defence should be excluded unless it is clearly unavailable.
2. Where common law defence saved by s20, the law is always speaking, and developments in other common law jurisdictions may be taken into acct.
3. Suggests something less than an immediate threat of a person present could give rise to a defence of duress of circumstances or necessity.
4. Consistent with compulsion, common law requirement for “imminent” peril should be interpreted as “immediate”.
5. Need for nexus between peril and choice to respond. Defendant knew alternative water supplies available and rejected further legal action mainly due to costs. The defendant was simply “determined to pursue objectives, he had not achieved within the law, by acting illegally”.
6. The court cannot conceive of a situation where duress of circumstances available in response to a perceived threat from a lawful decision of an administrative or judicial tribunal.
7. Breaking and entering, and destroying property, are not “force” for the purposes of self-defence.
8. The fact that the defendant knew that all proper approval had been obtained for the 1080 operation was relevant to rejection of defence.
9. Believing an attack is imminent (ie impending, about to happen) is not the same as believing it will be immediate (ie will happen without delay).