Necessity

Young CJ and King J

At 444

The applicant was presented for trial on a charge of escaping from Pentridge Prison. He pleaded not guilty but after a trial at which he was represented by counsel he was convicted and sentenced to be imprisoned for three months. The Crown case established that the applicant was lawfully detained at Pentridge, that Pentridge is a prison under the Community Welfare Services Act, that the applicant was last seen in “B” division of the prison at about 6:30pm on 9 May 2977, but that upon a search being made at about 8pm he was missing. The following date the applicant was apprehended in Ferntree Gully Hospital where he had been taken because he had broken both his legs as a result of jumping from the prison wall…

At 445

At trial the Crown case was not really challenged. Instead the applicant relied upon the defences of duress and necessity. Five witnesses, four of whom were prisoners and one the Acting Deputy Superintendant of the prison, were called on the applicant's behalf and the applicant made an unsworn statement from the dock. In that statement the applicant told of how he had secreted a gun and some bullets in a secret compartment of a stool. As the applicant had been closely watched and frequently searched by prison officers he gave the stool to another prisoner who put it in the cell of a third prisoner named Regan. It would appear that the bullets and gun were found in Regan's cell and that Regan was sent to "H" division while the matter was being investigated. The applicant said that a number of other prisoners believed that he had intentionally implicated Regan and let him know of their belief. Accordingly the applicant went to Mr. Ellis, a prison officer, and asked to be sent to "H" division in Regan's place. He repeated the request the following day. Regan was not immediately returned from "H" division and the applicant said that the other prisoners, who had not believed the applicant's explanation to them of how the bullets had got into Regan's cell, concluded that he (the applicant) was either working for the prison officers or was an informer. During the next few weeks the applicant remained particularly in the company of two prisoners, Lawless and Power, and was insulted and threatened by other prisoners on numerous occasions. The applicant did not say what form the insults and threats took. Lawless and Power were moved from the division and the threats and intimidation continued. On the day of the escape two prisoners told him to watch out for himself and later a third told him he was going to be killed that night. There had been rumours for some time of an escape and the applicant evidently formed the view that if he remained in the vicinity of those about to escape he would be safe because the code of behaviour in prison would prevent any interference with him whilst the escape was in progress.

At 446

The only ground relied upon in support of the present application is that the learned Judge was wrong in law in refusing to allow the defence or defences of duress or necessity to be considered by the jury.

At 447

In this case we have come to the conclusion that the application should fail because even if there be a defence of necessity available to a prisoner who escapes from lawful custody we do not think that the facts adduced justified the leaving of the defence to the jury. If there be no such defence recognized by the law, of course, cadit qusestio. However, since we are the opinion that a prisoner who escapes may in certain circumstances raise  a defence of necessity, we think it is necessary or at any rate desirable that we should state briefly the foundation for the conclusion which we have reached.

At 448

It will be seen from the statement by Sir James Fitzjames Stephen that there are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others he was bound to protect. The limits of the element are at present ill defined an where those limits lie is a matter of debate. But we need not discuss this element further because the irreparable evil relied upon in the present case was a threat of death and if the law recognizes the defence of necessity in any case it must surely do so where the consequence to be avoided was the death of the accused. We prefer to reserve for consideration if it should arise what other consequence might be sufficient to justify the defence: cf. People v. Lovercamp (1975), 43 California Appeals 3d. 823, in which the consequence to be avoided was forcible homosexual activity.

The other two elements involved, which were identified by Menhennitt, J. in R. v. Davidson, supra, at p. 671 can for convenience be given the labels, immediate peril and proportion, although the expression of what is embodied in those two elements will necessarily vary from one type of situation to another.

The element of imminent peril means that the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril. As Edmund Davies, L.J. (as he then was) pointed out in Southwark L.B.C. v. Williams, supra, at p. 746, all the cases in which a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril. Thus if there is an interval of time between the threat and its expected execution it will be very rarely if ever that a defence of necessity can succeed.

The element of proportion simply means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril?

Per Crockett J

At 456

Now, I view with some incredulity the proposition that a felon (that degree of whose criminality may be slight, e.g. stealing fowls from a fowl house as in McKay's Case, supra) may be killed with impunity whilst escaping if the death occurred during an attempt to prevent the escape but a prisoner cannot, without criminal responsibility, escape from the lawful custody in which he is if to do so is necessary to prevent his being unlawfully killed, i.e. murdered. The two postulations are virtual correlatives. The existence of justification in the former circumstance seems imperatively to demand recognition of justification in the latter.

In the result I am persuaded that, but for one possible difficulty that remains to be dealt with hereafter, a defence of necessity is, in the appropriate circumstances, available to be relied upon in answer to a charge of escape from lawful custody. That conclusion seems to be required by resort both to logic and principle. Moreover, as has been and will hereafter be seen, it is not without authority to support it. It may be (and it is, of course, unnecessary for present purposes to determine the matter) that the doctrine will have no application where the act performed under compulsion of necessity is the infliction of death on an innocent person so as to allow the aggressor's survival: R. v. Dudley and Stephens (1884), 14 Q.B.D. 273 the facts of which are too well known to require restatement. While accepting that necessity for defence can justify infliction of death the law appears unprepared to allow as justifiable death arising from the necessity of survival. See, for example, U.S. v. Holmes (1842), 26 Fed. Cas. 360, a case in which a seaman was indicted not for murder, but for manslaughter, arising from the deaths of occupants of a lifeboat which after a shipwreck was so overcrowded that, to ensure its survival that otherwise was impossible, a number of the occupants were thrown overboard by Holmes. It appears that two shipwrecked persons may lawfully struggle for the one plank but it seems questionable whether the doctrine of necessity permits one in possession of the plank to be dispossessed by another.

At 460

Similarly, I would prefer to restate the first three propositions. They appear to me to be in the form of evidentiary requirements rather than principles. The essential conditions, I consider, so far as presently relevant, are that: 1. The harm to be justified must have been committed under pressure either of physical forces or exerted by some human agency so that "an urgent situation of imminent peril" has been created., 2. The accused must have acted with the intention of avoiding greater harm or so as to have made possible "the preservation of at least an equal value". 3. There was open to the accused no alternative, other than that adopted by him, to avoid the greater harm or "to conserve the value". See Hall: General Principles of Criminal Law, 2nd ed., Ch. XII., Howard: Criminal Law, 3rd ed., p. 423, and for tests adopted in a number of Criminal Codes see Working Paper No. 5 of the Victorian Law Commissioner: Duress, Coercion and Necessity, pp. 35-40.

Shadbolt DCJ

At 194

The appellant brings this appeal from a decision of Mr Simpson, Stipendiary Magistrate sitting at the Court of Petty Sessions (Parramatta) convicting him of speeding.

At 195 and 196

The appellant has based his appeal on a variety of submissions. First, it is maintained that the area was an 80 km/h zone. In regard to this contention I am satisfied beyond reasonable doubt that it was not. The evidence of the two officers was consistent and in my view, their truthful recollections each corroborated the other.

Secondly, it is maintained that the evidence of the police officers as to their observation of the speedometer in their car ought not to be viewed as evidence against the appellant because:

(a) it was not tested for accuracy on that day; and

(b) there is no evidence that it subscribes to the National Measurement Act (Cth) as amended, s 10.

Thirdly, it is submitted that a defence of necessity has arisen which has not been negatived by the Crown.

At 197

One further point remains. The appellant maintains that he was acting throughout to get his son to medical treatment as quickly as possible. Doctor Wilkins gave telling evidence of the need of his patient, Mr Robert White, to have proper and timely medical attention when Mr Robert White suffers an attack. He has been a chronic asthmatic all his life and Dr Wilkins maintained that it is a life-threatening condition. I accept all of his evidence.

The question now arises: does necessity act as a defence to the commission of an offence under the Motor Traffic Act?

Breaches of the Motor Traffic Act and regulations in regard to speeding are offences of strict liability. No specific state of mind needs to be proved nor is the absence of mens rea a defence.

At 198

Whilst in certain circumstances a Maker v Musson (1934) 52 CLR 100 defence may be available that is not so where a deliberate choice has been made. A defence of necessity must, by definition, embrace voluntariness, knowledge and intention to commit the act which constitutes the crime. If honest and reasonable belief in circumstances which, if true, would be exculpatory is a defence to a crime of strict liability, I can see no reason why, in appropriate circumstances, a choice made to commit an offence of strict liability in order to avoid a greater evil would not also be a defence. Public policy has required a sparing use of the defence and certainly in murder it has never been sustained: see Dudley and Stephens (1884) 14 QBD 273. The balance in crimes of such gravity can never fall to the side of the killer. But as the offence becomes less serious, the balance more readily falls to the side of the one who commits such an offence. A possible death must far outweigh a minor infraction of the Motor Traffic Act.

…

It would appear to be a defence in search of the perfect circumstances. They were, of course, to be found in Bourne [1939] 1 KB 687 and in my view they are to be found here. That the appellant did not tell the police officer of his plight has, in my view, been satisfactorily explained. It might have caused further delay. I consider his only concern was to get his gravely ill son to hospital. I do not think that he concerned himself particularly with the speed. I do not think his breach was so gross as to create another danger together with the existing one. 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 but I am not of the view that the public good and society's cohesion would be placed in such jeopardy by that choice, that the defence of necessity should not be available.

The Crown in my view failed to negate it and the appeal will be upheld. The formal orders I make is that the appeal is upheld and the conviction is quashed.

Gleeson CJ

At 542 and 543

Following a trial before his Honour Judge Luland QC and a jury at the Penrith District Court the appellant was convicted of attempting to escape from lawful custody. He was sentenced to penal servitude for a fixed term of twelve months, to commence in August 1998, at the expiration of the sentence he is currently serving. He appeals against the conviction, and seeks leave to appeal against the severity of the sentence.

In the early hours of Monday 15 March 1993 the appellant and another prisoner named Williams were caught attempting to escape from the John Moroney Correctional Centre. The attempt showed a deal of planning. The prisoners had prised open the doors to their cells with metal implements. A speaker was removed from a roof space and access was gained to the roof area. The prisoners travelled through the roof for a distance, then climbed down a drainpipe. They reached open ground, but were unsuccessful in climbing a tower. A security camera detected them hiding in a garden bed inside the main gate of the prison. They gave themselves up.

There was no dispute that the primary elements of the offence had been made out by the Crown. The only issue at the trial arose from the appellant's attempt to excuse his conduct on the ground of necessity. After hearing evidence and argument, Luland DCJ took that issue away from the jury. That having occurred, conviction was inevitable.

The appeal against conviction challenges the decision to take the issue of necessity away from the jury.

At 543 and 544

The facts of the case have some similarities to those of Loughnan. The appellant in each case explained his conduct on the basis of an apprehension of a threat, from within the gaol, to kill him.

The appellant in the present case has had a long and complex custodial history. He has spent a large part of his adult life in custody. His problems within the prison system date back to 1987 when, whilst a prisoner at Parklea, he agreed to give information to the National Crime Authority about certain police officers. Perhaps as a measure of retaliation, so he suggests, police and Corrective Services officers represented that he was an informer against other prisoners. He earned the dangerous reputation of being a "dog". He declined offers of protection, because he felt that to accept would confirm the rumours about him. He was attacked in prison and subjected to a forcible overdose of heroin.

The appellant was released from prison in November 1987, but found himself back again in August 1988. He was subjected to threats. His cell was vandalised. He was attacked by other prisoners, and at one stage was placed in segregation for 14 months. In mid-1992 he was transferred to the John Moroney Correctional Centre. Whilst there, a few days before his attempted escape, he received a message that a prisoner, from whom he had previously received threats, but whom he did not name, had been transferred to the same prison. He was told that something major was going to "go down" on the following weekend. As a result of what he was told, he said he believed that he would be forced into a position where he would either have to kill or be killed. That resulted in his decision to escape.

At 545

In the present case Luland DCJ, applying Loughnan, addressed three elements of the legal excuse of necessity. The first was the seriousness of the evil which the appellant claimed to be seeking to avoid. The evil here was the appellant's death, and Luland DCJ found this element established. The second element was the immediacy or imminence of the peril. The third element was the proportionality or reasonableness of the response. His Honour found that there was no case fit to go to a jury on either of those two elements.

At 546 and 547

In a case such as the present, where the accused's conduct, otherwise unlawful, is sought to be excused on the basis that it was a response to a threat of death or serious injury to the accused, the first question is whether it was, in truth, such a response. Bearing in mind that, if there be a viable issue of necessity, the Crown bears the onus of negativing necessity, if the jury were to be satisfied beyond reasonable doubt that the attempted escape was for a different reason, that would be the end of the matter. It has not been argued that, in the present case, the jury were bound to be so satisfied.

Putting questions of onus to one side, if the appellant acted as he did, honestly believing, on reasonable grounds, that escape from prison was necessary in order to avoid threatened death or serious injury, then his conduct would be excused.

The relevant concept is of necessity, not expediency, or strong preference. If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined. To adopt the language of Dickson J in Perka, the accused must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law. In United States v Bailey (1979) 444 US 394 at 410 Rehnquist J, speaking for the majority in the Supreme Court of the United States, said: "Clearly, in the context of a prison escape, the escapee is not entitled to claim a defence by duress or necessity unless and until he demonstrates that, given the imminence of the threat, (escape) was his only reasonable alternative."

Clarke JA

At 551

I agree with the Chief Justice.

Ireland J

At 551

I agree with the Chief Justice and with the orders proposed.

Basten J

1. While the protection of sentient creatures from human cruelty is a worthy cause, there were lawful means to pursue it in this case, including by engaging the attention of the RSPCA which had already happened. For the reasons given by Meagher JA, leave to appeal should be refused. No arguable issue of principle is raised: costs should follow the event.

Meagher JA

2. On 13 November 2019 the applicant, Ms Veira, was convicted in the Local Court of the offence of unlawfully entering inclosed lands and interfering with a business. Section 4B(1)(a) of the Inclosed Lands Protection Act 1901 (NSW) provides..

4. On 21 June 2018 Ms Veira, and at least five other like-minded persons, entered an inclosed poultry farm near Picton which included a barn containing approximately 4000-5000 hens kept in cages. At the time they did so (at or about 11:39am) there were RSPCA officers at the property. Those RSPCA officers had also been in attendance on the previous day and were investigating allegations of cruelty said to have resulted in the death of many hens, principally because they had been subjected to a process of forced moulting involving the withdrawal of food and water for a period of seven to 14 days.

5. Shortly before Ms Veira entered the property, the RSPCA officers had made a decision to leave the hens in the care of the owner or operator of the poultry farm, Mr Stone, whilst they conducted further investigations. The evidence was that they did so, satisfied that the hens had been provided with sufficient water and feed. On becoming aware of that decision the applicant, and others, decided to enter the property, remove some chickens from their cages and take them from the property. It was common ground in the Local Court that their predominant, and in some cases sole, purpose in doing so was to prevent further cruelty to those chickens.

6. The applicant entered the poultry farm having been advised that the RSPCA officers did not require her assistance. As the learned magistrate observed, the defendants, including Ms Veira “were, it seems, of the view that whatever the RSPCA had undertaken or required Mr Stone to do was inadequate to alleviate the situation as they saw it and so they were justified in their view to enter the premises despite having no permission or consent from the occupier to do so”: (Police v Lopes & Ors, Liverpool Local Court (LC), Keogh LCM, 13 November 2019, unrep at [16]).

The excuse of necessity

7. Ms Veira’s only defence to the charge under s 4B(1)(a) was that her otherwise criminal conduct was excused on the ground of necessity.

…

20. The essence of Ms Veira’s necessity defence was that she had entered the poultry farm because it was necessary to do so to prevent further cruelty to the hens which she proposed to rescue; and that she had done so honestly and reasonably believing that the threatened harm to them was greater than the harm involved in her (unlawful) action in entering and removing the chickens. The learned magistrate rejected that defence.

21. The primary judge (Adamson J) granted Ms Veira leave to appeal against her conviction and dismissed that appeal. The applicant requires and seeks leave to appeal to this Court pursuant to Supreme Court Act 1970 (NSW), s 101(2)(h).

22. Ms Veira’s argument before the primary judge and in this Court focused on what were said to be the elements of the defence of necessity. It did so principally to accommodate a statement of agreed facts which she contended established each of the elements of that defence.

…

25. There are two proposed grounds of appeal – grounds 1(a) and 1(b), which are interrelated. Ground 1(b) addresses the formulation of the first of the elements described above, namely the purpose of the defendant’s actions. It is said to be sufficient if the relevant acts were done “predominantly” to avoid any harm, including to animals, provided that harm satisfies the requirement of “proportionality”. The content of that requirement is the subject of ground 1(a) which is directed to the third of those elements. That ground asserts that the requirement of proportionality is satisfied if the defendant had an honest and reasonable belief that the harm sought to be avoided (in this case to the chickens) is not less than the harm involved in the proposed unlawful conduct. The criteria by reference to which such an assessment is to be made are not spelt out.

…

38. Leave to appeal should be refused. Neither of the grounds of appeal has any prospect of success. In addition, the terms of the agreed facts and the applicant’s reliance on them as establishing the objective reasonableness of her belief as to the necessity of her unlawful conduct would have made this case an inappropriate one for resolving questions as to the elements or requirements of the necessity defence.

39. Applying Rogers (at 546-547) the first question was whether the applicant’s otherwise unlawful conduct – in entering the poultry farm, removing chickens and disrupting activities undertaken on the farm – was in response to a threat of death or serious injury to her or some other person. On the facts before the Local Court, whether as agreed or found, the answer to that question was no, the result being that the necessity defence was not available.

40. In seeking to avoid that outcome, proposed ground 1(b) challenges the requirement that the otherwise unlawful conduct be in response to a threat of death or serious injury. It is said to be sufficient that the threatened harm be to an animal or property, provided the applicant honestly and reasonably believed that the harm sought to be avoided was not less than any harm involved in the proposed wrongdoing. The applicant relies on the agreed facts in [28] (point 3) and [29] above as satisfying that requirement.

41. There is no support in any of the Australian or English authorities for the necessity defence extending to excuse criminal conduct undertaken otherwise than in response to an imminent threat of death or serious injury, either to the accused or to someone else. That is because the defence exists only where the circumstances are such as to overwhelmingly impel disobedience to the law.

…

50. For these reasons, leave to appeal should be refused and the applicant ordered to pay the respondent’s costs of the appeal.

Emmett AJA

55. I have had the advantage of reading in draft the reasons of Meagher JA for concluding that leave to appeal should be refused. I agree with his Honour, for the reasons given, that neither of the grounds of appeal has any prospect of success. Accordingly, orders should be made that leave to appeal be refused and that Ms Veira be ordered to pay the respondent’s costs of the appeal.