The Defence of Necessity

The Defence of Necessity


The defence of necessity in criminal law is where the defendant is arguing that it was necessary for them to commit a crime, and there argues that the accused person should be found ‘not guilty’ of the offence.

The leading case in this area is  R v Loughnan [1981] VR 443. The elements of the defence are:

-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;

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

-the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.


The defence of necessity in practice


Here is an example of a situation where the defence of necessity may apply in practice:

Luke and Aaron attended a hotel to enjoy a few drinks on a night out. Luke had driven his car and parked it at the hotel car park with the intention of catching a taxi home that evening.  During the course of the evening a group of intoxicated males approached Luke and Aaron and began making abusive and harassing comments.  Further the males in the group have pushed both Luke and Aaron to the floor.  Both have got up and the males have continued to approach Luke and Aaron.

Fearing for their safety, Luke and Aaron have walked out to the car park and the groups of males have followed them,  screaming and acting in a manner which was threatening to cause serious harm to them.  This has frightened Luke and Aaron and they both jumped  in Luke’s car and drive away from the hotel, as they both feared for their safety. Luke was pulled over some 300 meters away from the hotel by the police due to a random breath test.

Luke is arrest and charged with the offence mid-range drink driving.

The defence of necessity could be available to Luke in defending his matter.

Luke could argue that it was necessary to commit the offence of  drink driving because he reasonably believed that he and Aaron were going to be assaulted and be seriously injured by the group of males.

Luke would need to establish a basis for the defence of necessity and, thereafter, the prosecution bears the onus of negating the defence beyond reasonable doubt.

For more information of other defences to criminal charges, click here.

The defence of necessity can be very often difficult to prove.

It is very important that you contact an experienced Criminal Defence Lawyer before raising the defence of necessity in court.

Call LY Lawyer on 1300 595 299 for more information or to arrange a free consultation.