The Defence of Necessity – When Can It Be Used?

The Defence of Necessity – when can it be used?

Ask any law student about the most memorable English law case read in criminal law class. Chances are that many would name “Queen v. Dudley and Stephens” or “the lifeboat case.” This infamous case involved four seamen who were shipwrecked on a lifeboat in 1884. After seven days without food and five without water, it was decided that in order for the rest of the crew to survive “the castaway sailors kill the cabin boy and eat him.” That rather sensational case dealt with the defence of necessity.

Rarely, a court may find that someone who breaks the law to prevent immediate and irreparable harm to themselves or their family is not guilty of a crime. However, the accused’s state of mind at the time of the offence, as well as the facts surrounding it, are hugely important, and the act of starving to death does not necessarily support the necessity defence.

The Difference between Defence of Necessity and Self-Defence
While similar, the necessity defence is not the same as self-defence or duress. The Australian National University explains the differences:

Self-defence involves defence from an attack by an unjust aggressor. Duress involves committing a crime under threats of death or grievous bodily harm. Necessity only comes into play when the first two defences do not fit, “when the accused contends that his or her actions were justifiable or excusable in the face of any other kind of danger.”

For Dudley and Stephens, there was no self-defence, nor duress – the cabin boy presented no threat to them, only an opportunity for survival.

The Necessity Defence in Australia
A 1981 Victorian case, R v Loughnan, the Court set forth three requirements for the necessity defence:
1.   The criminal act or acts must have been done only in order to avoid certain consequences, ones where either they or their family would have been subjected to “irreparable evil.”

2.   The accused must honestly and reasonably believe he or she was in a situation of “imminent peril.”

3.   A reasonable person in the same position would also believe they had no alternatives to the action taken to avoid the threat or peril.

Court decisions involving the defence of necessity use extreme words such as “immediate and irreparable harm,” “overwhelming” and “compelling,” showing it is not easy to meet the requirements of the defence.

On top of that, while the defendant’s state of mind at the time of the crime is incredibly important, the defence does not mean they can just act according to their own “moral code.”

The Defence of Necessity in NSW

The case of R v, Rogers 86 A Crim R 542 made clear that the defence in no way gives people a choice of what laws they will or will not follow, nor the opportunity to “…construct and apply their own set of values inconsistent with those implicit in the law.” For Dudley and Stephen, this would mean that despite almost uniform repugnance of cannibalism, it was the killing, and not the eating that was their undoing.

With regards to the defence of necessity, it is the accused that bears the onus to give evidence supporting this defence and it is the crown’s responsibility to negate it beyond a reasonable doubt (as it is with the defence of self defence).

Meeting a Tough Burden
What of those unfortunate sailors convicted of murder after hunger drove them to the act? The 1884 opinion sums it up thus:
A man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life.

Despite 18 days adrift with few options for food (something necessary for life), the court found there was no defence to their actions.