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What is the Defence of Necessity in ACT Criminal Law?
Andrew Byrnes Law Group • Oct 01, 2020
The defence of necessity in ACT criminal law involves a justification or argument supporting a person’s innocence in circumstances that would usually amount to a criminal offence but for a situation of necessity. The view is that the defendant or another person was in danger of getting harmed, had they not behaved in this manner.
An example of the Necessity defence is contained in the Criminal Code 2002 (ACT).
In the Criminal Code 2002, Section 41, it says that:
- A person is not criminally responsible for an offence if the person carries out the conduct required for the offence in response to circumstances of sudden or extraordinary emergency.
- This section applies only if the person reasonably believes that—
- circumstances of sudden or extraordinary emergency exist; and
- committing the offence is the only reasonable way to deal with the emergency; and
- the conduct is a reasonable response to the emergency.
Where can you successfully apply this defence?
There are situations where the court more readily recognises the defence of necessity. For instance, a person might try to argue against a speeding charge if they were attempting to bring a seriously injured person to a hospital. Another situation where this could apply is when a person breaks a window to get an infant out of a burning building.
Short of a life-threatening situation though, courts might not accept this as a justification. You could not claim defence of necessity if you were avoiding a mild inconvenience. For example, if a person charged with public urination claims he did it because there was no public toilet nearby, or if a person accused of speeding did so to get to work on time, they will not likely succeed in using this defence.
Why do courts allow the use of this defence?
This defence exists for cases where disobedience to the law is the only viable option for the person involved, limiting its use to rare and extreme situations. People cannot choose for themselves what rules to obey and apply to the general public a value system inconsistent with legal implications. A Canberra criminal lawyer can help with identifying situations where this defence applies.
How do you argue a defence of necessity?
In criminal court proceedings, it is the duty of the accused to call evidence that raises this defence. Once this evidence from the accused is led, it is on the Prosecution to negate the defendant’s argument beyond a reasonable doubt.
To succeed, the criminal lawyer must show proof that the incident causing the accused to act in a criminal way was sudden and that it was an extraordinary emergency which required breaking of the law to deal with this situation. Also, they must show that the only reasonable way to address the situation was through committing the offence. Finally, they must show that their client’s conduct was an appropriate response given the circumstances.
Conclusion
In the ACT courts, arguing the defence of necessity is a way to meet cases where disobedience to the law was necessary and reasonable in the circumstances. The foundation of an orderly society is the adherence to rules, so people’s value systems must not be inconsistent with the law as the law is designed to reflect people’s morality. This defence allows for maintaining order and justice, even when considering the exceptions to the rule.
For more legal advice on all aspects of ACT law, get in touch with Andrew Byrnes Law Group today. We are
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