Defence of Necessity in Australian Criminal Law

The defence of necessity is a legal principle in Australian criminal law that justifies unlawful actions taken to prevent a greater harm. It applies in situations where a person, faced with imminent danger, has no reasonable alternative but to break the law to avoid serious consequences.

This article outlines the legal definition of necessity, its key elements, limitations, and how it varies across different Australian states. With extensive experience in criminal defence, Faraj Defence Lawyers are experts in handling necessity defence cases, ensuring you receive strategic legal representation tailoured to your specific case.

What Is the Defence of Necessity Under Australian Law?

The defence of necessity in Australian law allows you to justify otherwise unlawful actions if they were taken to prevent a greater harm. This defence is based on the principle that breaking the law may be excusable when it is the only way to avoid serious danger to yourself or others.

Necessity is different from duress, where you are coerced by another person, and self-defence, which involves protecting yourself from an immediate threat. Instead, necessity applies when you voluntarily commit an offence to prevent significant harm in an emergency situation.

While Australian states may have variations in how necessity is applied, the fundamental legal principles remain consistent. Courts assess whether your actions were reasonable and proportionate to the harm avoided. At Faraj Defence Lawyers, we understand these legal intricacies and can help your navigate the complexities of the necessity defence to build a strong case.

Legal Elements of the Necessity Defence

Key Elements Required to Prove Necessity

To successfully rely on the defence of necessity in Australian law, your actions must meet specific legal criteria. The Court will assess: 

• Imminent Danger: You must have faced an immediate and serious threat to life, health, or property. The danger must be pressing, not hypothetical or speculative.

• No Reasonable Alternative: The unlawful act must have been the only viable option available to prevent the harm. If a legal alternative existed, the necessity defence may not apply.

• Proportionality: Your response must be proportionate to the harm avoided. The court will consider whether the benefit of breaking the law outweighed the wrongdoing.

Courts carefully examine the elements when determining whether necessity is a valid defence. A notable Australian case where necessity was argued is R v Loughnan (1981). The accused, fearing imminent attack, escaped lawful custody to avoid serious harm. The court accepted that his actions met the legal test for necessity.

Given the complexities involved, expert legal representation is crucial. Faraj Defence Lawyers can assess your case and present a strong argument if necessity applies to your situation.

Burden of Proof in Necessity Defence Cases

When raising necessity as a defence in Australian criminal, the burden of proof shifts between the accused and the prosecution. Initially, you must present enough evidence to establish that necessity is a reasonable argument in your case. This is known as raising a prima facie defence.

Once necessity is raised, the prosecution must then disprove it beyond a reasonable doubt. If the prosecution successfully shows that one or more key elements (such as imminent danger or lack of reasonable alternatives) were not present, the defence will fail. 

To support a necessity claim, courts typically consider medical reports, expert testimony, eyewitness accounts, and the documentary evidence that demonstrate the seriousness of the harm avoided and the absence of lawful alternatives. Given the evidentiary complexities using Faraj Defence Lawyers ensures that your case is presented with strong legal arguments and supporting proof.

Is Necessity a Complete Defence?

The defence of necessity can sometimes lead to a full acquittal, but it is not always a complete defence in Australian law. A complete defence results in the accused being found not guilty, whereas a partial defence may only reduce the severity of the charge of sentence.

In some cases, courts may accept the necessity influenced your actions but still find you guilty if the response was disproportionate or if a reasonable alternative existed. For example, if someone commits a serious violent offence under the claim of necessity, the court may determine that the harm caused was too great to justify full acquittal.

Necessity is often difficult to prove and is carefully scrutinized by courts. Having Faraj Defence Lawyers represent you ensures that your defence is presented convincingly, maximising your chances of achieving the best possible legal outcome.

Limitations and Exceptions to the Necessity Defence

When Necessity Does Not Apply

While the defence of necessity can justify unlawful actions in certain cases, there are strict limitations on when it can be used. Courts will reject a necessity defence in the following situations. 

• No Imminent Danger: If the threat was not immediate or pressing, necessity will not apply. The danger must be real and unavoidable at the time of the offence. For example, if someone claims they stole food out of long-term financial hardship rather than an urgent survival need, necessity would likely fail.

• Reasonable Legal Alternatives Existed: If a lawful option was available, such as seeking police assistance, courts will reject necessity. For example, a driver caught speeding to avoid missing a flight cannot rely on necessity, as alternative travel arrangements could have been made.

• Harm to Innocent People: Necessity generally does not justify causing harm to innocent people. For example, it would not apply if someone hijacked a vehicle to escape danger but endangered or injured other in the process. 

• Self-Created Emergency: If the accused caused the dangerous situation themselves, they cannot claim necessity. In R v Rogers (1996) the defendant’s attempt to justify drug trafficking under necessity failed because they voluntarily engaged in criminal conduct.

Necessity vs. Other Legal Defences

The defence of necessity is distinct from other legal defences such as duress and self-defence, despite some similarities.

• Necessity vs Duress: Duress involves being coerced by another person into committing a crime under the threat of harm (e.g being forced at gunpoint to steal). In contrast, necessity arises when you act voluntarily to prevent a greater harm, such as trespassing to rescue someone from danger.

• Necessity vs Self-Defence: Self-Defence applies when you use reasonable force to protect yourself or others from an immediate attack. Necessity, however, justifies an unlawful act taken to prevent future harm, even if no immediate threat exists at the moment of the offence.

• Necessity vs ‘Lesser Evil’ Arguments: Some moral dilemmas involve choosing the lesser of two evils, but courts apply strict legal tests for necessity. Unlike general ethical reasoning, necessity requires proof that breaking the law was the only reasonable option available.

Understanding these distinctions is crucial for building a strong defence. Faraj Defence Lawyers can help determine the best legal strategy based on your specific case.

Necessity Defence Laws Across Australian States

NSW, Victoria & Queensland

The defence of necessity is recognised in NSW, VIC, and QLD, but there are key variations in how it is applied. 

• New South Wales: In NSW, necessity is an accepted common law defence, meaning it has been developed through case law rather than specific legislation. Courts follow the principles set out in R v Loughnan (1981), requiring proof of imminent danger, no reasonable alternative, and proportionality.

• Victoria: Victoria has a statutory defence for necessity under the Crimes ACT 1958 (Vic), known as the “sudden or extraordinary emergency” defence. Under section 322R, an accused person is excused from criminal liability if they reasonably believed their actions were necessary to avoid a serious emergency. This statutory framework provides clearer legal guidance compared to NSW’s common law approach.

• Queensland: In QLD, necessity is not formally recognised as a standalone common law defence. However, elements of necessity are incorporated into Section 25 of the Criminal Code (Qld), which allows an accused to avoid criminal responsibility for acts done in an emergency to avoid immediate harm.

Other States & Territories

The defence of necessity varies across Western Australia, South Australia, Tasmania, the Northern Territory, and the Australian Capital Territory, with some states relying on common law while others incorporate statutory provisions. 

• Western Australian (WA): WA follows the Criminal Code Act Compilation Act 1913 (WA), which does not explicitly recognise necessity as a stand alone defence. However, similar principles are covered under Section 25, which excuses acts done in sudden or extraordinary emergencies. Courts also apply common law necessity principles where applicable.

• South Australia (SA): Necessity remains a common law defence in SA, following cases like R v Loughnan (1981). However, courts apply strict scrutiny to ensure the accused had no reasonable alternative. 

• Tasmania (TAS): Like QLD and WA, Tasmania follows a statutory necessity defence under Section 25 of the Criminal Code Act 1924 (TAS). This provision allows an accused to argue that their unlawful actions were necessary to avoid an immediate and serious threat. 

• Northern Territory (NT): NT also incorporates necessity into its Criminal Code Act 1983 (NT), Section 43BC, which provides a defence for acts committed in response to an emergency. The test for necessity aligns closely with other statutory jurisdictions.

• Australian Capital Territory (ACT): The ACT follows both common law principles and statutory provisions. Similar to Victoria, necessity can be argued under the ‘sudden or extraordinary emergency’ defence in the Criminal Code 2002 (ACT), section 41.

Why Legal Representation is Essential in Necessity Defence Cases

Proving necessity in a criminal court is highly complex. The defence requires demonstrating imminent danger, lack of reasonable alternatives, and proportionality, all of which must be backed by strong evidence. Courts apply strict legal tests, and a misunderstanding of necessity can lead to the defence being rejected. 

Many people wrongly assume that necessity is a simply moral justification, but in reality, it demands expert legal strategy and persuasive argumentation. Properly presenting medical reports, expert testimony, and supporting evidence is crucial to establishing a valid necessity claim.

Without skilled legal representation, it is easy for the prosecution to dismantle necessity arguments by questioning the immediacy of the danger or the availability of alternatives.

At Faraj Defence Lawyers, we specialise in necessity defence cases. Our legal expertise ensures that your case is presented effectively, maximising your chances of a successful outcome. If you are facing criminal charges, we are here to defend your rights.

Need Legal Help? Contact Faraj Defence Lawyers

If you are facing criminal charges and believe the defence of necessity may apply to your case, seeking expert legal advice is crucial. Successfully arguing necessity requires a deep understanding of the law, strong evidence, and a well-structured legal strategy. Without professional representation, your defence may not hold up in court. 

At Faraj Defence Lawyers, we have extensive experience in criminal defence law, including necessity cases. Our legal team will assess your situation, gather the necessary evidence, and build the strongest possible defence to protect your rights.

Contact Faraj Defence Lawyers today for a confidential consultation.