In the state of NSW, the defence of necessity is a legal
defence that may be invoked in certain circumstances where a person is charged with
a crime. It should be noted that the defence of necessity is very hard to argue
successfully. The defence of necessity argues that the person’s actions, which
would normally be considered unlawful, were justified because they were
necessary to prevent a greater harm or to protect an individual or property.
It’s important to note that the defence of necessity is not
available for all types of crimes. In NSW, the defence is generally limited to
situations involving property offenses, such as trespass or theft, where the
accused can demonstrate that their actions were necessary to protect their
property from imminent harm. The defence may also be available in certain
circumstances involving driving offences, such as exceeding the speed limit to
seek urgent medical assistance.
However, the defence of necessity is not available for more
serious crimes, such as murder or assault, where the harm caused by the
accused’s actions is considered to be greater than the
harm they sought to prevent. It is critical that a person charged with a
criminal offence obtains legal advice prior to going to court.
To successfully rely on the defence of necessity in NSW, the
following elements must generally be established as the accused bears the
evidentiary onus of proof:
Imminent threat: The accused must reasonably believe that there was an
imminent threat of serious harm or danger to themselves, another person, or
their property. The threat must be immediate, and there must not be any
reasonable alternative course of action to avoid the harm.
Proportional response: The accused must demonstrate that their actions were a
reasonable and proportionate response to the perceived threat. This means that
the harm caused by the accused must be less severe than the harm the accused
sought to prevent.
No reasonable alternative: The defence of
necessity requires the accused to show that there were no reasonable
alternatives available to them other than committing the unlawful act. This
means that the accused must have exhausted all reasonable options to avoid the
Subjective belief: The accused’s belief in the necessity of their actions
must be honestly held and based on a reasonable perception of the circumstances
at the time.
It’s worth mentioning that each case is unique, and the
application of the defence of necessity will depend on the specific facts and
circumstances of the case. In 2006 the NSWCCA case of R v Rogers
highlighted that the defence of necessity and the defence of self defence
have 2 similarities in that they both encompass an urgent situation of imminent
peril which must exist in which the accused must honestly believe on reasonable
grounds that it is necessary for him to do the acts which are alleged to constitute
the offence in order to avoid the threatened danger AND Those acts must not be
disproportionate to the threatened danger.
If you require legal
advice or are facing criminal charges, it’s important to consult with a
criminal defence lawyer in NSW who can provide guidance based on the most
up-to-date laws and legal precedents.
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correctly reflects the Laws of NSW as at 17th
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