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 harm.


         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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It is very important that you speak with a lawyer so that you can get the appropriate legal advice which you require prior to going to court.


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*This article correctly reflects the Laws of NSW as at 17th November 2023.


*Please note that this page or any other pages on our website (including any other social media platforms for Nicopoulos Sabbagh Lawyers) are not to be considered as a substitute for legal advice or even other professional advice. It should also be noted that accessing of this information from this website does not create a client-lawyer relationship.


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