| Michael Travis BA/LLB (Hons) October 2000, University of Auckland Law School Please notify the author if you wish to cite this paper, or use extracts in your work. A PDF is also available via Google Drive.
[I]f a man be desperately assaulted, and in
peril of death, and cannot otherwise escape, unless to satisfy his assailant’s
fury he will kill an innocent person then present, the fear and actual force
will not acquit him of the crime and punishment of murder, if he commit the
fact; for he ought rather to die himself, than kill an innocent ...
- Hale’s Pleas of the Crown (1736) Vol 1, p. 51 [Hale and Blackstone]
It is my intention within this
thesis to examine the development of the defence of necessity at common law;
principally in Great Britain, and with some illustrative international
decisions. I also intend to describe New
Zealand’s particular treatment of the defence, with its partial incorporation
into statute. Following that is a critique of our approach; and suggestions as
to how, in the absence of statutory reform or judicial expansion, the defence
could be brought more in line with the common law.
I) A Matter of Definition
Necessity has been variously defined
over the years, and is known to be comprised of ‘species’, or aspects. These
have often been separated by the Courts, by the jurists, and by statute. These separations are often
conflicting, and may come under different names. By way of an introduction I would
like to set out how I will describe the area of law called “necessity”.
“Necessity” then, broadly covers the
area of justification or excuse where a person seeks to exculpate their actions
on the grounds of avoiding a greater evil. It is similar to, but distinct from
self-defence, impossibility and involuntariness.
In
R v Perka [1]
Dickson J of the Canadian Supreme Court described necessity as “normatively
involuntary”, to connote its effect on the will. However, it is really a choice
between evils that may look like “no real choice at all” rather than true
involuntary conduct. In other words, a person acting under duress still has
mens rea intention; it is their motive which is affected.
As
a concept it has been recognised in English law since at least 1550, where the
Court in Reniger v Fogassa [2]
considered that:
[I]n every law there are some things
which when they happen may break the words of the law, and yet not break the
law itself; and such things are exempted out of the penalty of the law ...
although they are done against the letter of it ... the words of them are
broken to avoid greater inconveniences, or through necessity, or by compulsion
... [3]
A
necessitous situation may occur when a person is forced to act by external
circumstances, either naturally occurring, or through the actions of a human
agent. The English Court of Appeal in R v
Conway [4]
described the former as necessity, or “duress of circumstances” (the first use
of that phrase), and the latter as duress. Lord Hailsham in R v Howe [5]
claimed this to be an unnecessary distinction. While I agree that the Court of
Appeal is unclear in its use of language, the separation of necessity into its
component parts for the purpose of definition is a useful guide, and this
approach has been taken in New Zealand law.
By
giving each part a unique label, I seek to avoid the overlap and re-use of
terms that appears in a lot of cases; thus it is more easily said that
“necessity” comprises “duress of circumstances” when the danger is objective,
or “duress by human agent” when constituted by threats from a person.
Consequently, “duress by human agent” may be “instrumental” (in other words, to
compel a victim’s action) or “non-instrumental” (an end in itself). The first
of these is otherwise known as “compulsion”.
“Necessity” is either a) “Duress by circumstances”, or
b)
“Duress by a human agent”; which is either
i)
Instrumental (“compulsion”), or
ii)
Non-instrumental
II) Common Law
If a man by the terrour of present
death, be compelled to doe a fact against the Law, he is totally excused;
because no Law can oblige a man to abandon his own preservation ... Nature
therefore compells him to the fact.
- Leviathan [Hobbes]
II) a) Early History
Before the 16th Century,
the only relevant authorities on necessity are cited by Hale [6],
from the years 1320, 1347 and 1419. They are cases where treasonable acts were
pardoned by virtue of the defendants being under duress by rebels, or invading
enemies. Already, from such an early period, the concept of the defence has
been confirmed in English law.
The
1550 case of Reniger v Fogassa [7]
thus provides a convenient entry point into the history of necessity in English
common law. The Court recognised that the “words” of the law might be
justifiably broken in certain circumstances, including necessity and
compulsion. The principle was restated by Hobart J in Moore v Hussey [8],
that “All laws admit certain cases of just excuse, when they are offended in
the letter, and where the offender is under necessity, either of compulsion or
inconvenience”.
Likewise,
Manby v Scott [9]
held that “the law for necessity dispenses with things which otherwise are not
lawful to be done”. McGrowther’s case [10]
later limited the defence to threats against the person, finding that threats
of property damage were insufficient to exculpate charges of rebellion and high
treason. Lee CJ stated that “the only force that doth excuse is a force upon
the person and present fear of death”.
The
nature of necessity was considered in R v
Stratton [11].
This was a case involving obedience to ‘de facto’ law, and later provided Sir
James Stephen with his first ‘illustration’ for the principle of necessity [12].
In the case, Lord Mansfield noted that “whenever necessity forces a man to do
an illegal act it justifies him, because no man can be guilty of a crime
without the will and intention of his mind”. What is interesting about this
direction is that it approaches necessity as a defence of absence of mens rea,
an idea which is rarely argued before the Court in such cases.
Sir
William Scott investigated the nature of necessity in The Gratitudine [13]:
The law of cases of necessity is not
likely to be well furnished with precise rules; necessity creates the law; it
supersedes rules; and whatever is reasonable and just in such cases, is
likewise legal. It is not to be considered a matter of surprise, therefore, if
much instituted rule is not to be found on such subjects.
Glanville
Williams commented on this case, that the “peculiarity of necessity as a
doctrine of law is the difficulty or impossibility of formulating it with any
approach to precision ... It is in reality a dispensing power in the judges
where they are brought to feel that obedience to the law would have endangered
some higher value” [14].
In
a more minor case, necessity was successfully pleaded as a defence to the
public nuisance of carrying an infected child through the streets in search of
medical attention [15];
and it was also considered within the context of a mercantile arrangement by
the Privy Council in Australasian Steam
Navigation Co v Morse [16].
Sir Montague Smith gave the following principle [17]:
[W]hen by force of circumstances
a man has the duty cast upon him of taking some action for
another, and under that obligation,
adopts the course which, to the judgment of a wise and prudent man, is
apparently the best for the interest of the persons for whom he acts in a given
emergency, it may be properly said of the course so taken, that it was, in a
mercantile sense, necessary to take it.
Undoubtedly the most famous
historical case to deal with necessity in England is, of course, R v Dudley and Stephens [18];
and its facts are just the sort to test the limits as to how far the Courts will entertain the defence. Three men
and a minor had taken to an open boat when their yacht, The Mignonette, had floundered in a severe storm. They subsisted on
what few supplies they had taken with them, and on what they could catch;
until, after 20 days, Dudley and Stephens killed the boy for food. They were
rescued four days later.
When
the matter went to trial, the jury was unable to decide whether what had
occurred amounted to murder. The Court on the other hand was forthcoming with
its answer. Lord Coleridge delivered the judgment of the Court, that while:
[T]he prisoners were subject to
terrible temptation, to sufferings which might break down the
bodily power of the strongest man
... nevertheless ... the prisoners put to death a weak and unoffending boy upon
the chance of preserving their own lives ... with the certainty of depriving him of any possible chance of survival
...
The
Court accepted that a killing in self-defence is justifiable, but are adamant
that killing someone who does not pose a threat clearly constitutes murder:
[T]he deliberate killing of this
unoffending and unresisting boy was clearly murder, unless the killing can be
justified by some well-recognised excuse admitted by the law ... the temptation
to the act which existed here is not what the law has ever called necessity ...
The
idea of allowing an act of necessity to be a defence for murder was a
proposition which appeared to be “at once dangerous, immoral, and opposed to
all legal principle and analogy”. Instead, Lord Coleridge enunciated the
principle that “while to preserve one’s life is generally speaking a duty ... it
may be the plainest and highest duty to sacrifice it”.
Obviously
then, this decision did little to encourage use of the defence; Stephen noting
that it imposes a duty “not to live but to die”, and according to Simester and
Brookbanks, leaving “the English law on necessity in a very unsatisfactory
state” [19].
Interestingly, in Dudley and Stephens the Court cited an
American case, United States v Holmes
[20].
In that case an iceberg had forced a number of people to sea in a rowboat,
including the captain and various other crew members, while the remaining
passengers drowned. However, because of a leak, the boat started taking in
water, and after a few days was threatened with being overswamped. At this
stage the crew threw sixteen passengers overboard.
In
considering the facts, Circuit Justice Baldwin stated that it was “the law of
necessity alone which can disarm the vindicatory justice of [a] country”. He
gave an example where two people might be in such straits as only one of them
can survive (e.g. floundering for a plank of wood in the sea), and that
“neither is bound to save the other’s life by sacrificing his own, nor would
either commit a crime in saving his own life in a struggle for the only means
of safety”. However, the situation was that the
passengers had paid the fare, and were consequently entitled to “no duty
but submission”. The captain and crew on the other hand were “bound ... to
undergo whatever hazard is necessary to preserve the boat and the passengers.
Should the emergency become so extreme as to call for the sacrifice of life,
there [could] be no reason why the law [would] not remain the same”.
This
case is interesting for comparison, in that the defendant was ultimately only
convicted of manslaughter. This suggests a slightly different approach by
allowing for the mitigating circumstances where the defence is unsuccessful as
a matter of justification.
The
defendant in R v Bourne [21]
was charged with unlawfully procuring the abortion of a 15 year old rape
victim. He was a doctor in a top hospital, and performed the operation in ‘good
faith’, to preserve the life of the mother. Macnaghtan J’s address to the jury suggested that that a “reasonable
view” of the circumstances should be taken, and that [22]:
[T]he law is not that the doctor has
... to wait until the unfortunate woman is in peril of immediate death and then
at the last moment snatch her from the jaws of death. He is not only entitled,
but it is his duty, to perform the operation with a view to saving her life.
Consequently
the jury found the doctor’s actions to be justified. Especially worth noting is
the fact that his actions would have been excused even when the threat of death
was not imminent or certain, but, at best, “reasonably certain”.
Finally,
a useful Australian authority, R v Hurley
& Murray [23]
considers the principles governing duress. The accused and his de facto were
compelled by threats to aid escaped criminals, and dispose of two corpses. When
the accused was away from the men his de facto was effectively held hostage,
such that the threats to her “would have been operative during the entire
period of his absence” and “his only concern must have been for the safety of
the woman” [24].
The extent to which threats may negative intent ought to be the subject of a
direction to the jury [25]:
[I]n considering whether the
necessary desire had been established they should have regard to all the
evidence as to threats and fears, whether or not they considered that it
matched up to the requirements [required by] duress.
Further
the circumstances in which his de facto was held hostage “would support a view
that the threat against her was of a death sufficiently ‘imminent’ and
‘immediate’” to compel the accused’s actions, even when the threat was not
present to or directed upon himself.
II) b) Recent History
In R v Hudson & Taylor [26]
duress was pleaded as a defence to perjury, where the person making the threats
had been present in the Court room at the time the crime was committed. The
Court made a generous allowance for the circumstances, in that [27]:
[T]o require that the threatener
should be standing over the victim all the time for duress to operate is to
take too narrow a view ... The phrase ‘present and immediate’ in relation to
the threat means that the fear is present to the mind of the victim, not that
the threatener is physically present at the scene of the crime committed under
fear.
This
is possibly too wide, and later statements by Lord Parker CJ make us consider
the correctness of the decision. He describes the defence as operating “if the
will of the accused has been overborne by threats of death or serious personal
injury so that the commission of the alleged offence was no longer the
voluntary act of the accused”. This is uncomfortably close to the concept of
compulsion as “normative involuntariness” rejected in Section I.
Other
recent case law developments in England have dealt largely with driving
offences. Lord Denning dealt in obiter with necessity in Buckoke v GLC [28],
a case involving the dangerous driving of a fire engine. During the decision he
raises the question, “Might not the driver of a fire engine be able to raise
the defence of necessity?” He gives the example of a fire engine approaching a
blazing house, but which is blocked by a red light [29]:
I suggested to both counsel that
the driver might be excused in crossing the lights to save [a] man.
He might have the defence of
necessity. Both counsel denied it. They would not allow him any
defence in law. The circumstances
went to mitigation, they aid, and did not take away his guilt. If
counsel are correct - and I accept
that they are - nevertheless such a man should not be prosecuted.
He should be congratulated.
This
statement is somewhat inconclusive; while a defence of necessity is denied, the
idea that the circumstances may mitigate the sentence reappears. However, Lord
Denning makes further statements against necessity in London Borough of Southwark v Williams [30]:
[I]f hunger were once allowed to
be an excuse for stealing, it would open a way through which all
kinds of disorder and lawlessness
would pass [and] if homelessness were once admitted as a defence to trespass,
no one’s house could be safe. Necessity would open a door which no man could
shut. It would not only be those in extreme need who would enter ... [but
others] would imagine that they were in need, or would invent a need, so as to
gain entry ... The pleas would be an excuse for all sorts of wrongdoing. So the
courts must, for the sake of law and order, take a firm stand.
Obviously
what is being stated here is a policy decision for disallowing the defence,
i.e. the ‘floodgates’ fear. While this might have seemed like a death knell for
a defence of necessity at common law, Edmund Davies LJ made a statement in the
same case to the effect that nonetheless a defendant may avail himself of the
defence if there was “an urgent situation of imminent peril”. There are also
more favourable cases for the defence.
In
Johnson v Phillips it was asked whether [31]:
[A] constable in purported exercise
of his power to control traffic on a public road the right under
common law to disobey a traffic
regulation such as going the wrong way along a one-way street? ... In the
judgment of this court a constable would be entitled, and indeed under a duty,
to give such instruction if it were reasonably necessary for the protection of
life or property.
This
is a validation of the defence, while “the extent that it exists must depend on
the degree of emergency or the alternative danger to be averted” [32].
The scope of the defence was also considered in R v Loughnan [33],
an Australian authority which dealt with a gaol escape. As well as laying down
the usual requirements of necessity, the Court found that fleeing a fire was
justification for the crime in question. Consequently, necessity was confirmed
in Victoria.
Next in chronology is an important
Canadian case, Perka v The Queen [34],
which provides a clear summary of necessity at common law. The Court’s initial
summary of the defence is as follows:
As an excuse, necessity rests on
a realistic assessment of human weakness, recognizing that a liberal
and humane criminal law cannot hold
people to the strict obedience of laws in emergency situations where normal
human instincts, whether of self-preservation or of altruism, overwhelmingly
impelled disobedience.
Here
the Canadian Court demonstrates a positive empathy for the defence, citing
‘altruism’ as one of the motives by which one might be compelled to transgress.
The necessary limitations are then examined [35]:
The defence must, however, be
strictly controlled and scrupulously limited to situations that correspond to
its underlying rationale. That rationale is that it is inappropriate to
punish acts which are normatively involuntary.
The
Court lays out its tests for “determining whether the wrongful act was truly
the only realistic reaction open”. These include requirements:
i) “that the situation be urgent and
the peril be imminent”, at least “so pressing
that normal human instincts cry out for action and make a counsel of
patience unreasonable”;
ii) “that compliance with the law be
demonstrably impossible” with no “reasonable legal alternative”;
iii) that the action is in
proportion, because “the defence cannot excuse the infliction of a greater harm
so as to allow the actor to avert a lesser evil”; and
iv) that the “necessitous situation
was [not] clearly foreseeable to a reasonable observer”.
A person’s negligence in placing
themselves in that situation will not disallow the defence.
It is well worth noting R v Howe [36],
which questioned whether duress was available to either principals in the first
or second degree of murder. It dealt with three men who had been murdering
young men, effectively under the tutelage of one Murray. When caught and
prosecuted, the other two tried to assert that they had only acted as they did
through fear of Murray, though the facts seemed to count against this argument.
After a lengthy history of English case law and authority, it was decided
without doubt that duress is not available to any parties to murder. I make
only a brief reference to the case at this stage, and will return to it in more
detail in Section IV(a).
Returning
to England’s spate of driving offences, R
v Willer [37]
dealt with a defendant who had driven on the footpath to avoid a gang. The
Court of Appeal held that necessity did not arise, as they were duressed to
avoid harm, not to commit any act. This distinction seems incorrect because the
defendant’s actions would have been the same whether it was a group of threatening
humans, or (for example) a group of threatening bulls, that forced him onto the
pavement.
In
the previously mentioned R v Conway,
the Court of Appeal dealt with a charge of reckless driving, where the
defendant had fled from police officers. His passenger had recently been
attacked by a man with a shotgun, and screamed at the defendant to “drive off”
when he saw the officers running toward the car, while dressed in civilian
clothes.
The
Court held that the facts needed to establish “duress of circumstances” to be
successful, i.e. that it was necessary for him to drive as he did in order to
avoid death or seriously body injury to himself or another person. As evidence,
the accused must be able to point to an “objective danger” or at least satisfy
the requirement of reasonable belief. As a gloss, Woolf LJ noted that :
Whether ‘duress of circumstances’ is
called ‘duress’ or ‘necessity’ does not matter. What is important is that,
whatever it is called, it is subject to the same limitations as the ‘do this or
else’ species of duress.
In
other words, the requirements placed on a defence of necessity will be the
same, no matter what particular ‘species’ of necessity is pleaded. This
codification is very similar to the rules laid out in Perka, and is rendered ever more certain in R v Martin [38].
Martin involved a defendant who drove
while disqualified. He claimed that it was necessary for him to drive his son
to work, because he feared his mentally ill wife might commit suicide -
distraught as she was at the idea her son might be late for work and be fired.
Simon Brown J summarised the principles of the defence thus [39]:
Most commonly this defence arises as
duress, that is pressure on the accused’s will from the wrongful threats or
violence of another. Equally however it can arise from other objective dangers
threatening the accused or others ...
His
requirements were:
i) that “from an objective
standpoint, the accused can be said to be acting reasonably and proportionately
in order to avoid a threat of death or serious injury”;
ii) that a jury should determine
whether the accused was “impelled to act as he did because of a result of what
he reasonably believed to be the situation, he had good cause to fear ... death
or serious physical injury”; and
ii) that a jury should also
determine whether “a sober person of reasonable firmness, sharing the
characteristics of the accused, [would] have responded to that situation” in
the same manner.
The House of Lords in R v Gotts [40]
held 3 to 2 that because necessity wasn’t available to murder, nor should
it be available as a defence to
attempted murder. Lord Lowry delivered a strong dissent, arguing the conceptual
differences between murder and attempted murder, especially under duress; but
Lord Jauncy likewise made compelling statements of policy to support the
majority decision[41]:
The reason why duress has for so
long been stated not to be available as a defence to a murder charge is that
the law regards the sanctity of human life and the protection thereof as of paramount
importance ... I can therefore see no justification in logic, morality or law
in affording to an attempted murderer the defence which is withheld from a
murderer.
Since
the determinative decision in R v Martin,
the other most important English authority has been R v Pommell [42].
Here the appellant was charged with possession of an illegal firearm, a
sub-machine gun, which he claimed to have taken from another person in order to
hand it to the police. There was a deliberation as to how long he had been in
possession, which ultimately lost him the case at trial level. He appealed
successfully, and the Judge emphasised the need to act promptly in such a case.
Acting otherwise would be imprudent, and may very well annull the defence.
This
decision was important in that extended the availability of the defence from
the gambit of ‘driving’ cases, to any range of offences. Post-Pommell it seems that all species of
common law necessity may be available as general defences to any offence,
excluding murder, attempted murder, infliction of serious injury, and probably
treason.
III) History in New Zealand Law
It is regrettable that much of the
early debate in New Zealand concerning the merits of the necessity defence was
highly rhetorical and tended to falter upon the perception that early examples
of necessity ... simply existed for the whimsical amusement of ‘casuists’ who
have ‘for centuries’ amused themselves with such teasers.
-
Principles of Criminal Law (1998)
[Simester and Brookbanks]
III) a) Statutory Provisions
Necessity has not had an illustrious
history in this country; and although noted Australasian law reformer Sir
Samuel Griffith intended to incorporate the concept into his Criminal Code on
the grounds that the “morally innocent” should be protected from prosecution
when acting under “sudden or extraordinary emergency”, the defence has been
largely confronted with “disinterested scholarism” [43].
S23 of the draft criminal Code
recommended by the 1879 Royal Commission (Cmd C-2345) read as follows:
Subject to the provisions of this
section, a person who commits an offence under compulsion by threats of
immediate death or grievous bodily harm from a person who is present when the
offence is committed is protected from criminal responsibility if he believes
that the threats will be carried out and if he is not a party to any
association or conspiracy whereby he is subject to compulsion.
Instrumental duress by human agent
is provided for in the statutory defence of “compulsion” from s24 of the Crimes
Act 1961 [44]:
S24. Compulsion
- (1) Subject to the provisions of this section, a person who commits an
offence under compulsion by threats of immediate death or grievous bodily harm
from a person who is present when the offence is committed is protected from
criminal responsibility if he believes that the threats will be carried out and
if he is not a party to any association or conspiracy whereby he is subject to
compulsion.
(2) Nothing in subsection (1) of this section
shall apply where the offence committed ... is an offence specified in any of
the following provisions of this Act, namely:
(a) Section 73 (treason) or section 78
(communicating secrets):
(b) Section 79 (sabotage):
(c) Section 92 (piracy):
(d) Section 93 (piratical acts):
(e) Sections 167 and 168 (murder):
(f) Section 173 (attempt to murder):
(g) Section 188 (wounding with intent):
(h) Subsection (1) of section 189 (injuring
with intent to cause grievous bodily
harm):
(i) Section 208 (abduction):
(j) Section 209 (kidnapping):
(k) Section 234 (robbery):
(ka) Section 235 (aggravated robbery):
(l) Section 294 (arson)
(3) Where a married woman commits an offence,
the fact that her husband was
present
at the commission of it shall not of itself raise the presumption of
compulsion.
Simester and Brookbanks refer to the
various analogous references in the Crimes Act, including s48 self defence and
defence of another; s52-6 defence of property; s61 and s61A regarding surgical
operations (where one is protected from criminal liability for performing any
‘reasonable’, i.e. necessary, operations); and ss183 and 187A regarding the
procuring of an abortion (whereby the act is unlawful unless “necessary” under
subsection(3)). They also mention s3(2) of the Trespass Act 1980, which
provides a defence against a charge of trespass on the grounds that such an
action was “necessary ... for [one’s] own protection or the protection of some
other person”.
The
extent to which these statutory entrances are defined requires us to now look
at relevant case law.
III) b) Case Law in New Zealand
The New Zealand case law on
necessity has had a tendency to be unfocused, and non-committal. While the s24
compulsion species of necessity has been clearly and often defined by judges,
and typically restricted to its specific wording, the other aspects of
necessith have remained vague. The following is a chronological account of the
entire species of necessity, with relevant clarifications given in Section
III(c).
R v Salaca
[45]
was an early case that investigated the circumstances in which a threat would
be sufficient to allow a defendant to rely on s24. The case concerned a Fijian
man charged with bigamy, who pleaded that he was coerced into the second marriage
by the threat that “if [he] didn’t marry her she would go to the witch-doctor
to do something to [him]” [46].
Despite a witness testifying to the Fijian belief that witch-doctors “performed
certain activities which might mean death”, Turner J held that this was “quite
insufficient to raise the defence at all” [47],
because the threats were made prior to the commission of the offence.
The
next year saw R v Joyce [48],
a Court of Appeal decision dealing with degrees of association. The accused had
agreed to rob a convenience store with an associate, but refused to go ahead
with the plan when he learned that a firearm was to be used. At that point he
was told by his associate that he was “in it up to [his] neck and [he could
not] pull out”. He was also threatened with the gun. The plan went ahead and a
store worker was shot; the accused was then charged with aggravated robbery.
North
P made an important statement about the nature of criminal association, and
when it would prevent s24 from applying [49]:
It was necessary for the Crown to
... satisfy the jury that the very nature of the association was such that the
offender, as a reasonable man, should have been able to foresee that the
association was of a kind which at least rendered in possible that at a later stage
he might be made subject to compulsion.
Because
the accused had protested the use of a firearm, the defence should have
gone to the jury. Nonetheless it
would have failed because the threats were not immediate, nor “from persons who
[were] in a position to execute their threats” [50].
In
a short statement, the Court of Appeal in R
v Woolnough [51]
spoke to necessity, its “extreme vagueness” in English common law, and
mentioned that if it were to exist in New Zealand, it would be through s20
Crimes Act 1961:
S20. General rule as to justifications
- (1) All rules and principles of the common law which render any circumstances
a justification or excuse for any act or omission, or a defence to any charge,
shall remain in force and apply in respect of a charge of any offence ...
except so far as they are altered by or inconsistent with this Act or any other
enactment.
Compulsion came before the Court of
Appeal again in 1981 in R v Teichelman
[52]
where a man was charged for supplying drugs to an undercover police officer. He
claimed that he had been compelled to make the sale by one O’Keefe, and gave
evidence testifying to a long chain of threats made directly to himself, and
more which he overheard made to others. O’Keefe had also “brought around a
shotgun which made him feel nervous”, and the Constable, himself a big man, had
“[shown] him a handgun which made him feel scared, and ... kept on pressing him
to supply drugs”.
Richardson
J treated these facts unsympathetically [53]:
While based on common law
principles, s24 clearly and precisely limits the availability of a defence of
duress to a criminal charge. The legislation provides a narrow release from
criminal responsibility where its strict requirements are met ... It is that
belief in the inevitability of immediate and violent retribution for failure on
his part to comply with the threatening demand which provides the justification
for exculpation from criminal responsibility. The subsection is directed
essentially at what are colloquially called standover situations where the
accused fears that instant death or grievous bodily harm will ensue if he does
not do what he is told.
O’Keefe’s
menacing conduct fell “far short of acting under the continuing threat
of immediate grievous bodily harm
contemplated by the section”. On this basis it can be easily imagined that
there are many situations which would not be granted relief in law, towards
which we might otherwise be sympathetic.
As
a slight digression, it is worth noting the case Civil Aviation Department v MacKenzie [54],
which, while it deals strictly with a defence of total absence of fault,
conceded that [55]:
Concepts such as impossibility,
inevitability, necessity,
involuntariness, reasonable mistake of fact, the act of a stranger, and absence
of negligence are different routes to that social goal of excluding liability
for conduct which is considered non-culpable ...
In an unreported Court of Appeal
decision, R v Perrot [56],
it was re-confirmed that compulsion can only be claimed in relation to the time
when the act in question was committed. The defence was again raised against
drug dealing charges in R v Frickleton
[57],
where a regular heroin user had been ‘hassled’ into giving some of her drugs to
an acquaintance. The Court held that the fact that she had been motivated to
supply heroin by pressure exerted by a third party did not affect her intent to
supply [58].
McMullin J stated [59]:
The mens rea which the Crown was
obliged to prove was an intention to do an act which was made unlawful by the
statute, namely to supply heroin ... In that situation it is sufficient to say
that once it is shown that an accused person intended to do the act which is
forbidden by law mere apprehension is not enough to provide a defence. Once
there is a conscious choice to take a step, that it is enough to prove the
necessary mens rea for the offence of supply.
The
judge also warned that this statement was not meant to be “any pronouncement on
the metes and bounds of the defence of compulsion under s24”. It is unclear how
seriously we can take this caveat; evidence was given during the trial that
when the accused refused to supply she was strangled and pushed against the
walls. If it was decided that these threats went only to her motive, did that
not remove the application of s24?
Jurist
Glanville Williams had previously examined the fact that duress doesn’t change
the existence of mens rea [60]:
If duress were said to negative will
it would negative an act, which by definition requires will; if it negatived
the existence of an act it would negative crime ... In truth the extent of
duress as a defence in crime cannot be settled by a series of definitions, and
we do better to regard it as standing altogether outside the definition of will
and act.
In
other words, s24 shouldn’t affect the existence of mens rea - the person is not
acting involuntarily.
The
decision in Frickleton that ‘mere
apprehension’ is insufficient was affirmed in R v Raroa [61],
a case involving assisting after the fact, where the accused helped dispose of
murdered bodies, and was told he would be ‘wasted’ if he ‘narked’. Bisson J
announced that “fear is not enough in the absence of the particular kind of
threat set out in s24” [62].
He also directed a valuable discussion to the s24 requirement of belief [63]:
Although an objective test is not
open in New Zealand where the wording of s24 specifically refers to the belief
of the accused thereby requiring a subjective test [,] nevertheless a question
of fact does arise whether such belief is genuinely held which the prosecution
must negate beyond reasonable doubt. Whether such a belief was reasonable or
well grounded would be relevant to the issue whether it was genuinely held.
This
is basically a repetition of the well known principle that, where a belief must
be honest but need not be reasonable, its reasonableness will nonetheless
affect how willing we are to believe that the belief was, in fact, honestly
held.
The
analagous law regarding superior orders was the subject of discussion in Police v Vaille [64],
which makes statements that are useful also for our understanding of necessity.
The defendant was a Territorial Army Corporal who, after a long training
excursion with little sleep, was ordered by a superior officer to drive a van
in the early morning. He had felt able to perform the task, but fell asleep and
crashed the vehicle, injuring his passenger. It was questioned whether superior
orders could provide a defence that was
comparable to compulsion.
Observations
by Cooke P were to the effect that being under the influence of superior orders could act as a mitigatory
factor, but would not provide a defence in itself. He cited s47 of the Crimes
Act as a comparison, that every “member of the New Zealand armed forces” is
bound to obey “the lawful command of his superior officer” but not where “the
command is manifestly unlawful”; i.e. acting under superior orders is not the
same itself as acting under compulsion.
An extremely important case in the
law’s development is Kapi v MOT. The
facts involved a man who hit a parked car while driving home, but failed to
stop because he was scared of being given a ‘hiding’ by the owner of the
vehicle [65].
He pleaded duress of circumstances in his defence, which was accepted but
ultimately he was convicted because he failed to satisfy that defence.
In
the High Court [66],
Jeffries J stated that “section 20 of the Crimes Act does not state explicitly
that there is a defence of necessity [as duress of circumstances] but in view
of the observation of Richmond P in R v
Woolnough ... I think it can be accepted there is” [67].
He added further in reference to the proposed Crimes Bill 1989: “I would think
that prospective legislative provision means to put the existence of the
defence beyond question for New Zealand”.
Jeffries
J made an excursion into English common law to determine what were the required
elements of a defence of necessity: “On close analysis most, if not all cases,
reveal three elements. First, a really extraordinary emergency; secondly an
honest belief, and thirdly reasonable grounds”. This of course distinguishes it
from compulsion, which requires only an honest belief.
The
Court of Appeal [68]
also proceeded along similar lines in its decision. The Court relied upon R v Woolnough for the proposition that
English necessity was extremely vague, and that [69]:
[The Court] was not referred to any
New Zealand cases in which the defence has been expressly found to be
available. There are, however, English cases recognising the defence and
providing assistance as to its scope and they will be referred to. On the basis
of these it cannot now be said that the defence of necessity, at least in form
of duress of circumstances, does not exist in the criminal law of England.
Essentially
it was found that duress of circumstances would be acceptable in New Zealand,
but would be construed along even tighter limits than compulsion (at least in
that the belief had to be reasonably held).
However,
at this stage the logic of the Court of Appeal decision lost cohesion. Since
the perceived threat was that of an attack by persons, the Court moved into the
area of compulsion, denying that the duress was of circumstances but of human
agent. This much is true, but what is not distinguished is that the duress in
the present case was non-instrumental.
Consequently non-instrumental duress by a human agent was denied because [70]:
[S]24 provides a defence of
compulsion (or duress) where the criminal act is done under threat of death or
grievous bodily harm from a person who is present when the offence is committed
... [W]e do not consider s20 can be said to preserve a common law defence of
duress by threat or fear of death or grievous bodily harm from a person not
present.
The
damage is made worse, because without specifying exactly which areas of
necessity they mean, the Court explains that [71]:
Having regard to the limits upon the
defence now identified in the more recent English cases it must be seen as
probable that in New Zealand the scope of the defence was considered by the
Legislature and that s24 Crimes Act reflects the extent to which it was adopted
in this country.
This
statement is not incorrect if we mean instrumental duress by a human agent,
because that is compulsion, and it is narrowly defined in s24; but the English
cases in question (especially R v Conway,
as previously discussed) dealt with non-instrumental duress by a human agent.
So despite commending the English cases, the Court immediately excludes them:
“So far as such fact situations would not fall within s24 this might be said to
result from deliberate legislative intent to restrict the scope of the defence
of duress or compulsion”.
What
must have been intended was the usual re-affirmation of the narrow, statutory
parameters of s24; but it is unfortunate, though, that the languishing defence of
non-instrumental duress came close to acceptance before being rejected, yet
again.
As
a final note on this case, the Court did mention some possibilities explaining
its decision [72]:
[I]f there is to be such a
development in the criminal law which New Zealand has codified that should be
undertaken by Legislature ... [and] there are to be bounre in mind the often
expressed reservations as to the desirability of judicially expanding the
defence of necessity.
Just
how the Legislature should approach the problems with the defence is an issue I
will examine in Section IV(b), shortly. But first, I shall raise two post-Kapi cases to illustrate the present
state of the law in New Zealand.
The
first is R v Witika [73],
which does little to raise our sympathies for the availability of the defence.
It is a case dealing with horrific child abuse, and its facts are extremely
upsetting. The child in question died at age two years, after extensive trauma,
and ultimately from being denied medical attention. While the mother pleaded
guilty to the various charges of assault, she sought to defend the charge of
manslaughter by omission on the grounds of duress.
It
was submitted by the defence that she suffered battered woman’s syndrome, and
was in a state of continual threat, even if the person making the threats was
not always present. Consequently, it was pleaded that New Zealand should
preserve “the common law defence of duress which ... does not require the
presence of the person making the threat nor that the threat is of immediate
harm so long as the effect is to neutralise the will of the accused”.
This
submission was answered in the negative [74]:
The position of battered women
indeed calls for sympathy but there can be no justification for broadening the
grounds on which the law should provide excuses for child abuse.
And
previously [75]:
[I]t is quite clear that there were
substantial periods during which [the person making the threats] was not
present and [the accused] had opportunities to seek assistance and secure
medical care for her child and otherwise bring an end to her ill-treatment.
While those periods continued she failed in her duty. Her situation was no
different from that of a person who has an opportunity to escape and avoid
committing acts under threat of death or serious injury.
I
doubt that this really takes account of battered woman’s syndrome, in which the
woman finds herself unable to leave
the dangerous relationship, but undoubtedly the grotesque facts of the case
made it hard for the Court to presently entertain the defence. They did however
note that s24, when available, “cover[s] commission of offences either as
principle or party”.
The
second, and final case, is Police v
Kawiti [76]
which makes the most recent pronouncements on the parameters of necessity in
New Zealand case law. By this stage they should be fairly predictable, and in
the case of compulsion involve what is now the strict approach to s24. Yet
under the circumstances of the case, one can’t help but find the narrow
approach to compulsion inadequate.
Ms
Kawiti had accompanied her partner to Taipa for a funeral at a marae. She was
not introduced to anyone, and was dependant on her partner. The pair had not
intended to stay on the marae, and yet when she approached her partner to drive
them to their campsite, he attacked her in a drunken rage. Not only was she
beaten to the floor by her partner, but other members of the marae group joined
in the assault and urged further violence upon her. She managed to escape to
the car, and although being a disqualified driver and having excess blood
alcohol levels, she was suffering agonising pain from the assault, which left
her with a dislocated shoulder. Consequently she drove herself to the nearest
hospital, and called the Police. They then arrested her.
It
is hard to see that she had any other choice in the circumstances; there was no
telephone, she did not know anyone else on the marae, she did not know the area
nor was there any suggestion that people lived nearby. Salmon J began with this
statement regarding her plea [77]:
The extent of the common law defence
of necessity has not been determined by the Courts in this country. What is
clear is that the defence has, at least in part, received statutory recognition
... It is accepted that the defence is not available on the facts of this case
because the only person present at the time the offence was committed was [her
partner] and it is not suggested ... that she was in any further danger from
him.
He
added that there was also “a defence of necessity or duress of circumstances
where those circumstances are other than threats from persons”, arising in
English common law, that was now available in New Zealand but “subject to the
same limitations as the ‘do this or else’ species of duress” [78]:
[I]t is a reasonable conclusion to
be drawn from Kapi and the subsequent
decision of R v Lamont ... that the
defence of necessity of circumstances is available in New Zealand, but only
where the perceived threat is one of imminent death or serious injury to the
defendant or some other person. An example might be the disqualified driver
whose wife has a heart attack in a location where there is no telephone and no
person to provide assistance, and in reasonable fear of her imminent death,
drives her to the nearest hospital.
What
should be upsetting to any student of the law is the fact that the Courts’
interpretation of s24 denies any person in the same situation, where the heart
attack is triggered by another person (for example, by assault), of a defence.
There can be no rational basis for this distinction; it is the Courts’
unwillingness to make a wider or purposive reading of s24, which is itself
simply the result of poor draughtsmanship.
III) c) Conclusions from New Zealand Case Law
All case law points to the fact that
s24 is to be interpreted strictly; duress involving threats from persons must
exactly satisfy the requirements of the statute, and as a result,
non-instrumental duress by human agent falls outside the ambit of our law.
From Police v Kawiti the following conclusions are made about duress of
circumstances:
1. The defence of duress
of circumstances is available where the duress is not that of persons.
2. The ingredients of the
defence are at least those set out by the Court of Appeal in Kapi.
Kawiti
and the Law Commission [79]
both cite the same passage from Simester and Brookbanks which lists what these
requirements might otherwise be [80]:
It appears, then, that by
synthesising the New Zealand case law on necessity with such English case law
as is consistent, the following observations, at least, may be made about the
operation of the defence of necessity in New Zealand:
(i) The
perceived threat must be one of imminent death or serious injury;
(ii) D’s
perception of the threat must be either correct or reasonably based;
(iii) D’s action must be in response to that perceived threat;
(iv) D’
response to the threat must be proportionate, in the sense that a sober person
of
reasonable firmness, sharing certain
characteristics of D, would have responded in like manner (where the qualifying
characteristics are as yet not authoritatively decided in New Zealand);
(v) The defence is not available to murder or attempted
murder;
(vi) The defence is not available whenever the source of the
threat is another person (all such cases are covered only by s24).
IV) Dissatisfaction with s24
[I]t is just possible to imagine
cases in which the expediency of breaking the law is so overwhelmingly great
that people may be justified in breaking it, but these cases cannot be defined
beforehand.
- Outlines of Criminal Law 12th
Ed 76 [Professor Kenny]
IV) a) Room to move at Common Law?
How much of the general defence of
“necessity” survives in New Zealand law is a question that has never been
definitively answered. However, the previous section hopefully illustrates the
likely scenario.
It
has been the habit of our Courts to narrow the defence, both in terms of s24
compulsion, and in general. Consequently, the gulf left over into which
non-instrumental duress has fallen has become a justifiable source of concern
amongst legal academics, including the Law Commission. Put simply, s24 covers
what I have earlier named “duress by human agent” of the type that is
“instrumental”, and while s20 seeks to preserve common law defences, it is only
when they do not conflict with existing statute.
Unfortunately,
because s24 concerns duress stemming from human involvement, it excludes that
whole species from common law, despite the fact the statute entry only accounts
for the instrumental subspecies. So what of non-instrumental duress?
I
speak of incidents whereby there is a threat posed by a person or persons which
does not seek to compel action, but is an end in itself. An example might be a
marauding gang, which in terms of an objective danger is equivalent with a herd
of bulls. In such an example, a defendant would be justified by the common law
duress of circumstances to take certain criminal actions to escape the
immediate threat posed by the bulls - for example, driving at speed. However,
this would not be the case where the threat is posed by a human, because s24
implicitly requires the defendant to be “under compulsion”.
The
Law Commission puts it so [81]:
[A] lynch mob poses a threat to the
intended victim, not because it wishes to compel the victim to commit a crime
but because it desires to kill the victim. Under current law, the victim would
apparently have no defence if he or she committed an offence to escape from a
non-instrumental threat posed by humans (such as a lynch mob).
That such a threat is required was confirmed
both Teichelman and Raroa; and again from the Law Commission
that “the manner in which section 24 has been interpreted in Kapi and Kawiti would exclude the defence of necessity, as the danger is
posed by a person” [82].
We can see the unsatisfactory results of this apparent Legislative oversight in
Kawiti itself, and one can easily
imagine others.
To
illustrate this bizarre state of New Zealand law, Simester and Brookbanks draw
up an equally perplexing fact situation to test its limits :
D is driving his car down a steep
hill at night. Suddenly, the large truck which has been travelling at a safe
distance behind him appears to speed up and “threatens” to ram him from behind.
D recognises that being hit by a truck may cause a serious accident. Unbeknown
to D, the driver of the truck has had a heart attack and the truck is, in
reality, driverless. As D speeds up to escape from the danger he passes a
traffic officer hidden in a lay-by and is ultimately charged with driving a an
excessive speed. Should D have a defence of duress of circumstances?
In
actuality the answer is probably ‘yes’, since what appeared to D to be a
non-instrumental duress by human agent is in fact an objective danger, free of
human interference. However, lacking any rational justification, were the
driver alive and intentionally pursuing D at a dangerous speed (as in fact D
believed was happened), D would not be able to avail himself of the defence.
This was the situation in R v Lamont [83].
The
accused in Lamont had driven at
excessive speed to avoid a car which was ‘tailgating’ him. He crashed, with the
resulting death of his passenger. The Court disallowed duress of circumstances
on the grounds that “a concern at having his car hit or even shunted in the
rear does not amount to fear of death or serious injury” [84].
(Such might also have been the outcome in Simester and Brookbanks’ fictional
example.)
More
likely now is the fact that duress of circumstance would be considered to be an
inappropriate defence. And yet, “there appears to be no reason based in policy
for treating a non-instrumental danger posed by humans differently from a
non-instrumental danger that has a non-human source” [85].
It is possible, reform aside, that
this may not be the end of the matter. It appears that there are judges (albeit
at lower Court levels) who are willing to expand the defence. R v
Smith [86]
for example allowed the defence of compulsion to justify a woman’s driving
while intoxicated to escape her enraged husband.
And
while R v Lamont denied the defence
on other grounds, it did actually leave open the question whether the “under
compulsion” requirement of s24 is implicit. Even Kapi suggested there may be change if the question ever reached the
Privy Council. Until then though, it remains to be seen whether such
independant decisions can survive Richardson P’s emphatic narrowing of the
defence in Teichelman.
IV) b) Statutory reform
There was a legislative reform of
the Crimes Act proposed in 1989. The Law Commission observed that [87]:
English courts have recognised
[that] necessity and compulsion are each a species of duress [but] the separate
codification of compulsion in New Zealand has led to unfortunate divergences in
the two defences in this country. Codification of both defences along the same
lines would achieve compatibility.
The
revision by the Crimes Consultative Committee appeared in the Crimes Bill 1989,
and included clause 30 necessity (duress of circumstances), and clause 31
duress (to replace compulsion). The proposed amendments were as follows:
30. Necessity
- (1) A person is not criminally responsible for any act done or omitted to be
done under circumstances of emergency in which -
(a) The person believes that it is
immediately necessary to avoid death or
serious bodily harm to that person or
any other person; and
(b) A person of ordinary common sense and
prudence could not be expected to
act otherwise.
(2) Subclause (1) does not apply where the
person who does or omits the act has
knowingly
and without reasonable cause placed himself or herself in, or remained in, a
situation where there was a risk of such an emergency.
(3) Subclause (1) does not apply to the
offences of murder or attempted murder.
31. Duress
- (1) A person is not criminally responsible for any act done or omitted to be
done because of any threat of immediate death or serious bodily harm to that
person or any other person from a person who he or she believes is immediately
able to carry out that threat.
(2) Subclause (1) does not apply where the
person who does or omits the act has knowingly and without reasonable cause
placed himself or herself in, or remained in, a situation where there was a
risk of such threats.
(3) Subclause (1) does not apply to the
offences of murder or attempted murder.
While the quote from Professor Kenny
heading this section is correct in assuming that such cases of necessity
“cannot be defined beforehand”, these reform proposals seem to be flexible
enough to cater to any sympathetic occurrences, while preventing undesired
reliance upon the defences.
The
clauses significantly improve upon their counterpart, dispensing with the
“arbitrary list of offences to which [compulsion] does not presently apply” [88],
covering all species of necessity listed in Section I, ‘rightly discarding’ the
requirement that the threat maker be actually present (allowing for methods of
“modern communications and ... the agency of others”) and probably even
allowing for Kawiti-like situations
where the ‘imminent peril’ has been extinguished, but there is still a state of
emergency.
One
problematic point, raised in the Battered
Defendants article, is that the emergency requirement may exclude battered
women who are in a relationship of recurring
violence. That same paper offers an alternative clause, where “a person is not
criminally responsible for any act done or omitted to be done because of fear
of inevitable death or serious bodily harm to the person ... from a person he
or she reasonably believes is able to inflict such harm”.
Other
alternatives include that which prevents the need for multiple clauses, whereby
“a person is not criminally responsible for any act ... if the person
reasonably believes that it is necessary to avoid death or serious bodily
harm’; and one which accounts for a moderate peril, so long as the response
remains proportionate.
V) Conclusions
As noted by Glanville Williams [89],
“since the defence of necessity involves a collision of interests and a
consequential judgment of value, it is capable of raising problems of great
ethical and social difficulty”. The case law has demonstrated the truth of this
observation; so as a final thought, I would like to conclude with a passage
from Lord Hailsham’s decision in R v Howe,
which looks to the prerogative of mercy as a non-statutory, and non-judicial
remedy for these troubling cases [90]:
I am not so shocked as some of the
judicial opinions have been at the need ... to invoke the availability of
administrative as distinct from purely judicial remedies for the hardships
which might otherwise occur in the most agonising cases. Even in Dudley v Stephens in 1884 when the death
penalty was mandatory and frequently inflicted, the prerogative was used to
reduce a sentence of death by hanging to one of six months in prison. In murder
cases the available mechanisms are today both more flexible and more
sophisticated ... In the background is always the prerogative and, it may not
be unreasonably be suggested, that is exactly what the prerogative is for.
Outline of Cases
I
R v Perka (1984) 14 CCC (3d) 385, [1984] 2 SCR 233
Reniger v Fogassa (1550) 1 Plowd 2, 75 ER 1
R v Conway [1988] 3 All ER 1025, [1988] 3 WLR 1238
R v Howe [1987] AC 417, [1987] 1 All ER 771
II
Reniger v Fogassa
Moore v Hussey (1609) Hob 96
Manby v Scott (1672)
McGrowther’s case (1746) 18 St Tr 391
R v Stratton (1779) 21 St Tr 1222, (1779) 99 ER 156
The Gratitudine (1801) 83 ER 268
R v Vantandillo (1815) 4 M&S 73, 105 ER 762
Australasian Steam Navigation Co v Morse (1872) LR 4 PC 222
R v Dudley v Stephens (1884) 14 QBD 273, [1881-5] All ER Rep 617
United States v Holmes - Fed Case No 15383 (CCED pa, 1842)
R v Bourne [1938] Vol 3 CCC 615
R v Hurley & Murray [1967] VR 526
R v Hudson & Taylor [1971] 2 QB 202
Buckoke v GLC [1971] Ch 655
London Borough of Southwark v Williams [1971] 2 All ER 175
Johnson v Phillips [1976] 1 WLR 65
Woods v Richards [1977] RTR 202
R v Loughnan [1981] VR 443
R v Perka
R v Howe
R v Willer (1986) 83 Cr App R 235
R v Conway
R v Martin [1989] 1 All ER 652, (1989) 88 Cr App R 343
R v Gotts [1992] 2 AC 412
R v Pommell [1995] 2 Cr App R 607
III
R v Salaca [1967] NZLR 421
R v Joyce [1968] NZLR 1070
R v Woolnough [1977] 2 NZLR 508
R v Teichelman [1981] 2 NZLR 65
Civil Aviation Dept v MacKenzie [1983] NZLR 78
R v Perrot - Unrep 22/4/83, CA120/82
R v Frickleton [1984] 2 NZLR 670
R v Steane [1947] KB 9997, [1947] 1 All ER 813
R v Raroa (1987) 2 CRNZ 596
Police v Vaille [1989] 1 NZLR 521
Kapi v MOT [1991] 1 NZLR 227
Kapi v MOT (1992) 8 CRNZ 49
R v Lamont - Unrep 27/4/92, CA442/91
R v Witika [1993] 2 NZLR 424
Police v Kawiti [2000] 1 NZLR 117
R v Smith [1977] 6 WWR 16
BIBLIOGRAPHY
Adams, Adams on Criminal Law 2nd Student Ed (Robertson Ed)
Collins Pocket English Dictionary
Crimes Bill Consultative Committee, Crimes Bill 1989 (1991) Dept of Justice
Elliott and Wood, Casebook on Criminal Law 6th Ed
New Zealand Law Commission, Battered Defendants NZLC PP41
Professer Kenny, Outlines of Criminal Law 12th Ed
Simester and Brookbanks, Principles of Criminal Law (1998)
Glanville Williams, Criminal Law: The General Part (1953)
[1] R v Perka (1984) 14 CCC
(3d) 385, [1984] 2 SCR 233.
[2] (1550) 1 Plowd 2, 75 ER 1.
[3] Ibid, page 18.
[4] [1988] 3 All ER 1025, [1988] 3 WLR 1238 (CA).
[5] [1987] AC 417, [1987] 1 All ER 771 (HL).
[6] P.C. i 49-50, 56-8.
[7] Supra 2.
[8] (1609) Hob 96.
[9] (1672) 83 ER 268.
[10] (1746) 18 St. Tr. 391.
[11] (1779) 21 St. Tr. 1222 (KB), (1779) 99 ER 156.
[12] Sir Stephen, Digest of
Criminal Law (1st edition, 1877) Art 32.
[13] (1801) 83 ER 268.
[14] Glanville Williams, Criminal
Law: The General Part (1953) 570.
[15] R v Vantandillo (1815) 4
M&S 73, 105 ER 762.
[16] (1872) LR 4 PC 222.
[17] Ibid, at 230.
[18] (1884) 14 QBD 273, [1881-5] All ER Rep 617.
[19] Simester and Brookbanks, Principles
of Criminal Law (1998) 356.
[20] Fed. Case No. 15383 (CCED Pa, 1842).
[21] [1938] Vol 3 CCC 615.
[22] Ibid, page 618.
[23] [1967] VR 526.
[24] Ibid, page 530.
[25] Ibid, page 542.
[26] [1971] 2 QB 202.
[27] Ibid, page 204.
[28] [1971] Ch 655.
[29] Ibid, at 668.
[30] [1971] 2 All ER 175, at 179.
[31] [1976] 1 WLR 65, Wien J at 69.
[32] Woods v Richards [1977]
RTR 202, per Eveleigh J.
[33] [1981] VR 443.
[34] Supra 1.
[35] ‘Normative involuntariness’ as discussed in Section I.
[36] Supra 5.
[37] (1986) 83 Cr App R 235 (CA).
[38] [1989] 1 All ER 652, (1989) 88 Cr App R 343 (CA).
[39] Ibid, pages 653-4.
[40] [1992] 2 AC 412.
[41] Ibid, pages 425-6.
[42] [1995] 2 Cr App R 607 (CA).
[43] Supra 19.
[44] Originally Crimes Act 1908 No 32, s44.
[45] [1967] NZLR 421.
[46] Ibid, page 421.
[47] Ibid, page 422.
[48] [1968] NZLR 1070.
[49] Ibid, page 1076.
[50] Ibid, page 1077.
[51] [1977] 2 NZLR 508.
[52] [1981] 2 NZLR 65.
[53] Ibid, pages 66-7.
[54] [1983] NZLR 78.
[55] Ibid, page 81.
[56] Unrep 22/4/83, CA120/82.
[57] [1984] 2 NZLR 670.
[58] Similar reasoning (motive versus intent) was taken in R v Steane [1947] KB 9997, [1947] 1 All
ER 813.
[59] Supra 57, pages 671-2.
[60] Criminal Law: The General
Part (1953), page 592.
[61] (1987) 2 CRNZ 596.
[62] Ibid, page 605.
[63] Ibid, page 602.
[64] [1989] 1 NZLR 521.
[65] He was, after all, in Porirua.
[66] [1991] 1 NZLR 227.
[67] Supra 66, page 229.
[68] (1992) 8 CRNZ 49.
[69] Supra 68, page 52.
[70] Ibid, pages 54-5.
[71] Ibid, page 54.
[72] Ibid, page 55.
[73] [1993] 2 NZLR 424.
[74] Ibid, page 436.
[75] Ibid.
[76] [2000] 1 NZLR 117.
[77] Ibid, 119.
[78] Ibid, page 122.
[79] Battered Defendants, NZLC
PP41.
[80] Supra 19, page 377.
[81] Supra 79, page 62.
[82] Ibid.
[83] Unrep 27/4/92, CA442/91.
[84] Ibid, page 10.
[85] Supra 79.
[86] [1977] 6 WWR 16.
[87] Supra 79.
[88] Crimes Bill Consultative Committee, Crimes Bill 1989 (1991) Dept of Justice, page 21.
[89] Supra 60, page 575.
[90] Supra 5, page 433.
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Thursday 26 October 2000
The Compulsion Element in a Defence of Necessity
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