New Zealand Law Commission
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178 IN NEW ZEALAND, there is no codified general defence of necessity.
Until fairly recently, it has been unclear whether a general common law defence of necessity is recognised in New Zealand. In R v Woolnough, Richmond P referred to the extreme vagueness of necessity as a general defence in English criminal law and observed that such a defence, if it existed at all, would be available by virtue of section 20 of the Crimes Act 1961. Section 20 preserves all common law justifications and excuses except so far as they are altered by or are inconsistent with the Crimes Act 1961 or any other enactment. Necessity (in the form of duress of circumstances) is now more firmly established as a common law defence. The main area of debate is the extent to which the defence survives codification of one species of duress (duress by threats or compulsion) in section 24 of the Crimes Act 1961.
179 The Court of Appeal addressed this question in Kapi v Ministry of Transport but did not provide a definitive answer. Kapi was charged with failing to stop after an accident. He relied on the defence of necessity, arguing that he failed to stop because he feared that residents of the area might beat him up. There was, however, no evidence that any person was near the scene of the accident. The Court of Appeal held that, as section 24 provides a defence of compulsion (or duress) where a criminal act is done under threat of death or grievous bodily harm from a person who is present when the offence is committed, section 20 cannot preserve a common law defence of duress by threat or fear of death or grievous bodily harm from a person who is not present. The logical implication would appear to be that section 24 precludes a defence of necessity where the peril arises from the likelihood of serious harm at the hands of a person. The Court of Appeal left open the question of whether a defence of necessity might be available in other circumstances.
180 The Court of Appeal considered necessity again in R v Lamont. The defendant in Lamont was charged with causing death by careless use of a motor vehicle. The defendant argued that he drove in a reckless manner to avoid a collision with a car travelling behind him. The trial judge accepted that the common law defence of necessity was not excluded by section 24 but held that it was not available on the facts and should not be put to the jury. The Court of Appeal upheld the trial judge’s decision on the facts. The Court also said:
In Kapi this Court held that a defence of duress of circumstances could not be regarded as open by virtue of the operation of s 20 of the Crimes Act in respect of threats by persons not present, when s 24 had been enacted and limited to threats by persons present at the time. That decision did not exclude the defence of necessity or duress of circumstances in other situations ...
181 District Court judges have decided cases on the basis that the common law defence is available in New Zealand. In R v Atofia, the defendant was charged with fraudulently claiming a domestic purposes benefit while working. She had a child with an abusive ex-partner. The ex-partner was required to pay money to the Inland Revenue Department under a paternity order. The ex-partner disputed paternity and demanded $100 a fortnight from her, with threats that if she did not pay she would be beaten. Atofia could not have relied on the defence of compulsion because her ex-partner did not compel her to commit benefit fraud. She raised the defence of necessity, presumably on the ground that without the extra income from the benefit she could not have met her ex-partner’s demand for money as well as provide for herself and her child. Although the trial judge considered that the evidential basis for the defence of necessity in the particular case was extremely weak, he ruled that expert evidence on battered woman syndrome was admissible in support of the defence of necessity. His ruling was upheld by the Court of Appeal.
182 In NZ Police v Anthoni the defendant was charged with assaulting a child under section 194(a) of the Crimes Act 1961. He successfully pleaded necessity, as he had to strike the child in order to dislodge him from a rubber tube that was likely to be swept onto rocks, causing the child serious injury.
183 In NZ Police v Kawiti, the defendant was charged with driving with excess blood alcohol and driving while disqualified. She raised the defence of necessity, arguing that she was forced to drive in order to get to hospital to get treatment for her injuries after being assaulted. The issue went to the High Court as a case stated on questions of law. Salmon J held:
it 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.
184 The Judge held that the defence of duress of circumstances is available where the duress is not that of persons, and that the ingredients of the defence are at least those set out by the Court of Appeal in Kapi.
185 In Kapi, the Court of Appeal opined that the defence, if it existed in New Zealand, would require at least:
... a belief formed on reasonable grounds of imminent peril of death or serious injury. Breach of the law then is excused only where there was no realistic choice but to act in that way. Even then the response can be excused only where it is proportionate to the peril.
These requirements are discussed below, with particular reference to battered defendants. We also discuss the limits of the defence.
A belief formed on reasonable grounds of imminent peril of death or serious injury
Reasonable grounds for belief
186 For the defence to be available under current New Zealand law, the defendant must believe in the existence of peril on reasonable grounds. In Kapi, the Court of Appeal rejected the defendant’s argument (based on an analogy with the subjective belief requirement in section 24) that an honest belief in peril should be enough. The Court pointed to the complete lack of precedent and refused to expand the law, noting Edmund Davies LJ’s comment that “necessity can very easily become simply a mask for anarchy”. A reasonableness test for belief in peril is required by most jurisdictions.
Imminent peril of death or serious injury
187 The feared peril must be of imminent death or serious injury. The imminence requirement, like the immediacy requirement under section 24, may limit the availability of the defence for victims of domestic violence. The “peril” sought to be avoided may not be imminent but it may be inevitable. For example, battered defendants have raised necessity as a defence to benefit fraud. In these cases, the peril of not being able to provide for themselves and their children may not amount to imminent death or serious injury. But the long-term effects of being unable to provide for children (malnourishment and poor health) may, in some cases, provide reasonable grounds for a belief in inevitable serious injury.
No realistic choice other than to commit the offence
188 The requirement that the defendant must have no reasonable legal alternative to offending is, on its face, an objective test. However, in R v Lalonde a battered woman charged with benefit fraud successfully relied on the Canadian defence of necessity based on her honest belief that she had no reasonable alternative. In R v Lalonde, Trainor J applied the elements of the Canadian defence as stated in Perka:
The court [in Perka] listed ten conclusions about the defence of necessity. The eighth and ninth raise some difficulties in the facts of this case. They stipulate that there must not be a reasonable alternative available and that there must be imminent risk or peril to justify the unlawful act. In my view, the answer for Lise Lalonde, a battered wife, lies in the fact that she had, in her mind no reasonable alternative and putting food on the table for her children, in her financial circumstances, was pressing. [Emphasis added.]
189 If an objective test is applied, the defence will not easily be available to victims of domestic violence whose assessment of realistic options may differ from that of an “ordinary” reasonable person who is not subject to domestic violence.
Proportionality of response
190 The majority of the Court in Perka discussed this element of the defence in the following way:
No rational criminal justice system, no matter how humane or liberal, could excuse the infliction of a greater harm to allow the actor to avert a lesser evil. In such circumstances we expect the individual to bear the harm and refrain from acting illegally. If he cannot control himself we will not excuse him.
191 Proportionality has not to date raised issues peculiar to victims of domestic violence. One issue that may arise in the future, which may be particularly relevant to victims of domestic violence, is whether it is excusable to cause serious harm to another in order to protect one’s child from less serious harm.
Reasonable foreseeability of actions leading to emergency
192 The Canadian Supreme Court in Perka, held:
If the necessitous situation was clearly foreseeable to a reasonable observer, if the actor contemplated or ought to have contemplated that his actions would likely give rise to an emergency requiring the breaking of the law, then [there is] doubt whether what confronted the accused was in the relevant sense an emergency.
193 This element has not been discussed in any of the New Zealand cases. However, it is likely to apply to the defence given that the closely related defence of duress by threats is not available to those who join or remain in associations knowing that they are likely to be subject to duress.
194 As pointed out in paragraph 173, a strict application of this test may have implications for victims of domestic violence who “choose” to stay in a violent relationship. It may well be “clearly foreseeable to a reasonable observer” that women who stay in a violent relationship may be forced to break the law in order to protect themselves or their children, but denying a defence on this basis may cause inequities. The real issue here is whether the woman had a realistic alternative to remaining in the relationship. The Crimes Consultative Committee’s formulation of this test, discussed in paragraph 173 above, should allow expert evidence to explain why a victim of domestic violence remains in a battering relationship.
Necessity is not a defence to murder or attempted murder
195 Under the common law, no form of duress is a defence to murder. The Queensland and Western Australian emergency defences do not exclude any specific offences. The Crimes Consultative Committee proposed that both compulsion and necessity should be a defence to all offences except murder and attempted murder. As noted in paragraph 177 above, we question whether any form of duress should be a defence to serious personal injury.
The defence is not available whenever the source of the threat is another person
196 A threat posed by persons may be instrumental (intended to compel the victim to do something) or non-instrumental (an end in itself). For example, 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). Section 24, as interpreted in Raroa and Teichelman, does not provide a defence, as there is no particular kind of threat associated with a particular demand (see the discussion in paragraph 164). 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 persons (see paragraph 184).
197 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. This issue would be relevant to many types of defendants.
198 As the English courts have recognised, necessity and compulsion are each a species of duress. 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 Crimes Bill 1989 contained both a compulsion and a necessity defence. The Crimes Consultative Committee revised both defences, partly in order to more closely align them. The revised compulsion defence has been discussed at paragraphs 172–177 above. The revised necessity defence (clause 30) follows:
(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.
199 Clause 30 follows the common law in setting a peril threshold of death or serious bodily harm to the defendant or another person. The requirement that the peril must be imminent has been replaced with a requirement that the act or omission that constitutes the offence must be immediately necessary to avoid the peril. There is no explicit legal alternative requirement but presumably it could be a factor under (1)(b). A threat posed by persons that is not intended to compel the defendant to commit an offence is not excluded from the defence.
200 The requirement of an emergency may be problematic because an incident of violence within a relationship of recurring violence may not be seen as an “emergency”.
Question 15: Should the defence of necessity be codified?
Question 16: If the answer to question 15 is yes, should clause 30, as set out in paragraph 198, be enacted?
Question 17: If the answer to question 16 is yes:
(a) Should clause 30 be enacted without the requirement of “emergency”?
(b) What offences (if any) should be excluded from the defence?
A single defence of duress?
201 If the answers to questions 13 and 14(a) in paragraph 177 are yes, a possible formulation of the defence of compulsion (duress by threats) could be:
(1) 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 or any other person from a person who he or she reasonably believes is able to inflict such harm.
(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 danger.
(3) Subclause (1) does not apply to the offences of ... .
202 If the answer to questions 15 to 17 is yes, a possible formulation of the defence of necessity (duress of circumstances) could be:
(1) A person is not criminally responsible for any act done or omitted to be done if –
(a) the person reasonably believes that it is 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.
203 It seems to us that, thus formulated, the defence of necessity encompasses the defence of compulsion so as to make the latter superfluous.
Question 18: If a defence of necessity as set out in paragraph 202 is enacted, is there a need for a defence of compulsion as set out in paragraph 201?
Question 19: If the answer is yes, what elements of the defence of compulsion as set out in paragraph 201 are in your view not encompassed in the defence of necessity as set out in paragraph 202?
Question 20: Should the belief in paragraph 201(1) and paragraph 202(1)(a) be required to be reasonably based or should an honest belief be sufficient?
Question 21: What offences (if any) should be excluded?
Should a defence of duress be available where the peril is moderate but the response to the peril is proportionate?
204 There are instances where, in order to avoid physical abuse or harm not amounting to serious bodily harm, battered defendants commit offences not involving physical danger to others. For example, battered defendants may commit social welfare fraud because they and their children are not provided for by the abusive partner and they cannot legally claim a benefit because of the existence of the partner. It is arguable that battered (and other) defendants should not be criminally liable in such situations, provided the evil they do is less than the evil they seek to avoid. However, as noted in paragraph 186 “necessity can very easily become simply a mask for anarchy” unless limited to very special circumstances.
205 It may be that a hierarchy of offences could provide the right balance. First, there are the serious offences (presently listed in section 24(2)) for which no defence of duress is or should be available. Mitigation of sentence may, of course, be appropriate (assuming there is a sentencing discretion for murder). Second, for lesser but still serious offences a defence of duress is and should be available if the defendant was in danger of death or serious bodily harm. Finally, for minor offences (for example, offences not involving bodily injury) a defence of duress could be available even if the defendant was faced with harm that was less than death or serious bodily harm, provided the harm caused by the offence is less than the harm sought to be avoided. We ask for submissions on this question.
Question 22: Should a defence of duress be available where the harm threatened is less than death or serious bodily harm?
Question 23: If the answer to question 22 is yes:
(a) For what offences should the defence be available?
(b) In what circumstances should the defence be available? (For example: where the harm caused by the offence is less than the harm sought to be avoided.)