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The common law defence of necessity operates where circumstances (natural or human threats) bear upon the accused, inducing the accused to break the law to avoid even more dire consequences.

The Accused person bears the evidentiary onus of establishing a basis for a defence of necessity and, thereafter, the Crown bears the onus of negativing the defence beyond reasonable doubt.

You will be able to raise this defence if there is some overbearing factor which causes you to break the law to avoid serious consequences. An example is where an ambulance runs a red light in order to save a patient’s life.

If you wish to raise the defence of necessity, there will need to be evidence of the following matters:

1. You acted only to avoid serious, irreversible consequences upon yourself or someone you were bound to protect

Like duress, the situation must be serious enough to justify your actions. Usually, this refers to situations where you acted to avoid death or serious injury to yourself or some other person.

2. You honestly and reasonably believed that you were in a ‘situation of immediate peril’

You must genuinely believe that there is some immediate threat or situation which required you to take urgent and instantaneous action to escape the threat or diffuse the situation.

3. Your actions were reasonable and proportionate to the situation

Similarly to the defence of self-defence, your actions have to be reasonable and proportionate to the situation.

This means that you cannot go beyond what is reasonably necessary to escape the situation. For example, where an ambulance runs a red light to save a patient’s life, it would be unreasonable for the driver of the ambulance to drive along a busy footpath and endanger the lives of pedestrians.

If you raise the defence of necessity, the prosecution will then have to prove beyond a reasonable doubt that there was no immediate danger posed to you, or that you acted unreasonably in the circumstances.

If your defence is accepted in court, you will be found ‘not guilty.’

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