Necessity - legalstudies-HSC-aiss

Complete Defence of Necessity
The defence of necessity operates where natural threats or human threats bear
upon the accused, including the accused to break the law to avoid more serious
consequences such as death and or grievous bodily harm. That means the defence of
necessity overlaps to a certain extent with the defence of duress and the defence of
self-defence. It will be held as a defence where:
 The crime must be done in order to avoid consequences which would have
inflicted harm to the accused be it, mentally or physically, also an impact of
those whom the accused was bound to protect.
 The accused must have reasonable grounds to believe that he/she was
placed in an ultimatum where the outcomes are both consequences.
 The crime was done to avoid the consequence must not be out of proportion
compared to the consequence.
R v Dudley and Stephens
Tom Dudley and Edwin Stephens were aboard a ship, which sank on July 5, 1884.
They and two other members of the crew, Brooks and Parker managed to get to a
lifeboat with limited supply of food. After 20 days at sea the survivors had finished
all of the supplies. Out of desperation Dudley pushed his penknife into Parker’s
jugular vein, while Stephens held Parker down. Dudley, Brooks and Stephens fed on
Parker’s body. The survivors were rescued the 29th of July. They were confident in
themselves being immune from prosecution under the defence of necessity of
Is necessity a defence to a charge of murder?
Stephens and Dudley were sentenced to death, as necessity of hunger does not
justify larceny and murder. Stephens and Dudley chose the weakest and youngest to
kill and it was not more necessary to kill him than any of the other grown men.
Stephens and Dudley were tempted to kill Parker but temptation itself is not an
excuse for murdering him. Their unfortunate circumstances also do not lend
leniency to the legal definition of murder.