CRIMINAL LAW AND
PROCEDURE
LWB232
WEEK 10
EMERGENCIES AND
COMPULSION
Necessity (CL) = Emergency (QCC)
.
 QCC s 25 = “sudden or extraordinary
emergency”.
 At common law = “necessity”.
 See K at [8.47]: gives effect to principle
that “no man is expected to be wiser and
better than all of mankind” (per Griffith re
Draft Code).
 CL reluctant to accept:
– must confine excuse - a mask for “anarchy”?
COMMON LAW NECESSITY...(1)
R v Dudley and Stevens (1844)
In the special verdict, the jury found that:
(i) men would probably have died
before being rescued if they had not eaten the boy;
(ii) boy probably would have died first;
(iii) at the time of the act, there was no reasonable prospect
of being rescued;
(iv) there was no appreciable chance of survival unless one
of them was killed and eaten; and
(v) there was no greater necessity to kill the boy
than to kill one of the men.
Lord Coleridge CJ: these facts = murder. No necessity.
COMMON LAW NECESSITY...(2)
 Possible interpretations of Dudley and Stevens:
(1) That it is an outdated authority against
recognising the defence of necessity;
(2) That it is authority for excluding murder
from the operation of necessity;
(3) That it is authority for excluding murder
from necessity on the facts which did not
clearly show why one person rather than any
other should die.
(See Colvin and Linden Laufer at 329)
QCC s 25.
 s 25 excuses acts/omissions where “an ordinary
person exercising ordinary powers of self
control” could not reasonably be expected to act
otherwise.
Test is objective
 Would it have applied in Dudley and Stephens?
– not sudden but certainly extraordinary.
– whether the ord person could not reasonably
be expected to have acted otherwise?
– s 25 can apply to murder.
The Nature of the Emergency.
 Osborne v Dent
– driving w/o licence not done in response to any
emergency
– must be causal nexus between emergency and
what is done by the accused in response to it.
 Examples of cases where excuse raised:
– driving offences: Strudwick v Russell, Webb,
Warner;
– escaping from prison: Loughnan - death threat;
• also Rogers: killed by fellow inmates
– cases of political necessity: eg, anti-nuclear
protest
O'Regan’s s 25 Hypotheticals.
O'Regan suggests that s 25 would apply in the
following hypothetical situations:
(1)
Two shipwrecked sailors get on the same plank
which is not able to support them both and one pushes
the other off the plank and s/he drowns.
(2)
Several mountaineers are roped together on the
Alps. They slip and the weight of the whole party is
thrown on one who cuts the rope in order to save
him/herself.
(R S O'Regan, "Sudden or Extraordinary Emergency" at 58).
S 24 mistake and s 25 emergency.
 Webb at 449-50: the existence of emergency
– could be one in fact; OR
– the product of an honest and reasonable but
mistaken belief that emergency existed.
 Examples
– Pius Paine: H and R belief in driver that was an
emergency in back of utility.
– Warner: s 25 with s 24 - the accused may have H
and R believed that he was in a frightening
situation.
COMPULSION
Emergency CF Compulsion
 Both concerned with outside forces
operating on accused’s actions...but...
 Compulsion/duress arises from threats from other
human agencies;
CF
 Emergency/ necessity arises through “duress
of circumstances” - other objective dangers.
S 31 (1)(a) QCC
 S 31(1)(a): Exculpates persons who are carrying out
the law in their official position, such as police
officers, bailiffs, prison officers and the like.
 Mackinlay v Wiley: N/A to obligation
voluntarily assumed.
 Slade: supply of drugs to informer by police officer
– act (supply) was not “necessary in the
performance of the officer's duty so that it can be
truly said to be an act done under the compulsion
of that duty”.
S 31(1)(b) QCC
 S 31(1)(b): Applies only where a person is
compelled to obey a lawful order such as members
of the services, police officers and prison officers
etc.
 Cf an ordinary agent of an ordinary master or
principal.
– See Hunt v Maloney re beer served in
unclean glass by barman.
S 31(1)(c) QCC
 S 31(1)(c): Provides a special defence of
compulsion when resisting violence:
– would seem to be complementary to self-defence.
 NB s 31(2) (previously the “proviso”) applies to all
subsections of s 31: s 31(1)(c) therefore not
available for murder or GBH (see Silk and Fietkau).
 See also White v Conway - K at [13.47]:
– if victim is using force to protect him/herself in
legitimate self-defence, an assault upon the
victim will not be excused under s 31(1)(c)
because victim not acting “unlawfully”.
S 31(1)(d) QCC
 S 31(1)(d): Cf common law duress.
 Idea that person is compelled to do criminal acts
acting under “duress”- fear aroused by threats of
immediate death or GBH directed to accused (or
another) sufficient to overbear the will.
 Recently amended to fall in line with modern CL.
 See CL example of Hurley and Murray (K at [8.898.90])
– accused convicted as accessories after the fact to
prison escapees.
– claimed acting under duress due to threats.
s 31(1)(d) - Immediacy of harm.
Threat must be of immediate death or GBH.
 See Pickard per Stanley J:
– “some very short time after the doing or the
omission of the act”
– threat as to future harm prob not suff under QCC.
 Pickard approved (re immediacy) in R v Barrow [1999]
QCA 56: “threat of death to him and members of his family…at
some indefinite future time and place” not sufficient for s 31(1)(d)
- no indication, express or implicit, as to when threat might be
carried out.
 At CL see Hudson and Taylor
– threat to two female witnesses re their evidence
– focus on effectiveness of threat (even if of future violence).
 At CL see also Williamson: a continuing threat.
QCC s 31(1)(d) as amended...
 Now includes threats made to persons other
than the accused - “indirect duress”
 No longer the necessity that the threatener be
“actually present”
– CF now previous position as per Pickard - very
strict
– see now CL as per Williamson and Hudson and
Taylor
• excuse available though threatener not actually present
and in position to execute threats
Finally re s 31(1)(d)...
 Re belief that “unable otherwise to escape”
– subjective test and re this aspect more lenient than
CL objective test
 Note that:
– Re seriousness of harm threatened: the threat
must be of death or GBH
– Re seriousness of harm to be inflicted: what is
done under the threat must not be one of offences
in s 31(2) (old proviso) - more restrictive than CL.
 Compulsion/duress and the battered woman.
2000 Women’s Taskforce:
 Recommended reform of s 31(1)(d)
– require accused to reasonably believe that threat
will be carried out unless offence committed
– replace requirement for immediate threat with
requirement that there is no reasonable way
threat can be rendered ineffective
– allow for broader range of threats than threat
of death or GBH
– require proportionality between threat and
response to threat (ie, offence committed)
– not available for murder