CRIMINAL LAW AND PROCEDURE LWB232

CRIMINAL LAW AND PROCEDURELWB232 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COMMON LAW NECESSITY...(2) • Possible interpretations of Dudley and Stevens: (1) That it is an outdated authority against recognising the defence of necessity; (2) That it is authority for excluding murder from the operation of necessity; (3) That it is authority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 [8.89-8.90]) • 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 forimmediate 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

CRIMINAL LAW AND PROCEDURE LWB232