Necessity as a defence (PDF)
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Added on 2021-05-31
Necessity as a defence (PDF)
Added on 2021-05-31
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Running head: Necessity1General Defence of NecessityName of student:Name of Institution:Instructor:
Necessity2General Defence of NecessityIntroductionThe defence of necessity is considered to arise where a person is faced with two evilsand elects the lesser evil of the twothat causes lesser harm1. The choice of the lesser evil is toprevent greater harm or danger. The necessity is a common law defence that was developedby courts to excuse persons accused of an offence committed under circumstances where theaccused person was faced with two evils but committed the offence to avert the greater evilthat would have caused greater harm or injury. An example would be driving recklessly toavoid harm being caused to your passenger or to yourself2.Historical BackgroundIt is not clear when the defence was first in existence. However, it is believed that itwas in existence as early as 16th century. This is illustrated by Reniger v Fogossa(1551)3where the defendant docked his ship contrary to the statute and due bad weather and relied onthe defence of necessity4. The court held that a man can still be excused of committing acrime where the commission of the crime was as a result of compulsion or necessity to escapegreater inconvenience or harm5. The decision made the defence of necessity available topersons accused of an offence in the described circumstances. However, the availability of the defence for a charge of murder was subjected to testin R v Dudley and Stephens6. In that case, the accused Dudley and Stephens were chargedwith the offence of murder. Dudley, Stephens, Brooks and Parker were sailors when they1John Hostettler, A History of Criminal Justice in England and Wales(Waterside Press 2009) 2202R v Willer (1986) 83 Cr App R 255 and in R v Conway (1988) 3 All ER3(1551) 1 Plowd 14Jerry Elmer, ‘A Necessary Good’(New Clear Vision, 4 August 2011) www.newclearvision.com/2011/08/04/a-necessary-good/ accessed 29 May 20185Edward Arnolds and Norman Garland, ‘The Defence of Necessity in Criminal Law: The Right to Choose theLesser Evil’ (1975) 65 (3) Journal of Criminal Law and Criminology 289, 2916 [1875] 14 QBD 273
Necessity3were shipwrecked. The sailors lacked fresh water and food except two tins of turnips. Theywent without food or water for several days. Dudley proposed the idea of sacrificing one ofthem but Brooks objected. Dudley, after sometime, proposed that Parker, the cabin boy, besacrificed. Parker was the weak one among the sailors. Despite their being an objection fromBrooks, Dudley and Stephens went ahead and killed Parker and for several days the sailorsfed on the blood and body of the cabin boy until they were rescued. The jury could not reacha conclusion, based on the circumstances, whether the defendants were guilty of murder ornot and thus the case was transferred to the Queen’s Bench Division. The court held that thekilling of the helpless cabin boy was murder unless the defendants had some lawfuljustification. The defence of necessity was not available in the circumstances.General Defence of Necessity in MalaysiaIn Malaysia, necessity as a general defence is provided under section 81 of the PenalCode. Section 81 excuses a person from conviction of an offence where the offence iscommitted without intention and provided the person acted in good faith with the intention ofsaving himself or another or property from harm. This is determined from the circumstancesof the case and facts presented before the court. The Penal Code has provided twoillustrations for the defence of necessity. The first being captain of a ship running down aship with fewer passengers to avoid running down a ship with more passengers. This iswithout the intention of running down the ship with fewer passengers. Such a captain will beexcused. Another being where another person pulls down houses to stop fire from spreadingand causing more harm. In such circumstances he will not be found to have committed anyoffence provided he had no intention of committing the crime and he acted in good faith.Even though section 81 does not specifically refer to the defence of necessity, thewording of the provision provides for the defence of necessity. The manner in which theprovision is drafted leaves the defence available to all criminal offences and thus making it a
Necessity4general defence.The defence is available to crimes both under and outside the penal code7.This can be contrasted to the defence of duress provided under section 94. Duress as adefence is available to other offences under the Code except murder, offences punishable bydeath and offences under Chapter VIA of the Act. It might be stated that the defence ofnecessity under section 81 compliments the defence of duress under section 94 by providingdefence for offences where duress as a defence is not available8.The person accused of an offence must have believed in existence of harm or dangerto a person or property. The harm can be directed to another person or another person’sproperty. The person must have acted in good faith in the process of averting imminent harmor injury. Section 52 of the Code defines good faith as acting with due care and attention. Thedefence of necessity, under section 81, is thus not available to those who have actedrecklessly and without due regard to care and attention. The defence will also not be availablewhere the defendant has unreasonable disregarded any other safe alternative course availableat the commission of the offence9.The purpose of committing the crime must be to avert any injury or harm to person orproperty. Even though section 81 does not provide for the weighing of harms or injuries, thatis lesser or greater evil, it will be unreasonable and contrary to policy of the legislation ifpurpose of the commission of the crime was to avoid a lesser harm. The defence should onlybe available to the defendant where he acted to prevent greater harm or injury10.7Tan Cheng, ‘The General Exception of Necessity Under Singapore Penal Code’ (1990) 32(2) Malaya Law Review271 2748Chan Wing Cheong, Stanley Yeo and Michael Hor, Criminal Law for the 21st Century: A Model for Singapore(Academy Publishing 2013) 3199Cheng (n. 6) 28010Cheng (n. 6) 280
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