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DURESS, COERCION AND NECESSITY
&;
MELBOURNE
1978
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LAW REFORM COMMISSIONER
Working Paper No. 5
NCJRS
MAY291979 '-:-:'.-, ,.'
ACQUISITIONS
DURESS, COr:RCION AND NECESSITY
MELBOURNE
Views expressed in this Working Paper are provisional only
and any recommendations or suggestions are tentative.
Comment and criticism are invited and it would be greatly
appreciated if these could be forwarded before
15th November, 1978.
Law Reform Commissioner,
155 Queen Street,
Melbourne, Vic. 3000.
If a man be menaced with death, unless he will commit an act of treason, murder or robbery, the fear of death does. not excuse him! if he commit the fact; for the law hath provided a sufficient reme~y ~gamst such ~ears by applying himself to the courts and officers of Justice for a wnt or presept de securitate pacis. Again, if a m.an be desperately assa.ulted. and i!1 pe,ril of death.' a~d cannot otherWise escape, unless to satisfy his assailant s fury he Will kl!l an innocent person then present, the fear and actual force Will not acqUit him of the crime and punishment of murder, if he commit the fact; for he ought rather to die himself, than kill an innocent."l
2.03 Sir William Blackstone, one of the greatest of writers on English law, writing in the latter part of the 18th century, had this to say:
"Another species of compulsicJIl or necessity is what our law calls duress per minas; or threats and menaces which induce a fear.of death or o.ther bodily harm and which take away for that reason !he gUilt of m~ny crimes and misdemeanours; at least before the human tribunal ... ThiS however seems only, or at least principally, to hold as to positive crimes, so created by the laws of society; and which therefore society may excuse: but not as to natural offences, so declared by the law of God, wherein human magistrates are only the executioners of divine punishment, and th~re. fore, though a man be violently assaulted, and hath no other possible means of escaping death, but by killing an innocent person: thi~ fe~r and force shall not acquit him of murder; for he ought rather to die himself than escape by the murder of an innocent. But in such a case he is permitted to kill the assailant."
2.04 Most judicial statements of the law of duress pronounced ~ver the past few decades seem still to incorporate one or other of the foregomg excerp~s with approval. Nevertheless there is reason to doubt whet~er the law today IS still as it was so expressed to be in the 17th and 18th centuries.
Victoria and Great Britain 2.05 In Victoria Mr. Justice Sholl adopted as an applicable expression of the law in a case 3 where a man was charged with being a party to a serious wound- ing, the following passage from an earlier Irish case: "Threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal. The application of the general rule must however be subject to certain limitations. The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the stronge<;t duress would not be any justification. We have not to determine what class of crime other than murder should be placed in the same cate- gory ... Where the excuse of duress is applicable it must further be already shown that the overpowering of the will was operative at the time the crime was actually committed, and, if there were reasonable opportunity for the will to re-assert itself, no justification can be found in antecedent threats."
8
2.06 In the Irish case the accused who was charged with receiving stolen property was held entitled to rely on the defence of duress because he was threatened by a man with a revolver.
2.07 In 1966 Mr. Justice Barry directed a jury in the terms of the first two sentences quoted above and went on to expand their meaning in the following passage: "if a man is compelled to do criminal acts because he is under the influence of a genuine fear aroused by the threat of imminent death or grave physical violence to himself or to his wife or to a w?man wit.h whom he is living as if she were his wife, he is entitled to claim that hiS actions were the result of duress and that accordingly his actions did not amount to a crime. In such a case the fear that governs his actions must be fear of the kind that will affect the will of a man of ordinary courage and fortitude, and it must be operative at the time when the criminal actions were done and there must have been no opportunity between the time of the threats and the time when the actions were done for him to free himself from the influence of the threats."
The case was one in which two men were convicted of being accessories after the fact to the escape from gaol of two criminals. They had rendered considerable support and assistance to these men whilst they were ~t liberty. Each claimed that he was compelled by threats made both to hiS life and to that of other people including a woman who was the ~e fa~to wI!e of on.e appellant. Both men appealed t~ t~le Full Court of VIctOrIa. agaIns~ the~r conviction. In the course of dismlssmg the appeal the then Chief Justlce Su Henry Winneke and Mr. Justice Pape expressed the view that "The whole body of law relating ~o duress is in a very vague ana unsatisfactory state". However they expressly refrained from statin15 al!y vie~s as to the correctn~ss or otherwise of the law as laid down by the tnal 1udge 111 the passage to which reference has been made and they went on to decide the case on grounds which need not be further analysed for the purposes of this Working Paper.
2.08 Mr. Justice Smith in the course of a dissenting judgment in the same case, set out a number of propositions with regard to the defence of duress as follows:- "Where the accused has been required to do the act charged against him (i) under a threat that death or grievous bodily harm will be inflicted unlawfully upon a human being if the accused fails to do the act and (ii) the circumstances were such that a person of ordinary firmness would have been likely to yield to the threat in the way the accused did and (iii) the threat was present and continuing, imminent and impending, c:nd (iv) the accused reasonably apprehended tha~ the thr~at would be carne? out and (v) he was induced thereby to commit t~e crime cl:arged and (VI) that crime was not murder, nor any other cnme so heInOUS as to be excepted from the doctrine and (vii) the accused did not, by fault on his part when free from the duress, exp?se himself to its. application ~nd (viii) he had no means, 'ยฅith safety to himself, of preventmg the executIOn of the threat, then the accused, in such circumstances at least, has a defence of duress."
His Honour was careful to point out that as to the law of duress there was much uncertainty am! consequently he confined himself to stating such positive propositions as were necessary to cover the problems of the case before him and that he refrained as far as possible from setting limits to the doctrine of duress.
2.09 In September 1973 the Full Court ill dealing with a defence that an
appellant's possession of a large quantity of cannabis had been brought about by threats of the importer of the cannabis to kill him and destroy his family if he failed to assist the threatener by temporarily taking it into possession, had this to say: "Leaving on one side the crime of murder or any other crime so heinous as possibly to be excepted, as to which we say nothing, we think the authorities cited supported the view that. in general, duress affords justification or excuse for acts which would otherwise be criminal."
2.10 Duress was next considered at the end of 1974 when the Full Court after argument in October unanimously held 9 in December that duress could not afford a defence to one who was charged with murder as an aider and abettor (sometimes spoken of as a principal in the second degree). In this case the appellant Harding had been convicted at his trial along with two others of the murder of a man named Shannon. Shannon was shot dead in the lounge I)f a South Melbourne hotel by another accused Taylor at the instigation, so it was said, of another man Longley (not charged) who had a grievance against Shannon. The allegation against Harding was that he had identified the neceased man to his co"accused (who did not know him) for the purpose of the shooting a,1d that the carrying out of the incident had otherwise been assisted by Harding. Harding admitted assisting Taylor but claimed to be in mortal fear of Longley, the alleged instigator of the murder, and consequently that he should be excused on the ground of duress. The court repeated also what had been said in earlier cases both in Victoria and elsewhere in countries applying the common law that such a defence can never be allowed to one charged as an actual pr,rticipant in the act of murder, that is. a principal in the first degree.
2.11 Harding appealed against the decision of the Full Court of Victoria to the High Court of Australia which heard his appeal in March of 1975 hut unfortunately, at any rate for the elucidation of the law, Harding died on the 14th September 1975 before judgment was delivered.
2.12 In the meantime in November 1974 lengthy argument had been proceed- ing in the House of Lords in a caSe on appeal from Northern Ireland. 10 The appellant Lynch drove a motor car containing a group of the Irish Republican Army on an expedition in which they shot and killed a police officer. On his trial for aiding and abetting the murder there was evidence that he was not a member of the LR.A. and that the acted unwillingly and under the orders of the leader of the group, being convinced that if he disobeyed he would himself be shot. Neither the trial judge nor the Court of Criminal Appeal in Northern Ireland allowed the availability of the defence of duress in these circum- stances. In March 1975 it was held in the House of Lords by a majority of three to two that on a charge of murder the defence of duress was open to a person accused as a principal in the second degree (aider and abettor) and a new trial was ordered.
2.13 The uncertainty and vagl',;:ness surrounding the concept of duress is perhap:, best expressed in the ';yords of Lord Simon of Glaisdale when he said m the course of his judgment in this case:-
"I take it for present purposes to ?enote such [well-grounded) fear, prod~ced by t1~reats of .death .or grIevous bodily harm [or unjustified ImprISOnment] If a cerlam act IS not done, as overbears the actor's wish not to perform the act, and is effective, at the time of the act in constrain-
ing him to perform it. I am quite uncertain whether the ~ords which I
havt' put in square brackets should be included in any such definition. It is arguable that the test should be purely subjective and that it is contrary to principle to require the fear to be a reasonable one. Moreover, I have
assume? ?n the basis of R. v. Hudson (1971 2 Q.B. 202) that threat of
future J~Jury may suffice, although Stephen's Digest of Criminal Law Art. 10 lS to the .contrary. Then the law leaves it aho quite unCerlai! whether the fear ll1duced by threats must be of death or grievoas hodily harm, or whether threatened loss of liberty suffices; cases of dure3s in the !aws .of contract suggest. t1~at duress may extend to fear of unju'itified Im~nsonment; but the cnmInallaw returns no clear answer. It also leaves entIrely unanswered whether to constitute a general criminal defence the threat must be of harm to the person required to perform the act or extends to the immediate family of the actor (and how immediate?) o'r to any person."
2.14 In O~tob~r J 975 Evans was ~ried on a charf;e of murder in the Supreme Court of Vlctona before Mr. Jus~!ce Lush. In tl11S case the evidence showed that the deceased man had been stabbed by a man named Gardiner in some degree helped by Evans who claimed that he seized hold of the 'deceased becau.se ,of a thre.at by Gardiner .that he .would "get" Evans if he did not grab the vIctm1. The ]ud&e felt th~t 111 th~ cl;cumstances then existing he should accept, the la:v as. laId. down In HardIng s case and that he should 110t apply Lynch s case 111 VIctOrIa so as to allow a defence of duress to be advanced on the part of an accused person alleged to have been a participant in the final and fatal assault. 12
2.15 A st~ge \urth~r had be~n r~ached with the advice given by a majority of Her Majesty S PrIvy COllncIl13 In July 1976 that on a charge of murder the defence of duress was not available to a principal in the first degree who did the actual.killing and that the trial judge was right in withdrawing the defence from the Jury. The fact~ UP0t; :vhich this advice was givcn disclosed a parti- cularly brutal murder 111 Tnl11clatl. The appellant Abbott held the victim whilst others stabbed her and then along with those others buried her while she was still alive. His ac.tions he claimed were forced upon him by a powerful character named Maltk who wanted the deceased girl killed and who dictated to the appellant the part that he was to play and threatened that if he did anything to endanger the safety of other men involved or of M~lik or of his ~hildren, the appellant. at~d his, mother would die on the very morning of the tntended murder. Agutn 111 tl115 case then.! was a three to two majority with two of the Law Lords who had formed part of the majority in Lynch's case registering a po:verfu~ dissent to th~ advice giver; by the majority and asserting for reasons which WIll be dealt With more fully later 14 that even in such a case as this duress could provide a defence.
11
I
days after the murder the appellant was beset with constant threats which culminated in the murderer putting the body of the deceased victim in the boot of the appellant's car.
2.25 In 1974 Mr. Justice Glass conducting a trial 18 in New South Wales in which there were six defendants arraigned on multiple charges of murder or associated charges and in which five sought to raise a defence of duress by the first, found that there was evidence capable of supporting a finding that what- ever these five accused did in relation to the death of two of the victims was indnced by a fear that the first accused would ki 11 them if they did not do what he told them. He expressed his view of the law l0 be that duress producing a
minor participation in a murder will operate as a complete defence. It was
for the jury to determine whether any act proved is major or minor, provided it was not an act which involved the handling of the rifle with which the fatal shot was fired or other similar act. He also held it to be the law and so directed the jury that duress producing a maior participation in a murder should, like provocation dnd excessive retaliation in self defence be treated 1S a qualified defence which will reduce murder to manslaughter. This last statement of the law did not find favour with the judges who decided Harding's
case 19 in Victoria in 1975.
2.26 In the light of these cases and of the fact that no case has come before either the High Court or the Full Court of Victoria since the powerful pronouncements by the highest courts in the home and fountain of the common law it still seems justifiable to say, particularly with regard to the crime of murder, that the law as to duress is in a "very vague and unsatis- factory state". However it seems a reasonable assumption that duress consist- ing of the thre<lt of death or the infliction of or the threat to inflict serious personal harm carl provide a defence to and so relieve from criminal respon- sibility for most crimes and misdemeanours in Victoria including some forms of treason, the infliction of grievous bodily harm and possibly attempts to
murder. It is clear in such cases that where the"e is evidence of duress the onus
is on the prosecution to negative it~ operation beyond reasonable doubt. It does not seem possible to assert with any confidence what the law is in relation to duress in the case of murder where a person is charged either as a principal in the first or second degree, or indeed as an accessory after the fact.
Duress Dealt With b:1 Criminal Codes in Australia 2.27 Three of the Australian States (Queensland, Western Australia and Tasmania) have Criminal Codes. in each of which the defence of duress is provided. In Queensland and Western Australia 20 t1v~ law is expressed in identical terms and states that ?. person is not crimina!ly responsible for an act or omission if he does or emits to do the act in order to save himself from immediate death or grievous bodily harm threatened to be inflicted upon him by some person actually present and in a position to execute the threats and believing himself to be unable otherwise to escape the carrying of the th'reats into execution. But this protection does not extend to an act or omission which would constitute the crime of treason or wilful murder or murder, or certain crimes relating to piracy of a ship or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him.
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2.28 The Tasmanian Code 21 provides that compulsion by threats of immediate death or grievous bodily harm from a person actually present at the commission of the offence shall be an excuse for the commission by a person subject to such threats and who believes that such threats will be executed and who is not a party to any association or conspiracy, the being a party to which rendered him subject to compulsion of any offence other than treason, murder, piracy, offences deemed to be piracy, attempting to murder, rape, forcible abduction, robbery with violence. causing grievous bodily harm and arson. Further a married woman is expressed to be in the same position as regards compulsion by her husband as if she were unmarried.
2.29 The New Zealand Crimes Act 22 provides a defence of dure~~ expressed in much the same way as in the Tasmanian Criminal Code.
The United States 2.30 In the United States of America the only text book on criminal law available 23 shows that the common law as recorded in that country does not recognise any compulsion, even the threat of instant death, as sufficient to excuse the intentional killing of an innocent person, and compUlsion is not a defence to a prosecution for an assault with intent to murder. However the text writer regards it as clear that compUlsion if sufficiently extreme, will excuse one not otherwise at fault for almost any harm not involving the inten- tional taking or attempting to take the life of an innocent person. And he points out that it is held to be an excuse in prosecutions for reckless driving, malicious mischief, larceny, embezzlement, receiving stolen goods, and also for such grave felonies as burglary, robbery and arson.24 The sort of compulยท sion which will excuse has been said to be "present, imminent and impending, and of such a nature as to induce a well-grounded apprehension of death or great bodily harm if the act is not done". There seems to be a tendency to hold that thr. threat of less than death or great bodily harm may be recognised as an excuse in some prosecutions, and it has been held in a case ill which the defendant was charged with a relatively minor offence that the jury should be instructed that he had a defence if he had been compelled to commit the act under "such violence or threats as are calculated to operate on a person of ordinary firmness and inspire a just fear of great injury to person, reputation or property",
2.31 However a number of the States have legislation dealing with the defence of duress in a criminal case and of these, six States make no exception in terms of the crime involved by the availability of the defence. 26 The Penal Code of Texas, for example, states that a person forced by threats of actual violence to do an act is not liable to punishment therefor. Such threats however must be (l) loss of life or personal injury; (2) such as are calculated to intimidate a person of ordinary firmness. The act must be done when the person threatening is actually present. The violence must be such actual force as restrains the person from escaping or ill-treatment of such a nature as to render him incapable of resistance. 27 Hawaii recognises duress if the actor is compelled by force which he cannot resist, but its statute states that no one shall "justify himself against a charge of his doing an injury to another by showing the threat or imminent danger
of an equal or less injury to himself"28 W~sconsin provi~es that "coerci.on" is a defence to all claims except murder but III such a case If threats sufficient to establish the duress in other cases have been employed against the actor, murder is reduced to manslaughter. 29
Trends towards Reforms
- Model Penal Code 2.32 The prestigious American Law Institute which was founded in 1923 as a permanent organisation devoted to clarification and improvement of the law in 1952 began the planning and drafting of a Model Penal Code. The word "penal" is somewhat misleading in that in America by :'Pe.nal Code" is n:eant a combined criminal code and a code for the orgamsatlOn of correctional services. Intensive work was carried on by a body of "reporters" which included lawyers, and other experts including a psychiatrist, and a sociologist, and by an Advisory Committee which included some eminent Federal a~d State judges, district attorneys, forensic scientists, socio~ogists. a~d acadenuc lawyers. The Committee had as a consultant Dr. Glanville Williams, ;"Ine of the most eminent writers in the field of criminal law in England, and at one time co-opted Dr. Norval Morris, well-known in Australia an.d now J?ean of the Chicago Law School. The final draft of the Code was arrIved at III 19~2. It contains a section (2.09) dealing with duress, in Article 2 - General PrIn- ciples of Liability - which reads as folIows:-
"Duress as a Defense (1) It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist. (2) The defense provided by this Section is unavailable if the actor recklessly placed himself in a situation in w~ich it was p~obabl~ that he wou~d be subjected to duress. The defense IS also unavailable If .he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged. (3) It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this Section. (The presumption that a woman, acting in the presence of her husband, is coerced is abolished.) (4) When the conduct of the actor would otherwise be justifiable under Section 3.02, this Section does not preclude such defense." 2.33 Section 3.02 referred to in sub-section (4) is a section embodying the defense of necessity which will be dealt with subsequently. The framers of the Model Code took the view that threats to property or even reputation cannot exercise sufficient power over men of "reasona.ble firmness" to warrant inclusion of such threats in the document. They regarded it as obvious that even homicide may sometimes be the product of coercion that is thoroughly irresistible and that for example danger to a loved one may have greater impact on a man of reasonable ~rmness than a danger to himself an.d .. hey considered also that long and wasting pressure may well break down resistance more effectively than a threat of immediate destruction.
2.34 Section 2.09 as will be noticed, leans in favour of an objective view. The drafting was based on the principle well expressed by a legal writer as follows:- "Obligations of conduct fixed by a fair appraisal of the minimum require- ments for the maintenance and fostering of community life, will, by hypothesis, be obligations which normal members of the community will be able to comply with, given the necessary awareness of the circum- stances of fact calling for compliance. " The commentary drafted in explanation of the Model Code states that:- "law is ineffective in the deepest sense, indeed that it is hypocritical if it imposes on the actor who has the misfortune to confront a dilemmatic choice, a standard that his judges are not prepared to affirm that they should and could comply with if their turn to face the problem should arise. Condemnation in sLlch case is bound to be an ineffective threat; what is, however, more significant is that it is divorced from any moral base and is unjust. Where it wOllld be both 'personally and socially debilitating' to accept the actor's cowardice as a defense, it would be equally debilitating to demand that heroism be the standard of legality. The proper treatment of the hero is not merely to withhold a social censure; it is to give him praise and just reward." The "person of reasonable firmness" is not wholly objective. The addition of the words "in his situation" is intended by the framers of the Code to be given a personal application. As they say 'stark tangible factors that differentiate the actor from another like his size or strength or age or health would be considered", although matters of temperament would not. (This is not unlike the concept of the ordinary man in the High Court and Victorian cases dealing with provocation.) The Code was intended as a model upon which legislatures could draw, but material is not p,;!sently available as to how far it has influenced the criminal law in the United States.
- Draft U.S. Federal Code 2.35 In 1967 the Congress of the United States set up a National Commission for Reform of Federal Criminal Laws with an Advisory Committee presided over by the Honourable Tom Clark, retired Justice of the United States Supreme Court. Its charter was to formulate and recommend to the Congress legislatiol1 which would improve the Federal system of criminal justice and to make recommendations for revision and re-codification of the criminal laws of the United States. A large executive staff and an eminent law proff'ssor prepared working papers and by mid-1970 a Study Draft of a Federal Criminal Code was prepared. Chapter 6 of that Code entitled "Defenses Involving Justification and Excuse" dealt with duress in Section 611 which reads as follows:- "Duress (1) Affirmative Defense. In a prosecution for any offense it is E'n affirma- tive defense that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another. In a prosecution for an offense which does not constitute a felony, it is an affirmative defense that the actor engaged in the proscribed conduct because he was compelled to do so by force or threat of force. Compulsion within the meaning of this seetio!"!. c~ists only
statutory formulation, and depending on what view is taken of what the exist- ing law really is, of some measure of reform.
2.43 It can fairly be said that the defence of duress is available. in most criminal cases, and the major doubt to be settled is as to whether I.t can be taken into account in deciding upon guilt in a charge of ml!rder.. If It c~n be available in such a charge then there can be no doubt as to Its bemg aVaJlable for all charges.
2.44 There was (and perhaps still is) a view held that dur.ess sho.uld l,l~ver. be allowed as an excuse for crime but rather it should be consIdered m mlt1gatlOn of punishment. This view was persuasively articulated by Sir James .Stephen in his History of the Criminal Law in 1883, when he wrote the followmg:- "Criminal law is itself a system of compulsion on the widest scale. It is a collection of threats of injury to life, liberty, and property if people do commit crimes. Are such threats to be withdrawn as soon as they are encountered by opposing threats? The law says to a man in.tending .to commit murder, If you do it I will hang you ..Is th~ law to wIthdraw Its threat if someone else says, If you do not do It I wIll shoot you? Surely it is at the moment when temptation to crime is strongest that the law should speak most clearly and emphatically to the contrary. It is, of cours~, a misfortune for a man that he should be placed between two fires, but It would be a much greater misfortune for society at large if criminals could confer impunity upon their agents by threatening th~m wi~h death or violence if they refused to execute theIr commands. If Impul11ty could be so secured a wide door would be opened to collusion, and encouragement would be given to associations of malefact?rs, se<:ret or otherwise. ~o doubt the moral guilt of a person who commIts a cnme under compulslOn is less than that of a person who commits it freely, but any effect whi.ch is thought proper may be given to this circumstance by a proportlO!lal mitigation of the offender's punish.ment. These reasons lead me t? thInk that compUlsion by threats ought In no case whatever to. be ~d.mlt~ed as an excuse for crime, though it may and ought to operate III mltlgatlOn of punishment in most though not in all cases." Despite Stephen's forebodings duress has been pleaded (with mixed success) from time to time since he expressed his views and society does not seem to have suffered.
2.45 Moreover moral and social attitudes in relation to criminal liability have changed markedly over the past century, and it seems fair to say that in the content and administration of the criminal law there is now a greater tolerance and understanding of human behaviour than ever before. As far back as 1899 when the Queensland Code was drafted, Sir Samuel Griffith thoue (^) ht that some conduct brought about by natural human angry reaction to sudden provocation should not merit a criminal stigma. I!1. the Queen~land Criminal Code drafted in that year, there appears a provlSIon exemptmg a person from criminal liability for an. a~sault committed upon. on.e who gives him provocation for the assault, and It IS left for the commumty m the shape of the tribunal to decide whether the provocative act or insult is such as to be likely to depri~e an ordinary person of the power of self-control and to induce him to assault the offeror of the act or insult. The common law has not as yet recognised such a defence in the case of an ordinary assault, but as well as
broadening the scope of the defence of provocation in murder cases and reducing offences from murder to manslaughter it has also in Australia made allowance in the case of homicide for a situation where a person uses undue force in the course of self-defence and causes death by providing for a reduc- tion in appropriate cases of the crime from murder to manslaughter. Both of these attitudes show an increasing tendency to take account of human weakness in a~sessing criminal responsibility.
2.46 There can be little doubt that generally conduct, the result of genuine fear, is more excusable than that brought about by anger. Fear allied with the instinct for self-preservation can provide a motivating force which is irresistible to all but the strongest (or most insensitive) of human beings. The noted 17th century English philosopher Hobbes summed up the position neatly in this way:- "If a man by the terror of present death, be compelled to do a fact against the law, he is totally excused, because no law can oblige a man to abandon his own preservation. And supposing such a law were obligatory yet a man would reason thus, If I do it not, I die presently; if I do it, I die afterwards; therefore by doing it, there is time of life gained; nature therefore compels him to the fact. "
2.47 Even if such an action could not be morally justified, punishment and consequently liability has by many been regarded as wrong because no argu- ment could be advanced that punishment in such a case would or could act as a deterrent and thus a major reason for punishment would not exist.
2.48 Fear combined with love can provide perhaps a more worthy and no less strong or irresistible force. Little imagination is needed to understand (and excuse) the motives and acts of one who is driven to unlawful conduct to meet the demands of kidnappers or terrorists who are holding under threat of death an adult or child to whom he is bound by intense emotional ties.
2.49 In Lynch's case Lord Simon, who was one of the minority, thought there were three courses open to the House of Lords as the ultimate expositor and developer of the common law for the United Kingdom:- (1) To approve the various cases where duress has been allowed to be a defence negativing the crime, and then extend the doctrine to the crime of murder as a principal; (2) To over-rule the cases where duress has been allowed to be a defence negativing the crime, leaving it as a matter of mitigation of sentence in crimes other than homicide, and in homicide as a defence reducing murder to manslaughter; or (3) To affirm the cases where duress has been allowed to be a defence negativing the crime but to refuse to extend it to murder as a principal.
2.50 The majority in that case in effect took the first course by deciding that the defence of duress should where the evidence allowed be open to a principal in the second degree (an aider or abettor) which was as far as their decision needed to and could go. Lord Simon and his fellow dissentient Lord Kilbrandon in effect opted for the third course. Neither of their Lordships could offer any justification for differentiating between different degrees of murder and accordingly, could not agree with the majority, all of whom saw no
21
reason in justice, morality or law why the defence could not be availed of by a principal in the second degree on such a crime. Lord Morris thought it proper that any rational system of law should take fully into account the standards of honest and reasonable men. By those standards it is fair that actions and reactions be tested. If someone is really threatened with death or serious injury unless he does what he is told to do, the law should pay heed to his "miserable agonising plight". "For the law to understand not only how the timid but also the stalwart may in a moment of crisis behave is not to make the law weak but to make it just. In the calm of the court room measures of fortitude or of heroic behaviour are surely not to be demanded when they could not, in moments for decision rcasonably have been expected even of the resolute and well-disposed. "
He left open the case of an actual participant in the murderous act.
2.51 In Abbott's case Lord Wilberforce who had been one of the majority in Lynch's case and who was in the minority in this case, similarly could see no justification for distinguishing between principals in a murder case and this was one of his reasons for holding that the decision in Lynch's case extended to the situation in Abbott's case where the accused man was an actual physical participant in the murder. Lord Edmund Davies reasoned similarly.
2.52 It seems that it is illogical and can be unjust to categorically deny thc defence of duress to a principal in the first degree whose criminality and moral culpability may be according to circumstances considerably less than the actor whom the law categorises as a principal in the second degrce. If the conduct springs from a genuine fear brought about by a threat which would be likely to overcome the will of an ordinary human being then it is suggested that it would be unwise and unjust to brand the conduct as criminal.
2.53 Mr. Justice Smith in Hurley's case and the Chief Justice of South Australia in the case of Brown and Morley both thought that the heinousness of the crime of murder in the first degree was so great that the law would not allow any defence of duress. Neither was expressing a view of what the law should be and in the circumstances of each case neither was authoritatively expressing a view of what the law actually is. Both in Lynch's case and in Abbott's case several of their Lordships made approving reference to a ded- sion in South Africa in 1972 (where the criminal law is a mixture of English and Roman-Dutch law). A passage in the reasons for judgment delivered by Mr. Justice Rumpff contains what is suggested to be a compelling and psychologically persuasive statement of principle. It reads:- "When the opinion is expressed that our law recognised compulsion as a defence in all cases except murder, and that opinion is based on the acceptance that acquittal follows because the threatened party is deprived of his freedom of choice, then it seems to me to be irrational, in the light of developments which have come about since the days of the ole! Dutch and English writers, to exclude compulsion as a complete defcnce to murder if the threatened party was under such a strong duress that a reasonable person would not have acted otherwise under the same duress. The only ground for such an exclusion would then be that, notwithstand- ing the fact that the threatened person is deprived of his freedom of volition, the act is still imputed to him because of his failure to comply
with what has been described as the highest ethical ideal. In the applica- tion of our criminal law, in the cases where the acts of an accused are judged by objective standards, the principle applies that one can never demand more from an accused than that which is reasonable, ane! reason- able in this context means, that which can be expected of the ordinary, average person in the particular circumstances. It is generally accepted also by the ethicists, that for the ordinary person in general his life is more valuable than that of another. OnlY they who possess the quality of heroism will intentionally offer their lives for another. Should the criminal law then state that compulsion could never be a defence to a charge of murder, it would demand that a person who killed :-wother under duress, whatever the circumstances, would have to comply with a higher standard (han that demanded of the average person. I e!o not think that such an exception to the general rule which applies in criminal law, is justified. "
2.54 An example could well be imagined in these days of terror and violence and bank robberies. Suppose a group of bank robbers entered a bank, one of them armed with a knife thinking (rightly) that the teller whom he approached would have a pistol in his drawer, pressed his knife against the throat of that teller, and ordered him to hand over his pistol saying at the same time "I am going to fix that ... down there", (pointing to another bank officer). "He spoilt our last job here." The teller hands over the gun, his assailant takes it and shoots and kills the other officer. Can it be said that that teller should be found guilty of murder, he being an active participant in the act?
2.~5 Th~ reasons most often advanced against duress, however terrifying, bemg avaIlable as a defence to murder are firstly, that already referred to and best expressed as the duty to sacrifice one's own life rather than take another's. To this it has been answered that the criminal law should not be applied as if it were a blueprint for saintliness but rather in a manner in which it can be obeyed by the reasonable man, and further that the duress may well extend to and threaten the lives and safety of others and in such a case the path of heroism has been said to be obscure.
2.56 Secondly, public policy is relied upon --- expressed in different ways. The views expressed by Sir James Stephen have already been noted (see paragraph 2.44). Again it has been said that murder is so grave a crime that no facilities should be afforded to the murderer to escape conviction and punishment, that duress is a plea easy to raise, and that (the onus to destroy it being upon the prosecution) it may prove impossible to rebut. As to the latter reasoning it is suggested that a properly directed jury can always be trusted to give such effect to the defence as it deserves. It is worthy of note that in cases already dealt with in this Working Paper that despite Mr. Justice Barry's favourable view of the law as he expounded it to the jury in Hurley's case both accused were convicted and the plea of duress did not sl1cceed.^39 Again in Williamson's casc in New South Wales upon a new triEll with a direction that the defence of duress was open the jury convicted the a~cused and Lynch on his retrial in Northern Ireland, after his defence of duress was put to the jury, was also again convicted. As to the former it can I?.: argued that justice and humanity demand that a man should not be held criminally liable when in a situation not of his own making he is subjected to pl'essures to perform a criminal act which no ordinary human being could resist.
definition of duress should be wide enough to include threats of torture, rape, buggery, imprisonment and abduction.
2.65 Most of the cases which have come before the courts involve threats of serious physical harm but as Professor Howard points out in his book on criminallaw 42 the existence of the crime of extortion shows the effectiveness of non-violent threats. He suggests, properly it is thought, that if a man steals to find the money to payoff a blackmailer in a position utterly to ruin him, duress could well be applicable and he goes on to make the general suggestion that the law should be that the character of the threat itself is no more decisive of the issue than any other single factor, but should be afforded its due weight in the light of the other facts given in evidence,
2.66 It is reasonably clear that the present law requires that the threats to establish duress must be of death or of grievous bodily harm. The English Law Commission^43 considered that if the defence were to be extended to murder then a threat of such nature would still be required although it recommended a modification in that the expression used should be "serious personal injury" and it would inchide in that concept not only physical but also mental injury. It had in mind a situation where the threat is to destroy a person's sanity or seriously to damage his mind by the administration of drugs. The Model Penal Code in one respect leaves the matter more at large in that it says that the use of or the threat to use unlawful force against the person of the accused or of another which a person of reasonable firmness in his situation would have been unable to resist is the guiding factor. The Law Commission thought that this expressed the defence a little too loosely and thought it better to qualify the expression "person of reasonable firmness in his situation" in the way set out in paragraph 2.41 (supra). The Crimes (Married Persons' Liability) Act 1977 when dealing with coercion defines coercion to mean pressure whether in the form of threats or any other form sufficient to cause a woman of ordinary good character and normal firmness of mind placed .in the circum- stances in which the woman was placed to conduct herself 111 the manner charged. However the Act excludes treason, murder. and ccrtain related offences from its operation.
2.67 It is not proposed to suggest in this Working Paper a definitive draft but it is suggested that the recommendations of the English Law Commission with regard to duress should form the basis of legisiative enactment (see paragraphs 2.40 and 2.41). However it is further suggested that those recommendations be qualified and that a significant alternative be added. The qualifications are as follows: (a) A provision could be included that duress can provide a defence only where the threat is of an evil equal to or greater than the evil effected by the offence charged. This would give effect to the requirement of "proportion" which has been held to be a necessary element where self-defence or prevention of felony is thought to be relied upon by an accused person. (b) The recommendation of the Law Commission that the defendant must believe that the threat will be carried out before he has had any real opportunity of seeking official protection may be regarded as unduly restrictive and it is suggested that it be provided as an alternative that he must believe that to seek official protection would not give any real protection from the harm threatened.
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2.68 The alternative suggested is that where duress could be concluded to have been genuinely responsible for an unlawful killing but where the accused's resistance to the compulsion exercised was less than ~ (:at of an ordinary man the crime of murder should be reduced to that of manslaughter.
2.69 Finally it is suggested that in addition to the foregoing legislation should provide that where the offence charged is not one involving injury to the person then threats of harm to property or reputation inducing criminal conduct could provide the basis for a defence of duress. In such cases the question to be asked could be simply whether or not in all the circumstance~ the threat was of such a nature as to overbear ordinary human resistance.
SECTION 3 COERCION
3.01 In paragraph 2.01 it is pointed out that "coercion" is the term used in referring to compulsion to criminal acts by a husband of his wife. This subject has received detailed attention in the Law Reform Commissioner's Report No.3 - Criminal Liability of Married Persons (Special Rules) - Part I. The recommendations for reform in this area were:ยท-
(a) That there be no presumption of coercion of a wife by h~r husband if she commits an offence in his presence.
(b) That a wife should be entitled to a defence of coercion to a chargt' of any offence except treason or murder, conspiracy and incitement to ::nurder and attempted murder if she is able to point to evidence in support of such a defence and that in sllch a case the onus should be on the prosecution to satisfy a jury or court that the action or inaction charged was not due to coercion by her husband.
(c) That "coercion" in this connection means such a degree of pressure by the husband, whether by threats or otherwise howsoever, as could have caused a wife of ordinary good character and normal firmness of mind, placed in the circumstances in which she was placed, to conduct herself in the manner charged and further that those circumstances should include the degree to which she was in fact dependent economically or otherwise upon her husband.
3.02 Statutory formulation was given to these recommendations by the enactment of the Crimes (Married Persons' Liability) Act 1977 Sec. 2 (b), which inser~;!d a new Section 336 embodying them into the Crimes Act 1958.
3.02 Nothing said elsewhere in this Working Paper seeks to impinge upon the reforms effected. What has been done by the Act is complementary to what is suggested. The 1977 Act recognises the special position of a wife in certain circun1:;lances but would not preclude her from relying upon the wider defences of cluress and necessity proposed.
3.03 Accordingly no recommendation is made with regard to coercion.
SECTION 4. NECESSITY
Introductory
4.01 The concept of necessity providing a justification or excuse for conduct not otherwise lawful has been with mankind from early times. In the Old Testament Jonah speaks of jettisoning cargo to avoid a shipwreck. 44 In Rome in the immediate pre-Christian era Cicero was writing of shipwreck survivors fighting for possession of a plank on which one alone could survive the doom of the sea - a perennial problem argued throughout the centuries until today by theorists in the field of criminal law. The laws of Alfred talk of a homicide "of necessity". Bracton in the 13th century said that what is not otherwise lawful necessity makes lawful.
4.02 Throughout early reports of cases there is many a reference to pulling down a house to prevent the spread of fire. In 1499 it was judicially stated that jurors may lawfully depart without leave of the judge for a good cause, as where an affray breaks out and they are in peril of death, or if the court room falls down. And it seems clear that at this time the law recognised that no penalty could be exacted from a person who escaped from a burning gaol although there was a statute making a prison breach a felony without any excusatory qualification; as was pithily said: "for he is not to be hanged because he would not stay to be burned".
4.03 In the 16th century the maxim "Nece~sity knows no law" seems to have been well-known. 45 And early in the next century Mr. Justice Hobart said: "All laws admit certain cases of just excuse, when they are offended in letter and where the offender is under necessity either of compulsion or inconvenience. " The action recorded in Jonah was approved early in that century when it was held that any passenger may, to lighten a barge in a storm and for the safety of passengers, jettison the cargo.
4.04 The 19th century saw necessity being urged in defence in some American cases and in particular in two dramatic and much debated cases, one in America and the other in England. There appears to have been increasing resort to a legal plea of necessity in the present century. In this State in 1977 the Court of Criminal Appeal has recently recognized the existence of the defence although on the facts of the case before it the Court found it unnecessary to consider whether the circumstances constituted such a necessity as to excuse an escape from prison. 48
Definitions 4.05 "Necessity" is a word of wide import and when used in the area of criminal law has not been the subject of close analysis in the courts nor until recent times by academic writers in this field. In this Working Paper it will be used broadly to delineate two complementary lines or bases of defence to a criminal charge. Detailed analysis would show that these bases may often be overlapping but this is not the place for such analysis. The first basis may be described as the choice of evils doctrine. Harmful conduct proscribed by the criminal law may be justified if its performance averts a demonstrably and significantly greater harm either to the actor, to others or to property. The second may be described as the basis of compUlsion. Conduct brought about
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by pressure of circumstances of such magnitude that no ordinary human being could reasonably be expected to resist that pressure may be excused. It will be later suggested that there is a need to have both these lines of defence given statutory formulation as part of the law of Victoria.
Problems of Today 4.06 In Victoria today it is not difficult to find examples in daily life of action taken under the stress of necessity. A passer-by to extinguish a grass fire which threatens a house seizes (and in the course of acting destroys) a carpet atrlng on a line; a farmer commandeers a boat to save stock in a flood; a crop or grass in burned to prevent the spread of fire on to other land. A pedestrian disobeys a traffic signal to render assistance to another lying apparently injured on the roadway; a fire engine goes through a red light on its way to a fire to rescue someone in danger of incineration; an ambulance follows the same course; a lost and starving hiker breaks into a house in a remote area and takes food for sustenance.
4.07 Necessitous situations suggested elsewhere are breaking into an unoccupied rural house for the purpose of making a telephone call vital to a person's life; assaulting a person who has a virulent contagious disease in order to prevent him from going out and starting an epidemic, and burning the real property of another for the purpose of preventing a raging forest fire from spreading into a densely populated community. Dr. Glanville Williams, an eminent teacher and writer in the law, describes an incident which he personally witnessed in the following terms:- X was cutting down a heavy branch over a road; D was stationed to warn the public of the impending fall: P, a cyclist, saw that D was trying to stop him but did not appreciate the reason and being in a hurry tried to pass. To prevent P riding into the danger area D seized P's bicycle and caused him to stop. 0 was clearly justified in what he did; yet P was conscious and did not consent to the interference. D's justification rested upon necessity.
4.08 To return to Victoria a couple of perhaps more complex and difficult problems could be envisaged. A unionist in a "closed shop" industry in the course of an industrial dispute trespasses on land and inflicts some minor damage in real and genuine fear of expulsion from his union and thus, in a situation of high unemployment, from his livelihood if he refuses to join his fellow-unionists in such prohibited conduct.
4.09 Nor is it beyond possibility for a situation to arise in which a hijacked aircraft is on the tarmac at Tullamarine with a full complement of passengers including five or six desperate terrorists. A decision has to be and is taken to "shoot it out" in the almost certain realisation that to save the aircraft being blown up one or more of the innocent passengers will be killed in the course of the shooting.
Statutory Recognition of Necessity as a Defence 4.10 To comb the statutes and regulations for every sanctification of action taken under the stress of necessity is both daunting and unnecessary. A few examples will illustrate the rather piecemeal and diverse statutory approach to the provision of specific excuses.
"A driver of a fire engine with ladders approaches the traffic lights. He sees 200 yards down the road a blazing house with a man at an upstairs window in extreme peril. The road is clear in all directions. At that moment the lights turn red. Is the driver to wait for 60 seconds, or more, for the lights to turn green? If the driver waits for that time, the man's life will be lost. "
4.21 Lord Denning expressed the view that the defence of necessity could not be allowed in such a case and that the only use of the circumstances was in mitigation. The particular situation cannot arise in Victoria because of the existence of the Road Traffic Regulations already referred to. But the same sort of construction may be adopted in a Victorian court and prevent a defence of necessity being allowed for other helpers at a fire or other tragedy who have in the urgency of the moment transgressed the letter of the law.
Necessity and Prison Escapes
4.22 In recent times there has been a good deal of discussion in America arising out of a number of cases which have come before the courts of escape from prison brought about, so it has been alleged by the escapers, because of serious homosexual assaults and threats of such assaults. The attitude of the courts has not been uniform either as between the States or even in some cases in the same State. In the latest case which has come to notice, two women (one of whom was mentally defective and under the protection of the other) escaped from a Californian gaol because of serious homosexual harm already endured and still feared at the hands of a group of lesbian inmates of the same prison. The threats were not only of bodily indignity and harm, but also threats to life. The Californian Court of Appeal held necessity to be a viable defence to an escape charge in such circumstances. 6o
4.23 The rule laid down by that court for the application of the defence requires first that the escaper be faced with a specific threat of death, forcible sexual attack, or substantial bodily injury in the immediate future, second that there be no time for a complaint to the authorities or a history of futile complaints which made any benefit from such complaints illusory, third that there must be no time or opportunity to resort to the courts; fourth, that there be no evidence of force or violence used towards prison personnel or other "innocent" persons in the escape; and fifth, that the prisoner report immedi- ately to the proper authorities upon attaining a position of safety from the immediate threat.
4.24 In several of the earlier cases there were allegations of gross homosexual assaults and of futile complaints to prison authorities. It has been said both that such assaults are widespread in American prisons, and that some prison administrators look upon these assaults with a complacent eye. One observer goes so far as to say that the discharge of aggression through homosexuality is thought to k.."'!p the general peace of the institutions through relaxing tensions in aggressive inmates. Despite what appears to be convincing evidence of assaults, cases denying the defence have been based largely on consider- ations of public policy expressed in a fear that intervention by the judiciary would su bvert prison discipline. 61
4.25 In the recent Victorian case mentioned in paragraph 4.04 the Court beyond a somewhat cursory reference to the text writers had little to say about
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the law as the judges came to the clear conclusion that the paranoic fears of a prisoner allied to his failure to show any continuing compulsion or lack of any remedy other than escape made any further consideration of the defence unnecessary.
Homicide 4.26 Very few of the cases throughout the history of the law deal with cases of the infliction of bodily harm for the avoidance of what may seem to be a greater harm or evil. However those in which the greatest of such harms has been caused - homicide - have been of such a dramatic character and elicited such emotional response that it is difficult to satisfactorily extract a principle from them and impossible to guess what would be a modern court's attitude.
4.27 There is a somewhat unsatisfactory report of a series of events in the seventeenth century from which it appears that a number of men were driven out to sea from st. Kitt's in the Caribbean Sea by the stress of weather and that after 11 days they drew lots and killed one of their number and ate him for survival. On their eventual arrival the survivors were pardoned without any trial presumably by the Governor of the then infant English colony. 4.28 Two cases have produced spasmodic debate amongst legal writers and passing reference by judges but without authoritatively laying down the law
- it would seem either for America, England or Victoria. The first was heard in America in 1842 and arose out of a shipwreck after collision with an iceberg in the Atlantic Ocean. A seaman named Holmes, acting under orders, took part in throwing male passengers overboard from a grossly overloaded long- boat. In this craft were the first mate, 8 seamen and 32 passengers. It seems clear that the circumstances were such that if this action had not been taken, all on board would have perished. In the result the boat with its remaining passengers and crew members kept afloat and they were rescued. A grand jury (the precursor of our committing magistrates) refused to indict Holmes for murder but presented him to a jury on a charge of manslaughter. 4.29 The trial judge in summing up to the jury laid down the following propositions:- (1) Provided all ordinary means of self-preservation have been exhausted, there are cases of necessity which the penal laws pass over in silence. "For example," he said, "suppose :hat two persons who owe no duty to one another that is not mutual should, by accident not attributable by either, be placed in a situation wh~re both cannot survive. Neither is bound to save the other's life by su<;rificing his own, nor would he commit a crime in saving his own life in a struggle for the only means of safety." (2) There are, however, situations, such as those involving a member of the crew and a passenger, in which one person is under a pre-existing duty to make his safety subordinate to that of the other and the duty continues to exist notwithstanding the imminent peril. "While we admit that sailor and sailor may lawfully struggle with each other for the plank which can save but one, we think that if a passenger is on the plank even the law of necessity justifies not the sailor who takes it from him." (3) "Where there is time, the different parties should consult and endeavour to fix some mode of selection 'by which those in equal relations may have equal chance for their life'. There is no rule of general application.
'There is, however, one condition of extremity to which all writers have prescribed the same rule. When the ship is in no danger of sinking, but all sustenance is exhausted and the sacrifice of one person is necessary to appease the hunger of others the selection is by lot. This mode is resorted to as the fairest mode and in some sort an appeal to God for the selection of the victim'."
4.30 As far as can be ascertained no similar situation has come before an American court and no case has been discovered in that country in which disapproval has been expressed of the statement of the law expressed by the judge in that case. However Mr. Justice Cardozo, a very distinguished American jurist, writing in 1931 said:
"I think there is little if any doubt that he" (Holmes) "acted in good faith believing that all would be lost unless there was a sacrifice of some. His good faith did not purge him of crime although it called for merey in the sentence. Where two or more are overtaken by a common disaster there is no right on the part of one to save the lives of some by the killing of another ... Who shall choose in such an hour between the victims and the saved? Who shall know when masts and sails of rescue may emerge out of the fog?"65 -
4.31 The struggle for the plank referred to in the judge's summing up to the jury has been much debated by philosophers and legal theorists through the ages. Lord Bacon in his Maxims written in the 17th century positing a situation where the newcomer dislodges the first occupier of the plank regards the newcomer as free from criminal responsibility. Many other subsequent legal writers have accepted Bacon's view, including Sir James Fitzjames Stephen. He argued that it is impossible to suppose in such a case that the survivor would be subjected to legal punishment. 66 It is hardly surprising that such a case has never come before the courts, the survivors of all such incidents which no doubt have happened from time to time remaining understandably silent.
4.32 The other case concerned a macabre sequel to another shipwreck- this time a yacht in 1884. The survivors, three seamen and a youth of seven- teen, were case adrift in an open boat 1600 miles from the Cape of Good Hope. Their food was all consumed in 12 days and they had been for eight days without food and six days without water when two of the men (Dudley and Stephens) killed the youth, who by this time was lying at the bottom of the boat unable to make any resistance. The question of his killing had been previously discussed; he naturally did not assent to it and neither did the third man, he at that time taking the view that they should all die together. After the boy was killed the third man joined the other two in feeding on his body and drinking his blood. After four days the surviving three were picked up by a passing vessel.
4.33 At the trial of Dudley and Stephens in England a jury found that if they had not fed upon the body of the boy the probability was that they would not have survived to have been picked up, and rescued, but within the four days would have died of famine. The boy, because of his weak condition, was likely to have died before them. The jury also found that at the time of the killing there was no sail in sight, nor any reasonable prospect of relief. There was no appreciable chance of saving life except by killing someone for the
others to eat. They also found that, assuming any necessity to kill anybody, there was no greater necessity for killing the boy than any of the other three men. A special panel of judges, on considering the jury's findings, held that the facts constituted no justification for the killing of the boy, and that the prisoners were guilty of wilful murder.
4.34 Holmes, upon conviction of manslaughter was sentenced to six months imprisonment, and Dudley and Stephens, in the English case, having been convicted of murder, had their sentence of death commuted to imprisonment
Codes and Necessity 4.35 Many countries and states have codified their cl'iminallaw. In England in the nineteenth century strenuous but unsuccessful attempts at such codification were made. However the work of Lord Macaulay, Sir James Fitzjames Stephen, and the Criminal Law Commissioners, formed the basis for inter alia the Criminal Code of India and the codification in Queensland in 1899 and Western Australia in 1902 of which Sir Samuel Griffith, the first Chief Justice of Australia, was the principal architect.
4.36 In this century codification has spread to jurisdictions where the criminal law was to be found in the common law and a morass of statutes. In England codification is again spoken of as the objective. In all of the Codes, both in Europe and common law countries, necessity is dealt with and in some form or another thought essential as an available defence to a criminal charge.
4.37 Because of the widespread view that the criminal law should embody a principle or doctrine of necessity, examples of the statutory expression or implementation of this view are included in this Working Paper and set out hereunder.
India 4.38 The Indian Penal Code introduced in 1860 deals with necessity in the following way:- Section 81 Act likely to cause harm; but done without criminal intent, and to prevent other harm Nothing is an offence merely by reason of its being done with the know- ledge that it is likely to cause harm if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. Explanation - It is a question of fact in such a case whether the harm to be prevented or avoided was of such a nature and so imminent as to justify or excuse the risk of doing the act with the knowledge that it was likely to cause harm. Illustrations (summarised) (a) A, a ship's captain, without fault, finds that, before he can stop the ship, he must inevitably collide with vessel B containing 20 people, unless he changes course; but by so doing he must risk colliding with vessel C containing two people, although he may clear it. If A so alters his course to avoid danger to B he is not guilty of an offence, although he may collide with C.
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Draft Federal Criminal Code (U.S.A.)
4.46 The Study Draft of the Federal Criminal Code contains a Section (Section 6.08) dealing with conduct which avoids greater harm. It reads:
"6.08. Conduct Which Avoids Greater Harm. Conduct is justified if it is necessary and appropriate to avoid harm clearly greater than the harm which might result from such conduct and the situation developed through no fault of the actor. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advis- abilitv of the penal statute defining the offense, either in its general application or with respect to its application to a particular class of cases arising thereunder."
The second sentence of the Section is intended by its framers to make clear that it is the legislature's judgment of the harm that controls and not the subjective evaluation made by the offender.
4.47 However the final Draft which has early in 1978 been passed as an Act in the Senate of the United States and is at the time of writing before the House of Representatives, has omitted the chapter dealing with Justification and instead contains a section (Section 501) leaving the defence of duress or of acts performed in the protection of persons or of property to be determined by the courts according to the principles of the common law "as they may be interpreted in the light of reason and experience".
The Penal Law of New York
4.48 In 1965 the Penal Law of New York was revised and re-enacted. Article 35 of that Law provides a defence of justification. Justification generally is defined in Section 35.05 as follows:- "Unless otherwise limited by the enSl1ll1g provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offence is justifiable and not criminal when:
- Such conduct is required or authorized by law or by a judicial decree, or is performed by a public servan'. in the reasonable exercise of his official powers, duties or functions: or
- Such conduct is necessary ~s an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or develcped through no fault of the actor, and which is of such gravity that, according to ordinary standards of intel- ligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. Whenever evidence relating to the defense of justi- fication under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense." Subdivision 1 is substantially adopted from the Model Penal Code (Section 3.03) and Subdivision 2 is derived from the Model Penal Code (Section 3.02).
38
It contains the choice of evils doctrine and would extend to homicide but as with the Model Penal Code, not to the situation of the swimmers fighting for the lifesaving plank. 4.49 The phraseology of the provision is designed to limit closely its applica- tion. The prohibition against violation of a statute because of the doubts about "morality" or "advisability" seems intended to render the provision unavail- able to the mercy killer, the crusader who considers a penal statute unsalutory because it tends to obstruct his cause, and the like. The enactment of this article does not seem to have caused any great legal difficulties. Apparently there have been only two cases worth reporting since 1965. The first was one in which prisoners held prison guards as hostages and threatened to seriously assault and kill them unless corrective action were taken in prison conditions. A defence of justification under Section 35.05 on the basis of the compUlsion to action by the harsh and inhumane prison conditions was rejected out of hand and it would seem rightly so. However in another case a man who con- tended that he was approached by a stranger carrying a gun, and in an attempt to flee committed traffic violations including running through two red lights, was held entitled to have the defence nf necessity put before a jury. The German Penal Code 4.50 The German Penal Code of 1871 seems to be based on considerations of the likelihood of human beings succumbing to the compUlsion of the over- powering pressure of events. It provided in Section 54 that there was no criminal act whenever, apart from cases of self-defence (for which separate provision was made) the act was done out of necessity to overcome an imminent risk to the life or bodily security of the actor or one of his depen- dants, provided that the actor was not responsible for the necessity and there was no other way of overcoming it. There was no reference to choice of evils or harms in this section, but in 1923 the German Supreme Court held that implicit in the criminal law was an extra-statutory justification based on necessity and that this justification applied to render a lifesaving abortion legal and proper. It appears that since that date courts proceeded on the assumption that the Penal Code regulated necessity as an excuse for criminal conduct but that it was supplemented by the extra. statuory defence of necessity which goes further than excuse and justifies otherwise criminal conduct where a greater social good was promoted by such conduct. 4.51 After many years of consideration of the criminal law both of civil and common law countries, the German Penal Code was revised and re-enacted in 1969 although not proclaimed to come into operation until January 1975. It made provision for two types of necessity, that which justifies and that which excuses. These are set out in the two sections which foJlow:- "Section 34. Emergency which JUlstifics*
- A person who commits an act to avert from himself or another person a present danger to life, freedom, honour, property or any other legally recognised interest which cannot otherwise be averted, does not act illegally if a weighing of the opposing interests, in particular the affected rights and the degree of the threatening danger to them, shows that the protected interest significantly outweighs the interest which he harms (by his act).
- The translation of the Gcrman "11l,tstand" as "emergency" ;8 rcgarded by Dr. Peter Sack of the Research School of Social Sciences. Australian National University as more accurate conceptually than "necessity".
a.
- This however only applies insofar as the act is an appropriate means
for averting the danger. Section 35. Emergency which Excuses*
- A person committing an unlawful act to avert from himself, a
relative or another person close to him, a present danger to life, limb or freedom which cannot otherwise be averted acts without guilt.
- This does not apply if the person could be expected under the
circumstances, in particular because he has himself caused the danger or because he has special legal obligations to suffer the danger. ** However in this case the punishment can be (mitigated in accordance with other provisions of the Code). n. If a person erroneously assumes the existence of circumstances which would have exculpated him in accordance with sub-section I he can only be punished if he could have avoided his error. (In such a ca,e punishment is to be mitigated according to other provisions of the Code.)" A Comparison of the Codes 4.52 Two illustrative situations may assist the reader in comprehending the sometimes subtle differences between these codes. (1) A, a volunteer, burns B's crop (or B's house killing B, an invalid unable to escape) to prevent the spread of a raging bushfire threatening a country estate. No other measures could have been taken to save the estate, used as a retirement village by 30 persons. (This illustration reflects the choice of evils doctrine.) (Para. 4.05) (2) X and Y charter a plane which is forced to land in Central Australia. They have no food or water. After 10 days X kills Y to survive and does so for a further 15 days by feeding from Y's body until the search party arrives. Undisputed evidence shows that X and Y would not have survived for more than 20 days without food and water. (This illustration reflects the irresistible pressure doctrine.) 4.53 In suggesting whether or not necessity would be available as a defence, the broadest possible interpretation of the codes has been adopted to show the underlying rationale. It is appreciated that in most instances a narrow inter- pretation of the code by a court could restrict the availability of the defence. (a) India The defence would be available to A but not to X. (b) England (Stephen's Draft Code) The defence would not be available to A but could arguably be available to X. (c) Cyprus The defence would be available to X but not to A. (d) Queensland and Western Australia Depending on the view taken by the court of the behaviour of the ordinary man, the defence may be available to both A and X. ** This is aimed particularly at policemen, fire officers, etc., whose profession requires them to expose themselves to certain dangers. 40 (e) Model Penal Code (U.S.A.) The defence would be available to A but not to X. (f) Draft Federal Criminal Code (U.S.A.) The defence would be available to A but not to X. (g) Penal Law of New York The defence would be available to A but not to X. (h) German Penal Code The defence would be available to both A and X. Is there a General Defence of Necessity? 4.54 This is a question to which it seems impossible to give a clear and satisfactory answer. By a general defence is meant one that covers the whole range of criminal offences in the same way as for example, do the defences of insanity and infancy. Judges in the courts in England, America and Australia have from time to time spoken of the defence of necessity without considering its generality or its precise limits. 4.55 In the abortion case referred to earlier (paragraph 4.16) the judgment was founded upon what was said to be the principle of necessity, the statement of which by Stephen in his Digest of the Criminal Law was referred to with approval. The statement is as follows: "An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided. The extent of this principle is unascertained. " Then followed an illustration in these terms: "A and B swimming in the sea after a shipwreck get hold of a plank not large enough to support both; A pushes off B who is drowned. This is no crime." The judgment of the court took care to point out that necessity is not a justification for every act which would otherwise be criminal, but allowed that the concept finds its place in various branches of the criminal law and examples were given - the prevention of a felony and the apprehension of a felon and the element of necessity in self-defence. Mr. Justice Menhennitt took the view that the principle as stated was the appropriate one to apply to determine whether a therapeutic abortion is lawful or unlawful within the meaning of Section 65 of the Crimes Act. 4.56 It would seem to be equally applicable to the swimmer in dire straits seeking possession of a life-saving plank. 4.57 As a result of what was said in the case of Dudley awl Stephens (para- graphs 4.32-4.34) Stephen in a later edition of his Digest in 1887 added to Article 32 the words "The extent of this principle is unascertained" and further "It does not extend to the case of shipwrecked sailors who kill a boy, one of their number, in order to eat his body". In a footnote to the article he referred to the two men on a plank ancl he gave further examples.
