Criminal Law: Necessity and Compulsion

Criminal law operates on the motif of choice; bad choices lead to punishment.
Punishment can come in the form of criminal fines.
If actions aren't a result of free choice (e.g., insanity), defenses like insanity exist.

It questions if a criminal act was committed out of constrained circumstances rather than free will.
The act is not a choice, but a necessity.

New Zealand has statutory defenses (formerly called necessity) alongside common law defense.
The common law defense of necessity has evolved.
Self-defense, involving assault in response to an attack, has become a distinct defense.
Necessity applies to situations beyond self-defense.

Criminal act done to avoid death or serious injury may be defensible.
The action must be objectively reasonable and proportionate.
Defendant must present evidence creating good cause to fear death or serious injury.
A sober person of reasonable firmness, sharing the accused's characteristics, would also have acted similarly.
Reasonable belief in threat and reasonable person standard are key.
Relevant characteristics include age, gender, recognized psychiatric conditions, serious physical disabilities, and pregnancy.
Threats of violence to close family members can be considered.
Emphasis is placed on the reasonableness of belief in the threat.

Mr. Martin, a disqualified driver, drove because his wife threatened suicide if their son was late to work.
The question was posed to the jury: Is there a defense of necessity?

Supreme Court case on requirements for necessity.
- urgency and imminent peril
- there is no other alternative
- compliance with the law is demonstrably impossible
- the harm done is proportionate to the harm sought to be avoided
A ship carrying drugs entered Canadian waters due to a storm.
The defense of necessity was theoretically available.
The actions had to be truly morally involuntary.
Consideration: Could they have discarded the drugs at sea?

Cannot be used as a defense for:
- Murder (as a principal or secondary party)
- Attempted murder
- Treason (due to its association with the murder of the monarch)

Illustrates the principle that necessity is not a defense for murder.
Shipwrecked individuals (Dudley, Stephens, and a cabin boy) with limited supplies.
Facing starvation, they killed and ate the cabin boy.
A ship eventually rescued them.
English courts ruled that necessity was not a valid defense for intentional killing, even in dire circumstances.
The court suggested they should have all died rather than kill the cabin boy, or waited for natural death before cannibalism.
Dudley and Stephens were sentenced to 6 months in jail.
Highlights ethical and legal boundaries in survival situations.

A family case, not criminal, discussing criminal points around necessity.
The question was, should the courts allow doctors to separate conjoined twins knowing it will kill the weaker twin.
Judges talked about necessity allowing the killing of the weaker twin.
This case suggest that W M Stevens may not be the final word about necessity.

A person commits an offense under compulsion by threats of immediate death or grievous bodily harm from a person who is present.
It is a defence, not a justification.
The person believes the threats will be carried out.
The person is not a party to any kind of gang or conspiracy where they might expect compulsion.
*How does that work in, say, a circumstance with a drone or something like that where the person isn't actually present?

Common law: death or serious injury.
Section 24: Immediate death or grievous bodily harm.
Belief:
- Common law: reasonable belief in peril.
- Section 24: He or she believes the threats will be carried out. (subjective)
New Zealand (Section 24) has a wider range of offenses where compulsion can't be used
Sexual offenses are not listed as exception to Section 24, so defence of compulsion is available.

Threats must be made by a person present at the time, not to family members elsewhere.
This doesn't account for modern technology enabling remote threats.
Emphasizes a standover situation.
Not available if involved in gangs or conspiracies where threats are expected.

Emphasized narrow interpretation as an exemption from criminal liability when harming others.
The person had to be directly threatened, not just assuming they would be.
Section 24 applies if threats are made by a person standing over you, not common law.
The presence of a spouse or civil partner isn't a presumption of compulsion.
If not threats of violence by a person, not covered by Section 24, but common law is wider.

Necessity due to crash into car owned by Samoans and fleeing was rejected due to racism.
The judge agreed there is a defense of necessity, but doesn't apply on your facts.

Woman drove after being beaten because there was no telephone.
She could have driven to the nearest telephone box and called for an ambulance from there.
Position is that in New Zealand, we have duress of circumstances which follows common law, but never been successfully used.

It is a justification, whereas Section 24 is an excuse.
Can use such force as is reasonable in the circumstances as we believe them to be (subjective).

Husband regularly assaulted his wife. One night, drunk and asleep, she killed him.
Self-defense was not valid due to alternative action with grieving being a possible alternative.
Social science recognizes difficulty in leaving violent situations, but self-defense requires exhausting alternatives.

Both are rock and a hard place decisions.
Self-defense and part of compulsion are codified.
Section 24 and 48 involve subjective perceptions of risk, common law requires objective risk.
Compulsion not for homicide, Section 24 limited to specific offenses; self-defense has no such limits.

Codified necessity defense for dangerous pathogens, diseases, requires risk to life health, serious property damage or resources, and requires reasonable steps to be taken and reasonable mitigation of the risks.

Assault threat: self-defense rules apply.
Crime against a third party due to threat: immediate harm applies Section 24.
Dangerous circumstances: common law applies unless excluded (e.g., biosecurity act).