Today’s question takes us back to the common law defence of ‘necessity’ (see The doctrine of necessity – Explained (January 31, 2017). The question comes from a person who
… provide[s] Good Samaritan first aid services at protests in NSW, in a group called … a parallel to one of your previous correspondent’s group … [see Protest first aid volunteers (December 6, 2023)].
My primary question is related to the doctrine of necessity, which I understand is a very ill-defined concept in common law. My group intends to provide first aid to all protesters (albeit, not necessarily those protesting something we don’t align with), regardless of what particular action said protester decides to undertake. For example, we still intend to provide first aid to protesters who are protesting in an illegal manner.
I would like to know generally how the doctrine of necessity would protect us in those circumstances. For example, say someone were trespassing on land where unauthorised entry is prohibited. If that person were severely injured, in what circumstances would the doctrine of necessity allow me onto the land to provide first aid to that person?
Would I be required to seek consent to enter the land before the doctrine of necessity is able to apply, because to do so ensures that “no more was done than was reasonably necessary” (Stephen, A Digest of the Criminal Law, 1887, art 32), or would the potential urgency of the situation mean that acting without the prior seeking of consent is the reasonably necessary action?
Also, I see that some cases and literature, the doctrine has been reduced to the person who is at risk of harm needing to be the accused or someone the accused is “bound to protect” (R v Loughnan [1981] VR 443; Stephen), but this is contentious with various other cases (R v Loughnan [1981] VR 443 (Crocket J); R v Cairns [1999] 2 Cr App R 137).
I believe the former is an error of law, as I believe your statement “The doctrine of necessity justifies the person who finds a lost child and takes them by the hand to the local police station” (Legal Justification for Treating the Unconscious, Compare Necessity and Implied Consent) illustrates that a person is not required to have a duty of care in order to rely on necessity. I may also consider R v Davidson [1969] VR 667 and R v Sood (No. 3) [2006] NSWSC 762, where the act of doctors breaching anti-abortion laws were considered lawful on the grounds of necessity. I highly doubt that any duty of care or “bound[s]” of protection extend to committing unlawful acts. In other words, a doctor may be bound to protect their patient, but is not bound to potentially break the law in order to protect them, and therefore the doctor loses the trait of being “bound to protect” the patient when considering breaching anti-abortion laws, and therefore that bound is not required to establish necessity.
I also would like to know what extent of harm must be risked before necessity would apply. In my example above, I am sure life threatening bleeding would justify action, whereas would a broken limb, head injury, or having been pepper sprayed also justify action? I believe that necessity is not limited to threat of “death or serious injury” (Viera v Cook [2021] NSWCA 302), nor that the threat must be entirely certain, again referring back to your statement above, Re F and various Australian cases illustrating that necessity does allow for a doctor to breach anti-abortion laws where the patient was at risk of serious mental or financial harm from having a child, and that there must instead a test of proportionality taken by the courts, instead of rigidly bound rules.
I have a further question relating to Unlawful Assembly, however it may not be within your specialty. My question is, would persons who are at an unlawful assembly for the sole purpose of providing first aid be considered to be acting illegally as part of that unlawful assembly? I cannot locate any provision which requires the accused to be acting in an interest common to the members of the unlawful assembly, however it does not seem reasonable that, say, paramedics who have been called to the scene to assist an injured person could be liable for arrest for being a part of an unlawful assembly.
Necessity – entering property to save lives
The doctrine of necessity is indeed poorly defined as it needs to be applied in a myriad of circumstances. In the health field, a leading case is In Re F [1990] 2 AC 1 which talks about the justification for a treating a person who cannot consent. That is quite a different context to the situation being described here. What is interesting and perhaps relevant, however, is Lord Goff’s comment that necessity cannot justify officious intervention which, he said, meant ‘intervention cannot be justified when another more appropriate person is available and willing to act’.
Necessity can be a defence to both criminal and civil claims. With respect to criminal law, the Criminal Trial Courts Bench Book (the textbook for NSW Judges published by the Judicial Commission of NSW) says:
The common law defence of necessity operates where circumstances (natural or human threats) bear upon the accused, inducing the accused to break the law to avoid even more dire consequences. There is, thus, some overlapping with the defence of duress. In R v Loughnan [1981] VR 443 at [448] it was held that the elements of the defence were that —
(i) the criminal act must have been done in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he or she was bound to protect;
(ii) the accused must honestly have believed on reasonable grounds that he or she was placed in a situation of imminent peril; and
(iii) the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.
It goes onto say:
In R v Cairns [1999] 2 Crim App Rep 137, it was held that an accused will have a defence of necessity if —
(i) the commission of the crime was necessary, or reasonably believed to have been necessary, for the purpose of avoiding or preventing death or serious injury to himself or herself, or another;
(ii) that necessity was the sine qua non of the commission of the crime; and
(iii) the commission of the crime, viewed objectively, was reasonable and proportionate, having regard to the evil to be avoided or prevented.
The difference is Loughnan refers to harm occurring to ‘the accused or upon others whom he or she was bound to protect’ whereas Cairns refers to ‘avoiding or preventing death or serious injury to himself or herself, or another’ without any reference to any particular duty.
More modern cases involving entry onto premises, have not relied on a ‘pre-existing’ duty to the person in need of assistance. In New Zealand, Tipping J said, in Dehn v Attorney General [1988] 2 NZLR 564, 580:
A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm.
In Kuru v State of New South Wales (2008) 236 CLR 1, [40], the High Court of Australia said:
The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle.
Whilst they pointed to the actions of ‘fire fighters, police and ambulance officers’ the judgement was not expressed in terms to suggest that it was only professional rescuers who could rely on the doctrine.
Veira v Cook [2021] NSWCA 302 involved the application of the defence where the defendant entered a poultry farm to rescue chickens from what she perceived was irreparable harm. Meagher J said (at [41]-[42]):
There is no support in any of the Australian or English authorities for the necessity defence extending to excuse criminal conduct undertaken otherwise than in response to an imminent threat of death or serious injury, either to the accused or to someone else. That is because the defence exists only where the circumstances are such as to overwhelmingly impel disobedience to the law.
Whether His Honour was correct about the application of the doctrine to protecting property (a matter I will return to in a future post, and see Kuru’s case, above), this case confirms that when it comes to a defence to a criminal prosecution there are ([24]):
… two questions which must be addressed. The first is whether the accused’s conduct was in truth a response to a threat of death or serious injury. The second is, if so, whether the accused acted as he or she did honestly believing on reasonable grounds that it was necessary to do so in order to avoid the threatened death or serious injury.
Questions of what alternative action is available, whether there are others better placed to assist and whether the response is proportionate to the risk go to the question of whether any claimed belief was genuinely held or held on reasonable grounds ([46]).
Questions asked
With that detailed discussion we can return to the question:
For example, say someone were trespassing on land where unauthorised entry is prohibited. If that person were severely injured, in what circumstances would the doctrine of necessity allow me onto the land to provide first aid to that person?
Necessity would be a defence where the risk to the injured person was death or serious injury; the first aider honestly believed upon reasonable grounds that their action was necessary to avoid that death or serious injury and the action they took was proportionate to the risk. It must be a case where the circumstances do not allow for an ‘alternative course of action’.
Where there is a protest there may well be alternatives, in particular police are probably on scene and could provide or facilitate emergency assistance. Let us consider an example. The Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s197 gives police the power to give ‘move on’ directions to people in a public place. Failure to comply with the direction, ‘without reasonable excuse’, is an offence (s 199). I would suggest it would be a reasonable excuse for a person who had been directed to ‘move on’ to stop and assist a seriously injured person eg by commencing CPR. It may not be a reasonable excuse to stop and assist a person who has been sprayed with capsicum if police are already there providing assistance or waiting for an ambulance.
If it is possible to get the consent of the owner to enter land that would defeat the need for necessity. If you have permission to enter then there is no crime or tort. The issue of necessity only arises if there is no consent. If the owner cannot be located and their attitude is not known, the necessity would apply to allow entry to respond to a risk of death or serious injury. If the owner expressly refused permission, then the factors that go to the defendant’s honest belief and whether their action is proportional to the risk would require more detailed scrutiny. For example if the injured person is on defence premises and the ADF security team are refusing the person access, it would be very difficult to argue necessity (see Responding onto defence areas (June 1, 2014)) as opposed to someone saying ‘get off my land’ in circumstances where a person will die and there is no other person available to provide assistance.
As for the risk of harm, Meagher J says necessity, at least when it comes to a criminal defence, only applies where the risk if death or serious injury. That could include ‘life threatening bleeding … a broken limb [or] head injury’ but perhaps not being pepper sprayed. In the abortion cases a ‘risk of serious mental or financial harm from having a child’ is a risk of serious injury (CES v Superclinics (1995) 38 NSWLR 47)) so those cases don’t change the test. It also needs to be noted that in the abortion cases, the law prohibited an ‘unlawful abortion’ so there had, by implication, to be circumstances of a lawful abortion. It was not as clear cut as saying ‘all abortions are illegal’ but necessity can provide a defence. There was a class of abortions that were lawful so the court had to fill the gap of defining what made an abortion lawful.
Conclusion 1
The defence of necessity is not intended to allow people to decide what laws to obey and what laws to ignore. It has very limited application. The best answer to the question of when will it apply, at least as a defence to a criminal allegation, is that given by Meagher J; that is:
[There are] … two questions which must be addressed. The first is whether the accused’s conduct was in truth a response to a threat of death or serious injury[?] The second is, if so, whether the accused acted as he or she did honestly believing on reasonable grounds that it was necessary to do so in order to avoid the threatened death or serious injury[?]
[W]ould persons who are at an unlawful assembly for the sole purpose of providing first aid be considered to be acting illegally as part of that unlawful assembly?
A person can be guilty of an offence if they are present at the scene of the crime and by their action aid, abet, counsel or procure the commission of the offence. By providing first aid services at a protest the first aid providers may make it easier or encourage the protestors to break the law. But there must be an intention to do so, that is the person who is alleged to have aided in the commission of the offence must have known that the principal offender was going to commit an offence (see Roderick Howie, Paul Sattler and Marissa Hood, Hayes and Eburn’s Criminal Law and Procedure in NSW (LexisNexis, 7th ed, 2023) pp. 624-626). In R v Phan (2001) 53 NSWLR 480 (quoted in Howie et al at p. 625) Wood CJ at CL quoted Mason CJ who said (in Giorgianni v R (1985) 156 CLR 473) there was ‘one general idea’ and that is:
… the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission.
Wood CJ continued ‘Moreover, in Giorgianni, the Court made it clear that the principal in the second degree must actually know that the crime is being committed or will be committed.’
If the ‘Good Samaritan first aid services’ attend a protest that they know will involve criminal action eg unlawful entry or damage to property, and they go with the intention of supporting the protest movement in particular supporting the aims of the protest then they could be principals in the second degree to any offence committed.
If they go to a protest and someone there commits an offence, and that was not planned, or at least not known that it was planned, then their mere presence is not enough to make them principals. Going to the aid of someone who is injured, even if their injuries were a result of criminal conduct would also not make them principals in the second degree.
Jurisdictional ambulance officers who are called to assist an injured person do not join in their criminal enterprise by offering that assistance.
Conclusion 2
It is the case that to be guilty as a principal in the second degree the ‘accused [must] be acting in an interest common to the members of the unlawful assembly’. The provision of emergency medical aid to a person who has been injured in the course of criminal conduct does not, by itself, make one an accessory to that conduct.
This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Australian Emergency Law 