[Before you start reading this – 1) this is very long – the sort of article one might submit for publication. If you are not a lawyer it may be hard going but I hope my meaning is clear and 2) I quote from many cases some of which are quite old. The various online versions of old cases do not have either page or paragraph numbers so there are no ‘pinpoint’ references to many quotes for which I apologise.]

In my post Protest first aid and the defence of necessity (July 18, 2024) I discussed the concept of necessity and whether it would justify entering property in order to provide emergency medical care.  In the course of that discussion, I referred to the decision in Veira v Cook [2021] NSWCA 302.  That was the decision of the NSW Court of Appeal where Meagher J delivered the leading judgment, Basten JA and Emmett AJA each delivered separate but concurring judgments (ie they added their own thoughts but ultimately agreed with Meagher J).

The case arose when the defendant, Ms Veira, was convicted of unlawfully entering inclosed lands and interfering with a business contrary to the Inclosed Lands Protection Act 1901 (NSW) s 4B.  The gist of her case was that the property owner was mistreating his chickens and she entered the property to rescue them. Her defence was based on the common law of necessity ([7]).  At [39]-[41] Meagher J said (emphasis added):

…  the first question was whether the applicant’s otherwise unlawful conduct – in entering the poultry farm, removing chickens and disrupting activities undertaken on the farm – was in response to a threat of death or serious injury to her or some other person. On the facts before the Local Court, whether as agreed or found, the answer to that question was no, the result being that the necessity defence was not available.

In seeking to avoid that outcome, proposed ground 1(b) challenges the requirement that the otherwise unlawful conduct be in response to a threat of death or serious injury. It is said to be sufficient that the threatened harm be to an animal or property, provided the applicant honestly and reasonably believed that the harm sought to be avoided was not less than any harm involved in the proposed wrongdoing. The applicant relies on the agreed facts in [28] (point 3) and [29] above as satisfying that requirement.

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.

 With respect to Meagher JA, I think this conclusion is wrong.

Context

Before I commence my exploration of why Meagher JA’s conclusion must be wrong, I’ll put it in context. To be clear I am not talking about forcing entry to a property to save a person who is sick or injured. That is clearly an area where the defence applies and that was accepted by Meagher J.

What I am talking about is committing a crime in order to take action to protect that property.  In this context see Clearing up storm damage and the role of the property owner in NSW (August 18, 2014) and Entering private land to fight a bushfire in NSW (June 16, 2013).  When I say ‘committing a crime’ I am not necessarily talking about serious offences that pose a risk to others, but some low-end offences may be relevant. For example:

  • A person who sees a fire smouldering near a home may enter the property to put the fire out and save the house but they may be guilty of an offence contrary to the Inclosed Lands Protection Act 1901 (NSW) s 4(1) which says ‘Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands … is liable to a penalty…’
  • A person who sees that a garden tap, connected to an automated watering system has become disconnected and is therefore running uncontrolled at risk of causing local flooding, damage and a loss of a precious resource so the person enters the garden, perhaps climbing over a fence, to turn the tap off.
  • A person may find a bag full of stolen goods and decide to pick them up for safekeeping until they can be delivered to police, but they may be guilty of the offence of being in possession of goods ‘reasonably suspected of being stolen or otherwise unlawfully obtained’ contrary to the Crimes Act 1900 (NSW) s 527C.
  • A person who sees a ‘run away’ car and attempts to regain control of the vehicle but in steering it away, so it doesn’t impact with other property, steers the car into water where it is damaged. That person may be guilty of a number of offences such as negligent driving (Road Transport Act 2013 (NSW) s 117) or ‘Taking a conveyance without consent of owner’ (Crimes Act 1900 (NSW) s 154A).

It seems outrageous that any of those consequences are possible and, in my view and despite the comments of Meagher J, they could all be justified by necessity.  It is better to recognise that the circumstances justify their action based on the defence of necessity. One might want to get police approval, but police don’t have a general power to authorise conduct that is contrary to law. Further, it is an affront to the concept of the rule of law to think that police can exercise their discretion arbitrarily. Their decision to prosecute or not should be informed by law which can include a recognition of the necessity to act. To quote Brooke LJ (in A (Children) [2000] EWCA Civ 254, discussed in more detail below):

… it cannot be satisfactory to leave it to the prosecuting authority not to prosecute, or to individual courts to grant an absolute discharge. The authority may, as in the present case, prosecute because it is not satisfied that the defendant is telling the truth, and even if he is vindicated and given an absolute discharge, he is left with a criminal conviction which, for some purposes, would be recognised as such.

The cases relied upon by Meagher JA

To paraphrase His Honour, he said (my additions and emphasis added):

There is no support in any of the Australian or English authorities [referred to in this judgment] 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.

The cases he cited did not discuss whether necessity could extend to the protection of property because the issue did not arise.  The cases His Honour referred to were:

  • R v Loughnan [1981] VR 443 where the accused was charged with escaping from gaol. He, unsuccessfully, argued necessity on the basis that he need to escape to avoid threatened violence from other prisoners. 
  • R v Rogers (1996) 86 A Crim R 542 was another case of escaping from lawful custody again to avoid a threatened attack by other prisoners.
  • Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 was a case about self-defence rather than necessity but the concepts are related given that a reasonable belief in the need for action can justify what would otherwise be unlawful, in this case the infliction of fatal force in self-defence.
  • Taiapa v The Queen (2009) 240 CLR 95 was a case of duress which is similar to necessity save that in duress the threat is imposed by others, in this case that the accused took part in drug trafficking ‘in order to save himself and members of his family from threatened serious harm’.
  • Clarkson v The Queen [2007] NSWCCA 70 where the defendant sought to rely on the need to avoid detection by underworld criminals to justify various passport fraud offences.
  • Smith v Western Australia [2010] WASCA 205 where the defendant took part in a robbery of a fellow drug dealer to recover money owed to their supplier after the defendant had been assaulted and his partner was being held at her home presumably to ensure his cooperation in recovering the money due.
  • Ajayi v The Queen [2012] WASCA 126 on the charge of ‘importing a marketable quantity of a border controlled drug’ in response to threats that if she did not take the drugs, members of her family would be killed. The defendant relied on ‘duress’ and a ‘sudden emergency’ as provided for in the Criminal Code of WA.
  • Mattar v R [2012] NSWCCA 98 again a case of escaping from custody to avoid threats to his life.
  • R v Dimitropoulos [2020] QCA 75 a drugs offence where the accused argued his actions were justified ‘as a last resort to alleviate the pain he had suffered as a result of injuries inflicted by a major car accident’.
  • Bobbe v R [2021] NSWCCA 44 again raising necessity to justify escape from lawful custody.
  • R v Z [2005] UKHL 22; where the accused argued he was forced to take part in burglaries to avoid threats of death or ham to his family.  

It doesn’t matter, for our discussion, whether the defences succeeded or not in the above cases. What is relevant is that in each case the defendant did argue that there was a threat of serious injury or death to them or their family.  It is not surprising that they did not address whether necessity could be used to justify a criminal act in order to protect property, because the issue did not arise on the facts.

In Loughnan’s case, however, Young CJ and King JJ, in a joint judgment, said (emphasis added):

It will be seen from the statement by Sir James Fitzjames Stephen that there are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect. The limits of this element are at present ill defined and where those limits should lie is a matter of debate. But we need not discuss this element further because the irreparable evil relied upon in the present case was a threat of death and if the law recognizes the defence of necessity in any case it must surely do so where the consequence to be avoided was the death of the accused. We prefer to reserve for consideration if it should arise what other consequence might be sufficient to justify the defence.

That is the court did not resolve whether only a threat to life or serious injury was sufficient as that did not arise on the facts; in the same way that the need to protect property did not arise on either the facts of Loughnan or the other cases cited.

In R v Rogers, Gleeson CJ (with whom Clarke JA and Ireland J agreed) said (emphasis added):

An instructive analysis of the “ill-defined and elusive concept” of necessity is to be found in the judgment of Dickson J, in the Supreme Court of Canada, in Perka (1984) 14 CCC (3d) 385…

Dickson J said (at 398) that the idea behind the defence of necessity was that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or altruism, overwhelmingly impel disobedience. In Moore v Hussey (1609) Hobart 93 at 96; 80 ER 243 at 245, Hobart CJ said that all laws admit certain cases of just excuse, when they are offended in the letter, and when the offender is under necessity. However, the writings on the subject all observe the extreme caution with which the concept has been regarded.

As with self-defence, considerations of reasonableness and proportionality are essential control mechanisms. Dickson J referred (at 400) to “the requirement that the situation be urgent and the peril be imminent”, but in a context consistent with the approach that this is a factual matter of relevance to the contention that the breach of the law in question was, in practical terms, unavoidable.

The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.

This is why, historically, it has been regarded as important to seek to limit the scope of the defence by referring to requirements such as urgency and immediacy. However, I accept the appellant’s submission that, consistently with the approach to self-defence taken by the High Court in Zecevic, it is now more appropriate to treat those “requirements”, not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person’s belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response.

If a person relies on necessity to protect property, not a risk to life, then it would be equally consistent to consider that as a factor going to the accused’s belief that the action was necessary and proportionate to the risk.  A risk to property could not justify some extreme action that might be taken to preserve life, but it might justify some technically illegal conduct where the harm done by the breach is proportionate to the risk to property.

Is the defence available to protect property?

But there have been ‘Australian [and] English authorities’ that suggest that the defence is available to protect property. The doctrine can be traced back to Maleverer v Spinke (1538) 73 ER 79 when the court said (at p. 81):

Yet we will well agree that in some cases a man may justify the commission of a tort, that is in cases where it sounds for the public good … a man may justify pulling down a house on fire for the safety of the neighbouring houses ….

In The King’s Prerogative in Saltpetre (1609) 77 ER 1294 the Court said (at p. 1295) that the common law allows a person to come onto his neighbour’s land so that, in order to save “a city or town, a house shall be plucked down if the next be on fire”.

One can readily concede that a threat of fire, particular in the 16th and 17th centuries was also a risk of death or serious harm, but in both cases the discussion was the need to protect the property of the neighbouring houses or the city or town, rather than human life.

Whether that ancient law is still good law was questioned in 1965 when Upjohn LJ, sitting in the UK’s House of Lords in Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 said (at p. 165):

No doubt in earlier times the individual has some such rights of self help or destruction in immediate emergency … Those rights of the individual are now at least obsolescent. No man now, without risking some action against him in the courts, could pull down his neighbour’s house to prevent the fire spreading to his own; he would be told that he ought to have dialled 999 and summoned the local Fire Brigade.

In my book, Australian Emergency Law ((Federation Press, 4th ed, 2013) 94-95) I say:

That statement cannot be completely correct. It may be that in the circumstances envisaged it is true that the neighbour could not pull the house down if a local fire brigade were nearby but that does not mean that the rule can never apply to the volunteer. The neighbour would be justified in breaking the door of his neighbour’s house in order to try and save people trapped in there or to remove valuable property. The neighbour may also be justified in breaking down fences in order to try and bring fire fighting equipment to the area. The issue in each case must be whether the conduct was reasonable, and this would take into account the ability to summon the local fire brigade. In the scenario of the injured person who may die before aid can arrive, it would be reasonable to take immediate action to save their life. The same would be true in the case of a fire where quick action by neighbours may well save significant property or someone’s life. This would be justified by the doctrine of necessity even though the fire brigade had been called. Lord Upjohn’s qualification can only apply when it would be reasonable to wait and let professional rescuers deal with the situation at hand.

In coming to that conclusion I relied on, amongst other case, Proudman v Allan [1954] SASR 336. This was the case in South Australia where the defendant was faced with a runaway car that was going to collide with another parked vehicle. The defendant opened the door of the runaway vehicle and attempted to stop it. He was unsuccessful in stopping the car, so he turned the car’s steering wheel to turn it away from the other cars and toward the ocean. The car went over an embankment and into the ocean. The damage done to the car was greater than would have occurred if it had been allowed to crash into the parked car. The court would not, however (at p. 338), hold the defendant liable if “in the excitement of the moment, he failed properly to work out that somewhat complicated calculation and to arrive at an answer which the court in retrospect thinks to be the correct one”, namely that it would have been better to simply let the runaway car collide with the other car.  The court said (at p. 340):

In principle, there seems no reason why the common law should not recognise an exemption from liability to pay damages for trespass to goods of “volunteers” or strangers who, from no other motive than the same desire to save the property of others from damage or destruction as they would feel if it were their own property which was in jeopardy, take reasonable steps on an occasion of urgent necessity to remove that property out of the way of danger or safeguard it by some other means. It would seem that in principle the present respondent should not be absolutely liable for damage caused by his interference with the property of another when he acted in the reasonable belief that his interference was justified by the necessity of the situation and was intended to benefit the owner.

In State of New South Wales v McMaster [2015] NSWCA 228, Beazley P said (at [214]) ‘All parties accepted the availability of a defence of necessity to an action in trespass, in this case, trespass to the person’ as opposed to trespass to land.  His Honour continued (at [216]):

There are surprisingly few local authorities that deal with this defence. The principles governing the defence were considered in some detail in Dehn v Attorney-General [1988] NZHC 418; (1988) 2 NZLR 564…

The following principles emerge from [Tipping J’s] … analysis of the case law at 577-580:

(1) There is clear authority for the application of necessity as a defence to trespass especially where human life is at stake …

This statement was that the defence applies ‘especially’ but not exclusively where the risk to is to human life. in Dehn v Attorney-General, Tipping J took a detailed look at the academic writing. He said (p. 29-32; underlining in original, bold emphasis added):

That conduct which would otherwise be a trespass can be justified by necessity and thus not amount to a tort is not, I think, in doubt. What is a matter of some difficulty is to define the ambit of the defence of justification by necessity.  That there is such a defence is recognised in all the leading text books on Torts. In Clerk & Lindsell on Torts 15th edition (1982) the following passage appears at p. 1124 (paragraph 22-40):-

“Trespass can be justified by showing that it was necessary to enter upon the land to preserve life or property; Maleverer v Spinke (1538) Dyer 35b, 36b; Dewey v White (1827) Moo. & M 56; Cope v Sharpe (1910) 1 KB 168. The necessity depends on the state of things when the trespass takes place, and not upon the inference as to necessity to be drawn from the event.”

The topic is discussed in Salmond and Heuston at pp552-554. The learned authors say:-

“In some cases even damage intentionally done may not involve the defendant in liability when he is acting under necessity to prevent a greater evil. The precise limits of the defence are not clear, for it has affinities with certain other defences, such as an act of God, self-help, duress, or inevitable accident. ….  The use of the term necessity serves to conceal the fact that the defendant always has a choice between two evils. This is what distinguishes the defence of necessity from that of impossibility. Here, as elsewhere in the law of torts, a balance has to be struck between competing sets of values and no more can be done here than to indicate the facts relevant to such a choice.”

The learned authors go on to sound a cautionary note to the effect that the defence of necessity is not in general favoured by the Courts. They quote from Lord Devlin’s book Samples of Lawmaking (1962) at p. 90:-

“The good Samaritan is a character unesteemed by the English law.”

Winfield and Jolowicz on Tort 12th Edition (1984) say this at p722 under the heading of Necessity:-

“This negatives liability in tort, provided, of course, that the occasion of necessity does not arise from the defendant’s own negligence, though the authority on it is scanty. …. Its basis is a mixture of charity, the maintenance of the public good and self-protection, and it is probably limited to cases involving an urgent situation of imminent peril. It does not, for example furnish a defence to an action for trespass brought against homeless persons who enter and ‘squat’ in unoccupied premises; Southwark London Borough Council v Williams [1971] 1 Ch 734.

In the Southwark case the Court of Appeal expressed some concern that a general defence of necessity might become “a mask for anarchy”. The learned authors then go on to give examples which include the pulling down of a house on fire to prevent the spread of fire to other property: The Saltpetre Case (1606) 12 Rep 12, 13 and throwing goods overboard to lighten the boat in a storm. They go not to observe that the measures which are taken must be reasonable and this will depend amongst other things upon whether there is human life or merely property in danger. They cite from the judgement of Devlin J in Esso Petroleum v Southport Corporation [1956] AC 218, 278 where His Lordship said:-

“The safety of human lives belongs to a different scale of values from the safety of property. The two are beyond comparison and the necessity of saving life has at all times been considered a proper ground for inflicting such damages as may be necessary upon another’s property.”

In Fleming on the Law of Torts 6th Edition (1983) the matter is put this way at p87:-

“In some circumstances, a person is privileged to invade the interests of another for the purpose of preventing harm either to his own interests or those of others if the threatened harm is substantially equal to or greater than that he intends to inflict. This defence known as ‘necessity’, involves more obviously than any preceding hard choice between competing values and a sacrifice of one to the other.”

A little later on in the discussion the learned authors say this:-

“Provided the means taken to avert the threatened harm are reasonably necessary, in the sense that they are acts which in all the circumstances a reasonable man would do to meet a real and imminent peril, society’s concern in the preservation of human and material resources tips the scales in favour of the privilege. If the emergency is sufficiently great and the good it is intended to do is not disproportionate to the harm likely to result, a man may trespass upon the land of another to save himself or his property …

Finally there is the High Court decision of Kuru v NSW [2008] HCA 26. In this case police had entered Kuru’s property in order to investigate a domestic violence offence but did not leave after completing their inquiries.  This was a civil against the State for trespass by its police officers.  In a joint judgment Gleeson CJ, Gummow, Kirby and Hayne JJ said (at [40]; emphasis added):

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. There being no evidence of danger to life or property, it was not suggested that this was such a case.

In support of that proposition, they cited Maleverer v Spinke which I have quoted, above.

Self-defence

In considering the application of necessity, Meagher JA drew an analogy with the related defence of self-defence.  It can be noted that self-defence in NSW is now codified. The Crimes Act 1900 (NSW) s 418 says that self-defence is available ‘to protect property from unlawful taking, destruction, damage or interference’.   

In Re F [1990] 2 AC 1

In Re F is a case that I cite regularly as giving the justification for treating those that cannot consent to medical care.  In that case Lord Goff relied on the doctrine of necessity as the justification. In tracing the history of the defence, he said (emphasis added):

That there exists in the common law a principle of necessity which may justify action which would otherwise be unlawful is not in doubt. But historically the principle has been seen to be restricted to two groups of cases, which have been called cases of public necessity and cases of private necessity. The former occurred when a man interfered with another man’s property in the public interest – for example (in the days before we could dial 999 for the fire brigade) the destruction of another man’s house to prevent the spread of a catastrophic fire, as indeed occurred in the Great Fire of London in 1666. The latter cases occurred when a man interfered with another’s property to save his own person or property from imminent danger – for example, when he entered upon his neighbour’s land without his consent, in order to prevent the spread of fire onto his own land.

There is, however, a third group of cases, which is also properly described as founded upon the principle of necessity and which is more pertinent to the resolution of the problem in the present case. These cases are concerned with action taken as a matter of necessity to assist another person without his consent … [T]here are many emanations of this principle, to be found scattered through the books. These are concerned not only with the preservation of the life or health of the assisted person, but also with the preservation of his property (sometimes an animal, sometimes an ordinary chattel)…

His Honour concluded:

… to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.

On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.

Necessity is evolving and its limits undefined

The doctrine of necessity is and does evolve to suit the circumstances. Historically it was said that necessity could not justify the killing of another person. If person A was threatened with death unless they killed person B, necessity could provide no defence.  Under law the life of A was of equal value to the life of B and A could not, as judge in his or her own cause, prefer their life to B (save where B is the assailant and A is acting in self-defence) no matter how natural that inclination may be (R v Dudley and Stephenson (1884) 14 QBD 273, R v Howe [1987] 1 A.C. 417, A (Children) [2000] EWCA Civ 254).

In A (Children) [2000] EWCA Civ 254 (also known as In Re A (Conjoined Twins)) even that orthodoxy was set aside.  In that case the court was faced with an application to allow two conjoined twins to be separated. If they were not separated, they would both shortly die. If they were separated the twin, Mary would die but Jodie was expected to survive. The effect was on either outcome, separate them or not, Mary died. There was no choice to be made, it was not possible to elect to save Mary, or Jodie.  The anatomy of the twins made Mary’s death inevitable. In those circumstances, where there was no choice to be made, the action to separate them could be lawful done even with the knowledge and even intention that Mary would die.

Various examples were given to justify that conclusion such as a mountain climber who has fallen and is being suspended by a rope tied to their colleague. The colleague cannot move from this position. Either they both die, or the colleague cuts the rope, allows their friend to fall to their death but can then escape. 

We can think of a similar example that may have resonance with readers of this blog.  A helicopter is used in a rescue and a member of the crew is winched down but becomes entangled.  Whilst they remain entangled the helicopter, with the remaining crew, is stuck. It will eventually run out of fuel and crash killing all on board. In any scenario the crew member on the rope is doomed to die. The crew would be justified in cutting the rope knowing that the inevitable consequence is their crew mate will fall to their death.

In analysing the doctrine of necessity, Brooke LJ said:

Although for many years cases involving pleas of necessity were notable for their absence from our caselaw, the doctrine has recently been given a new lease of life by Lord Goff of Chieveley… This doctrine is … obscure, and it has featured so seldom in our caselaw in the criminal courts.

Do these cases support a defence in the criminal law?

The cases cited above were not criminal cases and Tipping J’s detailed analysis is limited to text books on torts.  In Re F was not a criminal prosecution but rather an application for a declaration that the proposed operation would be lawful. That order being granted would have served as protection from both civil and criminal liability.

Necessity is however part of all areas of law, as Lord Goff said in In re L [1998] UKHL 24 (emphasis added):

The concept of necessity has its role to play in all branches of our law of obligations– in contract (see the cases on agency of necessity), in tort (see In re F. (Mental Patient: Sterilisation) [1990] 2 AC 1), and in restitution (see the sections on necessity in the standard books on the subject)–and in our criminal law. It is therefore a concept of great importance.

Given the elements of the crimes and torts of trespass to the person (assault) and trespass to land and property will be similar so should the application of necessity.  The critical issue is not whether the defendant is charged or sued, but whether they believed upon reasonable grounds it was necessary to do what they did to avoid a greater harm and whether their response was proportionate to the risk.  That the intended conduct might be a crime is a factor to be considered in the question of whether the response to a risk to property, rather than life, is sufficiently proportionate to the risk to allow the defence.  Can one really imagine that someone commits an offence if they break into a property to recover a priceless work of art that is about to be destroyed by fire or flood?

Whilst there do not appear to be any cases that specifically say that the response to a risk to imminent property loss can give rise to a defence of necessity in the criminal law, there are many cases that recognise necessity as a defence in tort. The criminal cases, prior to Veira v Cook, do not specifically rule out the defence in those circumstances as the situation has not arisen.  If I am correct then it follows that there are not Australian or English authorities that specifically address whether ‘the necessity defence extend[s] to excuse criminal conduct undertaken otherwise than in response to an imminent threat of death or serious injury’ but there are many analogous torts cases that would support such a conclusion as does the analysis in In Re F that allowed the court to make a declaration authorising treatment without fear of either civil or criminal liability.

Veira v Cook

What distinguishes Veira v Cook from the other property cases is that the defendant alleged she was protecting the poultry farmer’s property (the chickens) from the poultry farmer. It may be reasonable to take action to try and save another person’s property from damage (Proudman v Allan) but not if the damage is being done to the property by the property owner.  The other issue in Veira’s case was that, at the time of the entry onto the property ([4]-[5]):

… there were RSPCA officers at the property. Those RSPCA officers had also been in attendance on the previous day and were investigating allegations of cruelty said to have resulted in the death of many hens, principally because they had been subjected to a process of forced moulting involving the withdrawal of food and water for a period of seven to 14 days.

…  the RSPCA officers had made a decision to leave the hens in the care of the owner or operator of the poultry farm, Mr Stone, whilst they conducted further investigations. The evidence was that they did so, satisfied that the hens had been provided with sufficient water and feed. 

Critical to the defence of necessity in both crime and tort is the requirement for an honest and reasonable belief that the circumstances do not warrant any alternative action, and the action taken is proportionate to the risk to be averted.  

Lord Goff, in In Re F (above) said that necessity can be a defence where a person acts to protect the property of another or their own property.  If necessity was limited by the considerations that Lord Goff set out it would have defeated the defendant’s claim. Remember that Lord Goff said:

(1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.

He added that

…  officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person…

If we take my example of a person entering a property to extinguish a small fire before it spreads to the house or the neighbours land, then those criteria are met.  Officious intervention cannot be justified, so consistent with the discussion in both Burmah Oil and In Re F it would not be reasonable to take self-help action if say the emergency services could be quickly summoned, but in a country the size of Australia that is not always the case. It is inconceivable that a person who entered onto enclosed land (which means no more than going in via the gate) to extinguish a fire that they can extinguish, but which if left unattended until the fire brigade arrive will have grown to a significant size, has committed any offence.

In the case of Veira v Cook the defendant was not acting for the benefit of the property owner nor to protect their own property.  Further their action amounted to ‘officious intervention’ given that it was possible to communicate with the property owner and one can infer that the property owner did not want them to come onto their land and free their chickens.  Further it was officious intervention given that ‘another more appropriate person’ ie the RSPCA inspectors was ‘available and willing to act’. The officials don’t have to act the way the defendant wanted, but once the RSPCA inspectors were on scene they were taking the steps necessary to safeguard the chickens.  Necessity cannot justify a third person setting themselves up as the judge of the reasonableness, or otherwise, of the conduct of those charged with responding to the very situation faced.  By the same reasoning a person could not push paramedics or firefighters away on the basis that they think they can do a better job.

Reconciling the authorities

The way to reconcile the authorities is to focus on the issue of proportionality.   If one wants to justify a serious crime, such as escaping from lawful custody, importing large quantities of drugs or serious assault, the harm that one is avoiding must be equally serious and only a serious threat to life or physical integrity can be sufficient.

Where the harm is a technical breach of the law (eg entering ‘inclosed lands’ or touching a person without consent) but the aim is to benefit that person – the owner of the land or the person receiving care – then the benefit clearly outweighs the harm of the infringement of their rights, or the breach of the state’s rules, provided the conduct meets the conditions identified by Goff LJ, that is the action is something that a reasonable person would take in the interests of the assisted person and does not amount to ‘officious intervention’.

Conclusion

I have argued elsewhere, and at the start of this post, that a person who commits a minor offence in order to protect property, where that property is at imminent risk and the response is both reasonable and proportionate to that risk should be able to enjoy the benefit of the common law defence of necessity. 

The decision of Meagher JA in Veira v Cook puts that position in some doubt.  It is my argument that His Honour was wrong when he said that ‘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.’  There are no cases, at least none before Veira v Cook that were directly on point.  And whilst there were no cases that ruled on the point, the cases His Honour relied on did not rule it out and there are many cases that whilst not deciding the matter would support the extension of the defence, the most notable being In Re F.

In Veira v Cook Meagher JA did not have to determine the matter on the basis that even if taking necessary steps to protect property was accepted as a possible defence in crime, it would not have applied in that case as the defendant’s actions were not reasonable and represented what Lord Goff described as ‘officious intervention’.

In most cases the issue will never arise. People won’t complain if the action is taken for their benefit, and police may be reluctant to pursue charges but as  Brooke LJ said ‘… it cannot be satisfactory to leave it to the prosecuting authority not to prosecute, or to individual courts to grant an absolute discharge’.   The courts should accept that the protection of property can give rise to a defence of necessity and the examples I’ve given at the start of this post demonstrate why that is necessary and the sort of circumstances where it may arise.

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.