top of page
Anchor 1


There are times when people need to avoid the lesser of two evils, and by doing so, still commit a criminal act. The common law criminal defence of 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 some similarity to the defence of duress.


In [1981] VR 443 at [448] it was held that the elements of the defence were that:


  1. The criminal act must have been done for the purpose of avoiding adverse consequences which would have inflicted irreparable evil upon the accused or upon others whom he or she was bound to protect;

  2. The accused must honestly have believed on reasonable grounds that he or she was placed in a situation of imminent peril; and

  3. The acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.


In [1999] 2 Crim App Rep 137, it was held that an accused will have a defence of necessity if:


  1. 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;

  2. That necessity was an essential part of the commission of the crime; and

  3. The commission of the crime, viewed objectively, was reasonable and proportionate, having regard to the evil to be avoided or prevented.


If you have been charged with a criminal offence and you think you may have the defence of necessity available, it is important you seek legal advice. Should you wish to discuss your options, please contact KF Lawyers for a free initial consultation.

bottom of page