Published by Geoff Harrison | 14 December 2024
Necessity is a common law defence where both the actus reus and mens rea of the offence are admitted; however, the law excuses the conduct based on the imminent peril that was faced by the accused. In R v Loughnan [1981] VR 443 at [448], it was held that the elements of the defence are:
(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.
The accused bears an evidentiary onus on the balance of probabilities as per s142 of the Evidence Act 1995.
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