LWB232 Criminal Law Murray McCarthy
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EMERGENCIES
s 25 covers Extraordinary emergencies Where a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.
1. Rationale for Common Law Necessity and s 25 Emergencies
The rationale of necessity at CL involves 2 factors:
avoidance of the greater harm/pursuit of the greater good; and
The difficulty of compliance with the law in emergencies
2. Scope of the Defence
- At CL – the courts are not happy with the doctrine:
R v. Dudley and Stevens: shipwreck; ate boy -> murder - guilty: not necessity
S 25:
arose from the CL.
exempts from criminal responsibility acts or omissions done by persons in circumstances where the ordinary person possessing ordinary powers of self control could not reasonably have been expected to have acted otherwise.
test under s 25 is an objective one, Stingel test re ordinary powers of self control would be incorporated into that section.
Thus:
1) It is sufficient if there is a sudden OR extraordinary emergency;
2) Stingel test applies - Dudley would probably have been acquitted under this test.
s 25 is NOT limited - applies to all offences; does apply in the case of murder
Onus of Proof
- The onus of negativing the excuse is on the Crown, provided that the accused has discharged the evidential onus.
The nature of the emergency
Osborne v. Dent: D sought to answer a charge of driving without a license because there ‘was an emergency’ however dropped kids at sitters first. There must have been an emergency of fact and not a mere description by the accused of a stressful situation as one of ‘emergency”.
MacCrossan J considered that there must be a causal nexus between the emergency and what the accused does in response to it.
Necessity is most often raised in driving offences; escaping prison to avoid being attacked by inmates; cases of political necessity.
The CL courts are strict in their application of the excuse:
Southwark London Borough Council v Williams: defs were in need of housing and squatted in empty houses. They were ordered to be evicted. Held: The were unsuccessful in raising necessity. Denning MR - narrow defence and must be confined to extreme cases.
CF s 25 - not so confined. See O’Reagan: “operation of 25 not confined to where there is a choice of 2 evils or where there is no choice at all.”
3. Interrelationship between ss 24 and 25: mistake of fact that emergency existed
Can you be mistaken that an emergency existed?
Pius Pane; Warnerand Webb:
All were dangerous driving charges where it was held that s 25 CAN be considered in combination with s 24.
RESULT - can have an actual emergency (in fact) OR an honest and reasonable but mistaken belief that there is an emergency - s 25 will still operate.
Pius Pane
The accused was startled by shouting and banging on the roof of his car.
He turned to see what the problem was, ran off the road, car overturned and killed the person in the back.
Held: Not guilty - could honestly and reasonably believe that there was an emergency in the back - would justify actions.
Warner
The accused’s vehicle was followed closely by another car.
W was frightened by the pursuit, accelerated to escape and lost control.
The TJ told the jury to ignore the accused’s state of mind.
Held: TJ had misdirected the jury. state of mind is relevant it whether he believed there was an emergency or not.
Webb:
s.25 may operate in conjunction with s.24 to the effect that the accused may still have a defence is s/he honestly and reasonably believed that there was a state of emergency.
COMPULSION
While emergency/necessity is concerned with “natural emergencies”, duress/compulsion is concerned with “person crisis” - brought about by other human forces.
called ‘duress at CL:
DPP for Northern Ireland v. Lynch
[It] is convenient to have a working definition of duress.. I take it for present purposes to denote such [well-grounded] fear, produced by threats, or death or GBH [ or unjustified imprisonment] if a certain act is not done, as overbears the actors wish not to perform the act, and is effective, at the time of the act, in constraining him to perform it.
concept at CL only reflected in CC s 31(4)
Code deals with ‘duress’ differently:
- S 31 confines the operation of the excuse by a proviso - excludes certain offences form the scope e.g. murder, GBH.
- The defence is limited in relation to ALL of the subsections of s 31.
2. COMPULSION S 31 QCC
- Section 31 describes situations that he CL would call duress.
31. Justification and excuse: Compulsion. A person is not criminally responsible for an act or omission, if he does or omits to do the act under any of the following circumstances, that is to say -
(4)In execution of the law;
(5)In obedience to the order of a competent authority which he is bound by law to obey, unless the order is manifestly unlawful;
(6)When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence;
(7)When he does or omits to do the act in order to save himself from immediate death or GBH threatened to be inflicted upon him by some person actually present and in a position to execute the threats, and believing himself to be unable otherwise to escape the carrying of the threats into execution:
But his protection does not extend to an act or omission which would constitute the crime of treason or murder.. or an offence of which GBH to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him.
Whether an order is or is not manifestly unlawful is a question of law.
31(1)(a)In execution of the law
- Excuses persons from criminal responsibility in carrying out the law in their official position (e.g. police officers, bailiffs).
Mackinlay v. wiley
Student editor published obscene material and raised 31(1) as an excuse.
Held: 31(1) not available to an obligation voluntarily assumed; there was no statutory obligation to publish. Thus being contractually bound - not sufficient.
31(1)(b) In obedience to the order of a competent authority which he is bound by law to obey, unless the order is manifestly unlawful
- Applies only where a person is compelled to obey a lawful order such as members of the services, police and prison officers
- Cf. ordinary agent of an ordinary master or principal - not within 31(2):
Hunt v. Maloney: M was a publican, and his bar-man served beer in an unclean glass contrary to health regulations.
Held: Considered whether the barman would have an excuse under 31(2) from following orders. Could not - ordinary agent of ordinary master not within 31(2).
31(1)(c)When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence
Provides special defence of necessity when resisting threatened violence and would seem to be complementary to the provisions of the CC re Self Defence.
NOTE: that the s.31 proviso applies to this (and to all subsections of s 31). s 31(3) is therefore not available for murder or GBH: R v. Silk approved in Fietkau
31(1)(d) When he does or omits to do the act in order to save himself from immediate death or GBH threatened to be inflicted upon him by some person actually present and in a position toexecute the threats, and believing himself to be unable otherwise to escape the carrying of the threats into execution:
31(2) But his protection does not extend to an act or omission which would constitute the crime of ... murder.. or an offence of which GBH to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him.
- This is more limited than the CL.
R v. Hurley and Murray
The applicants appealed from a conviction as accessories after the fact to an escape from Pentridge of 2 prisoners, Ryan and Walfer.
The defence of duress was raised on the basis that they had only helped the escapees because they feared the infliction of death or serious injury upon either themselves or the de facto wife of one of them.
Held: There was not sufficient evidence to put the defence to the jury.
The threat must be operative at the time when the criminal action was done and there must have been no opportunity between the time the threat was made and the time when the action was done for the accused to free himself from the influence of the threats.
Particular Requirements Of S.31(4)
5)Threat must be of immediate harm;
6)Person making the threat must be actually present when the instruction is carried out and be in a position to carry out that threat.
7)Person threatened must believe that there is no way other than obedience to avoid the threat being executes
8)Re Seriousness of harm threatened - threat must be of death of GBH
9)Re Seriousness of the harm to be inflicted - what is done under the threat must not be one of the offences in the proviso.
1) Threat must be of immediate harm;
“Immediacy”:
R v. Pickard
P accompanied J (another) against his will to a theatre where J was going to steal the contents of the safe. P said that he was compelled to go because J had a knife and made a threat. P said that he had kept watch for 10 mins while J stole the contents of the safe. He kept watch because he was again threatened. He was charged and convicted. On appeal, claimed 31(4):
Held: CCA dismissed the appeal. “Immediate”, which qualifies GBH or death, must be related to some very short time after the doing of the act or omission. In this case - depended on J getting near P at some subsequent time for him to be in a position to fulfill his threats.
Threats as to future harm are NOT sufficient under the Code. Harsh???
- There is movement for reform in CL cases:
Hudson and Taylor
H and T were 17 and 19 yr old women who were witnesses at a trial.
They were warned that if they testified harm would come to them, so both failed to identify the assailant on a wounding charge.
H and t were tried for purgery. The jury was directed that duress was not open as there was no present/immediate threat as the women had protection within the court.
Held: The jury had been misdirected. The focus should be on the effectiveness of the threat, rather than the immediacy of its implementation.
Duress should have been left to the jury.
Williamson
The acc was an accessory after the fact to a murder.
The murder took place on a Wed, the murder threatened to kill W if didn’t help him to dispose of the body. W did so on Sunday evening.
W was under constant pressure to comply and the original threat remained operative. The TJ directed the jury not to look at duress.
Held: The TJ was incorrect. Formulation - threat could still be present and immediate, even though carrying out of the threat was not to be until later, provided that was a still continuing threat.
Thus the modern CL suggests a future threat may be sufficient, cf. Code.
2)Person making threat must be actually present when instruction is carried out and be in a position to carry out that threat.
Code:
Pickard
Words should be construed strictly
J was not present with P when P was in the street.
This is not a requirement under the CL - Hudson and Taylor
3) Person threatened must believe that there is no way other than obedience to avoid the threat being executes
Subjective test
Code less restrictive than the CL here (CL - objective test).
CL - “ordinary firmness of mind and will”: Stingel.
Summary of differences between the Code and the CL:
The code formulation:
insists on the presence of the threatened;
does not allow indirect duress (i.e. no duress to by 3rd party);
restricts the scope the operation of duress to a wider range of offences than does the CL (see 31 proviso)
insists on the immediacy of the harm (CF future harm)
adopts a subjective rather than an objective test
Proposed amendments:
Connolly:
allow indirect duress; and not require the presence of threatened
Compulsion and the Battered Women
Runjanjic and Kontinnen - said to be acting unde5r violent duress of de facto when kidnapped a 3rd woman.
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