Bayley v Police

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
BAYLEY v POLICE
[2007] SASC 411
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)
23 November 2007
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - NECESSITY
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING WITHOUT DUE CARE AND ATTENTION OR REASONABLE CONSIDERATION FOR OTHER ROAD USERS
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - DRIVING IN MANNER DANGEROUS TO PUBLIC
Appeal against conviction to Full Court, against decision of single Judge which overturned defendant's acquittal by magistrate, of charge of driving in manner dangerous to public, contrary to section 46 of the Road Traffic Act 1961 (SA) - cross-appeal by Crown to Full Court, from decision of single Judge which affirmed magistrate's dismissal of charge of driving without due care, contrary to section 45 of the Road Traffic Act - due care charge arose when defendant deliberately rammed van at traffic intersection - manner dangerous charge arose when defendant subsequently drove at excessive speed in parking lane, manoeuvred across traffic lanes and median strip, and collided with oncoming vehicle - common law defence of necessity raised against both charges - evidence given that defendant's manner of driving was in response to threats of personal violence from occupants of van - evidence given that defendant's manner of driving was result of defendant's fear for personal safety and safety of passengers - evidence given that defendant was attempting to escape pursuit from van - consideration of applicable test of necessity - whether perceived threat was imminent and operative - whether reasonably possible that defendant honestly believed on reasonable grounds that there was a threat of death or serious injury to himself or another, and that commission of the crimes charged was necessary in order to remove that threat - whether, objectively viewed, there was no reasonable alternative course of action open to the defendant - whether, objectively viewed, the defendant's conduct was proportionate to the perceived threat.
Held, dismissing the appeal and allowing the cross-appeal (per Gray J; Sulan and White JJ concurring): Defence of necessity applies in rare circumstances - subjective and objective considerations relevant - defendant's manner of driving amounted to driving without due care and in manner dangerous to public - defence of necessity in respect of both charges rejected - perceived threat and danger was materially exacerbated by defendant's conduct - defendant's conduct was reckless, extreme and out of all proportion to the necessity to meet perceived threat - reasonable alternatives were available to defendant to alleviate perceived threat - conviction recorded on due care charge - matter remitted for sentence.
Road Traffic Act 1961 (SA) s 45, s 46; Canadian Criminal Code R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms/Charte canadienne des droits et libertes, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K), c. 11, referred to.
Woodward v Morgan (1990) 10 MVR 474; White v R (1987) 9 NSWLR 427; Warner v R [1980] Qd R 207; Rogers (1996) 86 A Crim R 542; R v Loughnan [1981] VR 443; R v Conway [1989] QB 290; Behrooz v Secretary of Department of Multicultural and Indigenous Affairs (2004) 219 CLR 486; R v Perka [1984] 2 SCR 232; R v Latimer [2001] 1 SCR 3; R v Ruzic [2001] 1 SCR 687; R v Hutchinson (2003) NZCLD, 5th Series, 5700; R v Shayler [2001] WLR 2206 (CA); Kapi v Minister for Transport (1991) CRNZ 49 (CA); R v Conway [1989] QB 290; R v Martin (Colin) [1989] 1 All ER 652; Mark v Henshaw (1998) 101 A Crim R 122, considered.

BAYLEY v POLICE
[2007] SASC 411
Full Court: Gray, Sulan and White JJ
GRAY J.

The appeal and cross-appeal in this matter raise for consideration the defence of necessity.
Background
The defendant and appellant, Edward David Joseph Bayley, was charged with the offences of driving without due care[1] and driving in a manner dangerous to the public.[2] The relevant driving took place on 18 October 2003 at separate locations in suburban Adelaide. The due care charge arose out of an impact at the intersection of Port Wakefield and Grand Junction Roads at Enfield between the defendant’s vehicle and a Mitsubishi van. Both vehicles were on Port Wakefield Road facing south, and were stationary at traffic lights at the intersection. The van was in the “turn right” lane, intended for traffic turning west onto Grand Junction Road. The defendant’s vehicle was in the lane immediately to the east of the turn-right lane. This lane was intended for traffic travelling south directly through the intersection onto Main North Road.
[1] Contrary to section 45 of the Road Traffic Act 1961 (SA).
[2] Contrary to section 46 of the Road Traffic Act 1961 (SA).
The van was the first of the two vehicles to proceed when the traffic lights turned green. The prosecution case was that the defendant moved his vehicle to the right into the turn-right lane and rammed the van. At the time of the collision, the van was, on the prosecution case, preparing to turn right to travel west on Grand Junction Road.
The impact was preceded by an incident which gave rise to the suggested defence of necessity. The circumstances of the incident were as follows. While both vehicles were stationary at the intersection waiting for a change of lights, the occupants of the van alighted and threatened the defendant and his passengers. The occupants of the van returned to the van at about the time the lights changed to green for both vehicles’ direction of travel.
The driving in a manner dangerous charge related to conduct on Main North Road some distance south of the intersection. This conduct occurred shortly after the collision at the intersection. The defendant overtook vehicles to his right while driving in a parking lane, and then attempted a manoeuvre to turn right across lanes of south and north-bound traffic to a side street on the western side of Main North Road. In doing so the defendant lost control of his vehicle, travelled across both south-bound lanes, over the median strip and collided head-on with a vehicle travelling north. The defendant drove in a 60 kilometre per hour zone at about 80 kilometres per hour.
Although the defendant disputed material parts of the prosecution case as to the manner of driving, it was accepted by the time of this appeal that he had driven without due care and then in a manner dangerous to the public. The defence case was that he had done so out of necessity to avoid injury or death to himself and his passengers.
Following a trial, the presiding Magistrate found that the defendant had driven as alleged, but concluded that there was a viable issue of necessity and that the prosecution had not excluded the defence. Both counts were dismissed.
The complainant prosecuted an appeal against both dismissals before a judge of this Court. The Judge allowed the appeal in respect of the charge of driving in a manner dangerous to the public, set aside the order of the Magistrate, and entered a conviction. The Judge rejected the appeal in respect of the Magistrate’s dismissal of the due care charge. Both parties appealed to this Court – the defendant in respect of his conviction of the offence of driving in a manner dangerous to the public, and the complainant in respect of the rejection of the appeal against the dismissal of the due care charge.
The Trial
The Evidence
At trial, the prosecution led evidence from the two passengers in the defendant’s vehicle, three passengers from the van, two witnesses in vehicles stationary at the intersection, and two witnesses who were travelling south on Main North Road. The prosecution also called the investigating police officer and tendered a statement from a north-bound driver involved in the collision. The defendant gave evidence. A character witness was also called by the defence.
The evidence established that, on the date of the alleged offences, the defendant was returning to the city from a country drive. He stopped at the intersection of Port Wakefield, Grand Junction and Main North Roads in a lane for south-bound traffic. To his immediate right was a turn-right lane. To his left were several lanes for south-bound traffic. The south-bound lanes led directly through the intersection. The defendant’s intention was to travel south through the intersection from Port Wakefield Road onto Main North Road.
A Mitsubishi van came to a stop in the turn-right lane immediately to the defendant’s right. Several young men alighted and kicked and hit the defendant’s vehicle. The defendant and his passengers were threatened with personal violence. Apparently one of the women in the defendant’s vehicle had been a former acquaintance of one of the men in the van. The defendant and his passengers stayed in the vehicle. Liquid was thrown on the windscreen of the defendant’s vehicle. At or about the time when the traffic lights turned to green for the defendant’s direction of travel, the men returned to the van.
The defendant gave evidence that he feared for his safety, and thought that the men in the van would continue with their threats, which included a threat to kill him. The defendant said that he formed the opinion that he needed to escape.
When the lights changed to green, the van was the first of the two vehicles to move forward. The defendant then moved his vehicle to the right and collided with the van. The collision was deliberate. The defendant, during his evidence, admitted that this was an intended manoeuvre on his part.
The driver of the vehicle immediately behind the defendant’s vehicle observed the men from the van and much of the conduct and interchange that occurred. She gave evidence that after the change of lights, the defendant’s vehicle moved to the right and collided with the van. She described the defendant’s vehicle “ramming” the van. She said that the van was in the process of turning right when struck.
One of the passengers in the defendant’s vehicle gave evidence that she observed that the defendant pulled the steering wheel to the right to cause the impact. Prior to that time she thought the van was starting to turn right and believed that was to be the end of the matter. The other passenger gave evidence that the defendant’s vehicle moved to the right before colliding with the van.
The evidence of the passengers from the van was to the effect that the defendant’s vehicle collided with the side of the van while the van was in the process of turning right.
The defendant gave several materially different accounts of the incident. In his tendered record of interview, the defendant recounted that he had pulled out in front of the van in order to overtake cars in front of his vehicle. During evidence-in-chief, this account changed. The defendant said that the van had attempted to block him by moving into his lane and that he had accelerated in a straight line. He asserted that the impact was a deliberate attempt to avoid the van blocking him. He acknowledged that he had deliberately intended to clip the van. Later, during cross-examination, the defendant was challenged on the difference in his accounts. He then gave an account that he was “predicting” that the van would cut in front of him.
One course that the defendant could have taken as the van moved forward was to remain stationary. Had he done so, and had the van either turned to the right or continued through the intersection, considerable time would have passed before the van could return to the defendant’s vehicle. This would have allowed ample time for the defendant to drive to a safe location. Had the defendant simply travelled in a straight line south through the intersection onto Main North Road, there would in all probability have been no collision.
With respect to the head-on collision, as earlier observed, the evidence established that the defendant, while travelling south, drove in the parking lane on the extreme left or eastern side of Main North Road at a speed of about 80 kilometres per hour in a 60 kilometre per hour zone. He overtook vehicles travelling south on Main North Road. The defendant then cut across the path of vehicles to his right as he traversed the south-bound carriageway in an apparent attempt to cross the road from east to west. He claimed to have intended to drive into a side road to the west of Main North Road. In this process the defendant lost control, skidded, mounted and crossed the median strip, and collided head on with a vehicle travelling on the north-bound carriageway of Main North Road. The driver of that vehicle suffered serious injury.
The unchallenged evidence of the investigating officer established that the defendant had many opportunities to leave Main North Road to the east, that is, to his left. There were a number of businesses with access from Main North Road, as well as a petrol station and several side streets into which the defendant could have driven.
The Magistrate’s Reasons
The Magistrate found that the defendant had “attempted to cut across in front of [the van] in order to get away and the collision between his vehicle and the van was accidental”. The Magistrate concluded that the impact was the result of an act undertaken because of fear. She dismissed the charge on the basis that the defence of necessity had not been excluded by the prosecution.
The Magistrate found that the head-on collision was a consequence of the defendant’s attempts to avoid a parked vehicle, braking, losing control and skidding. The defendant claimed that his manner of driving was a result of his fears for his safety, and that of his passengers, from the occupants of the van. He claimed that he was attempting to escape their pursuit.
The Magistrate concluded that the defendant was driving in a manner dangerous to the public. However, this charge was also dismissed on the basis that the prosecution had failed to exclude the defence of necessity.
The Reasons of the Judge
The Judge on appeal upheld the Magistrate’s decision with respect to the due care charge on the basis that the above finding was open to the Magistrate. In that respect, the Judge observed:
In my opinion, the finding that the collision was not as a result of the [defendant’s] actions carried out in anger or seeking retribution, but in an attempt to escape perceived danger was open to the magistrate.
The Judge allowed the appeal in respect of the charge of driving in a manner dangerous to the public. The Judge convicted the defendant and remitted the matter for sentence. The Judge reasoned:
The evidence does not support the magistrate’s finding on this point, and the finding is inconsistent with the [defendant’s] own evidence. However, in my opinion this error is of little consequence. Whether the [defendant] intended to turn across traffic, or whether he swerved to avoid a parked car, can have had little affect [sic] upon the magistrate’s ultimate finding that this driving was in a manner dangerous. Whether the [defendant] swerved to avoid a car or intended to turn across traffic, he did so at a speed of 80 kilometres per hour in a 60 kilometres per hour zone, in the presence of heavy traffic and also pedestrians. On either version he was driving in a manner dangerous to the public.
...
I have set out the magistrate’s reasons in full because it is clear that she has not addressed the requirement that the acts done to raise a defence of necessity must not be out of proportion to the peril to be avoided, and has not applied the appropriate test, namely:
... would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril?
The magistrate seems to content herself with the fact that the [defendant’s] manner of driving was as a result of a need which he perceived amounted to necessity. She has, therefore, erred as a matter of law in not applying the law correctly.
...
In relation to the charge of driving without due care, I deal with the matter on the basis of fact as found by the magistrate, namely the accident which occurred was not deliberate and was as a result of the [defendant] trying to get out of the way as quickly as possible because of the threat that he was facing. In those circumstances, bearing in mind the relatively slight nature of the offending and the [defendant’s] perception of the danger he and the occupants of his car were facing, it could not be said that the prosecution proved beyond reasonable doubt that the defence of necessity did not apply. The threat was immediate, and as a matter of proportionality the offending was not serious. I would, therefore, dismiss the appeal in relation to the charge of driving without due care.
However, I view the matter differently in relation to the charge of driving in a manner dangerous to the public. Although I have accepted that the magistrate erred in her factual finding as to why the [defendant] swerved to cross the road and hit an oncoming car, nevertheless my reasoning would apply to the act of driving as found by the magistrate. On any account the driving was clearly very dangerous. It was on a main road where there was great danger caused to both pedestrians and traffic, as was shown by the accident which ultimately occurred. As the magistrate found, it was a substantial distance from Grand Junction Road, where the original altercation took place, to where the accident occurred. Even allowing for the fact that the [defendant] drove in such a way because he had a genuine belief that he needed to escape from the van because of fear of harm to himself and his passengers, I find that it has been clearly proved beyond reasonable doubt that a reasonable man in the position of the [defendant] had many other alternatives available, rather than doing what he did to avoid the peril. There was no reason to drive dangerously. He could have driven at a normal speed to a safe place, such as a police station, or a service station, or any other place where people were present. He could have driven down a quieter side street to the left until he had reached a safe place. In my view, these are just not theoretical alternatives, but were practical courses that could have been taken instead of driving in the way that he did. In applying the test of proportionality, I bear in mind that in these circumstances the driving was particularly dangerous and resulted in a very severe accident. I therefore find that the offence of driving in a manner dangerous has been proved.
The Appeal
As earlier observed, both the Magistrate and the Judge concluded that the defendant had driven without due care and then later in a manner dangerous to the public. Counsel for the defendant before this Court did not challenge these conclusions. It was contended, however, that there was no need for detailed findings to be made about the manner of driving, and that the appeal could be resolved without such findings. This submission should be rejected. Findings need to be made about the manner of driving as it is that conduct which is said to be the subject of the defence of necessity. It is that conduct that must have been necessary.
Counsel further submitted that the defendant acted out of fear for himself and his passengers, that his belief of imminent harm was reasonable, and that his conduct was not out of proportion to the danger. Counsel challenged the conclusion of the Judge with respect to the defence of necessity to the charge of driving in a manner dangerous to the public.

The Solicitor-General submitted that the Judge failed properly to address the appeal – an appeal from the decision of a magistrate pursuant to section 42 of the Magistrates Court Act 1991 (SA). The duty of the Judge, it was contended, required re-consideration of all the evidence to determine whether the Magistrate’s conclusions were correct. It was said that it was not sufficient for the Judge to simply resolve the appeal on the basis that the Magistrate’s finding was “open”.
The Solicitor-General further submitted that a reconsideration of all the evidence led to the conclusion that the conduct of the defendant, the subject of the due care charge, involved a change of direction of his vehicle with a view to a deliberate ramming of the van. In these circumstances it was said that the defence of necessity had to be rejected.
The Solicitor-General submitted that the factual circumstances relevant to the manner dangerous charge were of significance because, notwithstanding any other finding of fact, this driving was dangerous in and of itself. Contrary to the view of the Judge, it was contended that this was a matter of considerable consequence. There was a stark contrast, it was said, between swerving to avoid a vehicle in the parking lane and deliberately turning across four lanes of traffic. It is the suggested necessity of this deliberate manoeuvre, conducted at high speed, that on the prosecution submission should be considered for the purposes of the defence of necessity. Such a manoeuvre was both inherently and highly dangerous. The defendant’s driving placed his passengers, and other road users, in considerable danger. Finally, it was said that the very character of the driving, occurring as it did well after the threatening conduct had ended, refuted the existence of any necessity.
The Defence of Necessity
Given the nature of the defendant’s driving, on any view of the facts the primary elements of the two charges had been established. The defendant had driven without due care, and then in a manner dangerous to the public. The question that arose for consideration at trial and on appeal was whether the defence of necessity had been properly invoked and whether it had been excluded by the prosecution.
The Solicitor-General conceded that necessity may be available as a defence to a statutory offence such as driving in a manner dangerous or driving without due care. This concession was appropriate.[3] It was also correctly accepted that once a defendant adduced evidence sufficient to meet the evidentiary burden, the burden rested on the prosecution to exclude the defence of necessity.[4]
[3] Woodward v Morgan (1990) 10 MVR 474, White v R (1987) 9 NSWLR 427, Warner v R [1980] Qd R 207.
[4] Rogers (1996) 86 A Crim R 542.
Before coming to discuss the particular issues for consideration on the appeal, it is convenient to first summarise the legal principles relevant to the defence of necessity. Following this discussion, it will remain to consider the application of those principles to the facts of the present case. The policy consideration underlying the objective nature of the defence and the strict limits imposed on the defence were discussed by Gleeson CJ in Rogers:[5]
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. …
…
The relevant concept is of necessity, not expediency, or strong preference. If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined. To adopt the language of Dixon J in Perka, the accused must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law.
[emphasis added]
[5] Rogers (1996) 86 A Crim R 542 at 546-7.
The majority of the Victorian Court of Appeal in Loughnan[6] identified the elements of the defence of necessity as follows:
First, the criminal act or acts must have been done in order to avoid consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect. …
…
… [T]he accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril. …
… [T]he acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril?
[6] Loughnan [1981] VR 443 at 448.
At about the same time the United Kingdom courts addressed similar issues under the heading “duress of circumstances”. As Woolf LJ observed in Conway,[7] when addressing a charge of dangerous driving:
We conclude that necessity can only be a defence to a charge of reckless driving where the facts establish “duress of circumstances,” as in Reg. v Willer, 83 Cr.App.R. 225, i.e., where the defendant was constrained by circumstances to drive as he did to avoid death or serious bodily harm to himself or some other person.
...
It follows that a defence of “duress of circumstances” is available only if from an objective standpoint the defendant can be said to be acting in order to avoid a threat of death or serious injury. The approach must be that indicated by Lord Lane C.J. in Reg. v Graham (Paul) [1982] 1 W.L.R. 294, 300. Lord Lane C.J., in a passage of his judgment approved by the House of Lords in Reg. v. Howe [1987] A.C. 417, 459, said:
“As a matter of public policy, it seems to us essential to limit the defence of duress by means of an objective criterion formulated in the terms of reasonableness. Consistency of approach in defences to criminal liability is obviously desirable. Provocation and duress are analogous. In provocation the words or actions of one person break the self-control of another. In duress the words or actions of one person break the will of another. The law requires a defendant to have the self-control reasonably to be expected of the ordinary citizen in his situation. It should likewise require him to have the steadfastness reasonably to be expected of the ordinary citizen in his situation. So too with self-defence, in which the law permits the use of no more force than is reasonable in the circumstances. And, in general if a mistake is to excuse what would otherwise be criminal, the mistake must be a reasonable one. It follows that we accept Mr Sherrard’s submission that the direction in this case was too favourable to the appellant. The Crown having conceded that the issue of duress was open to the appellant and was raised on the evidence, the correct approach on the facts of this case would have been as follows. (1) Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed King had said or done, he had good cause to fear that if he did not so act King would kill him or (if this is to be added) cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed King said or did by taking part in the killing?”
[emphasis added]
[7] R v Conway [1989] QB 290 at 297-298.
The relevant legal principles surrounding the defence of necessity were further discussed by Gleeson CJ in the New South Wales Court of Appeal decision of Rogers. That case concerned the offence of attempting to escape from prison and involved a consideration of the defence of necessity said to have arisen in circumstances where a defendant feared for his safety and attempted to escape. Gleeson CJ observed: [8]
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.
Using the term “defence” without any implications as to onus of proof, his Lordship pointed out (at 399) that it has been universally recognised that, if the defence of necessity is to have a place in the criminal law, it must be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale. Nothing could better illustrate that proposition than the invoking of necessity as an answer to a charge of escaping, or attempting to escape, from prison. By the standards of most people, prisons are hazardous places. Many of their inmates are dangerous criminals. Grievances, real or imagined, often result in violent retribution. Rumours, suspicion and resentment flourish. The authorities endeavour to minimise risks, but it is acknowledged that nobody’s safety can be absolutely guaranteed. People undergoing punishment are compelled by law to live in those circumstances, and the law reinforces that compulsion by making it an offence to escape from lawful custody. In what circumstances, then, does the law permit a person who escapes from lawful custody to excuse his or her conduct by saying: “I feared for my safety?”
…
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.
…
In a case such as the present, where the accused’s conduct, otherwise unlawful, is sought to be excused on the basis that it was a response to a threat of death or serious injury to the accused, the first question is whether it was, in truth, such a response. Bearing in mind that, if there be a viable issue of necessity, the Crown bears the onus of negativing necessity, if the jury were to be satisfied beyond reasonable doubt that the attempted escape was for a different reason, that would be the end of the matter. It has not been argued that, in the present case, the jury was bound to be so satisfied.
Putting questions of onus to one side, if the appellant acted as he did, honestly believing, on reasonable grounds, that escape from prison was necessary in order to avoid threatened death or serious injury, then his conduct would be excused.
[emphasis added]
[8] Rogers (1996) 86 A Crim R 542 at 545-547.
As Gleeson CJ explained, the criteria set out in Loughnan were better considered as relevant factors rather than strict elements: [9]
[I]t is now more appropriate to treat those requirements, not as technical legal considerations, but as factual considerations relevant, and often critically relevant, to the issue 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.
[9] Rogers (1996) 86 A Crim R 542 at 546 – see also Gleeson CJ’s remarks in Behrooz v Secretary of Department of Multicultural and Indigenous Affairs (2004) 219 CLR 486 at [15]: “One closely confined area in which the law has accepted a limited form of right to escape concerns the common law principle of necessity. In the Victorian case of R v Loughnan, and the New South Wales case of R v Rogers, consideration was given to the principles according to which a person, confronted in prison with some peril involving a threat to life or safety, may lawfully take steps, proportionate to the danger, to avoid the threat. Such steps do not ordinarily involve remaining at large in the community for an indefinite period. Thus, for example, there are United States authorities which make it a condition of pleading necessity as an excuse for escaping from prison that the prisoner, after escape, must report immediately to the proper authorities when he has attained a position of safety from the immediate threat. The Supreme Court of Victoria, in Loughnan, said this was a matter of evidentiary significance, rather than a legal condition. In Southwark London Borough Council v Williams, Edmund Davies LJ, discussing the defence of necessity, pointed out that “the law regards with the deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances”. ... Where a situation of necessity arises, it may justify action taken by a prisoner or detainee to get out of harm’s way, but it does not mean that the prisoner or detainee becomes free from all the constraints of custody, or may escape into the community and remain at large.”
Counsel for the defendant contended that this Court should conclude that the defence of necessity involves an analysis in which it is unnecessary to inquire into the objective availability of alternative lawful courses of action that would provide protection from the apprehended threat. That is, it was argued that disobedience to the law can be excused by a defendant’s subjectively held belief about the peril, provided it is based on reasonable grounds, whether or not lawful alternative action would also have kept the defendant safe from the relevant risk. It was said that proportionality of the defendant’s conduct should be weighed only against the perceived danger in isolation.
The Solicitor-General submitted that the above proposition undermined the rationale and policy of the defence. It was submitted that there was no foundation in authority for the proposition that the criminal liability of a defendant depended on a subjective belief without regard to lawful alternatives to the offending. Such a test would, it was contended, involve an unwarranted expansion of the test of necessity and would allow a person to choose whether they complied with the law.
In Perka,[10] the Supreme Court of Canada established that, although a defence of excused necessity existed in Canada, it remained of limited application.
[10] R v Perka [1984] 2 S.C.R 232.
The Court presented a comprehensive examination of the defence of necessity. Dickson J, with whom Ritchie, Chouinard and Lamer JJ agreed, held that necessity is an excuse arising only from “moral or normative involuntariness”:[11]
[Necessity] rests on a realistic assessment of human weakness, recognizing 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 of altruism, overwhelmingly impel disobedience.
[11] R v Perka [1984] 2 S.C.R 232 at [33].
Dickson J set out a three-part test for determining situations in which the defence would apply. First, there must be an urgent situation of clear and imminent peril – “at a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable”.[12] Secondly, a defendant must have had [no] “reasonable legal alternative to disobeying the law”.[13] Thirdly, “the harm inflicted must be less than the harm sought to be avoided”.[14]
[12] R v Perka [1984] 2 S.C.R 232 at [40]
[13] R v Perka [1984] 2 SCR 232 at [39]. Dickson J emphasised at [40] that “the importance of this requirement that there can be no reasonable alternative cannot be over-stressed.
[14] R v Perka [1984] 2 SCR 232 at [44].
Dickson J held that the defence must be strictly controlled and scrupulously limited,[15] restricted only to those rare cases in which true involuntariness is present.[16] In addition, necessity may only be invoked as an excuse to criminal conduct, and not a justification for it. [17] Dickson J illustrated the distinction by reference to a quotation from Herbert Packer:[18]
[C]onduct that we choose not to treat as criminal is “justifiable” if our reason for treating it as noncriminal is predominantly that it is conduct that we applaud, or at least do not actively seek to discourage: conduct is “excusable” if we deplore it but for some extrinsic reason conclude that it is not politic to punish it.
Dickson J’s justification for the view was stated thus:[19]
With regard to this conceptualization of a residual defence of necessity, I retain the scepticism I expressed in Morgentaler … It is still my opinion that “[n]o system of positive law can recognize any principle which would entitle a person to violate the law because on his view the law conflicted with some higher social value.” … To go beyond that and hold that ostensibly illegal acts can be validated on the basis of their expediency, would import an undue subjectivity into the criminal law. It would invite the courts to second-guess the legislature and to assess the relative merits of social policies underlying criminal prohibitions. Neither is a role which fits well with the judicial function. Such a doctrine could well become the last resort of scoundrels …
[15] R v Perka [1984] 2 SCR 232 at [38].
[16] R v Perka [1984] 2 SCR 232 at [38].
[17] R v Perka [1984] 2 SCR 232 at [49].
[18] Herbert Packer, ‘The Limits of the Criminal Sanction’ at 113, quoted by Dickson J in R v Perka [1984] 2 SCR 232 at [29].
[19] R v Perka [1984] 2 SCR 232 at [32].
Having regard to Gleeson CJ’s adoption of the observations of Dickson J in Perka, it is both relevant and appropriate to discuss the more recent Canadian authority. The Supreme Court of Canada had opportunity to review the Perka test in the controversial case of Latimer. In 1994, Latimer was convicted by jury of second degree murder for asphyxiating his severely disabled 12-year-old daughter. He argued that his actions were necessary to relieve his daughter from the pain and suffering that would inevitably result from an imminent surgical procedure. Latimer appealed the guilty verdict. One of the grounds advanced was that the trial Judge had failed to put the defence of necessity to the jury. Following Perka, the Court unanimously denied Latimer’s appeal, ruling that the necessity defence relied upon lacked the required “air of reality”[20] to be put to the jury since it failed to meet the three prerequisites outlined in Perka.
[20] R v Latimer [2001] 1 SCR 3 at [37].
In reaching its conclusion, the Court attempted to clarify the Perka test, considering whether it was appropriate to apply a subjective, objective or modified objective standard. The relevant standards were described as follows:[21]
A subjective test would be met if the person believed he or she was in imminent peril with no reasonable legal alternative to committing the offence. Conversely, an objective test would not assess what the accused believed; it would consider whether in fact the person was in peril with no reasonable legal alternative. A modified objective test falls somewhere between the two. It involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person.
[21] R v Latimer [2001] 1 SCR 3 at [32].
The court concluded that the first two parts of the test should be evaluated according to a modified objective standard,[22] while proportionality was to be considered according to an objective standard.[23] In reaching the conclusion that “necessity is rooted in an objective standard”,[24] the court referred to the judgment of Dickson J in Perka, where his Honour observed:[25]
Involuntariness is measured on the basis of society’s expectation of appropriate and normal resistance to pressure.
[22] R v Latimer [2001] 1 SCR 3 at [33].
[23] R v Latimer [2001] 1 SCR 3 at [34].
[24] R v Latimer [2001] 1 SCR 3 at [33].
[25] R v Perka [1984] 2 SCR 232 at [61].

However, the court in Latimer added the additional qualification that any subjective factors considered under the modified objective test must be “reasonable”:[26]
While an accused’s perceptions of the surrounding facts may be highly relevant in determining whether his conduct should be excused, those perceptions remain relevant only so long as they are reasonable. The accused person must, at the time of the act, honestly believe, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open. There must be a reasonable basis for the accused’s beliefs and actions, but it would be proper to take into account circumstances that legitimately affect the accused person’s ability to evaluate his situation. The test cannot be a subjective one, and the accused who argues that he perceived imminent peril without an alternative would only succeed with the defence of necessity if his belief was reasonable given his circumstances and attributes. We leave aside for a case in which it arises the possibility that an honestly held but mistaken belief could ground a “mistake of fact” argument on the separate inquiry into mens rea.
[26] R v Latimer [2001] 1 SCR 3 at [33].
The decision in Latimer mirrors Dickson J’s concerns in Perka, reaffirming that the test of necessity is to be strictly applied, and in limited circumstances:[27]
It is well-established that the defence of necessity must be of limited application. Were the criteria for the defence loosened or approached purely subjectively, some fear, as did Edmund Davies LJ that necessity would “very easily become simply a mask for anarchy”: Southwark London Borough Council v Williams [1971] Ch. 734 (Eng C.A) at p. 746.
[27] R v Latimer [2001] 1 SCR 3 at [27].
The Latimer decision has been criticised on the basis that, rather than simplifying the test in Perka, it has only added to the confusion, creating uncertainty as to what “personal characteristics” might be included as “reasonable” under the modified objective test.[28]
[28] For criticism see Paul Guy, ‘R v Latimer and the Defence of Necessity: One Step Forward, Two Steps Back’ (2003) 66 Saskatchewan Law Review 485; Benjamin L Berger, ‘A Choice Among Values: Theoretical and Historical Perspectives on the Defence of Necessity’ (2002) 39 Alberta Law Review, 848; Barney Sneiderman, ‘Latimer in the Supreme Court: Necessity, Compassionate Homicide and Mandatory Sentencing’ (2001) 64 Saskatchewan Law Review 511.
Some commentators have suggested that the combined effect of Perka and Latimer has been to effectively “shut the door on necessity as a justification in Canadian criminal law”.[29] Furthermore, the restrictions imposed on the defence by Dickson J, upheld in Latimer, create the anomalous situation where an advocate arguing necessity:[30]
…will be constrained to characterize the accused’s conduct as instinctive, to characterize the instinct as normal, to characterize alternative action as demonstrably impossible, and finally to characterize the conduct as a lesser evil than that averted.
[29] Benjamin L Berger, ‘A Choice Among Values: Theoretical and Historical Perspectives on the Defence of Necessity’ (2002) 39 Alberta Law Review, 848 at 857.
[30] D Gallway, ‘Necessity as a Justification: A critique of Perka’ (1986) 10 Dal LJ 158 at 160.
The “imminent peril” and “moral involuntariness” requirements enunciated in Perka and Latimer may, however, be subject to modification following the Supreme Court decision in Ruzic.[31] In that case, the Court considered, inter alia, the constitutionality of section 17 of the Canadian Criminal Code[32] specifying that the defence of duress is available only in cases involving “threats of immediate death or bodily harm”. Section 7 of the Canadian Charter of Rights and Freedoms[33] guarantees the right not to be deprived of liberty except in accordance with fundamental justice. The Court ruled that the immediacy requirement violated section 7 since it allowed individuals acting in an involuntary manner to be held criminally liable:[34]
Although moral involuntariness does not negate the actus reus or mens rea of an offence, it is a principle which, similarly to physical involuntariness, deserves protection under s. 7 of the Charter. It is a principle of fundamental justice that only voluntary conduct – behaviour that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability. Depriving a person of liberty and branding her with the stigma of criminal liability would infringe the principles of fundamental justice if the accused did not have any realistic choice. The ensuing deprivation of liberty and stigma would have been imposed in violation of the tenets of fundamental justice and would thus infringe s. 7 of the Charter.
[31] R v Ruzic [2001] 1 SCR 687.
[32] Canadian Criminal Code, R.S.C. 1985, c. C-46.
[33] Canadian Charter of Rights and Freedoms/Charte canadienne des droits et libertés, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), c. 11.
[34] R v Ruzic [2001] 1 SCR 687 at [47].
Other common law jurisdictions require, in addition to a belief formed on a reasonable basis, an objective analysis of whether there is no realistic choice open to defendants other than to act unlawfully in the manner they did.[35]
[35] R v Hutchinson (2003) NZCLD, 5th Series, 5700 at [58]; R v Latimer [2001] 1 SCR 3; R v Shayler [2001] WLR 2206 (CA); Kapi v Minister for Transport (1991) CRNZ 49 (CA), 57; R v Conway [1989] QB 290; R v Martin (Colin) [1989] 1 All ER 652; R v Perka [1984] 2 SCR 232. The New Zealand authorities in part turn upon the effect of its codification of criminal defences.
A Summary of the Principles to be Applied
Against the background of the above discussion, it is convenient to summarise the approach to be taken in the present case.
-The issues raised by the defence of necessity are whether an accused believed on reasonable grounds that commission of the crime charged was necessary in all the circumstances in order to remove a threat of death or serious injury to himself or another. Accordingly, there are subjective and objective considerations.
-A defence of necessity can only succeed if it is reasonably possible that an accused believed on reasonable grounds that there was a threat of death or serious injury to himself or another, and that the commission of the offence with which he was charged was necessary in order to remove the threat. Further, objectively viewed, there must have been no reasonable alternative course of action open to the accused.
-Assuming there was an imminent peril, a defendant must have honestly believed on reasonable grounds that it was necessary for him to do the acts which are alleged to constitute the offence in order to avoid the threatened peril. That test will, as a matter of fact, not be met if it is proved that the conduct was disproportionate to the threat. A response is not proportionate to the threat if there are reasonable grounds for believing there were alternative courses of action available.
-The prison escape cases make clear that each aspect of the criminal conduct must be addressed. That is, even if certain criminal conduct were necessary, the remainder may not be. That is so because such actions may not be either proportionate or reasonable.
-The response must be proportionate to the danger and cannot go further. If alternatives are reasonably available, the offending is not proportionate and therefore not reasonably necessary. The threat must be imminent and operative. An accused must be afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law, or involved some lesser breach of the law. Reasonableness and proportionality has to be assessed objectively. The existence of any possible alternative courses of action is of central factual importance.[36]
-The event justifying the conduct must be imminent and operational. If the threat abates there can be no emergency, nor can an action in response be said to be reasonable or proportionate. This is an obvious limiting factual consideration on the “reasonable necessity” element.
-The defence may only be expected to arise on rare occasions.[37]
[36] R v Rogers (1996) 86 A Crim R 542, 546-7; Paul Fairall and Stanley Yeo, ‘Necessity or Emergency’, Criminal Defences in Australia (4^th ed, 2005) at 97-112.
[37] Mark v Henshaw (1998) 101 A Crim R 122 at 125.
The Application of Legal Principle
The peril that was claimed to have arisen in the present case was evidenced by the making of threats to the defendant and his passengers and the physical bashing and kicking of the defendant’s vehicle. The peril that was created was the potential execution of those threats to do physical violence to person and property.
Following the altercation at the intersection of Port Wakefield, Grand Junction and Main North Roads, the occupants of the van returned to their vehicle and, on the lights turning green, the van proceeded to move forward. The defendant then manoeuvred his vehicle to the right and deliberately struck the side of the van in the turn-right lane. This amounted to driving without due care. The defendant claimed that this manoeuvre was designed to reduce the threat of danger to himself and his passengers. This was an entirely unreasonable approach. Rather than avoiding danger, it was highly probable that the defendant substantially increased any danger that may have existed. Such a manoeuvre was likely to provoke the occupants of the van.
The defence of necessity in respect of the due care charge should be rejected. The defendant’s conduct was not warranted by the threat and, in any event, was totally out of proportion to the necessity to meet the threat. The defendant had a number of choices open to him. One was to remain stationary. Another was to move to the south at a slow speed and leave Main North Road to the left into one of the many premises with entrances to Main North Road, or alternatively to a side street.
The analysis of the Judge concerning the events leading to the head-on collision should be accepted. The defendant drove at an excessive speed and in a dangerous manner, taking up a moving position in the parking lane and passing vehicles to his right at an excessive speed. He compounded this dangerous driving by cutting across the path of other south-bound traffic with a view to entering a side street to the west. Unsurprisingly, the manoeuvre led to a loss of control and a head-on collision. This was highly dangerous driving that put at risk the lives and safety of law abiding road users as well as that of himself and his passengers. There was ample opportunity for the defendant to have travelled at a speed within the speed limit and to have left Main North Road to the left.
It is extremely doubtful that there was any real or imminent danger after the vehicles left the intersection, as a result of the initial altercation. There certainly was no danger or threat that operated to justify or excuse the defendant’s manner of driving that led to the head-on collision.
In any event, whatever threat that existed had been materially exacerbated by the defendant’s deliberate collision with the van at the intersection. Insofar as it might be suggested that there was some peril after the impact with the van, the defendant cannot rely on that event when he must have contemplated that his actions, insofar as they were not justified by necessity, were likely to provoke a hostile response. If, as it appears to be on the defendant’s own case, there was a deliberate impact and that impact was not itself justified by necessity, then the situation cannot be described as an emergency because his response was not involuntary.[38] This conduct could not lead in these circumstances to the invoking of the defence of necessity.
[38] R v Perka [1984] 2 SCR 232.
Counsel for the defendant submitted that the Judge, when addressing the manner dangerous charge, erred in concluding that the Magistrate had not addressed the third limb of the test – reasonableness and proportionality. Counsel drew attention to and relied upon the conclusion of the Magistrate that the actions could not “be described as out of proportion to the peril which was being avoided”.
The point made by the Judge was that the Magistrate, in doing so, neither addressed, nor excluded, the existence of reasonably available alternatives. Rather, the Magistrate’s analysis proceeded, erroneously, on the assumption that the only live issue was the defendant’s subjective belief that there were no alternative actions available. The Magistrate’s conclusion on this question was expressed in this way:
Given the distance involved, the traffic on the road and the evidence which [the defendant] has given of his perceptions, I am not satisfied that he has continued in a manner which was inconsistent with his belief that he needed to escape from the van. In those circumstance I am satisfied that his manner of driving was as a result of a need which he perceived, and in those circumstances I find him not guilty of the offence.
[emphasis added]
It is to be observed that the Magistrate made no reference at all to the alternatives that were reasonably available to the appellant.
The correct analysis involves assessing whether there were reasonable grounds for the belief, particularly having regard to the wide range of alternatives open to the defendant other than driving without due care or in a manner dangerous. The Judge was correct in so concluding.
The Judge took the approach when addressing necessity and the due care charge that all that was necessary was to balance, as a matter of proportionality, “the slight nature of the offending” as against the subjective perception of danger. The Judge did not address the reasonably available alternatives to the deliberate impact with the van.
There were self-evidently a number of available alternatives. As earlier observed, an obvious measure was to drive with care to stay in the car and lock the doors. An alternative was to wait for the van, which was then moving away, to leave. Nothing necessitated a deliberate impact at the intersection that both placed the defendant’s vehicle in closer proximity to the van and further provoked the van’s occupants.
A clear alternative to the conduct, the subject of the manner dangerous charge, was to drive in a manner that was not dangerous – that is, not driving at an excessive speed, not driving in the parking lane and not executing a dangerous manoeuvre across traffic. The defendant could have remained stationary at the intersection as earlier discussed. Another course was to drive to a public place such as a service station, business premises or private premises. Another alternative was to drive into a side street to the left. Any of these steps would have alleviated the perceived risk. The presence of any of these alternatives meant that the defence of necessity must necessarily fail.
Even if driving at a dangerous speed might be justified for some period, a right-hand turn executed by the defendant from the far left parking lane, relying on others to avoid his vehicle, was a decision so extraordinary that it cannot possibly be said to be justified.
Conclusion
In respect of both charges, the conduct of the defendant was out of all proportion to the risk that existed. Even if there was an emergency that justified a response, the defendant’s response was reckless, extreme and disproportionate. The defendant was not entitled to drive in a manner that risked killing or seriously injuring other road users. The risk created by the defendant illustrates the rationale for mandatory obedience with the strict obligations of the Road Traffic Act. It was not for the defendant to choose how to comply with the law.
The appeal by the defendant should be dismissed. The complainant’s cross-appeal should be allowed. The dismissal of the charge of driving without due care should be set aside and a conviction recorded. The matter should be remitted for sentence.
SULAN J: I agree that the appeal should be dismissed. I agree that the cross-appeal of the complainant should be allowed. I agree with the reasons of Gray J.
WHITE J: I agree that the appeal should be dismissed and the cross-appeal allowed. I agree with the reasons of Gray J. The matter should be remitted to the Magistrates Court for sentencing.

[2007] SASC 411

23 November 2007

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Criminal Liability

Duress & Necessity

Compensatory Damages