Dixon-Jenkins v Director of Public Prosecutions

[1988] HCATrans 82

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M64 of 1987

B e t w e e n -

JOHN CHARLES DIXON-JENKINS

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for special leave

to appeal

WILSON J

DEANE J

DAWSON J

TOOHEY J

Dixon-Jenkins

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 MAY 1988, AT 12.26 PM

Copyright in the High Court of Australia

C2T 1/ 1/ AC 1 4/5/88

MR R. RICHTER, QC:  May it please the Court, I appear with

my learned friend, MR R. VAN DER WEIL, for the

applicant. (instructed by Simon English and

John Carty)

MR M. TOVEY:  May it please the Court, I appear for the

respondent. (instructed by Solicitor for the

Director of Public Prosecutions of Victoria)

WILSON J:  Yes, Mr Richter.

MR RICHTER: If the Court pleases, this is an application,

considerably out of time, for special leave to

appeal against conviction.

WILSON J:  2~ years.

MR RICHTER: It is more than that, Your Honour.

WILSON J:  Is it? Between the decision of the Full Court and

the filing of the application.

MR RICHTER:  Indeed, Your Honour, my mind was transfixed

by an even more ancient date which was the date

of conviction in 1984. The reasons for the delay

are not hard to come by and they appear in the

affidavit of the applicant himself which is set

out at page 207 of the appeal book.

WILSON J:  I think the Court has had an opportunity of reading

the materials and, perhaps, we could deal with

the question of extension after we have heard what

you have to say about the special leave point.

MR RICHTER:  Indeed, if the Court pleases. As far as the

argument is concerned, I would seek to hand up

to the Court copies of a summary of the applicant's

submissions. The ground which is set out appears

at page 204 of the appeal book and is that:

the learned Trial Judge erred in ruling that

the Defence of Necessity could not be considered

by the jury.

And that, likewise, the Court of Criminal Appeal erred in endorsing that decision, obviously. It

is an appeal against the decision of the Court
of Criminal Appeal in upholding a ruling by the
trial judge that the defence of necessity does

not go to the jury.

(Continued on page 3)

C2Tl/2/AC	2	4/5/88
Dixon-Jenkins -

MR RICHTER (continuing):  The basis of the complaint is

essentially that the defence of necessity was

improperly withdrawn from the jury by the learned

trial judge on the basis that the acts which were

said to constitute the crimes could not remove the

peril sought to be avoided. It was the basis upon

which the learned trial judge ruled that the defence

of necessity was not open to the applicant and that

ruling can be found at page 125 of the appeal book

where His Honour says this:

In my view it would be open to the jury, properly instructed and acting reasonably, to
be satisfied of the guilt of the accused on all

these charges.

There are a number of other submissions made of a no-case nature and there was also the following ruling

in relation to necessity:

So far as the defence of necessity is

concerned, one could say a great deal about

it but I think it is sufficient to say that
in~--my view, it is not available in the

circumstances of this case. It seems to me

that the defence of necessity justifies the

doing of a criminal act in order to remove
an inn:ninent peril facing the accused, and

the act which is done must itself remove that

peril. Now, on no view in my opinion could

the criminal acts, if found to be criminal

acts, which he did remove what is said to be

an inn:ninent peril, namely the threat of

wholesale destruction from the use of the

atomic bomb.

What the case essentially involved was quite a

substantial number of counts of threatening to destroy

or damage property under section 198 of the Victorian

CRIMES ACT as well as a· number of counts under

section 35B of the Victorian CRIMES ACT 1958, of
making a demand coupled with a threat to endanger

life and there are also some counts of public

nuisance.

TOOHEY J:  Mr Richter, it is not clear to me from the sunn:nary

but, at least in respect of the counts alleging threat
to damage property, are you contending that necessity

comes within the notion of "without lawful excuse" or

does that stand as a separate defence?

C2T2/l/SH	3	4 / 5 / 88
Dixon-Jenkins

MR RICHTER:	Yes, we are contending that it comes within the expression "without lawful excuse" and we are
contending that necessity comes within the general scope of defence is available even where the words
"without lawful excuse" are not used, as in the other section. But the contention in relation to the expression "without lawful excuse" really takes
necessity slightly further to a situation where
the question is: "If an accused makes out that he
had an honest and a reasonable belief in a state of
facts, which if true would render his acts necessary,
then he has a defence."  So that it is not merely
the - - -
DEANE J:	Necessary for what?
MR RICHTER:	Necessary to avert the peril.
DEANE J:	Of a nuclear holocaust?
MR RICHTER:	Yes.
DEANE J:	So if it would have been more effective if he had

exploded all the bombs and killed all the people,

if the bombs had been real, he would have a defence

of necessity? ·

MR RICHTER:  No, Your Honour, because the doctrine of the

necessity ever since DUDLEY and STEPHENS was always

expressed not to apply to homicide.

DEANE J: Well, if he had just injured a lot of people?

MR RICHTER:  That would not be seen as proportionate, if the

Court pleases. So that it has to be seen in the

context of what the threat was in this case and the

fact that the threat was essentially and inherently

incapable of execution, and was never meant to be

executed. Now, those are the essential facts to

the threat that was made.	The fact was that there
was never an intent to execute the threat nor was
it capable of being executed.	So that brings it

back to the concept of proportionality with which

necessity proper deals, and it is essential to

underline that because the twin hallmarks of the

defence of necessity have always been the motions

of, first of all, the necessity itself; secondly,

of proportionality.

(Continued on page 5)

C2T3/l/MB	4	4/5/88
Dixon-Jenkins

MR RICHTER (continuing):  We would contend that the notion

of proportionality has to take into account the

nature of the threat which is sought to be averted,

and what is sought to be done to avert it, and the

acts which might be justified to prevent a threat of

a particular kind may not be available, or rather the

necessity for such acts may not be available if the threat is of a different kind. The threat here is

of a global nature which, as was asserted, would

necessarily encompass the accused, his family, and

others.

The acts that were taken were taken having

regard to the fact that the threat was of a global

nature and that therefore what was it that could be

done to avert that threat, a threat that was perceived

as imminent.

WILSON J:  Does the principle of proportionality require that

there be a time factor, that the relief sought to be

gained is immediate?

MR RICHTER:  With respect, no, Your Honour, because that brings

me to the point that I was making about the nature of

a threat. This particular threat could not obviously

be immediately removed by the action, but the fact is

it was perceived to be a real threat and is

probably universally perceived to be an existing

threat. The nature of the threat was such that it

could not, by any means at all, be removed at once.

So that when one looks at proportionality and the

directness of what was done or what could be done,

one has to take into account the fact that there is

nothing immediate that can remove the threat and

therefore one has to draw a longer connection in
terms of the nexus between the act and the threat

which is sought to be averted.

It is not a case of a house being then and there

on fire and someone needing access to it demolishing

someone else's property next door, thereby to get
immediate access to put out the fire.	It is not

threat may permit acts that are more indirect to be carried out under the doctrine of

obviously of that kind of nature, but what was never nature of the

considered by the learned trial judge, or indeed the

necessity, in a threat such as the one in the instant

case, which would certainly not be permitted where the

threat is of a different nature, such as an instant

flooding or an instant fire.

C2T4/l/HS	5	4/5/88
Dixon-Jenkins

MR RICHTER (continuing):  The essence of the complaint,

as we say, is that the learned trial judge

excluded the defence of necessity on the basis

that it could not run in this case because it was

impossible to hold that the peril is removed or

that any impact is made on it by the commission

of these offences. What the learned trial judge
did was therefore to make the yardstick for the
applicability of the doctrine of necessity the

question of whether the Act could or could not

be efficacious in removing the threat.

That, in our submission, is not a proper

statement of the law as far as it relates to the

doctrine of necessity and, for that reason, we

say that the learned trial judge was in error and

that error, in our respectful submission, was carried

through and perpetuated in the judgment of the
Court of Criminal Appeal, the principal judgment

of which was delivered by His Honour Mr Justice Starke who, at page 198 of the appeal book, says as follows -

this is just under half-way down:

The argument proceeds in this way:

firstly, that there is notoriously an extreme

nuclear risk at the present time and at any

moment one or more of the great powers, or

even the lesser powers, may release a nuclear

device and in the result a holocaust may

develop which would destroy all or a great

part of mankind. The next step in the argument

is that the applicant and his family, and

indeed at one stage he claimed to be

representing the human race, were in imminent

peril from a nuclear disaster. The next step

in the argument is that by committing these

offences he will achieve widespread publicity,
at all events in Australia, and the next step

is that that will as it were overnight remove

the nuclear peril.

That was, really, not the next step in the argument
at all.	The next step in the argument is that

that would alter states of mind on the parts of

people who may well act to remove that peril but

apart from this gloss His Honour continues:

(Continued on page 7)

C2T5/l/ND	6	4/5/88
Dixon-Jenkins

:t1R. RICHTER (continuing):

I think the argument has only ..... to

be stated in that way to expose its

irrationality because in my opinion it is

an irrational argument, and were it not

for strong evidence as to the applicant's

sanity, I would have said to the point

of insanity. The flaw in the whole

argument is this. It is predicated that

society at present has a warmongering,

mercenary attitude, that the publicity

that the anti-nuclear adherent will

achieve from these crimes and the ensuing

publicity will change overnight, as it were,

or in the very near future, that attitude

into a peace-loving, caring outlook. The whole of human experience shows that when

society holds, however wrongly, deeply

rooted philosophic views it is quite impossible
to eradicate those views except in the
very long term, and accordingly, assuming
there is an imminent peril for the purposes

of the doctrine of necessity which I

doubt it is in my opinion quite impossible

to hold that that peril is removed or indeed

any impact is made on it by the commission

of these offences, and for that reason,

which was very much the reason for the

decision of.the learned Judge, I think that the argument as to the defence of necessity fails, and in my opinion the learned Judge

was quite right at the trial not to put

it to the jury.

So that in the course of a judgment which covered a

number of other grounds this is the essence of the

ruling on necessity. The Court of Criminal Appeal

endorses the learned trial judge's ruling and states

the doctrine of necessity in a way which,in our

having regard to the nature of the threat it is not	respectful submission, is incorrect because,
required by the doctrine in fact that the act
immediately remove the peril, in our respectful submission. That would be applicable to certain kinds
of threats and would be the case in certain kind of threats, but not in others of a far more complex nature.

DAWSON J: But surely there has to be some sensible connection

between what is done and the removal of the threat?

:t1R. RICHTER: Well, there has to be some sensible connection,

we agree with that, with respect, and the sensible

connection is drawn out in terms of the logic of the

argument, the logic of the argument being that what is

done will generate a change of heart in the minds of people.

C2T6/l/SR	7	4/5/88
Dixon-Jenkins

It does not have to be an instant change of heart simply because,by the very nature of these sorts of

attitudes as is observed by Mr Justice Starke,

it takes a long time to change.

(Continued on page 9).

C2T6/2/SR	8	4/5/88
Dixon-Jenkins

MR RICHTER (continuing):  But a start has to be made

somewhere, so the argument goes, and this is

a start and the train of events is that there will

be a change of heart because people will become

more conscious and aware of the ongoing and

i.rrmediate. peril in which they are. The fact that

we have not had a nuclear war does not make

it less innninent. The fact is that it could

happen at any time, so the argument goes.

WILSON J: Even if it changed the minds of the people of Melbourne, you have identified some limits to

the principle of proportionality, and applying

it to the necessary connection, it is very

remote from where the buttons are.

MR RICHTER:  There is an aspect of remoteness about it,

I, with respect, agree.

WILSON J: For example, New Zealand would not require this

campaign, would it?

MR RICHTER: No, not now.

WILSON J:	And yet, for four or five years New Zealand's stand does not seem to have noticeably moved the world towards the goal that your client
sought to achieve.
MR RICHTER:	No, but if one adheres to those goals then it

was certainly a step in the right direction,

if one accepts those goals, and the fact is
that the more steps in the right direction are
taken the accumulation may, in the end, cause

the change that is sought.

WILSON J:  Even if we are looking 50 years down the track?

MR RICHTER: Well, that may well be so, Your Honour, with

respect, but that is why I talk in terms of

the complexity of the nature of the threat and how

it can possibly be removed. And a start has to

be made somewhere, because, as was perceived by

the applicant, that was the one abiding overwhelming
threat to his existence, that of his family and

that of others. So, whether it takes 50 years

or 100 years, a start had to be made.

TOOHEY J:	Mr Richter, if the trial judge had in fact permitted
this defence to go to the jury, how do you suggest
he should have directed the jury in terms of what
matters they should bring to bear in deciding
whether the defence could operate or not?

C2T7/l/JM	9	4/5/88
Dixon-Jenkins

MR RICHTER:  He should, with respect, have directed the

jury in the sort of terms that were discussed in

REG V LOUGHNAN which is one of the few reported

judgments on the doctrine of necessity and setting

out the various tests set out therein. LOUGHNAN's

case, (1981) VR 443 -and the majority judgment

of the learned Chief Justice Young and Mr Justice King

commences at page 444. It is a joint judgment

and there is a minority judgment of His Honour

Mr Justice Crockett. The various tests which are

set out -if we go to the majority judgment first
at page 448, about half-way down the page the

learned Chief Justice and Mr Justice King say:

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.

Now that may well create some difficulty in terms

of the charging of a jury but that is because

the doctrine of necessity, essentially, is a fairly

undefined doctrine apart from its elements. The

extent of the elements is in some state of lack

of resolution. His Honour then goes on further

down at the next paragraph:

The other two elements involved, which

were identified by Menhennitt, J. in

R. V. DAVIDSON, supra, at p. 671 can for

convenience be given the labels, immediate

peril and proportion, although the expression

of what is embodied in those two elements

will necessarily vary from one type of situation

to another.

The element of imminent peril means that

the accused must honestly believe on reasonable

grounds that he was placed in a situation of imminent peril. As Edmund Davies, L.J. (as he then was) pointed out in SOUTHWARK L.B.C.

V WILLIAMS, supra, at p. 746, all the cases

in which a plea of necessity has succeeded

are cases which deal with an urgent situation

of imminent peril -

which is, of course, in our respectful submission,

not to say that the doctrine does not apply to

perils of a different kind.

C2'l'8/l/AC	10	4/5/88
Dixon-Jenkins -

MR RICHTER (continuing):  One only needs to look at

REG V DAVIDSON to realise that that is the case

because the REG V DAVIDSON was a case of a doctor

who was charged with using an instrument to procure

a miscarriage. Now, the woman upon whom he operated

to procure the miscarriage was not in imminent danger

in any different sense from the sort of danger

which is said to exist in this case, or the sort

of danger which is said to exist in the case of a person

who holds a loaded weapon but does not press the

trigger but the trigger pull could occur at any time.

In the cases of use of an instrument to procure miscarriages, it is the doctrine of necessity which,

according to Mr Justice Menhennitt, in DAVIDSON,

provides the defence. Now, one only needs to look

at the status of pregnancy, as it were, to appreciate

that it is certainly not an imminent peril in the

sense that a fire breaking out next door would be,

or in the sense that a flood coming upon us, if we

were in Sydney, might be. It is not that sort of

imminent peril - - -

DAWSON J:  That is the case in which the famous Menhennitt

ruling was given?

MR RICHTER:  Yes, Your Honour, and it is a case in which

His Honour Mr Justice Menhennitt, in a way that has

been followed since and accepted as an authoritative

statement,certainly by lower courts as being

charged with following it, and has been accepted

in other jurisdictions as a statement which is correct in principle. It is in that case that

His Honour brought together various decisions such as in

VAUGHAN's case in 1939 and drew together the

defence resting it upon the motion of necessity

and the principle of necessity. It is upon this

principle of necessity that the defence in abortion

cases has rested since; when there have been abortion

trials. So that the question of imminent peril can

be directed on without much difficulty and

Their Honours continue in their judgment:

The element of proportion simply means that the 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

anyalternative to doing what he did to avoid

the peril?

C2T9/l/MB	11	4/5/88
Dixon-Jenkins

MR RICHTER (continuing):  Now, the applicant had made a

very long unsworn statement in which he went

through his life history, in which he went through

how he came to be an advocate of the cause of nuclear disarmament. He went through a significant number of

events in his life to indicate that he had tried in
every other way that he felt possible to obviate the danger and that he felt that this was the only thing

left for him to do. Now, whether or not a jury

accepts that is a matter for a jury but, given what

he asserts as his reasoning, his intention, and given

his recital of the fact that he had taken all other

action that he felt possible, writing to politicans,

doing things of that description, that element can

be addressed upon and those are the elements that

the majority judgment sets out in relation to a

defence of necessity.

Now, His Honour Mr Justice Crockett himself reformulates in somewhat different words, the elements

of the defence of necessity at page 460 and what His Honour says is this, having discussed on the

previous page five principles emerging from a case and having expressed dissatisfaction with some of the principles there discussed, His Honour comes

to conclude at page 460, as follows:

Similarly, I would prefer to restate

the first three propositions.

That is in LOVERCAMP.

They appear to me to be in the form of

evidentiary requirements rather than principles.

The essential conditions, I consider, so far

as presently relevant, are that: 1. The

harm to be justified must have been committed

under pressure either of physical forces or

exerted by some human agency so that "an

urgent situation of imminent peril" has been

created.

(Continued on page 13)

C2Tl0/l/SH	12	4/5/88
Dixon-Jenkins

MR RICHTER (continuing): Now, as to that, in our respectful

submission, _there was plenty of material upon which

a jury could find that there was an urgent

situation of imminent peril. The second element,

that: "The accused must have acted with the intention

of avoiding greater harm or so as have made possible

'the preservation of at least an equal value'.'.' It

was asserted on the materials and a jury could

have found that he acted with that intention and

with no other intention. Third: "There was open

to the accused no alternative, other than adopted

by him, to avoid the greater harm or to conserve

the va 1 ue'." That. goes back to what we said in relation

to the applicant's unsworn statement in which he

recited a number of steps that he had, prior to

that particular one, taken in order to try and

do something about.

That, of course, cannot be an exhaustive list

of activities possible to counter the threat or

to militate against it. Nothing can be exhaustive

but in the c i r cums tan c e s he s a id th a t he f e 1 t that

that was the only thing left open for him to do

in the situation in which he had found himself

and that could have been put to the jury on the
basis that he, in his position, having gone through

the phases of his life, the various considerations

that went into the history of his activities, that

a reasonable man in his position might have come

to the conclusion that there was nothing else he could do to militate against the danger in order

to avert it.

So that, in answer to Your Honour

Justice Toohey's question, those are the elements of the defence that could have been charged upon

and would have been charged upon in conformity

with the facts of the case as they emerged.

DAWSON J: Is this a subjective or an objective test?
MR RICHTER:	As to which element, Your Honour?
DAWSON J:	As to the third.
MR RICHTER:	As to the third - the majority judgment clearly

makes it a mix of the two because what Their Honours

say at page 448 is this:

The -

third -

element of proportion simply means that the

acts done to avoid the imminent peril must

not be out of proportion to the peril to be

C2Tll/l/ND	13	4/5/88
Dixon:--Jenkins

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?

DAWSON J: Well, that is subjective.

MR RICHTER: It is subjective but it is mix of objective

and subjective because it is in the position of

the man. It is a manslaughter-type consideration -

a provocation-type consideration.

TOOHEY J:  But 11 in the position of the accused" simply means

in the circumstances in which the accused finds

himself.

MR RICHTER:  Yes, but including the circumstances of his

life, one would think, and his previous experiences

and what he had done and what he had sought to

do, for example, the fact that he gave it in his

unsworn statement that he believed that his mother

died as a result of radiation fall-out, of nuclear

testing in the United States where he resided then

with his family. So that those matters would need

to be taken into account.

WILSON J: Mr Richter, I think it is time for the Court

to adjourn. Could I just draw your attention

to the test ennunciated by the Supreme Court of

Canada in MORGENTALER~ 20 CCC (2d) 449,

but it is the third element that Mr Justice Crockett

refers to is expressed rather differently in that

case by saying that "when compliance with the law

was, 11 If the defence does exist it can go no further	is demonstrably impossible", so that the statement
than to justify non-compliance in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible." I do not
know whether that lines up with the Victorian test
or not?

MR RICHTER: It does not really because it is not a question

of whether compliance with the law is impossible but whether compliance with the law will produce

nothing.

WILSON J:  The Court will resume at 2 o'clock.

MR RICHTER: If the Court pleases.

AT 12.56 PM LUNCHEON ADJOURNMENT

C2Tll/2/ND	14	4/5/88
Dixon-Jenkins

UPON RESUMING AT 2.03 PM:

WILSON J: Yes, Mr Richter?

MR RICHTER:  If the Court pleases, I have had the opportunity of looking at MORGENTALER's case and in particular

the judgment of His Honour Mr Justice Dickson at

page 499 on, talking about the concept of impossibility

and about Mr Kenny's second proposition that there

is no defence of necessity"where the evil could

have been averted by anything short of the

cormnission of that offence." And what His Honour

says at the bottom of page 499 is:

Turning our attention to

Mr Kenny's second proposition, that is -

we must ask whether the evil averted could

have been averted by anything short of
the cormnission of the offence. This raises

the question of the urgency of the operation

performed by the appellant and whether the

appellant could have applied with the law.

A defence of necessity at the very least must rest upon evidence from which a jury

could find (i) that the accused in good

faith considered the situation so emergent

that failure to terminate the pregnancy

irmnediately could endanger life or health;

and (ii) that upon any reasonable view of

the facts compliance with the law was

impossible.

Now, our submission in respect of that

formulation is that first of all the use of

the word nimpossible" is fairly circular and

circuitous having regard to what His Honour is

dealing with. It is not impossible at any time

to comply with the law other than in situations

where the non-compliance is through an involuntary

act which would not constitute voluntariness for

the mens rea required in that offence in any event.

And we say that because, for example, for the

HALE example of a prisoner in a burning prison:

it is not impossible for him to comply with the

law; he can stay there and burn. He can comply

with the law. That is why the use of the

expression "impossible" avoids the real issue

which is the extent to which the law will balance

the harm to be avoided against the harm to be

perpetrated. And it is only when the harm which

has been perpetrated outweighs the harm to be
avoided that thedefence will obviously not be there,

because that sort of notion of balancing is

essential to the concept of necessity.

C2Tl2/l/JM 15 4/5/88

Dixon-Jenkins

MR RICHTER (continuing):  Quite apart from that observation,

in our respectful submission that observation of

His Honour Mr Justice Dixon really does not appear

to represent the law as it is understood, certainly

in the State of Victoria, in relation to necessity,

having regard to the decision in LOUGHNAN's case

in the Court of Criminal Appeal, or indeed the

law as it is understood to prevail with respect to

charges of abortion and as it is set out in the
judgment of Mr Justice Menhennitt in DAVIDSON,

(1969) VR. So that to that extent, in our

respectful submission, the observations of the

Supreme Court of Canada are not helpful and introduce,

or re-introduce into a very difficult area a notion
of circularity which really renders no assistance in

the analysis of the concepts involved in necessity.

What we essentially submit is this, that the

law of necessity, rare though its application might be,

is available in a range of crimes,

as a defence to a whole range of offences.

We would not be submitting that it is open as a defence

to a charge of murder because all the pronouncements

on it have simply said that it is not and one

cannot balance one life against another and say that one is more worthwhile than another, and presumably

that is a fundamental consideration which excludes
the law of necessity from the area of homicide; but

we do say that it would apply to a whole range of

offences and the authorities are mainly concentrated

in the sphere of prison escapes and abortion and

trespass, but there is no reason, in our respectful

submission, why it ought not to be applicable to a

situation such as the charges that the applicant was

convicted of.

The law of necessity,having stood in Victoria and

having been understood to have been properly explained
in LOUGHNAN's case, then we say underwent a gloss that

was imposed by the judgment of the Court of Criminal

Appeal in this particular instance, and that gloss

introduced an element into the defence which, in our
submission is, on the face of it, erroneous.	It needs

only to be stated to be seen to be erroneous because,

in our respectful submission, it introduces the notion

that if something is inefficacious it cannot be the

foundation stone for a defence of necessity. The

example that we give in our sutmnary of submissions need

only be stated, in our respectful submission, in order

to demonstrate the point. If someone is charged with

attempting to escape from a prison, having raised the

defence of necessity, namely a threat that he would be

killed, and attempts to tunnel through a wall which he

thought was 1 foot thick and for which he had a

reasonable prospect of getting through, only to find

that he had tackled the wrong one and is trying

C2Tl3/l/HS	16	4/5/88
Dixon-Jenkins

to burrow through a wall which is 10 feet thick,

and in which instance on no reasonably scenario

available can it be said to have been capable of

being performed by him, what he has done would fall

within the formulations of both

His Honour Judge O'Shea, the trial judge, and

Mr Justice Starke in the Court of Criminal Appeal.

(Continued on page 18)

C2T13/2/HS	17	4/.5/88
Dixon-Jenkins

MR RICHTER (continuing): What he did was ineffective. What

he did -it would be said that it is quite impossible

to hold that the peril is removed or indeed any

impact is made on it by the cormnission of these

offences. If the person had been charged with

attempting to escape,on the formulation of

His Honour Mr Justice Starke he would have no defence

of necessity open to him. On the views expressed

in LOUGHNAN's case he would or may, depending

on the circumstances. So to that extent we say

that the Court of Criminal Appeal and the learned

trial judge clearly fell into error and in doing

so, in our respectful submission, obfuscated the

law of necessity as it had been stated in LOUGHNAN

and not restated elsewhere since then.

It is precisely for that demonstrable error,

and that demonstrable error was the basis upon

which the defence of necessity was taken away, it

is for that error that we say special leave ought

to be given in this case in order that the situation

be clarified because otherwise the law is left in

a state of confusion and the doctrine of necessity

is laboured with an element which ought not to have

been introduced into it but which was introduced in

this case. Now that on the face of it is an error

which, in our submission, we demonstrate and in

our submission warrants the granting of special leave to appeal. I do not believe that there are any other

special reasons why this Court should give leave

to appeal other than that in 'what we say, ftmdamental error.

In terms of the actual appeal, we would submit

that quite cle::1.rly on the material, if the formulation

in LOUGHNAN's case, either Mr Justice Cracker's

formulation or the formulation of the Chief Judge

and Mr Justice King were to be adopted,there was

material there available to a jury upon which it

could if it so chose act. Unless the Court now

desires me to address further on the time aspect

I have no further submissions.

Tl4 WILSON CJ: Thank you, Mr Richter. The Court will retire

for a few moments to consider the course that it

should take in this matter.

AT 2.12 PM SHORT ADJOURNMENT

C2Tl5/l/SR	18	4/5/88
Dixon-Jenkins
UPON RESUMING AT 2 .15 PM:

WILSON J:  The Court does not need to trouble you,

Mr Tovey.

MR TOVEY:	May it please the Court.
WILSON J:	The identification of the elements of a defence

of necessity is obviously a question of considerable general importance that has not hitherto engaged the attention of the Court. The present case, however,

is not an appropriate vehicle for a consideration of

that question since the facts are not such as would,

on any reasonable approach to the identification of

those elements, have given rise to such a defence.

Since the Court has heard the submissions of

Mr Richter on the merits, the appropriate order is

that an extension of time in which to seek to make

an application for special leave should be granted

but that special leave should be refused. That is

the order of the Court.

MR RICHTER: If the Court pleases.

MR TOVEY:  May it please the Court.

,.JL;.-

--- -

AT 2.17 PM THE MATTER WAS ADJOURNED SINE DIE.

C2Tl6/l/SH	19	4/5/88
Dixon-Jenkins