October 2000

NB: Endnotes are not linked within text. Please request a copy of the fulltext from the author if references are required.



R v Perka (1984) 14 CCC (3d) 385, [1984] 2 SCR 233
Reniger v Fogassa (1550) 1 Plowd 2, 75 ER 1
R v Conway [1988] 3 All ER 1025, [1988] 3 WLR 1238
R v Howe [1987] AC 417, [1987] 1 All ER 771


Reniger v Fogassa
Moore v Hussey (1609) Hob 96
Manby v Scott (1672)
McGrowther's case (1746) 18 St Tr 391
R v Stratton (1779) 21 St Tr 1222, (1779) 99 ER 156
The Gratitudine (1801) 83 ER 268
R v Vantandillo (1815) 4 M&S 73, 105 ER 762
Australasian Steam Navigation Co v Morse (1872) LR 4 PC 222
R v Dudley v Stephens (1884) 14 QBD 273, [1881-5] All ER Rep 617
United States v Holmes - Fed Case No 15383 (CCED pa, 1842)
R v Bourne [1938] Vol 3 CCC 615
R v Hurley & Murray [1967] VR 526
R v Hudson & Taylor [1971] 2 QB 202
Buckoke v GLC [1971] Ch 655
London Borough of Southwark v Williams [1971] 2 All ER 175
Johnson v Phillips [1976] 1 WLR 65
Woods v Richards [1977] RTR 202
R v Loughnan [1981] VR 443
R v Perka
R v Howe
R v Willer (1986) 83 Cr App R 235
R v Conway
R v Martin [1989] 1 All ER 652, (1989) 88 Cr App R 343
R v Gotts [1992] 2 AC 412
R v Pommell [1995] 2 Cr App R 607


R v Salaca [1967] NZLR 421
R v Joyce [1968] NZLR 1070
R v Woolnough [1977] 2 NZLR 508
R v Teichelman [1981] 2 NZLR 65
Civil Aviation Dept v MacKenzie [1983] NZLR 78
R v Perrot - Unrep 22/4/83, CA120/82
R v Frickleton [1984] 2 NZLR 670
R v Steane [1947] KB 9997, [1947] 1 All ER 813
R v Raroa (1987) 2 CRNZ 596
Police v Vaille [1989] 1 NZLR 521
Kapi v MOT [1991] 1 NZLR 227
Kapi v MOT (1992) 8 CRNZ 49
R v Lamont - Unrep 27/4/92, CA442/91
R v Witika [1993] 2 NZLR 424
Police v Kawiti [2000] 1 NZLR 117
R v Smith [1977] 6 WWR 16


Adams, Adams on Criminal Law 2nd Student Ed (Robertson Ed)
Collins Pocket English Dictionary
Crimes Bill Consultative Committee, Crimes Bill 1989 (1991) Dept of Justice
Elliott and Wood, Casebook on Criminal Law 6th Ed
New Zealand Law Commission, Battered Defendants NZLC PP41
Professer Kenny, Outlines of Criminal Law 12th Ed
Simester and Brookbanks, Principles of Criminal Law (1998)
Glanville Williams, Criminal Law: The General Part (1953)


[I]f a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact; for he ought rather to die himself, than kill an innocent ...
- Hale's Pleas of the Crown (1736) Vol 1, p. 51 [Hale and Blackstone]

It is my intention within this thesis to examine the development of the defence of necessity at common law; principally in Great Britain, and with some illustrative international decisions. I also intend to describe New Zealand's particular treatment of the defence, with its partial incorporation into statute. Following that is a critique of our approach; and suggestions as to how, in the absence of statutory reform or judicial expansion, the defence could be brought more in line with the common law.


Necessity has been variously defined over the years, and is known to be comprised of 'species', or aspects. These have often been separated by the Courts, by the jurists, and by statute. These separations are often conflicting, and may come under different names. By way of an introduction I would like to set out how I will describe the area of law called "necessity".

"Necessity" then, broadly covers the area of justification or excuse where a person seeks to exculpate their actions on the grounds of avoiding a greater evil. It is similar to, but distinct from self-defence, impossibility and involuntariness.
In R v Perka Dickson J of the Canadian Supreme Court described necessity as "normatively involuntary", to connote its effect on the will. However, it is really a choice between evils that may look like "no real choice at all" rather than true involuntary conduct. In other words, a person acting under duress still has mens rea intention; it is their motive which is affected.
As a concept it has been recognised in English law since at least 1550, where the Court in Reniger v Fogassa considered that:

[I]n every law there are some things which when they happen may break the words of the law, and yet not break the law itself; and such things are exempted out of the penalty of the law ... although they are done against the letter of it ... the words of them are broken to avoid greater inconveniences, or through necessity, or by compulsion ...

A necessitous situation may occur when a person is forced to act by external circumstances, either naturally occurring, or through the actions of a human agent. The English Court of Appeal in R v Conway described the former as necessity, or "duress of circumstances" (the first use of that phrase), and the latter as duress. Lord Hailsham in R v Howe claimed this to be an unnecessary distinction. While I agree that the Court of Appeal is unclear in its use of language, the separation of necessity into its component parts for the purpose of definition is a useful guide, and this approach has been taken in New Zealand law.
By giving each part a unique label, I seek to avoid the overlap and re-use of terms that appears in a lot of cases; thus it is more easily said that "necessity" comprises "duress of circumstances" when the danger is objective, or "duress by human agent" when constituted by threats from a person. Consequently, "duress by human agent" may be "instrumental" (in other words, to compel a victim's action) or "non-instrumental" (an end in itself). The first of these is otherwise known as "compulsion".

"Necessity" is either a) "Duress by circumstances", or
b) "Duress by a human agent"; which is either
i) Instrumental ("compulsion"), or
ii) Non-instrumental


If a man by the terrour of present death, be compelled to doe a fact against the Law, he is totally excused; because no Law can oblige a man to abandon his own preservation ... Nature therefore compells him to the fact.
- Leviathan [Hobbes]


Before the 16th Century, the only relevant authorities on necessity are cited by Hale , from the years 1320, 1347 and 1419. They are cases where treasonable acts were pardoned by virtue of the defendants being under duress by rebels, or invading enemies. Already, from such an early period, the concept of the defence has been confirmed in English law.
The 1550 case of Reniger v Fogassa thus provides a convenient entry point into the history of necessity in English common law. The Court recognised that the "words" of the law might be justifiably broken in certain circumstances, including necessity and compulsion. The principle was restated by Hobart J in Moore v Hussey , that "All laws admit certain cases of just excuse, when they are offended in the letter, and where the offender is under necessity, either of compulsion or inconvenience".
Likewise, Manby v Scott held that "the law for necessity dispenses with things which otherwise are not lawful to be done". McGrowther's case later limited the defence to threats against the person, finding that threats of property damage were insufficient to exculpate charges of rebellion and high treason. Lee CJ stated that "the only force that doth excuse is a force upon the person and present fear of death".
The nature of necessity was considered in R v Stratton . This was a case involving obedience to 'de facto' law, and later provided Sir James Stephen with his first 'illustration' for the principle of necessity . In the case, Lord Mansfield noted that "whenever necessity forces a man to do an illegal act it justifies him, because no man can be guilty of a crime without the will and intention of his mind". What is interesting about this direction is that it approaches necessity as a defence of absence of mens rea, an idea which is rarely argued before the Court in such cases.
Sir William Scott investigated the nature of necessity in The Gratitudine :

The law of cases of necessity is not likely to be well furnished with precise rules; necessity creates the law; it supersedes rules; and whatever is reasonable and just in such cases, is likewise legal. It is not to be considered a matter of surprise, therefore, if much instituted rule is not to be found on such subjects.

Glanville Williams commented on this case, that the "peculiarity of necessity as a doctrine of law is the difficulty or impossibility of formulating it with any approach to precision ... It is in reality a dispensing power in the judges where they are brought to feel that obedience to the law would have endangered some higher value" .
In a more minor case, necessity was successfully pleaded as a defence to the public nuisance of carrying an infected child through the streets in search of medical attention ; and it was also considered within the context of a mercantile arrangement by the Privy Council in Australasian Steam Navigation Co v Morse . Sir Montague Smith gave the following principle :

[W]hen by force of circumstances a man has the duty cast upon him of taking some action for
another, and under that obligation, adopts the course which, to the judgment of a wise and prudent man, is apparently the best for the interest of the persons for whom he acts in a given emergency, it may be properly said of the course so taken, that it was, in a mercantile sense, necessary to take it.

Undoubtedly the most famous historical case to deal with necessity in England is, of course, R v Dudley and Stephens ; and its facts are just the sort to test the limits as to how far the Courts will entertain the defence. Three men and a minor had taken to an open boat when their yacht, The Mignonette, had floundered in a severe storm. They subsisted on what few supplies they had taken with them, and on what they could catch; until, after 20 days, Dudley and Stephens killed the boy for food. They were rescued four days later.
When the matter went to trial, the jury was unable to decide whether what had occurred amounted to murder. The Court on the other hand was forthcoming with its answer. Lord Coleridge delivered the judgment of the Court, that while:

[T]he prisoners were subject to terrible temptation, to sufferings which might break down the
bodily power of the strongest man ... nevertheless ... the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives ... with the certainty of depriving him of any possible chance of survival ...

The Court accepted that a killing in self-defence is justifiable, but are adamant that killing someone who does not pose a threat clearly constitutes murder:

[T]he deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law ... the temptation to the act which existed here is not what the law has ever called necessity ...

The idea of allowing an act of necessity to be a defence for murder was a proposition which appeared to be "at once dangerous, immoral, and opposed to all legal principle and analogy". Instead, Lord Coleridge enunciated the principle that "while to preserve one's life is generally speaking a duty ... it may be the plainest and highest duty to sacrifice it".
Obviously then, this decision did little to encourage use of the defence; Stephen noting that it imposes a duty "not to live but to die", and according to Simester and Brookbanks, leaving "the English law on necessity in a very unsatisfactory state" .

Interestingly, in Dudley and Stephens the Court cited an American case, United States v Holmes . In that case an iceberg had forced a number of people to sea in a rowboat, including the captain and various other crew members, while the remaining passengers drowned. However, because of a leak, the boat started taking in water, and after a few days was threatened with being overswamped. At this stage the crew threw sixteen passengers overboard.
In considering the facts, Circuit Justice Baldwin stated that it was "the law of necessity alone which can disarm the vindicatory justice of [a] country". He gave an example where two people might be in such straits as only one of them can survive (e.g. floundering for a plank of wood in the sea), and that "neither is bound to save the other's life by sacrificing his own, nor would either commit a crime in saving his own life in a struggle for the only means of safety". However, the situation was that the passengers had paid the fare, and were consequently entitled to "no duty but submission". The captain and crew on the other hand were "bound ... to undergo whatever hazard is necessary to preserve the boat and the passengers. Should the emergency become so extreme as to call for the sacrifice of life, there [could] be no reason why the law [would] not remain the same".
This case is interesting for comparison, in that the defendant was ultimately only convicted of manslaughter. This suggests a slightly different approach by allowing for the mitigating circumstances where the defence is unsuccessful as a matter of justification.

The defendant in R v Bourne was charged with unlawfully procuring the abortion of a 15 year old rape victim. He was a doctor in a top hospital, and performed the operation in 'good faith', to preserve the life of the mother. Macnaghtan J's address to the jury suggested that that a "reasonable view" of the circumstances should be taken, and that :

[T]he law is not that the doctor has ... to wait until the unfortunate woman is in peril of immediate death and then at the last moment snatch her from the jaws of death. He is not only entitled, but it is his duty, to perform the operation with a view to saving her life.

Consequently the jury found the doctor's actions to be justified. Especially worth noting is the fact that his actions would have been excused even when the threat of death was not imminent or certain, but, at best, "reasonably certain".

Finally, a useful Australian authority, R v Hurley & Murray considers the principles governing duress. The accused and his de facto were compelled by threats to aid escaped criminals, and dispose of two corpses. When the accused was away from the men his de facto was effectively held hostage, such that the threats to her "would have been operative during the entire period of his absence" and "his only concern must have been for the safety of the woman" . The extent to which threats may negative intent ought to be the subject of a direction to the jury :

[I]n considering whether the necessary desire had been established they should have regard to all the evidence as to threats and fears, whether or not they considered that it matched up to the requirements [required by] duress.

Further the circumstances in which his de facto was held hostage "would support a view that the threat against her was of a death sufficiently 'imminent' and 'immediate'" to compel the accused's actions, even when the threat was not present to or directed upon himself.


In R v Hudson & Taylor duress was pleaded as a defence to perjury, where the person making the threats had been present in the Court room at the time the crime was committed. The Court made a generous allowance for the circumstances, in that :
[T]o require that the threatener should be standing over the victim all the time for duress to operate is to take too narrow a view ... The phrase 'present and immediate' in relation to the threat means that the fear is present to the mind of the victim, not that the threatener is physically present at the scene of the crime committed under fear.

This is possibly too wide, and later statements by Lord Parker CJ make us consider the correctness of the decision. He describes the defence as operating "if the will of the accused has been overborne by threats of death or serious personal injury so that the commission of the alleged offence was no longer the voluntary act of the accused". This is uncomfortably close to the concept of compulsion as "normative involuntariness" rejected in 1.
Other recent case law developments in England have dealt largely with driving offences. Lord Denning dealt in obiter with necessity in Buckoke v GLC , a case involving the dangerous driving of a fire engine. During the decision he raises the question, "Might not the driver of a fire engine be able to raise the defence of necessity?" He gives the example of a fire engine approaching a blazing house, but which is blocked by a red light :

I suggested to both counsel that the driver might be excused in crossing the lights to save [a] man.
He might have the defence of necessity. Both counsel denied it. They would not allow him any
defence in law. The circumstances went to mitigation, they aid, and did not take away his guilt. If
counsel are correct - and I accept that they are - nevertheless such a man should not be prosecuted.
He should be congratulated.

This statement is somewhat inconclusive; while a defence of necessity is denied, the idea that the circumstances may mitigate the sentence reappears. However, Lord Denning makes further statements against necessity in London Borough of Southwark v Williams :

[I]f hunger were once allowed to be an excuse for stealing, it would open a way through which all
kinds of disorder and lawlessness would pass [and] if homelessness were once admitted as a defence to trespass, no one's house could be safe. Necessity would open a door which no man could shut. It would not only be those in extreme need who would enter ... [but others] would imagine that they were in need, or would invent a need, so as to gain entry ... The pleas would be an excuse for all sorts of wrongdoing. So the courts must, for the sake of law and order, take a firm stand.

Obviously what is being stated here is a policy decision for disallowing the defence, i.e. the 'floodgates' fear. While this might have seemed like a death knell for a defence of necessity at common law, Edmund Davies LJ made a statement in the same case to the effect that nonetheless a defendant may avail himself of the defence if there was "an urgent situation of imminent peril". There are also more favourable cases for the defence.
In Johnson v Phillips it was asked whether :

[A] constable in purported exercise of his power to control traffic on a public road the right under
common law to disobey a traffic regulation such as going the wrong way along a one-way street? ... In the judgment of this court a constable would be entitled, and indeed under a duty, to give such instruction if it were reasonably necessary for the protection of life or property.

This is a validation of the defence, while "the extent that it exists must depend on the degree of emergency or the alternative danger to be averted" . The scope of the defence was also considered in R v Loughnan , an Australian authority which dealt with a gaol escape. As well as laying down the usual requirements of necessity, the Court found that fleeing a fire was justification for the crime in question. Consequently, necessity was confirmed in Victoria.

Next in chronology is an important Canadian case, Perka v The Queen , which provides a clear summary of necessity at common law. The Court's initial summary of the defence is as follows:

As an excuse, 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 impelled disobedience.

Here the Canadian Court demonstrates a positive empathy for the defence, citing 'altruism' as one of the motives by which one might be compelled to transgress. The necessary limitations are then examined :

The defence must, however, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale. That rationale is that it is inappropriate to punish acts which are normatively involuntary.

The Court lays out its tests for "determining whether the wrongful act was truly the only realistic reaction open". These include requirements:
i) "that the situation be urgent and the peril be imminent", at least "so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable";
ii) "that compliance with the law be demonstrably impossible" with no "reasonable legal alternative";
iii) that the action is in proportion, because "the defence cannot excuse the infliction of a greater harm so as to allow the actor to avert a lesser evil"; and
iv) that the "necessitous situation was [not] clearly foreseeable to a reasonable observer".
A person's negligence in placing themselves in that situation will not disallow the defence.
It is well worth noting R v Howe , which questioned whether duress was available to either principals in the first or second degree of murder. It dealt with three men who had been murdering young men, effectively under the tutelage of one Murray. When caught and prosecuted, the other two tried to assert that they had only acted as they did through fear of Murray, though the facts seemed to count against this argument. After a lengthy history of English case law and authority, it was decided without doubt that duress is not available to any parties to murder. I make only a brief reference to the case at this stage, and will return to it in more detail in 4.1.

Returning to England's spate of driving offences, R v Willer dealt with a defendant who had driven on the footpath to avoid a gang. The Court of Appeal held that necessity did not arise, as they were duressed to avoid harm, not to commit any act. This distinction seems incorrect because the defendant's actions would have been the same whether it was a group of threatening humans, or (for example) a group of threatening bulls, that forced him onto the pavement.
In the previously mentioned R v Conway, the Court of Appeal dealt with a charge of reckless driving, where the defendant had fled from police officers. His passenger had recently been attacked by a man with a shotgun, and screamed at the defendant to "drive off" when he saw the officers running toward the car, while dressed in civilian clothes.
The Court held that the facts needed to establish "duress of circumstances" to be successful, i.e. that it was necessary for him to drive as he did in order to avoid death or seriously body injury to himself or another person. As evidence, the accused must be able to point to an "objective danger" or at least satisfy the requirement of reasonable belief. As a gloss, Woolf LJ noted that :

Whether 'duress of circumstances' is called 'duress' or 'necessity' does not matter. What is important is that, whatever it is called, it is subject to the same limitations as the 'do this or else' species of duress.

In other words, the requirements placed on a defence of necessity will be the same, no matter what particular 'species' of necessity is pleaded. This codification is very similar to the rules laid out in Perka, and is rendered ever more certain in R v Martin .
Martin involved a defendant who drove while disqualified. He claimed that it was necessary for him to drive his son to work, because he feared his mentally ill wife might commit suicide - distraught as she was at the idea her son might be late for work and be fired. Simon Brown J summarised the principles of the defence thus :

Most commonly this defence arises as duress, that is pressure on the accused's will from the wrongful threats or violence of another. Equally however it can arise from other objective dangers threatening the accused or others ...

His requirements were:
i) that "from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury";
ii) that a jury should determine whether the accused was "impelled to act as he did because of a result of what he reasonably believed to be the situation, he had good cause to fear ... death or serious physical injury"; and
ii) that a jury should also determine whether "a sober person of reasonable firmness, sharing the characteristics of the accused, [would] have responded to that situation" in the same manner.

The House of Lords in R v Gotts held 3 to 2 that because necessity wasn't available to murder, nor should it be available as a defence to attempted murder. Lord Lowry delivered a strong dissent, arguing the conceptual differences between murder and attempted murder, especially under duress; but Lord Jauncy likewise made compelling statements of policy to support the majority decision :

The reason why duress has for so long been stated not to be available as a defence to a murder charge is that the law regards the sanctity of human life and the protection thereof as of paramount importance ... I can therefore see no justification in logic, morality or law in affording to an attempted murderer the defence which is withheld from a murderer.

Since the determinative decision in R v Martin, the other most important English authority has been R v Pommell . Here the appellant was charged with possession of an illegal firearm, a sub-machine gun, which he claimed to have taken from another person in order to hand it to the police. There was a deliberation as to how long he had been in possession, which ultimately lost him the case at trial level. He appealed successfully, and the Judge emphasised the need to act promptly in such a case. Acting otherwise would be imprudent, and may very well annull the defence.
This decision was important in that extended the availability of the defence from the gambit of 'driving' cases, to any range of offences. Post-Pommell it seems that all species of common law necessity may be available as general defences to any offence, excluding murder, attempted murder, infliction of serious injury, and probably treason.


It is regrettable that much of the early debate in New Zealand concerning the merits of the necessity defence was highly rhetorical and tended to falter upon the perception that early examples of necessity ... simply existed for the whimsical amusement of 'casuists' who have 'for centuries' amused themselves with such teasers.
- Principles of Criminal Law (1998) [Simester and Brookbanks]


Necessity has not had an illustrious history in this country; and although noted Australasian law reformer Sir Samuel Griffith intended to incorporate the concept into his Criminal Code on the grounds that the "morally innocent" should be protected from prosecution when acting under "sudden or extraordinary emergency", the defence has been largely confronted with "disinterested scholarism".

S23 of the draft criminal Code recommended by the 1879 Royal Commission (Cmd C-2345) read as follows:

Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion.

Instrumental duress by human agent is provided for in the statutory defence of "compulsion" from s24 of the Crimes Act 1961 :

S24. Compulsion - (1) Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion.
(2) Nothing in subsection (1) of this section shall apply where the offence committed ... is an offence specified in any of the following provisions of this Act, namely:
(a) Section 73 (treason) or section 78 (communicating secrets):
(b) Section 79 (sabotage):
(c) Section 92 (piracy):
(d) Section 93 (piratical acts):
(e) Sections 167 and 168 (murder):
(f) Section 173 (attempt to murder):
(g) Section 188 (wounding with intent):
(h) Subsection (1) of section 189 (injuring with intent to cause grievous bodily
(i) Section 208 (abduction):
(j) Section 209 (kidnapping):
(k) Section 234 (robbery):
(ka) Section 235 (aggravated robbery):
(l) Section 294 (arson)
(3) Where a married woman commits an offence, the fact that her husband was
present at the commission of it shall not of itself raise the presumption of

Simester and Brookbanks refer to the various analogous references in the Crimes Act, including s48 self defence and defence of another; s52-6 defence of property; s61 and s61A regarding surgical operations (where one is protected from criminal liability for performing any 'reasonable', i.e. necessary, operations); and ss183 and 187A regarding the procuring of an abortion (whereby the act is unlawful unless "necessary" under subsection(3)). They also mention s3(2) of the Trespass Act 1980, which provides a defence against a charge of trespass on the grounds that such an action was "necessary ... for [one's] own protection or the protection of some other person".
The extent to which these statutory entrances are defined requires us to now look at relevant case law.


The New Zealand case law on necessity has had a tendency to be unfocused, and non-committal. While the s24 compulsion species of necessity has been clearly and often defined by judges, and typically restricted to its specific wording, the other aspects of necessith have remained vague. The following is a chronological account of the entire species of necessity, with relevant clarifications given in 3.3.
R v Salaca was an early case that investigated the circumstances in which a threat would be sufficient to allow a defendant to rely on s24. The case concerned a Fijian man charged with bigamy, who pleaded that he was coerced into the second marriage by the threat that "if [he] didn't marry her she would go to the witch-doctor to do something to [him]" . Despite a witness testifying to the Fijian belief that witch-doctors "performed certain activities which might mean death", Turner J held that this was "quite insufficient to raise the defence at all" , because the threats were made prior to the commission of the offence.
The next year saw R v Joyce , a Court of Appeal decision dealing with degrees of association. The accused had agreed to rob a convenience store with an associate, but refused to go ahead with the plan when he learned that a firearm was to be used. At that point he was told by his associate that he was "in it up to [his] neck and [he could not] pull out". He was also threatened with the gun. The plan went ahead and a store worker was shot; the accused was then charged with aggravated robbery.
North P made an important statement about the nature of criminal association, and when it would prevent s24 from applying :

It was necessary for the Crown to ... satisfy the jury that the very nature of the association was such that the offender, as a reasonable man, should have been able to foresee that the association was of a kind which at least rendered in possible that at a later stage he might be made subject to compulsion.

Because the accused had protested the use of a firearm, the defence should have
gone to the jury. Nonetheless it would have failed because the threats were not immediate, nor "from persons who [were] in a position to execute their threats" .
In a short statement, the Court of Appeal in R v Woolnough spoke to necessity, its "extreme vagueness" in English common law, and mentioned that if it were to exist in New Zealand, it would be through s20 Crimes Act 1961:

S20. General rule as to justifications - (1) All rules and principles of the common law which render any circumstances a justification or excuse for any act or omission, or a defence to any charge, shall remain in force and apply in respect of a charge of any offence ... except so far as they are altered by or inconsistent with this Act or any other enactment.

Compulsion came before the Court of Appeal again in 1981 in R v Teichelman where a man was charged for supplying drugs to an undercover police officer. He claimed that he had been compelled to make the sale by one O'Keefe, and gave evidence testifying to a long chain of threats made directly to himself, and more which he overheard made to others. O'Keefe had also "brought around a shotgun which made him feel nervous", and the Constable, himself a big man, had "[shown] him a handgun which made him feel scared, and ... kept on pressing him to supply drugs".
Richardson J treated these facts unsympathetically :

While based on common law principles, s24 clearly and precisely limits the availability of a defence of duress to a criminal charge. The legislation provides a narrow release from criminal responsibility where its strict requirements are met ... It is that belief in the inevitability of immediate and violent retribution for failure on his part to comply with the threatening demand which provides the justification for exculpation from criminal responsibility. The subsection is directed essentially at what are colloquially called standover situations where the accused fears that instant death or grievous bodily harm will ensue if he does not do what he is told.

O'Keefe's menacing conduct fell "far short of acting under the continuing threat
of immediate grievous bodily harm contemplated by the section". On this basis it can be easily imagined that there are many situations which would not be granted relief in law, towards which we might otherwise be sympathetic.
As a slight digression, it is worth noting the case Civil Aviation Department v MacKenzie , which, while it deals strictly with a defence of total absence of fault, conceded that :

Concepts such as impossibility, inevitability, necessity, involuntariness, reasonable mistake of fact, the act of a stranger, and absence of negligence are different routes to that social goal of excluding liability for conduct which is considered non-culpable ...

In an unreported Court of Appeal decision, R v Perrot , it was re-confirmed that compulsion can only be claimed in relation to the time when the act in question was committed. The defence was again raised against drug dealing charges in R v Frickleton , where a regular heroin user had been 'hassled' into giving some of her drugs to an acquaintance. The Court held that the fact that she had been motivated to supply heroin by pressure exerted by a third party did not affect her intent to supply . McMullin J stated :

The mens rea which the Crown was obliged to prove was an intention to do an act which was made unlawful by the statute, namely to supply heroin ... In that situation it is sufficient to say that once it is shown that an accused person intended to do the act which is forbidden by law mere apprehension is not enough to provide a defence. Once there is a conscious choice to take a step, that it is enough to prove the necessary mens rea for the offence of supply.

The judge also warned that this statement was not meant to be "any pronouncement on the metes and bounds of the defence of compulsion under s24". It is unclear how seriously we can take this caveat; evidence was given during the trial that when the accused refused to supply she was strangled and pushed against the walls. If it was decided that these threats went only to her motive, did that not remove the application of s24?
Jurist Glanville Williams had previously examined the fact that duress doesn't change the existence of mens rea :

If duress were said to negative will it would negative an act, which by definition requires will; if it negatived the existence of an act it would negative crime ... In truth the extent of duress as a defence in crime cannot be settled by a series of definitions, and we do better to regard it as standing altogether outside the definition of will and act.

In other words, s24 shouldn't affect the existence of mens rea - the person is not acting involuntarily.
The decision in Frickleton that 'mere apprehension' is insufficient was affirmed in R v Raroa , a case involving assisting after the fact, where the accused helped dispose of murdered bodies, and was told he would be 'wasted' if he 'narked'. Bisson J announced that "fear is not enough in the absence of the particular kind of threat set out in s24" . He also directed a valuable discussion to the s24 requirement of belief :

Although an objective test is not open in New Zealand where the wording of s24 specifically refers to the belief of the accused thereby requiring a subjective test [,] nevertheless a question of fact does arise whether such belief is genuinely held which the prosecution must negate beyond reasonable doubt. Whether such a belief was reasonable or well grounded would be relevant to the issue whether it was genuinely held.

This is basically a repetition of the well known principle that, where a belief must be honest but need not be reasonable, its reasonableness will nonetheless affect how willing we are to believe that the belief was, in fact, honestly held.
The analagous law regarding superior orders was the subject of discussion in Police v Vaille , which makes statements that are useful also for our understanding of necessity. The defendant was a Territorial Army Corporal who, after a long training excursion with little sleep, was ordered by a superior officer to drive a van in the early morning. He had felt able to perform the task, but fell asleep and crashed the vehicle, injuring his passenger. It was questioned whether superior orders could provide a defence that was comparable to compulsion.
Observations by Cooke P were to the effect that being under the influence of superior orders could act as a mitigatory factor, but would not provide a defence in itself. He cited s47 of the Crimes Act as a comparison, that every "member of the New Zealand armed forces" is bound to obey "the lawful command of his superior officer" but not where "the command is manifestly unlawful"; i.e. acting under superior orders is not the same itself as acting under compulsion.

An extremely important case in the law's development is Kapi v MOT. The facts involved a man who hit a parked car while driving home, but failed to stop because he was scared of being given a 'hiding' by the owner of the vehicle . He pleaded duress of circumstances in his defence, which was accepted but ultimately he was convicted because he failed to satisfy that defence.
In the High Court , Jeffries J stated that "section 20 of the Crimes Act does not state explicitly that there is a defence of necessity [as duress of circumstances] but in view of the observation of Richmond P in R v Woolnough ... I think it can be accepted there is" . He added further in reference to the proposed Crimes Bill 1989: "I would think that prospective legislative provision means to put the existence of the defence beyond question for New Zealand".
Jeffries J made an excursion into English common law to determine what were the required elements of a defence of necessity: "On close analysis most, if not all cases, reveal three elements. First, a really extraordinary emergency; secondly an honest belief, and thirdly reasonable grounds". This of course distinguishes it from compulsion, which requires only an honest belief.
The Court of Appeal also proceeded along similar lines in its decision. The Court relied upon R v Woolnough for the proposition that English necessity was extremely vague, and that :

[The Court] was not referred to any New Zealand cases in which the defence has been expressly found to be available. There are, however, English cases recognising the defence and providing assistance as to its scope and they will be referred to. On the basis of these it cannot now be said that the defence of necessity, at least in form of duress of circumstances, does not exist in the criminal law of England.

Essentially it was found that duress of circumstances would be acceptable in New Zealand, but would be construed along even tighter limits than compulsion (at least in that the belief had to be reasonably held).
However, at this stage the logic of the Court of Appeal decision lost cohesion. Since the perceived threat was that of an attack by persons, the Court moved into the area of compulsion, denying that the duress was of circumstances but of human agent. This much is true, but what is not distinguished is that the duress in the present case was non-instrumental. Consequently non-instrumental duress by a human agent was denied because :

[S]24 provides a defence of compulsion (or duress) where the criminal act is done under threat of death or grievous bodily harm from a person who is present when the offence is committed ... [W]e do not consider s20 can be said to preserve a common law defence of duress by threat or fear of death or grievous bodily harm from a person not present.

The damage is made worse, because without specifying exactly which areas of necessity they mean, the Court explains that :

Having regard to the limits upon the defence now identified in the more recent English cases it must be seen as probable that in New Zealand the scope of the defence was considered by the Legislature and that s24 Crimes Act reflects the extent to which it was adopted in this country.

This statement is not incorrect if we mean instrumental duress by a human agent, because that is compulsion, and it is narrowly defined in s24; but the English cases in question (especially R v Conway, as previously discussed) dealt with non-instrumental duress by a human agent. So despite commending the English cases, the Court immediately excludes them: "So far as such fact situations would not fall within s24 this might be said to result from deliberate legislative intent to restrict the scope of the defence of duress or compulsion".
What must have been intended was the usual re-affirmation of the narrow, statutory parameters of s24; but it is unfortunate, though, that the languishing defence of non-instrumental duress came close to acceptance before being rejected, yet again.
As a final note on this case, the Court did mention some possibilities explaining its decision :

[I]f there is to be such a development in the criminal law which New Zealand has codified that should be undertaken by Legislature ... [and] there are to be bounre in mind the often expressed reservations as to the desirability of judicially expanding the defence of necessity.

Just how the Legislature should approach the problems with the defence is an issue I will examine in 4.2, shortly. But first, I shall raise two post-Kapi cases to illustrate the present state of the law in New Zealand.
The first is R v Witika , which does little to raise our sympathies for the availability of the defence. It is a case dealing with horrific child abuse, and its facts are extremely upsetting. The child in question died at age two years, after extensive trauma, and ultimately from being denied medical attention. While the mother pleaded guilty to the various charges of assault, she sought to defend the charge of manslaughter by omission on the grounds of duress.
It was submitted by the defence that she suffered battered woman's syndrome, and was in a state of continual threat, even if the person making the threats was not always present. Consequently, it was pleaded that New Zealand should preserve "the common law defence of duress which ... does not require the presence of the person making the threat nor that the threat is of immediate harm so long as the effect is to neutralise the will of the accused".
This submission was answered in the negative :

The position of battered women indeed calls for sympathy but there can be no justification for broadening the grounds on which the law should provide excuses for child abuse.

And previously :

[I]t is quite clear that there were substantial periods during which [the person making the threats] was not present and [the accused] had opportunities to seek assistance and secure medical care for her child and otherwise bring an end to her ill-treatment. While those periods continued she failed in her duty. Her situation was no different from that of a person who has an opportunity to escape and avoid committing acts under threat of death or serious injury.

I doubt that this really takes account of battered woman's syndrome, in which the woman finds herself unable to leave the dangerous relationship, but undoubtedly the grotesque facts of the case made it hard for the Court to presently entertain the defence. They did however note that s24, when available, "cover[s] commission of offences either as principle or party".
The second, and final case, is Police v Kawiti which makes the most recent pronouncements on the parameters of necessity in New Zealand case law. By this stage they should be fairly predictable, and in the case of compulsion involve what is now the strict approach to s24. Yet under the circumstances of the case, one can't help but find the narrow approach to compulsion inadequate.
Ms Kawiti had accompanied her partner to Taipa for a funeral at a marae. She was not introduced to anyone, and was dependant on her partner. The pair had not intended to stay on the marae, and yet when she approached her partner to drive them to their campsite, he attacked her in a drunken rage. Not only was she beaten to the floor by her partner, but other members of the marae group joined in the assault and urged further violence upon her. She managed to escape to the car, and although being a disqualified driver and having excess blood alcohol levels, she was suffering agonising pain from the assault, which left her with a dislocated shoulder. Consequently she drove herself to the nearest hospital, and called the Police. They then arrested her.
It is hard to see that she had any other choice in the circumstances; there was no telephone, she did not know anyone else on the marae, she did not know the area nor was there any suggestion that people lived nearby. Salmon J began with this statement regarding her plea :

The extent of the common law defence of necessity has not been determined by the Courts in this country. What is clear is that the defence has, at least in part, received statutory recognition ... It is accepted that the defence is not available on the facts of this case because the only person present at the time the offence was committed was [her partner] and it is not suggested ... that she was in any further danger from him.

He added that there was also "a defence of necessity or duress of circumstances where those circumstances are other than threats from persons", arising in English common law, that was now available in New Zealand but "subject to the same limitations as the 'do this or else' species of duress" :

[I]t is a reasonable conclusion to be drawn from Kapi and the subsequent decision of R v Lamont ... that the defence of necessity of circumstances is available in New Zealand, but only where the perceived threat is one of imminent death or serious injury to the defendant or some other person. An example might be the disqualified driver whose wife has a heart attack in a location where there is no telephone and no person to provide assistance, and in reasonable fear of her imminent death, drives her to the nearest hospital.

What should be upsetting to any student of the law is the fact that the Courts' interpretation of s24 denies any person in the same situation, where the heart attack is triggered by another person (for example, by assault), of a defence. There can be no rational basis for this distinction; it is the Courts' unwillingness to make a wider or purposive reading of s24, which is itself simply the result of poor draughtsmanship.


All case law points to the fact that s24 is to be interpreted strictly; duress involving threats from persons must exactly satisfy the requirements of the statute, and as a result, non-instrumental duress by human agent falls outside the ambit of our law.

From Police v Kawiti the following conclusions are made about duress of circumstances:

1. The defence of duress of circumstances is available where the duress is not that of persons.
2. The ingredients of the defence are at least those set out by the Court of Appeal in Kapi.

Kawiti and the Law Commission both cite the same passage from Simester and Brookbanks which lists what these requirements might otherwise be :

It appears, then, that by synthesising the New Zealand case law on necessity with such English case law as is consistent, the following observations, at least, may be made about the operation of the defence of necessity in New Zealand:
(i) The perceived threat must be one of imminent death or serious injury;
(ii) D's perception of the threat must be either correct or reasonably based;
(iii) D's action must be in response to that perceived threat;
(iv) D' response to the threat must be proportionate, in the sense that a sober person of
reasonable firmness, sharing certain characteristics of D, would have responded in like manner (where the qualifying characteristics are as yet not authoritatively decided in New Zealand);
(v) The defence is not available to murder or attempted murder;
(vi) The defence is not available whenever the source of the threat is another person (all such
cases are covered only by s24).


[I]t is just possible to imagine cases in which the expediency of breaking the law is so overwhelmingly great that people may be justified in breaking it, but these cases cannot be defined beforehand.
- Outlines of Criminal Law 12th Ed 76 [Professor Kenny]


How much of the general defence of "necessity" survives in New Zealand law is a question that has never been definitively answered. However, the previous section hopefully illustrates the likely scenario.
It has been the habit of our Courts to narrow the defence, both in terms of s24 compulsion, and in general. Consequently, the gulf left over into which non-instrumental duress has fallen has become a justifiable source of concern amongst legal academics, including the Law Commission. Put simply, s24 covers what I have earlier named "duress by human agent" of the type that is "instrumental", and while s20 seeks to preserve common law defences, it is only when they do not conflict with existing statute.
Unfortunately, because s24 concerns duress stemming from human involvement, it excludes that whole species from common law, despite the fact the statute entry only accounts for the instrumental subspecies. So what of non-instrumental duress?
I speak of incidents whereby there is a threat posed by a person or persons which does not seek to compel action, but is an end in itself. An example might be a marauding gang, which in terms of an objective danger is equivalent with a herd of bulls. In such an example, a defendant would be justified by the common law duress of circumstances to take certain criminal actions to escape the immediate threat posed by the bulls - for example, driving at speed. However, this would not be the case where the threat is posed by a human, because s24 implicitly requires the defendant to be "under compulsion".
The Law Commission puts it so :

[A] lynch mob poses a threat to the intended victim, not because it wishes to compel the victim to commit a crime but because it desires to kill the victim. Under current law, the victim would apparently have no defence if he or she committed an offence to escape from a non-instrumental threat posed by humans (such as a lynch mob).

That such a threat is required was confirmed both Teichelman and Raroa; and again from the Law Commission that "the manner in which section 24 has been interpreted in Kapi and Kawiti would exclude the defence of necessity, as the danger is posed by a person" . We can see the unsatisfactory results of this apparent Legislative oversight in Kawiti itself, and one can easily imagine others.
To illustrate this bizarre state of New Zealand law, Simester and Brookbanks draw up an equally perplexing fact situation to test its limits :

D is driving his car down a steep hill at night. Suddenly, the large truck which has been travelling at a safe distance behind him appears to speed up and "threatens" to ram him from behind. D recognises that being hit by a truck may cause a serious accident. Unbeknown to D, the driver of the truck has had a heart attack and the truck is, in reality, driverless. As D speeds up to escape from the danger he passes a traffic officer hidden in a lay-by and is ultimately charged with driving a an excessive speed. Should D have a defence of duress of circumstances?

In actuality the answer is probably 'yes', since what appeared to D to be a non-instrumental duress by human agent is in fact an objective danger, free of human interference. However, lacking any rational justification, were the driver alive and intentionally pursuing D at a dangerous speed (as in fact D believed was happened), D would not be able to avail himself of the defence. This was the situation in R v Lamont .
The accused in Lamont had driven at excessive speed to avoid a car which was 'tailgating' him. He crashed, with the resulting death of his passenger. The Court disallowed duress of circumstances on the grounds that "a concern at having his car hit or even shunted in the rear does not amount to fear of death or serious injury" . (Such might also have been the outcome in Simester and Brookbanks' fictional example.)
More likely now is the fact that duress of circumstance would be considered to be an inappropriate defence. And yet, "there appears to be no reason based in policy for treating a non-instrumental danger posed by humans differently from a non-instrumental danger that has a non-human source".

It is possible, reform aside, that this may not be the end of the matter. It appears that there are judges (albeit at lower Court levels) who are willing to expand the defence. R v Smith for example allowed the defence of compulsion to justify a woman's driving while intoxicated to escape her enraged husband.
And while R v Lamont denied the defence on other grounds, it did actually leave open the question whether the "under compulsion" requirement of s24 is implicit. Even Kapi suggested there may be change if the question ever reached the Privy Council. Until then though, it remains to be seen whether such independant decisions can survive Richardson P's emphatic narrowing of the defence in Teichelman.


There was a legislative reform of the Crimes Act proposed in 1989. The Law Commission observed that :

English courts have recognised [that] necessity and compulsion are each a species of duress [but] the separate codification of compulsion in New Zealand has led to unfortunate divergences in the two defences in this country. Codification of both defences along the same lines would achieve compatibility.

The revision by the Crimes Consultative Committee appeared in the Crimes Bill 1989, and included clause 30 necessity (duress of circumstances), and clause 31 duress (to replace compulsion). The proposed amendments were as follows:

30. Necessity - (1) A person is not criminally responsible for any act done or omitted to be done under circumstances of emergency in which -
(a) The person believes that it is immediately necessary to avoid death or
serious bodily harm to that person or any other person; and
(b) A person of ordinary common sense and prudence could not be expected to
act otherwise.
(2) Subclause (1) does not apply where the person who does or omits the act has
knowingly and without reasonable cause placed himself or herself in, or remained in, a situation where there was a risk of such an emergency.
(3) Subclause (1) does not apply to the offences of murder or attempted murder.
31. Duress - (1) A person is not criminally responsible for any act done or omitted to be done because of any threat of immediate death or serious bodily harm to that person or any other person from a person who he or she believes is immediately able to carry out that threat.
(2) Subclause (1) does not apply where the person who does or omits the act has knowingly and without reasonable cause placed himself or herself in, or remained in, a situation where there was a risk of such threats.
(3) Subclause (1) does not apply to the offences of murder or attempted murder.

While the quote from Professor Kenny heading this section is correct in assuming that such cases of necessity "cannot be defined beforehand", these reform proposals seem to be flexible enough to cater to any sympathetic occurrences, while preventing undesired reliance upon the defences.
The clauses significantly improve upon their counterpart, dispensing with the "arbitrary list of offences to which [compulsion] does not presently apply", covering all species of necessity listed in 1, 'rightly discarding' the requirement that the threat maker be actually present (allowing for methods of "modern communications and ... the agency of others") and probably even allowing for Kawiti-like situations where the 'imminent peril' has been extinguished, but there is still a state of emergency.
One problematic point, raised in the Battered Defendants article, is that the emergency requirement may exclude battered women who are in a relationship of recurring violence. That same paper offers an alternative clause, where "a person is not criminally responsible for any act done or omitted to be done because of fear of inevitable death or serious bodily harm to the person ... from a person he or she reasonably believes is able to inflict such harm".
Other alternatives include that which prevents the need for multiple clauses, whereby "a person is not criminally responsible for any act ... if the person reasonably believes that it is necessary to avoid death or serious bodily harm'; and one which accounts for a moderate peril, so long as the response remains proportionate.


As noted by Glanville Williams , "since the defence of necessity involves a collision of interests and a consequential judgment of value, it is capable of raising problems of great ethical and social difficulty". The case law has demonstrated the truth of this observation; so as a final thought, I would like to conclude with a passage from Lord Hailsham's decision in R v Howe, which looks to the prerogative of mercy as a non-statutory, and non-judicial remedy for these troubling cases :

I am not so shocked as some of the judicial opinions have been at the need ... to invoke the availability of administrative as distinct from purely judicial remedies for the hardships which might otherwise occur in the most agonising cases. Even in Dudley v Stephens in 1884 when the death penalty was mandatory and frequently inflicted, the prerogative was used to reduce a sentence of death by hanging to one of six months in prison. In murder cases the available mechanisms are today both more flexible and more sophisticated ... In the background is always the prerogative and, it may not be unreasonably be suggested, that is exactly what the prerogative is for.


R v Perka (1984) 14 CCC (3d) 385, [1984] 2 SCR 233.
(1550) 1 Plowd 2, 75 ER 1.
Ibid, page 18.
[1988] 3 All ER 1025, [1988] 3 WLR 1238 (CA).
[1987] AC 417, [1987] 1 All ER 771 (HL).
P.C. i 49-50, 56-8.
Supra 2.
(1609) Hob 96.
(1672) 83 ER 268.
(1746) 18 St. Tr. 391.
(1779) 21 St. Tr. 1222 (KB), (1779) 99 ER 156.
Sir Stephen, Digest of Criminal Law (1st edition, 1877) Art 32.
(1801) 83 ER 268.
Glanville Williams, Criminal Law: The General Part (1953) 570.
R v Vantandillo (1815) 4 M&S 73, 105 ER 762.
(1872) LR 4 PC 222.
Ibid, at 230.
(1884) 14 QBD 273, [1881-5] All ER Rep 617.
Simester and Brookbanks, Principles of Criminal Law (1998) 356.
Fed. Case No. 15383 (CCED Pa, 1842).
[1938] Vol 3 CCC 615.
Ibid, page 618.
[1967] VR 526.
Ibid, page 530.
Ibid, page 542.
[1971] 2 QB 202.
Ibid, page 204.
[1971] Ch 655.
Ibid, at 668.
[1971] 2 All ER 175, at 179.
[1976] 1 WLR 65, Wien J at 69.
Woods v Richards [1977] RTR 202, per Eveleigh J.
[1981] VR 443.
Supra 1.
'Normative involuntariness' as discussed in 1.
Supra 5.
(1986) 83 Cr App R 235 (CA).
[1989] 1 All ER 652, (1989) 88 Cr App R 343 (CA).
Ibid, pages 653-4.
[1992] 2 AC 412.
Ibid, pages 425-6.
[1995] 2 Cr App R 607 (CA).
Supra 19.
Originally Crimes Act 1908 No 32, s44.
[1967] NZLR 421.
Ibid, page 421.
Ibid, page 422.
[1968] NZLR 1070.
Ibid, page 1076.
Ibid, page 1077.
[1977] 2 NZLR 508.
[1981] 2 NZLR 65.
Ibid, pages 66-7.
[1983] NZLR 78.
Ibid, page 81.
Unrep 22/4/83, CA120/82.
[1984] 2 NZLR 670.
Similar reasoning (motive versus intent) was taken in R v Steane [1947] KB 9997, [1947] 1 All ER 813.
Supra 57, pages 671-2.
Criminal Law: The General Part (1953), page 592.
(1987) 2 CRNZ 596.
Ibid, page 605.
Ibid, page 602.
[1989] 1 NZLR 521.
He was, after all, in Porirua.
[1991] 1 NZLR 227.
Supra 66, page 229.
(1992) 8 CRNZ 49.
Supra 68, page 52.
Ibid, pages 54-5.
Ibid, page 54.
Ibid, page 55.
[1993] 2 NZLR 424.
Ibid, page 436.
[2000] 1 NZLR 117.
Ibid, 119.
Ibid, page 122.
Battered Defendants, NZLC PP41.
Supra 19, page 377.
Supra 79, page 62.
Unrep 27/4/92, CA442/91.
Ibid, page 10.
Supra 79.
[1977] 6 WWR 16.
Supra 79.
Crimes Bill Consultative Committee, Crimes Bill 1989 (1991) Dept of Justice, page 21.
Supra 60, page 575.
Supra 5, page 433.