seminar 15 necessity

7/30/2019 Seminar 15 Necessity

1/15

1

Necessity

A general exception under section 81

of the Penal Code


2/15

2

s. 81

Nothing is an offence merely by reason of its beingdone with the knowledge that it is likely to causeharm, if it be done without any criminal intention tocause harm, and in good faith for the purpose of

preventing or avoiding other harm to person orproperty.

Explanation.It is a question of fact in such a casewhether the harm to be prevented or avoided was ofsuch a nature and so imminent as to justify or excusethe risk of doing the act with the knowledge that itwas likely to cause harm.


3/15

3

Rationale

Mix of excuse and justification Suggests that there are two defenses at work here - a fall-back defense

e.g. when PD, duress does not succeed

Excusatory necessity: We excuse you because of circumstances that you faced (if you dont

get duress) at common law --- duress of circumstances; UK law - restricted to

threats of death or serious bodily injury; Penal Codeno suchrestriction

Core idea: overcoming of As resistance/will

Justificatory necessity: We recognize that your action brought about a greater good - As

action involves lesser evil than harm threatened

Core idea: balancing of harms

Justification or excuse matters: strictness of evaluating actions


4/15

4

s. 81: justification or excuse?

(a)A, the captain of a steam vessel, suddenly and without anyfault or negligence on his part, finds himself in such a positionthat, before he can stop his vessel, he must inevitably rundown a boatB, with 20 or 30 passengers on board, unless hechanges the course of his vessel, and that, by changing his

course he must incur risk of running down a boat C, with only2 passengers on board, which he may possibly clear. Here, ifAalters his course without any intention to run down the boat C,and in good faith for the purposes of avoiding the danger to the

passengers in the boatB, he is not guilty of an offence, though

he may run down the boat C, by doing an act which he knewwas likely to cause that effect, if it be found as a matter of factthat the danger which he intended to avoid was such as toexcuse him in incurring the risk of running down the boat C.


5/15

5

s. 81: justification or excuse?

(b)A in a great fire pulls down houses in order

to prevent the conflagration from

spreading. He does this with the intention, in

good faith, of saving human life or property.

Here, if it be found that the harm to be

prevented was of such a nature and so

imminent as to excuseAs act,A is not guiltyof the offence.


6/15

6

Requirements

Threatened harm

Response

As mental state


7/15

7

Threatened harm

Imminence

Harm is required to be sufficiently imminent(does not require to be instant)

Whose perspective? As reasonable perspective(Mistake defense)

No time to get assistance

Threat has crystallized - realisticimplementation (between just threat andpresent implementation)


8/15

8

Proportionality/necessity

Explanation: harm avoided of such a

natureas to justify or excuse

Implicitly requires proportionality

YMC: suggests this requirement only for

justificatory necessity, not for excusatory necessity

Can proportionality play a role in excusatory

necessity? Role of proportionality in duress


9/15

9

Proportionality/necessity

Necessity

YMC: also suggests there is implicit requirement

of necessity

how is this different from proportionality

YMC: difference between

Justificatory necessity: number of possible responses

Excusatory necessity: minimum harm necessary (YMCno requirement of proportionality but there is strict

requirement of necessity?)


10/15

10

Any excluded responses

No excluded responses (e.g. murder)

Can murder ever be a justified response?

Common law: historically excluded

RecallDudley and Stephens US v Holmes

A was sailorordered 16 people be thrown overboard (nowomen, no separation man/wife)

Held: A should have first thrown crew overboard, laterdraw lots

Note: Expressly disapproved in Dudley


11/15

11

Any excluded responses

Case ofRe A J and M co-joined twinsquestion of whether to lawfully

operate and separateJ likely to survive and M likely todie cause bad heart and lungsit not separated both die

parents didnt want operation on religious grounds

Held:

Operation was an act of necessity to avoid inevitable evil

Purpose was to preserve life of Jnot to kill M

Act may be seen as self-defense

Act required balancingworthwhileness of operationincluding the conditions of each twinnot balancing onelife against another as this contravenes sanctity of life


12/15

12

Without criminal intention

Criminal intention vs. intention

Intention:

A aware is virtually certain to occur

Criminal intention:

As purpose to bring about consequence

What is the primary purpose

Aim or resolution of mind to produce effect


13/15

13

Without any fault of negligence

S. 81 illustration (a)

Suggestion that without any fault or negligence

refers to prior fault

A to be judged according to dangerous situation

that he created

MR at the point when dangerous situation occurred

society wants to encourage A to do that regardlessof prior fault but not let him off completely


14/15

14

PP v Ali Bin Umar

Due to a broken rudder, Ds boat drifted into Malaysian

waters. D was charged with carrying tin-ore withoutpermission contrary to the Customs Act(Mysia).

Held: The defense of necessity as recognized by Englishcommon law succeeded.

[W]here a person is able to choose between two courses,

one of which involves breaking the criminal law and theother some evil to himself and others of such magnitude thatit may be thought to justify the infraction of the criminal law,the court would temper such situation[s] with justice.


15/15

15

Muhammad Sarwar & Ors

v The State

As had built a bund to protect their homes against

rising waters. As attacked Vs when the latter tried to

dismantle the bund. Sarwar (one of Ds) had shot and

killed a V. Held: All the As (excepting Sarwar) were acquitted of

murder and attempted murder based on defense of

necessity under s 81 of the Penal Code.

Sarwar was acquitted of murder based on private

defense under s 100 of the Penal Code.

seminar 15 necessity

Documents