7/30/2019 Seminar 15 Necessity
1/15
1
Necessity
A general exception under section 81
of the Penal Code
7/30/2019 Seminar 15 Necessity
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.
7/30/2019 Seminar 15 Necessity
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
7/30/2019 Seminar 15 Necessity
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.
7/30/2019 Seminar 15 Necessity
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.
7/30/2019 Seminar 15 Necessity
6/15
6
Requirements
Threatened harm
Response
As mental state
7/30/2019 Seminar 15 Necessity
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)
7/30/2019 Seminar 15 Necessity
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
7/30/2019 Seminar 15 Necessity
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?)
7/30/2019 Seminar 15 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
7/30/2019 Seminar 15 Necessity
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
7/30/2019 Seminar 15 Necessity
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
7/30/2019 Seminar 15 Necessity
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
7/30/2019 Seminar 15 Necessity
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.
7/30/2019 Seminar 15 Necessity
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.