BAYLEY v POLICE [2007] SASC 411

BAYLEY v POLICE [2007] SASC 411 - SASC 2010 case summary — Zoe

[57]

Against the background of the above discussion, it is convenient to summarise the approach to be taken in the present case.
- − The issues raised by the defence of necessity are whether an accused believed on reasonable grounds that commission of the crime charged was necessary in all the circumstances in order to remove a threat of death or serious injury to himself or another. Accordingly, there are subjective and objective considerations.
- − A defence of necessity can only succeed if it is reasonably possible that an accused believed on reasonable grounds that there was a threat of death or serious injury to himself or another, and that the commission of the offence with which he was charged was necessary in order to remove the threat. Further, objectively viewed, there must have been no reasonable alternative course of action open to the accused.
- − Assuming there was an imminent peril, a defendant must have honestly believed on reasonable grounds that it was necessary for him to do the acts which are alleged to constitute the offence in order to avoid the threatened peril. That test will, as a matter of fact, not be met if it is proved that the conduct was disproportionate to the threat. A response is not proportionate to the threat if there are reasonable grounds for believing there were alternative courses of action available.
- − The prison escape cases make clear that each aspect of the criminal conduct must be addressed. That is, even if certain criminal conduct were necessary, the remainder may not be. That is so because such actions may not be either proportionate or reasonable.
- − The response must be proportionate to the danger and cannot go further. If alternatives are reasonably available, the offending is not proportionate and therefore not reasonably necessary. The threat must be imminent and operative. An accused must be afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law, or involved some lesser breach of the law. Reasonableness and proportionality has to be assessed objectively. The existence of any possible alternative courses of action is of central factual importance.[36]
- − The event justifying the conduct must be imminent and operational. If the threat abates there can be no emergency, nor can an action in response be said to be reasonable or proportionate. This is an obvious limiting factual consideration on the "reasonable necessity" element.
- − The defence may only be expected to arise on rare occasions.[37]

[58]

The peril that was claimed to have arisen in the present case was evidenced by the making of threats to the defendant and his passengers and the physical bashing and kicking of the defendant's vehicle. The peril that was created was the potential execution of those threats to do physical violence to person and property.
Following the altercation at the intersection of Port Wakefield, Grand Junction and Main North Roads, the occupants of the van returned to their vehicle and, on the lights turning green, the van proceeded to move forward. The defendant then manoeuvred his vehicle to the right and deliberately struck the side of the van in the turn-right lane. This amounted to driving without due care. The defendant claimed that this manoeuvre was designed to reduce the threat of danger to himself and his passengers. This was an entirely unreasonable approach. Rather than avoiding danger, it was highly probable that the defendant substantially increased any danger that may have existed. Such a manoeuvre was likely to provoke the occupants of the van.
The defence of necessity in respect of the due care charge should be rejected. The defendant's conduct was not warranted by the threat and, in any event, was totally out of proportion to the necessity to meet the threat. The defendant had a number of choices open to him. One was to remain stationary. Another was to move to the south at a slow speed and leave Main North Road to the left into one of the many premises with entrances to Main North Road, or alternatively to a side street.
The analysis of the Judge concerning the events leading to the head-on collision should be accepted. The defendant drove at an excessive speed and in a dangerous manner, taking up a moving position in the parking lane and passing vehicles to his right at an excessive speed. He compounded this dangerous driving by cutting across the path of other south-bound traffic with a view to entering a side street to the west. Unsurprisingly, the manoeuvre led to a loss of control and a head-on collision. This was highly dangerous driving that put at risk the lives and safety of law abiding road users as well as that of himself and his passengers. There was ample opportunity for the defendant to have travelled at a speed within the speed limit and to have left Main North Road to the left.
It is extremely doubtful that there was any real or imminent danger after the vehicles left the intersection, as a result of the initial altercation. There certainly was no danger or threat that operated to justify or excuse the defendant's manner of driving that led to the head-on collision.
In any event, whatever threat that existed had been materially exacerbated by the defendant's deliberate collision with the van at the intersection. Insofar as it might be suggested that there was some peril after the impact with the van, the defendant cannot rely on that event when he must have contemplated that his actions, insofar as they were not justified by necessity, were likely to provoke a hostile response. If, as it appears to be on the defendant's own case, there was a deliberate impact and that impact was not itself justified by necessity, then the situation cannot be described as an emergency because his response was not involuntary.[38] This conduct could not lead in these circumstances to the invoking of the defence of necessity.
Counsel for the defendant submitted that the Judge, when addressing the manner dangerous charge, erred in concluding that the Magistrate had not addressed the third limb of the test - reasonableness and proportionality. Counsel drew attention to and relied upon the conclusion of the Magistrate that the actions could not "be described as out of proportion to the peril which was being avoided".
The point made by the Judge was that the Magistrate, in doing so, neither addressed, nor excluded, the existence of reasonably available alternatives. Rather, the Magistrate's analysis proceeded, erroneously, on the assumption that the only live issue was the defendant's subjective belief that there were no alternative actions available. The Magistrate's conclusion on this question was expressed in this way:

[61]

The correct analysis involves assessing whether there were reasonable grounds for the belief, particularly having regard to the wide range of alternatives open to the defendant other than driving without due care or in a manner dangerous. The Judge was correct in so concluding.
The Judge took the approach when addressing necessity and the due care charge that all that was necessary was to balance, as a matter of proportionality, "the slight nature of the offending" as against the subjective perception of danger. The Judge did not address the reasonably available alternatives to the deliberate impact with the van.
There were self-evidently a number of available alternatives. As earlier observed, an obvious measure was to drive with care to stay in the car and lock the doors. An alternative was to wait for the van, which was then moving away, to leave. Nothing necessitated a deliberate impact at the intersection that both placed the defendant's vehicle in closer proximity to the van and further provoked the van's occupants.
A clear alternative to the conduct, the subject of the manner dangerous charge, was to drive in a manner that was not dangerous - that is, not driving at an excessive speed, not driving in the parking lane and not executing a dangerous manoeuvre across traffic. The defendant could have remained stationary at the intersection as earlier discussed. Another course was to drive to a public place such as a service station, business premises or private premises. Another alternative was to drive into a side street to the left. Any of these steps would have alleviated the perceived risk. The presence of any of these alternatives meant that the defence of necessity must necessarily fail.
Even if driving at a dangerous speed might be justified for some period, a right-hand turn executed by the defendant from the far left parking lane, relying on others to avoid his vehicle, was a decision so extraordinary that it cannot possibly be said to be justified.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (102 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (18)

Cited By (2)