BAYLEY v POLICE [2007] SASC 411

(2000) 105 FCR 419.

(2000) 105 FCR 419 at [13]-[17].

Ruling [114]-[116].

Transcript of Proceedings at 487.

Evidence Act 1995 (Cth) s 138(1).

Ruling [122].

R v Helmhout (2001) 125 A Crim R 186 at [11]; R v Phung & Huynh [2001] NSWSC 115.

Ruling [125]-[127].

Defence Force Discipline Appeals Act 1955 (Cth) s 23(1)(b).

Transcript of Proceedings at 577.

The High Court explained in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, that the expression, "unsafe and unsatisfactory" was not present in any Australian State legislation but tended to be used as explanatory of the statutory formula, namely "unreasonable", following English amendments. Gleeson CJ, Hayne and Callinan JJ made clear that the expression "unsafe and unsatisfactory" where it appeared in M v The Queen related to an "unreasonable" verdict at 615, [25], while McHugh, Gummow and Kirby JJ expressly said that the words were "equivalent to" each other at 624, [58]. In the Defence Force Discipline Appeals Act both expressions are used but, at least so far as this appeal is concerned, they may be regarded as concerning the same issues.

(1994) 181 CLR 487.

[2002] HCA 53; (2002) 213 CLR 606; 193 ALR 184; 77 ALJR 139.

(1994) 181 CLR 487 at 493.

At 494-5 per Mason CJ, Deane, Dawson and Toohey JJ.

Chamberlain v The Queen [No. 2] (1984) 153 CLR at 618-619; Chidiac v The Queen (1991) 171 CLR 432 at 443-444.

Chidiac v The Queen (1991) 171 CLR 432 at 443, 451, 458, 461-462.

[2010] ADFDAT 1.

Transcript of Proceedings at 238.

Transcript of Proceedings at 235.

Transcript of Proceedings at 239, Line 15.

Exhibit 17.

Transcript of Proceedings at 414.

Exhibit 9.

Transcript of Proceedings at 218.

Transcript of Proceedings at 217.

Transcript of Proceedings at 219.

Transcript of Proceedings at 228.

Transcript of Proceedings at 370.

Transcript of Proceedings at 371.

Transcript of Proceedings at 372.

Transcript of Proceedings at 275.

Transcript of Proceedings at 275.

Transcript of Proceedings at 311.

Transcript of Proceedings at 441.

Shepherd v The Queen (1990) 170 CLR 573, at 578 per Dawson J.

This was the potential witness in respect of whom the appellant gave some limited description to the Northern Territory police at the watch house that night but no attempt was made to find him.

The case law on the defence of sudden or extraordinary emergency in the code States is indeed sparse. In 1988, Professor O'Regan noted that there had been only two reported cases in almost 100 years (one in Queensland and one in Papua New Guinea) in which the defence provided for in s 25 in the Queensland Code had successfully been invoked. He concluded that the "defence is of considerable theoretical interest but its practical effect is likely to remain modest and occasional": see R S O'Regan, "New Essays on the Australian Criminal Codes" (LawBook Co 1988) page 58.

regard to this conceptualization of a residual defence of necessity, I retain the scepticism I expressed in Morgentaler ... It is still my opinion that "[n]o system of positive law can recognize any principle which would entitle a person to violate the law because on his view the law conflicted with some higher social value." ... To go beyond that and hold that ostensibly illegal acts can be validated on the basis of their expediency, would import an undue subjectivity into the criminal law. It would invite the courts to second-guess the legislature and to assess the relative merits of social policies underlying criminal prohibitions. Neither is a role which fits well with the judicial function. Such a doctrine could well become the last resort of scoundrels ...

1. Having regard to Gleeson CJ's adoption of the observations of Dickson J in Perka, it is both relevant and appropriate to discuss the more recent Canadian authority. The Supreme Court of Canada had opportunity to review the Perka test in the controversial case of Latimer. In 1994, Latimer was convicted by jury of second degree murder for asphyxiating his severely disabled 12-year-old daughter. He argued that his actions were necessary to relieve his daughter from the pain and suffering that would inevitably result from an imminent surgical procedure. Latimer appealed the guilty verdict. One of the grounds advanced was that the trial Judge had failed to put the defence of necessity to the jury. Following Perka, the Court unanimously denied Latimer's appeal, ruling that the necessity defence relied upon lacked the required "air of reality"[20] to be put to the jury since it failed to meet the three prerequisites outlined in Perka.
2. In reaching its conclusion, the Court attempted to clarify the Perka test, considering whether it was appropriate to apply a subjective, objective or modified objective standard. The relevant standards were described as follows:[21]

subjective test would be met if the person believed he or she was in imminent peril with no reasonable legal alternative to committing the offence. Conversely, an objective test would not assess what the accused believed; it would consider whether in fact the person was in peril with no reasonable legal alternative. A modified objective test falls somewhere between the two. It involves an objective evaluation, but one that takes into account the situation and characteristics of the particular accused person.

1. The court concluded that the first two parts of the test should be evaluated according to a modified objective standard,[22] while proportionality was to be considered according to an objective standard.[23] In reaching the conclusion that "necessity is rooted in an objective standard",[24] the court referred to the judgment of Dickson J in Perka, where his Honour observed:[25]

is measured on the basis of society's expectation of appropriate and normal resistance to pressure.

1. However, the court in Latimer added the additional qualification that any subjective factors considered under the modified objective test must be "reasonable":[26]

an accused's perceptions of the surrounding facts may be highly relevant in determining whether his conduct should be excused, those perceptions remain relevant only so long as they are reasonable. The accused person must, at the time of the act, honestly believe, on reasonable grounds, that he faces a situation of imminent peril that leaves no reasonable legal alternative open. There must be a reasonable basis for the accused's beliefs and actions, but it would be proper to take into account circumstances that legitimately affect the accused person's ability to evaluate his situation. The test cannot be a subjective one, and the accused who argues that he perceived imminent peril without an alternative would only succeed with the defence of necessity if his belief was reasonable given his circumstances and attributes. We leave aside for a case in which it arises the possibility that an honestly held but mistaken belief could ground a "mistake of fact" argument on the separate inquiry into mens rea.

1. The decision in Latimer mirrors Dickson J's concerns in Perka, reaffirming that the test of necessity is to be strictly applied, and in limited circumstances:[27]

is well-established that the defence of necessity must be of limited application. Were the criteria for the defence loosened or approached purely subjectively, some fear, as did Edmund Davies LJ that necessity would "very easily become simply a mask for anarchy": Southwark London Borough Council v Williams [1971] Ch. 734 (Eng C.A) at p. 746.

1. The Latimer decision has been criticised on the basis that, rather than simplifying the test in Perka, it has only added to the confusion, creating uncertainty as to what "personal characteristics" might be included as "reasonable" under the modified objective test.[28]
2. Some commentators have suggested that the combined effect of Perka and Latimer has been to effectively "shut the door on necessity as a justification in Canadian criminal law".[29] Furthermore, the restrictions imposed on the defence by Dickson J, upheld in Latimer, create the anomalous situation where an advocate arguing necessity:[30]

be constrained to characterize the accused's conduct as instinctive, to characterize the instinct as normal, to characterize alternative action as demonstrably impossible, and finally to characterize the conduct as a lesser evil than that averted.

1. The "imminent peril" and "moral involuntariness" requirements enunciated in Perka and Latimer may, however, be subject to modification following the Supreme Court decision in Ruzic.[31] In that case, the Court considered, inter alia, the constitutionality of section 17 of the Canadian Criminal Code[32] specifying that the defence of duress is available only in cases involving "threats of immediate death or bodily harm". Section 7 of the Canadian Charter of Rights and Freedoms[33] guarantees the right not to be deprived of liberty except in accordance with fundamental justice. The Court ruled that the immediacy requirement violated section 7 since it allowed individuals acting in an involuntary manner to be held criminally liable:[34]

moral involuntariness does not negate the actus reus or mens rea of an offence, it is a principle which, similarly to physical involuntariness, deserves protection under s. 7 of the Charter. It is a principle of fundamental justice that only voluntary conduct - behaviour that is the product of a free will and controlled body, unhindered by external constraints - should attract the penalty and stigma of criminal liability. Depriving a person of liberty and branding her with the stigma of criminal liability would infringe the principles of fundamental justice if the accused did not have any realistic choice. The ensuing deprivation of liberty and stigma would have been imposed in violation of the tenets of fundamental justice and would thus infringe s. 7 of the Charter.

1. Other common law jurisdictions require, in addition to a belief formed on a reasonable basis, an objective analysis of whether there is no realistic choice open to defendants other than to act unlawfully in the manner they did.[35]

1. 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]

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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".
8. 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:

the distance involved, the traffic on the road and the evidence which [the defendant] has given of his perceptions, I am not satisfied that he has continued in a manner which was inconsistent with his belief that he needed to escape from the van. In those circumstance I am satisfied that his manner of driving was as a result of a need which he perceived, and in those circumstances I find him not guilty of the offence.

It is to be observed that the Magistrate made no reference at all to the alternatives that were reasonably available to the appellant.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

1. In respect of both charges, the conduct of the defendant was out of all proportion to the risk that existed. Even if there was an emergency that justified a response, the defendant's response was reckless, extreme and disproportionate. The defendant was not entitled to drive in a manner that risked killing or seriously injuring other road users. The risk created by the defendant illustrates the rationale for mandatory obedience with the strict obligations of the Road Traffic Act. It was not for the defendant to choose how to comply with the law.
2. The appeal by the defendant should be dismissed. The complainant's cross-appeal should be allowed. The dismissal of the charge of driving without due care should be set aside and a conviction recorded. The matter should be remitted for sentence.

1. SULAN J: I agree that the appeal should be dismissed. I agree that the cross-appeal of the complainant should be allowed. I agree with the reasons of Gray J.

1. WHITE J: I agree that the appeal should be dismissed and the cross-appeal allowed. I agree with the reasons of Gray J. The matter should be remitted to the Magistrates Court for sentencing.

[1] Contrary to section 45 of the Road Traffic Act 1961 (SA).

[2] Contrary to section 46 of the Road Traffic Act 1961 (SA).

[3] Woodward v Morgan (1990) 10 MVR 474, White v R (1987) 9 NSWLR 427, Warner v R [1980] Qd R 207.

[4] Rogers (1996) 86 A Crim R 542.

[5] Rogers (1996) 86 A Crim R 542 at 546-7.

[6] Loughnan [1981] VicRp 43; [1981] VR 443 at 448.

[7] R v Conway [1988] EWCA Crim 1; [1989] QB 290 at 297-298.

[8] Rogers (1996) 86 A Crim R 542 at 545-547.

[9] Rogers (1996) 86 A Crim R 542 at 546 - see also Gleeson CJ's remarks in Behrooz v Secretary of Department of Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 219 CLR 486 at [15]: "One closely confined area in which the law has accepted a limited form of right to escape concerns the common law principle of necessity. In the Victorian case of R v Loughnan, and the New South Wales case of R v Rogers, consideration was given to the principles according to which a person, confronted in prison with some peril involving a threat to life or safety, may lawfully take steps, proportionate to the danger, to avoid the threat. Such steps do not ordinarily involve remaining at large in the community for an indefinite period. Thus, for example, there are United States authorities which make it a condition of pleading necessity as an excuse for escaping from prison that the prisoner, after escape, must report immediately to the proper authorities when he has attained a position of safety from the immediate threat. The Supreme Court of Victoria, in Loughnan, said this was a matter of evidentiary significance, rather than a legal condition. In Southwark London Borough Council v Williams, Edmund Davies LJ, discussing the defence of necessity, pointed out that "the law regards with the deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances". ... Where a situation of necessity arises, it may justify action taken by a prisoner or detainee to get out of harm's way, but it does not mean that the prisoner or detainee becomes free from all the constraints of custody, or may escape into the community and remain at large."

[10] R v Perka [1984] 2 S.C.R 232.

[11] R v Perka [1984] 2 S.C.R 232 at [33].

[12] R v Perka [1984] 2 S.C.R 232 at [40]

[13] R v Perka [1984] 2 SCR 232 at [39]. Dickson J emphasised at [40] that "the importance of this requirement that there can be no reasonable alternative cannot be over-stressed.

[14] R v Perka [1984] 2 SCR 232 at [44].

[15] R v Perka [1984] 2 SCR 232 at [38].

[16] R v Perka [1984] 2 SCR 232 at [38].

[17] R v Perka [1984] 2 SCR 232 at [49].

[18] Herbert Packer, 'The Limits of the Criminal Sanction' at 113, quoted by Dickson J in R v Perka [1984] 2 SCR 232 at [29].

[19] R v Perka [1984] 2 SCR 232 at [32].

[20] R v Latimer [2001] 1 SCR 3 at [37].

[21] R v Latimer [2001] 1 SCR 3 at [32].

[22] R v Latimer [2001] 1 SCR 3 at [33].

[23] R v Latimer [2001] 1 SCR 3 at [34].

[24] R v Latimer [2001] 1 SCR 3 at [33].

[25] R v Perka [1984] 2 SCR 232 at [61].

[26] R v Latimer [2001] 1 SCR 3 at [33].

[27] R v Latimer [2001] 1 SCR 3 at [27].

[28] For criticism see Paul Guy, 'R v Latimer and the Defence of Necessity: One Step Forward, Two Steps Back' (2003) 66 Saskatchewan Law Review 485; Benjamin L Berger, 'A Choice Among Values: Theoretical and Historical Perspectives on the Defence of Necessity' (2002) 39 Alberta Law Review, 848; Barney Sneiderman, 'Latimer in the Supreme Court: Necessity, Compassionate Homicide and Mandatory Sentencing' (2001) 64 Saskatchewan Law Review 511.

[29] Benjamin L Berger, 'A Choice Among Values: Theoretical and Historical Perspectives on the Defence of Necessity' (2002) 39 Alberta Law Review, 848 at 857.

[30] D Gallway, 'Necessity as a Justification: A critique of Perka' (1986) 10 Dal LJ 158 at 160.

[31] R v Ruzic [2001] 1 SCR 687.

[32] Canadian Criminal Code, R.S.C. 1985, c. C-46.

[33] Canadian Charter of Rights and Freedoms/Charte canadienne des droits et libertés, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), c. 11.

[34] R v Ruzic [2001] 1 SCR 687 at [47].

[35] R v Hutchinson (2003) NZCLD, 5th Series, 5700 at [58]; R v Latimer [2001] 1 SCR 3; R v Shayler [2001] EWCA Civ 1645; [2001] WLR 2206 (CA); Kapi v Minister for Transport (1991) CRNZ 49 (CA), 57; R v Conway [1988] EWCA Crim 1; [1989] QB 290; R v Martin (Colin) [1988] EWCA Crim 2; [1989] 1 All ER 652; R v Perka [1984] 2 SCR 232. The New Zealand authorities in part turn upon the effect of its codification of criminal defences.

[36] R v Rogers (1996) 86 A Crim R 542, 546-7; Paul Fairall and Stanley Yeo, 'Necessity or Emergency', Criminal Defences in Australia (4th ed, 2005) at 97-112.

[37] Mark v Henshaw (1998) 101 A Crim R 122 at 125.

[38] R v Perka [1984] 2 SCR 232.