JOHNSON -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 71 (2 April 2009)

JOHNSON -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 71 (2 April 2009) - WASCA 2009 case summary — Zoe

[100]

Mr Kitson then appeared to go inside the premises. A short time later, Mr Johnson heard Mr Kitson's voice even more loudly, saying, 'I've been hit in the head with an axe', and that is what caused Mr Johnson, he said, to go inside at a relatively quick pace.

He later explained that he didn't go in at the earlier mention of the scissors because in effect, he regarded an axe as being a more dangerous or threatening item or situation. He said he went in to the house. The front door was still actually standing open, though badly damaged. There was no light in the lounge, but there was in the dining area.

He put the six-pack, or what - contained what was left of the six-pack on a bench inside the front door, and he said that the first thing he saw was Mr Kitson crouched down, and Mr Rowland close-by to Mr Kitson, lying on the floor, face-up with a gimpy in his hand. Mr Johnson grabbed the gimpy and threw it to the corner of the room, thinking perhaps it was an axe at the time this happened very quickly.

Mr Kitson looked dazed and his hand was over his head. At this stage, Mr Johnson noted that Mr Houston was actually under Mr Rowland. Having disposed of the gimpy, Mr Johnson then slapped Mr Rowland with an open hand on the forehead, saying words to the effect, 'You're brothers. You should be talking.'

Mr Johnson then heard Mr Kitson say something like, 'Watch out for the man with the scissors', causing Mr Johnson to turn, and that's when he saw some scissors on the floor which he picked up and threw into the corner also.

He turned his attention to Mr Kitson, who looked shocked and had a hole in his head from which he was bleeding, so Mr Johnson told Mr Kitson to leave, and in fact, he said he ushered Mr Kitson towards the front door, grabbing the six-pack of beer as he went out. At this point, he said Mr Houston was in front of Mr Johnson, also leaving.

The group then proceeded down the drive and walked down the street towards the police car. They then had the conversation with the police that you've heard about, and Mr Johnson was taken into custody (ts 539 - 540).

[146]

[T]here are three elements involved in the defence of necessity. First, the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect [our emphasis]. The limits of this element are at present ill defined and where those limits should lie is a matter of debate. But we need not discuss this element further because the irreparable evil relied upon in the present case was a threat of death and if the law recognizes the defence of necessity in any case it must surely do so where the consequence to be avoided was the death of the accused. We prefer to reserve for consideration if it should arise what other consequence might be sufficient to justify the defence: cf People v Lovercamp (1975), 43 California Appeals 3d 823, in which the consequence to be avoided was forcible homosexual activity.

The other two elements involved, which were identified by Menhennitt, J. in R v Davidson, supra, at p 671 can for convenience be given the labels, immediate peril and proportion, although the expression of what is embodied in those two elements will necessarily vary from one type of situation to another.

The element of imminent peril means that the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril. As Edmund Davies, LJ (as he then was) pointed out in Southwark LBC v Williams, supra, at p 746, all the cases in which a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril. Thus if there is an interval of time between the threat and its expected execution it will be very rarely if ever that a defence of necessity can succeed.

The element of proportion simply means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid peril? (448)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (262 paragraphs)

JOHNSON -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 71 (2 April 2009)

Does s 25 of the Criminal Code require resort to the common law defence of necessity?

The present case - s 25 of the Criminal Code

Legislation Cited (6)

Cases Cited (26)