Veira v Cook

Court of Appeal (NSW)|2021-07-09|Before: Basten JA, Meagher JA, Adamson J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] In June 2018, the applicant entered a poultry farm, removed chickens contained in cages, and took them from the property. She was subsequently charged and convicted in the Local Court of the offence of entering inclosed lands without lawful excuse and interfering with a business under Inclosed Lands Protection Act 1901 (NSW), s 4B(1)(a). Her only defence was that her otherwise criminal conduct was excused by the defence of necessity. She relied on the fact that the chickens were being subject to cruelty, including by being deprived of food and water, and that her conduct was done to protect them from further harm. The Local Court magistrate rejected that defence, concluding that there was no "situation of imminent peril" that would enliven the defence, and that the applicant's actions were not "proportionate". The RSPCA officers had attended the property earlier that day and ensured the chickens were provided with sufficient feed and water. The applicant was granted leave to appeal to the Supreme Court under Crimes (Appeal and Review) Act 2001 (NSW), s 52. The primary judge (Adamson J) dismissed her appeal. Her Honour described that defence as having three elements, two of which were not satisfied. In particular, the "purpose" element was not satisfied because it required the unlawful conduct to be in response to a threat of death or serious injury to the applicant or someone else. The "proportionality" element also was not satisfied, that element requiring, as a matter of objective fact, that there was no alternative response to the threatened harm other than to engage in the wrongful conduct. The applicant sought leave to appeal from those orders. The Court (Meagher JA, Basten JA and Emmett AJA agreeing) held, dismissing the appeal: Section 4(1) of the Act makes clear that the accused bears the onus of establishing, on the balance of probabilities, that they had a "lawful excuse" for entering the inclosed lands. Accordingly the primary judge erred in proceeding on the basis that the applicant had the evidentiary onus of raising the defence, and the prosecutor had the legal burden of disproving it. However, that error made no difference to the primary judge's conclusion: at [1] (Basten JA), [34], [36] (Meagher JA), [55] (Emmett AJA). Sodeman v The King (1936) 55 CLR 192, Director of Public Prosecutions v Wille (1999) 47 NSWLR 255 considered. The defence is only available where the accused's otherwise unlawful conduct was in response to a threat of death or serious injury to them or some other person. The authorities do not support the defence as extending to conduct undertaken to avoid threatened harm to animals or property. Such an extension is inconsistent with the defence only being available where the circumstances overwhelmingly impel disobedience to the law: at [1] (Basten JA), [39]-[43] (Meagher JA), [55] (Emmett AJA). Perka v The Queen [1984] 2 SCR 232, R v Rogers (1996) 86 A Crim R 542, R v Quayle [2005] 1 WLR 3642, Mouse's Case (1608) 12 Co Rep 63; 77 ER 1341, The Gratitudine (1801) 3 C Rob 240, 165 ER 45; Johnson v Phillips [1976] 1 WLR 65 considered. The accused must honestly believe on reasonable grounds that their actions were necessary to respond to a threat of the kind described. Whether there were reasonable grounds for that belief requires consideration of the reasonableness and proportionality of the accused's responding conduct, and in particular whether the threated harm could have been avoided by some other lawful means: at [1] (Basten JA), [44]-[46] (Meagher JA), [55] (Emmett AJA). Perka v The Queen [1984] 2 SCR 232, Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; [1987] 26, R v Rogers (1996) 86 A Crim R 542, R v Quayle [2005] 1 WLR 3642, considered. The agreed facts did not establish that there was a threat of death or serious injury which meant the applicant had no real choice, in protecting her safety or that of some other person, than to engage in the conduct sought to be excused. As a result the defence could not be made out, and there was no utility in granting leave to appeal: at [1] (Basten JA), [48]-[49] (Meagher JA), [55] (Emmett AJA). Perka v The Queen [1984] 2 SCR 232, R v Rogers (1996) 86 A Crim R 542, R v Quayle [2005] 1 WLR 3642, considered.

Judgment

BASTEN JA: While the protection of sentient creatures from human cruelty is a worthy cause, there were lawful means to pursue it in this case, including by engaging the attention of the RSPCA which had already happened. For the reasons given by Meagher JA, leave to appeal should be refused. No arguable issue of principle is raised: costs should follow the event.
MEAGHER JA:

Overview On 13 November 2019 the applicant, Ms Veira, was convicted in the Local Court of the offence of unlawfully entering inclosed lands and interfering with a business. Section 4B(1)(a) of the Inclosed Lands Protection Act 1901 (NSW) provides: 4B Aggravated unlawful entry on inclosed lands (1) A person is guilty of an offence under this section if the person commits an offence under section 4 in relation to inclosed lands on which any business or undertaking is conducted and, while on those lands - (a) interferes with, or attempts or intends to interfere with, the conduct of the business or undertaking, or

A person commits an offence under s 4(1) if that person: 4 Unlawful entry on inclosed lands (1) … without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands …
On 21 June 2018 Ms Veira, and at least five other like-minded persons, entered an inclosed poultry farm near Picton which included a barn containing approximately 4000-5000 hens kept in cages. At the time they did so (at or about 11:39am) there were RSPCA officers at the property. Those RSPCA officers had also been in attendance on the previous day and were investigating allegations of cruelty said to have resulted in the death of many hens, principally because they had been subjected to a process of forced moulting involving the withdrawal of food and water for a period of seven to 14 days.
Shortly before Ms Veira entered the property, the RSPCA officers had made a decision to leave the hens in the care of the owner or operator of the poultry farm, Mr Stone, whilst they conducted further investigations. The evidence was that they did so, satisfied that the hens had been provided with sufficient water and feed. On becoming aware of that decision the applicant, and others, decided to enter the property, remove some chickens from their cages and take them from the property. It was common ground in the Local Court that their predominant, and in some cases sole, purpose in doing so was to prevent further cruelty to those chickens.
The applicant entered the poultry farm having been advised that the RSPCA officers did not require her assistance. As the learned magistrate observed, the defendants, including Ms Veira "were, it seems, of the view that whatever the RSPCA had undertaken or required Mr Stone to do was inadequate to alleviate the situation as they saw it and so they were justified in their view to enter the premises despite having no permission or consent from the occupier to do so": (Police v Lopes & Ors, Liverpool Local Court (LC), Keogh LCM, 13 November 2019, unrep at [16]).

The excuse of necessity

Ms Veira's only defence to the charge under s 4B(1)(a) was that her otherwise criminal conduct was excused on the ground of necessity.
An early formulation of that defence under the common law is that of Sir James Stephen in his Digest of the Criminal Law (1st ed, 1877, Macmillan). In that edition (at ch 3, art 32), the "general exceptions" to criminal conduct were described, under the heading "necessity", as including: "An act which would otherwise be a crime may be excused if the person accused can shew that it was done only to avoid consequences which could not otherwise be avoided and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disproportionate to the evil avoided."
In the ninth edition of that work, the statement of that principle commences: "An act which would otherwise be a crime may in some cases be excused …" and is otherwise the same (Lewis Frederick Sturge, A Digest of the Criminal Law (Indictable Offences) (9th ed, 1950, Sweet & Maxwell) ch 2, art 11).
These statements significantly influenced the Full Court's formulation in R v Loughnan [1981] VR 443 of the elements or requirements of that defence, as available to the offence of escaping lawful custody. Young CJ and King J described those elements as being (at 448-449): "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. … The other two elements involved … 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. … 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 the peril? … It will be seen that in the application of the defence of necessity to a given situation these two elements may become interwoven. A person who receives a threat that he will be killed on a future day cannot seek out the person making the threat and kill him and escape liability on the ground that the killing was necessary in order to avoid his own death unless no other way of avoiding the danger was open to him. In such a case the accused will not be held to have had reasonable grounds for believing that it was necessary for him to do as he did in order to avoid the peril feared and it would also be held that his killing was in the circumstances out of proportion to the threat made to him."
In R v Rogers (1996) 86 A Crim R 542, the trial judge ruled that the appellant's necessity defence to a charge of escaping lawful custody should not go to the jury in circumstances where there was available to him the alternative course of bringing the threats to the attention of prison authorities and seeking protection. The Court of Criminal Appeal (Gleeson CJ, Clarke JA and Ireland J agreeing) applied the law as stated in Loughnan. However in doing so it was said (at 546) that consistently with the approach to self-defence taken by the High Court in Zecevic v Director of Public Prosecutions (1987) 162 CLR 645; [1987] HCA 26, requirements such as "urgency and immediacy" of the threatened harm should not be treated as conditions for the existence of necessity, but rather as "factual considerations" relevant to the issues as to the accused's belief, and the reasonableness and proportionality of his or her response. The Court did so accepting that the defences of "necessity and self-defence are closely related" (at 545).
In Zecevic, putting aside the question of onus, Wilson, Dawson and Toohey JJ (with whom Mason CJ, Brennan and Gaudron JJ relevantly agreed) formulated the question for the jury in a case of self-defence as being "whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did" (at 661). Their Honours then explained how questions of reasonableness and proportionality might arise and be dealt with in directions to the jury when determining the answer to that question (at 662): "When upon the evidence the question of self-defence arises, the trial judge should in his charge to the jury place the question in its factual setting, identifying those considerations which may assist the jury to reach its conclusion. In attempting to identify those considerations in any abstract manner here, there is a danger of appearing to elevate matters of evidence to rules of law. For example, it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered."
Thus, as Young CJ and King J had observed in Loughnan (at 449), considerations as to the reasonableness and proportionality of the accused's response to the perceived imminent peril arise when addressing whether the accused had reasonable grounds for his or her belief that the otherwise unlawful conduct was "necessary" in the relevant sense. Those considerations of reasonableness and proportionality "go hand in hand" (Rogers at 548 per Gleeson CJ) and are "essential control mechanisms" (at 546), the latter itself a clear indication that each requires an assessment of the objective facts informed by notions of reasonableness. His Honour added that whilst the concept of reasonableness introduces into the consideration of possible alternatives an appropriate concession to practical reality: "It is not, however, intended to provide scope for the making of choices or value-judgments of a kind which undermine the principle itself. Reasonableness is not designed to allow people to choose for themselves whether to obey the law" (Rogers at 547).
Addressing the central concept of the defence, Gleeson CJ also emphasised that it is "necessity, not expediency, or strong preference". In explaining that concept as used in this context, his Honour drew much from the judgment of the later Chief Justice of the Supreme Court of Canada, Dickson J, in Perka v The Queen [1984] 2 SCR 232. To excuse otherwise unlawful conduct the circumstances must "overwhelmingly impel disobedience" (Perka at 248) or afford no reasonable opportunity for an alternative course of action which did not involve that conduct (Perka at 252).
In Taiapa v The Queen (2009) 240 CLR 95; [2009] HCA 53 the accused relied on a defence of compulsion arising under s 31(1)(d) of the Criminal Code (Qld). The issue was whether the Court of Appeal had erred in concluding that the evidence did not disclose a case that there were reasonable grounds for the applicant's belief that he was unable to escape the threatened harm to him and his wife otherwise than by trafficking in methylamphetamines. An element of that defence was that the person "doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat".
Having noted that "to ask whether a person has a reasonable belief is not different in substance from asking whether a person has reasonable grounds for belief" (citing Marwey v The Queen (1977) 138 CLR 630; [1977] HCA 68), the Court adopted the following observations of Gleeson CJ in Rogers "with reference to the policy that informs this area of the law" (at [36]-[37]): "At issue [in Rogers] was the availability of the common law defence of necessity, which shares features in common with the defence of duress. Gleeson CJ said: 'The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.' Gleeson CJ rejected the view that the defence of necessity required proof of urgency and immediacy as technical elements. Instead he favoured treating these as factual considerations relevant to the accused person's belief and the reasonableness of the grounds for it. He went on to observe: 'Reasonableness is not designed to allow people to choose for themselves whether to obey the law. … A reluctance or (as will appear in the case with the present appellant), an unwillingness to go on protection may be understandable, but the principle of necessity is not intended to give prisoners who are threatened a choice between going on protection and removing themselves, permanently or indefinitely, from custody.'"
It is sufficient at this point to note that the statements in Rogers as to the circumstances in which a necessity defence may arise and as to the public policy considerations that require the defence be "strictly controlled and scrupulously limited to situations that correspond to its underlying rationale" (Rogers at 546) have been broadly applied by intermediate appellate courts in Australia with respect to common law and statutory defences involving concepts of necessity, duress or compulsion. See Clarkson v The Queen [2007] NSWCCA 70; (2007) 171 A Crim R 1 at [78]-[88]; Smith v Western Australia [2010] WASCA 205; (2010) 204 A Crim R 280 at [17]; Ajayi v The Queen [2012] WASCA 126; (2012) 221 A Crim R 148 at [52]; Mattar v R [2012] NSWCCA 98 at [7]-[8]; B v R [2015] NSWCCA 103 at [81], [301]-[302]; R v Dimitropoulos [2020] QCA 75; (2020) 282 A Crim R 402 at [66]; Bobbe v R [2021] NSWCCA 44 at [29].
The position is substantially the same under English law. In R v Quayle [2005] 1 WLR 3642 the question for the Court of Appeal (Mance LJ, Newman and Fulford JJ) was whether the defence of necessity was available to a defendant charged with a drug supply offence where he intended to supply the drug to another for the purpose of alleviating pain. In addressing that question the Court surveyed the authorities at that time in relation to the common law defences of duress by human threats and of necessity, where the force or compulsion is by extraneous circumstances rather than human threats. In relation to the former, referring to the decision of Lord Bingham in R v Z [2005] 2 AC 467, the limitations of the duress defence were described (at [38]) as including: (2) the threat relied on must be to cause death or serious injury; (3) the threat must be directed against the defendant or his immediate family or someone close to him; (5) the defence is available only where the conduct which it is sought to excuse has been directly caused by the threats relied on; and (6) there must have been no evasive action the defendant could reasonably have been expected to take.
As to the defence of necessity by extraneous circumstances, the relevant principles were summarised (at [40]) as including: (2) the defence is available only if from an objective standpoint the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury; (3) the questions for the jury include whether the accused was or may have been "impelled to act as he did" because as a result of what he reasonably believed he had good cause to fear that otherwise death or serious physical injury would result.

The proposed grounds of appeal

The essence of Ms Veira's necessity defence was that she had entered the poultry farm because it was necessary to do so to prevent further cruelty to the hens which she proposed to rescue; and that she had done so honestly and reasonably believing that the threatened harm to them was greater than the harm involved in her (unlawful) action in entering and removing the chickens. The learned magistrate rejected that defence.
The primary judge (Adamson J) granted Ms Veira leave to appeal against her conviction and dismissed that appeal. The applicant requires and seeks leave to appeal to this Court pursuant to Supreme Court Act 1970 (NSW), s 101(2)(h).
Ms Veira's argument before the primary judge and in this Court focused on what were said to be the elements of the defence of necessity. It did so principally to accommodate a statement of agreed facts which she contended established each of the elements of that defence.
The primary judge described those elements as being (J[48]): 1. the criminal acts were done solely in order to avoid the infliction of irreparable harm on the accused or others that he or she was bound to protect: Loughnan (the purpose element); 2. the accused honestly believed, on reasonable grounds, that the criminal acts were necessary in order to avoid the harm: Loughnan, as modified by Rogers (the necessity element); 3. the accused had no alternative to doing what he or she did to avoid the harm: Loughnan (the proportionality element).
To some extent those labels are apt to mislead and formulated as separate elements of the defence, they distract attention from the two questions which must be addressed. The first is whether the accused's conduct was in truth a response to a threat of death or serious injury. The second is, if so, whether the accused acted as he or she did honestly believing on reasonable grounds that it was necessary to do so in order to avoid the threatened death or serious injury.
There are two proposed grounds of appeal - grounds 1(a) and 1(b), which are interrelated. Ground 1(b) addresses the formulation of the first of the elements described above, namely the purpose of the defendant's actions. It is said to be sufficient if the relevant acts were done "predominantly" to avoid any harm, including to animals, provided that harm satisfies the requirement of "proportionality". The content of that requirement is the subject of ground 1(a) which is directed to the third of those elements. That ground asserts that the requirement of proportionality is satisfied if the defendant had an honest and reasonable belief that the harm sought to be avoided (in this case to the chickens) is not less than the harm involved in the proposed unlawful conduct. The criteria by reference to which such an assessment is to be made are not spelt out.
Each of these challenges is made to accommodate the facts agreed in the Local Court, and in support of the applicant's contention that those facts established all of the elements of her defence. This contention raises a further question as to whether the agreed facts said to address the second of the elements described by the primary judge engage the concept of "necessity" as understood and explained in Rogers.

The agreed facts and findings in the Local Court

The document headed "Agreed Facts" was produced during the course of the hearing. As the magistrate noted (LC [24]): "After a number of days of evidence an agreed set of facts was tendered in regard to the circumstances that existed on the 21st June. It was agreed the defendants attended the premises on the 21st of June and were ready and willing to assist the RSPCA if called upon to do so or directed to do so. Their purpose and motivation was to alleviate the suffering of the animals at the poultry farm as well as to draw attention to the evil of animal cruelty. (emphasis added)"
Paragraph 2 of the agreed facts included statements that "each of the defendants honestly and reasonably believed" the following (cf LC [26]): to leave the chickens in the care of Mr Stone would pose an unacceptable risk and likelihood of further cruelty to the birds [para 2(e)] the only way the cruelty occurring and likely to continue could be avoided was to take the chickens from Mr Stone's custody, necessitating entry onto the property and the taking of the chickens away [para 2(g)] the harm involved in entering the land and taking the chickens and the disruption to the business being undertaken on the property were significantly less than the harm from likely future cruelty, [para 2(h)] the entry onto the land was a necessary and proportionate act to prevent greater harm [para 2(h)]
Paragraph 3 stated that the "predominant (and in some cases sole) reason that each of the defendants entered the property, took chickens and consequentially disrupted the business was to end and prevent the cruelty to the chickens that was occurring and likely to occur".
As is made clear in the agreed facts, the prosecution did not concede "that any of the above four points [set out as matters of belief at [28] above] were true and correct" (LC [27]). Indeed the magistrate found that as at 21 June "sufficient water and feed had been put in place for the chickens"; and concluded that a situation of imminent peril did not exist at the time the defendants entered the premises and that the circumstances were not such that a reasonable person in the position of the accused would have considered she had no alternative to doing what she did to save the chickens (LC [9], [30], [38], [42]).
The respondent's written submissions before the primary judge included an extract from the transcript of argument in the Local Court on the final day. At that time there was an exchange between the magistrate and the prosecutor concerning whether the Crown was conceding that the defendants' beliefs as to each of the four matters set out above were "true and correct", thereby foreclosing argument as to the reasonableness and proportionality of their response to the risk of harm which they perceived. That exchange concluded: PROSECUTOR: Ultimately the tribunal of fact determines as a … (not transcribable) … that the - whether it is - the reasonableness was justified and the proportionality of the acts that are occasioned. Ultimately the decision at law here is the proportionality of the acts being occasioned to a circumstance where the Court may find it's honest and reasonable, it goes to proportionality of the act, and that's where the law - HER HONOUR: I'm just wanting to clarify, that's all, that in fact the way I should read paras (e) and (g) is that the prosecution concede that the belief was honest and reasonable but not true and correct? PROSECUTOR: That's correct ...
Whilst this exchange left unexplained the remaining content of any concession as to the defendants' beliefs being reasonable, it made tolerably clear that her Honour was not constrained by that aspect of the agreed facts from considering the reasonableness and proportionality of their otherwise unlawful conduct and whether they had reasonable grounds for believing that it was "necessary" in the relevant sense.
Proceeding on that basis and applying the elements of the defence as described in Loughnan (at 448-449), the learned magistrate concluded at LC [41]-[42]: In summary then Loughnan requires an urgent situation of imminent peril to exist in which the accused must honestly believe on reasonable grounds that it is necessary for him or her to do the acts which are alleged to constitute the offence in order to avoid the threatened danger and secondly those acts must not be disproportionate to the threatened danger. Where the RSPCA had ensured the birds had been provided with sufficient feed and water and the defendants did not enquire of this immediately before they entered or check this after they entered the shed, it cannot be that the situation of imminent peril existed or that the defendant's actions were proportionate.
Apparently treating Ms Veira as having the onus of establishing lawful excuse, the magistrate found that the "defence of necessity is not made out" (LC [61]). Her Honour referred to and applied at LC [45], [46] the decision of Kirby J in Director of Public Prosecutions v Wille (1999) 47 NSWLR 255 that a defence of necessity may constitute a "lawful excuse" to an offence under s 4(1) of entering inclosed lands without consent (Wille esp at [19]-[21], [40]). As at September 1997 when the offence charged in that case was committed, s 4(1) did not include the words in brackets "proof of which lies on the person". That amendment was made by the Inclosed Lands Protection Amendment Act 1997 (NSW), which came into force in January 1998. As s 4(1) now makes clear, proof of a lawful excuse is on the defendant and is to be made out on the balance of probabilities (see Sodeman v The King (1936) 55 CLR 192 at 200-201 (Latham CJ), 216 (Dixon J)).

The appeal to the Supreme Court

The sole ground of Ms Veira's appeal to the Supreme Court under Crimes (Appeal and Review) Act 2001 (NSW), s 52 was that the Local Court erred in failing to find that the prosecutor had not rebutted the defence of necessity. The primary judge granted leave to appeal, being satisfied that the ground raised a mixed question of law and fact (J[21], [63]).
In disposing of the appeal her Honour proceeded on the basis that while Ms Veira had the evidentiary onus of raising the necessity defence, the prosecutor had the legal burden of disproving it (J[13], [14]). That involved error, but that error made no difference, the primary judge having concluded that "on no view of the facts in this case, as agreed or as found by the magistrate, could it ever have justified the plaintiffs' conduct" (J[80]).
The applicant made the same arguments as to the elements of the defence as are made by proposed appeal grounds 1(a) and (b) (J[23]). The primary judge rejected those arguments, the first because the question of proportionality was to be assessed objectively and by reference to whether as a matter of fact in responding to the threatened harm the applicant had any real alternative other than to engage in the wrongful conduct (J[58]-[60]). As to the second argument, the primary judge held that in order to engage the principle of necessity the unlawful conduct sought to be excused had to be in response to a risk or threat of death or serious injury to the applicant or someone else (J[46]).

Disposition of application for leave to appeal

Leave to appeal should be refused. Neither of the grounds of appeal has any prospect of success. In addition, the terms of the agreed facts and the applicant's reliance on them as establishing the objective reasonableness of her belief as to the necessity of her unlawful conduct would have made this case an inappropriate one for resolving questions as to the elements or requirements of the necessity defence.
Applying Rogers (at 546-547) the first question was whether the applicant's otherwise unlawful conduct - in entering the poultry farm, removing chickens and disrupting activities undertaken on the farm - was in response to a threat of death or serious injury to her or some other person. On the facts before the Local Court, whether as agreed or found, the answer to that question was no, the result being that the necessity defence was not available.
In seeking to avoid that outcome, proposed ground 1(b) challenges the requirement that the otherwise unlawful conduct be in response to a threat of death or serious injury. It is said to be sufficient that the threatened harm be to an animal or property, provided the applicant honestly and reasonably believed that the harm sought to be avoided was not less than any harm involved in the proposed wrongdoing. The applicant relies on the agreed facts in [28] (point 3) and [29] above as satisfying that requirement.
There is no support in any of the Australian or English authorities for the necessity defence extending to excuse criminal conduct undertaken otherwise than in response to an imminent threat of death or serious injury, either to the accused or to someone else. That is because the defence exists only where the circumstances are such as to overwhelmingly impel disobedience to the law.
None of the decisions referred to by the applicant is directed to the concept of necessity as providing a defence in the criminal law. Mouse's Case (1608) 12 Co Rep 63; 77 ER 1341 and The Gratitudine (1801) 3 C Rob 240; 165 ER 45 concerned the circumstances in which during a maritime adventure a passenger of a ferry or ship's master may jettison luggage or cargo to secure the safety of the vessel, its passengers, crew or remaining cargo. In Johnson v Phillips [1976] 1 WLR 65, the question was whether a constable in purported exercise of his power to control traffic on a public road might require other persons to disobey traffic regulations if it was reasonably necessary to protect life or property. In the "special facts" of that case the constable's power extended to instructing a motorist to reverse his car in a narrow one-way street to facilitate rescue operations. The decision has nothing to say as to the correctness of the principles summarised in R v Quayle (see [18*] above).
The applicant's formulation of the threatened harm which may engage the necessity defence would leave people free to do what Gleeson CJ said the defence "cannot" do, namely "to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law" (Rogers at 546). It contemplates that the person responding to the threatened harm does so having first made a value judgment as to its being "not less than" the harm involved in the unlawful conduct.
Returning to Rogers (at 546-547), had that first question been answered in the affirmative the remaining question was whether in engaging in that conduct the applicant did so honestly believing on reasonable grounds that it was necessary to do so in order to avoid the threatened death or serious injury. Whether there were such reasonable grounds requires attention to the reasonableness and proportionality of the response, and specifically to whether the threatened harm could have been avoided, otherwise than by the unlawful conduct.
Proposed ground 1(a) challenges the primary judge's formulation of the requirement that the conduct sought to be excused be, as a matter of fact, the only reasonable alternative available. The applicant contends that there is no such requirement, and that it is sufficient that the unlawful conduct be "proportionate" to the harm sought to be avoided, in accordance with proposed ground 1(b).
As Zecevic makes clear, considerations as to the reasonableness and proportionality of an accused's response to the perceived peril arise in addressing the accused's honest belief and whether he or she had reasonable grounds for that belief. The availability of realistic alternative courses of action is a question of fact and not to be resolved by reference to whether the accused believed that to be the position (Rogers at 548).
Finally, the applicant contends that if grounds 1(a) and (b) were upheld, each of the elements of the necessity defence was satisfied, and the primary judge erred in holding otherwise. This contention accepts her Honour's formulation of the so-called "necessity" element and relies on the agreed facts in [28] above.
However the concept of "necessity" which the agreed facts embrace is not directed to circumstances in which any threat of death or serious injury gave the applicant no real choice than to act to protect her safety, or the safety of some other person, by engaging in the conduct sought to be excused. The defence of necessity describes a response to a threat of death or serious injury which "could not otherwise be avoided" (Stephen's Digest), and was the accused's "only reasonable alternative" (per Rehnquist J in United States v Bailey 444 US 394 at 410 (1979)). As Dickson J put it in Perka at 252: "If there is a reasonable legal alternative to disobeying the law, then the decision to disobey becomes a voluntary one, impelled by some consideration beyond the dictates of "necessity" and human instincts."
Accordingly, there could be no utility in granting leave to appeal. Notwithstanding that there is no challenge to her Honour's formulation of the "necessity" element, the facts as found by the learned magistrate did not satisfy that element.

Conclusion

For these reasons, leave to appeal should be refused and the applicant ordered to pay the respondent's costs of the appeal.
EMMETT AJA: The question in these proceedings is whether Ms Maria Veira was wrongly convicted in the Local Court of the offence of unlawfully entering inclosed lands and interfering with a business in contravention of s 4B of the Inclosed Lands Protection Act 1901 (NSW). Section 4B relevantly provides that a person is guilty of an offence if the person, without lawful excuse (proof of which lies on the person), enters into inclosed lands on which any business or undertaking is conducted without the consent of the owner, occupier or person apparently in charge of those lands and, while on those lands, interferes with, or attempts or intends to interfere with, the conduct of the business or undertaking.
On 21 June 2018, Ms Veira entered onto a poultry farm near Picton, which included a barn containing more than 4000 hens in cages. She did so without the consent of the owner, occupier or person apparently in charge of the poultry farm. When charged with contravention of s 4B, the only defence relied on by Ms Veira was that her conduct was excused on the ground of necessity. The essence of Ms Veira's defence was that she had entered the poultry farm because it was necessary to do so to prevent further cruelty to the hens, which she proposed to rescue; and that she had done so honestly and reasonably believing that the threatened harm to them was greater than the harm involved in her (unlawful) action in entering and removing the chickens. The learned magistrate rejected that defence.
At the time of Ms Veira's entry onto the poultry farm, there were RSPCA officers at the property, who had also been in attendance on the previous day and were investigating allegations of cruelty said to have resulted in the death of many hens, principally because they had been subjected to a process involving the withdrawal of food and water for a period of seven to 14 days. Ms Veira was of the view she was justified in entering the property despite having no permission or consent from the occupier to do so because whatever the RSPCA had undertaken or required the occupier to do was inadequate to alleviate the situation as she saw it. Ms Veira was convicted of the offence with which she was charged. The Local Court Magistrate concluded that, in circumstances where the RSPCA had ensured that the hens had been provided with sufficient feed and water and Ms Veira did not enquire as to that matter immediately before she entered or check it after she entered the shed, no situation of imminent peril existed and that Ms Veira's actions were not proportionate.
Ms Veira appealed to the Supreme Court under s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) on the sole ground that the Local Court erred in failing to find that the prosecutor had not rebutted the defence of necessity. A judge of the Common Law Division (the primary judge) granted leave to appeal, being satisfied that the ground raised a mixed question of law and fact. In disposing of the appeal, the primary judge concluded that, while there may have been an error of law on the part of the Local Court, on no view of the facts of the case could the conduct of Ms Veira ever have been justified. The appeal was therefore dismissed. Ms Veira now seeks leave to appeal to this Court from the decision of the primary judge.
I have had the advantage of reading in draft the reasons of Meagher JA for concluding that leave to appeal should be refused. I agree with his Honour, for the reasons given, that neither of the grounds of appeal has any prospect of success. Accordingly, orders should be made that leave to appeal be refused and that Ms Veira be ordered to pay the respondent's costs of the appeal.

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Inclosed Lands Protection Amendment Act 1997(NSW)

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