The Defence of Necessity in New Zealand: The Case for Reform

Abstract

The common law provides a defence in situations where the offender is morally blameless. The defences of necessity proper and duress of circumstances exculpate defendants who break the law to achieve a ‘lesser evil’ or to avoid imminent and serious harm. This paper explores the extent to which s 20 of the Crimes Act 1961 preserves these common law defences in New Zealand. The courts have declined to answer whether the defences are available, leaving the law uncertain. This paper argues that it is open for the courts to find both defences available in New Zealand. However, the narrow wording of ss 20 and 24 exclude duress of circumstances from applying where the threat arises from a person who is present when the offence is committed. As a result, New Zealand’s law of necessity and compulsion draws an arbitrary distinction between threats arising from people and threats arising from other sources. This irrational ‘legal gap’ is out of step with the law in comparative jurisdictions who have functioning statutory and common law defences. Parliament should enact necessity proper and duress of circumstances into a statutory defence to remedy the defects in the Crimes Act and resolve the current uncertainty.