The defence of necessity has some overlapping with the defence of duress. Necessity is a difficult defence to prove and usually applies to cases where people commit criminal acts because of a fear of imminent danger.
The defence of necessity requires the following elements to be proven:
- The criminal act must have been done in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others;
- The accused must honestly have believed on reasonable grounds that they were placed in a situation of imminent peril; and
- the acts done must not be out of proportion.
The onus of proof
The accused bears an evidentiary onus to raise the defence of necessity. Once the accused discharges the evidentiary onus the prosecution must negative the defence of necessity beyond a reasonable doubt.