Case facts
Our client was driving his car with his eighteen year old daughter as a passenger. She was seated in the front passenger’s seat. Our client and his daughter were having an argument. During the journey the daughter took off her seatbelt a number of times and threatened to get out of the vehicle whilst it was still moving. Our client repeatedly told her to put her seatbelt back on and each time she complied with this request.
The argument continued and again the daughter took off her seatbelt. Our client was approaching traffic lights that were turning orange and his vehicle was slowing down. The daughter opened the car door and it was our client’s belief that she was about to get out of the car while it was still moving. He reached across and grabbed her by her ponytail in self defence of his daughter and as an act of necessity to prevent her being hurt by her own actions. Whilst holding her hair he maneuvered the car to the curb and stopped. When he stopped the car he let go of her hair and asked her to close the door.
At the point when he first grabbed his daughter’s hair the car behind our client was a police car. The police officer saw our client grab his daughter’s hair. He approached our client’s vehicle and asked what was happening. Our client told the police officer what had happened. The police then questioned his daughter. She gave a similar but slightly different version, claiming that the father had continued to hold on to her hair after the car had stopped. Our client was arrested and held in custody for over six hours and charged with assault. His police charge was listed for mention at Waverley Local Court.
Defended hearing
Based upon the instructions provided by our client, it was obvious to the experienced criminal law accredited specialist Phillip Gibson that either Necessity or Self-Defence may be available. A not guilty plea was entered and the Magistrate made orders for the police brief of evidence to be served. The matter was set down for defended hearing.
By the time of the hearing, the daughter had provided written advice to the police that she was not going to give evidence against her father and she did not turn up to the hearing. This was not the end of the case because the police officer had made certain observations of our client grabbing his daughter’s hair. When the hearing commenced the police officer who had made observations of our client gave evidence and was cross-examined by Mr Gibson.
Our client gave evidence that he only grabbed his daughter’s hair to prevent her from getting out of a moving vehicle and potentially being injured.
The defence
The issue raised at the hearing of the matter was the defense of necessity. Like the issue of self-defence, the issue of necessity is not really a ‘defence’. Once the issue is raised on the evidence it is something that the prosecution has to negate beyond reasonable doubt. That is the prosecution have to prove beyond reasonable doubt that our client was not acting out of necessity.
The current Case Law for necessity is founding the following cases, Loughnan [1981] VR 443 and Rogers [1996] 86 A Crim R 542.
In Loughnan there were the set out three elements of the defence of necessity. They were:
- That the criminal act 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 (the accused) was bound to protect.
- The accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril.
- The acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.
These tests were adopted by and refined by Gleeson CJ in the case of Rodgers. Ultimately there were comparisons with self-defence and Gleeson CJ formulated a test that it is now more appropriate to treat these requirements (the 3 elements referred to above) not as technical legal conditions for the existence of necessity but as factual considerations relevant to the issues of an accused person’s belief as to the position which he or she is placed and that’s the reasonableness and proportionality of the response. We have seen then the test for the defense of necessity is: Did the Accused believe that it was necessary to do what he/she did and was that response reasonable and proportionate? The nature of the danger and it’s proximity in time to the response are factual considerations that go to determining these issues.
Case result
In our case the Magistrate accepted that our client had a genuine belief that it was necessary to take hold of his daughter’s hair to prevent her from getting out of the moving vehicle. The danger to his daughter was imminent and his response to the imminent danger was proportionate to the danger that was presented. In addition he let go of her as soon as the car had stopped. The Magistrate found that the prosecution had not negated the issue of necessity and dismissed the charges.
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law.
Contact us if you require assistance.
