KembaraXtra-Case Law-Cairns (1999) CA

KembaraXtra-Case Law-Cairns (1999) CA
Area of Law: Criminal Law – Defence of Necessity
Facts:

The defendant (D) was driving his car late at night.
The victim (V) climbed onto the bonnet of D's car and lay face-up against the windscreen.
D, feeling frightened, decided to continue driving, believing it was the best course of action.
D also claimed to be frightened by V's friends, who were following his car, shouting and gesturing, in an attempt to prevent V from remaining on the bonnet.
D drove for a considerable distance before V fell off the car.
Tragically, D then drove over V, causing V to fracture his spine and become paralysed.
D was charged under section 20 of the Offences Against the Person Act 1861.
D sought to rely on the defence of necessity.

Trial Judge's Direction to the Jury:

The judge instructed the jury that the defence of necessity was only available if D's action was "actually necessary to avoid the evil in question."

Outcome at Trial:

Appeal:

Decision of the Court of Appeal (CA):

The Court of Appeal allowed the appeal and found that the trial judge had misdirected the jury.
The jury's focus should have been on D's perception of the threat he faced.
The jury were to consider whether D's actions were reasonable and proportionate in the circumstances as he perceived them.
Crucially, the jury did not have to consider whether the threat was real or actual.

Key Legal Principle Established/Reinforced:

In assessing the defence of necessity, the court will consider the defendant's subjective perception of the threat.
The defendant's actions must be reasonable and proportionate to the perceived threat, not necessarily to an objectively assessed threat.

Study Points:

Understand the factual scenario: Visualise the events as they unfolded.
Identify the charge: Know the offence D was accused of.
Recognise the defence raised: D's attempt to use necessity.
Distinguish the trial judge's direction from the Court of Appeal's direction: This is the central point of the case. What did the judge say, and why was it wrong? What did the Court of Appeal say the jury should have considered?
Focus on the "perception of the threat": This is the critical element. D does not need to prove the threat was objectively real, only that he genuinely perceived it as such.
Consider "reasonableness and proportionality": Even with a perceived threat, the action taken must be a reasonable response to that threat. This is an objective element applied to the subjective perception.
Contrast with objective necessity: The defence of necessity does not require a situation of absolute, objective necessity.

Self-Assessment Questions:

What were the two main threats D claimed to be facing?
How did the trial judge instruct the jury on the defence of necessity?
What was the Court of Appeal's primary criticism of the trial judge's direction?
Explain the significance of "D's perception of the threat" in the context of the necessity defence, as per this case.
What two factors did the Court of Appeal state the jury should consider when assessing D's actions?
Does the threat have to be objectively real for the defence of necessity to be available, according to DPP v Cairns? Explain your answer.

LAW