CHAPTER XIV
GENERAL DEFENCES AND MITIGATING FACTORS

Division C: Defences and Mitigating Factors Relating to Unlawfulness

PART XVII
NECESSITY

262 Application of Part XVII of Chapter XIV
This Part shall not apply to cases where the harm sought to be avoided consisted of a threat which could give rise to a defence of compulsion in terms of Part XI.

263 Requirements for necessity to be complete defence
(1) Subject to this Part, the fact that it was necessary for a person accused of a crime to do or omit to do anything that is an essential element of the crime in order to avoid harm to himself or herself or to another person shall be a complete defence to the charge if
(a) the harm which he or she sought to avoid would have resulted in
(i) death or serious bodily injury to himself or herself or to another person; or
(ii) considerable financial or proprietary loss to himself or herself;
and
(b) he or she believed on reasonable grounds that the harm referred to in paragraph (a) had started to occur or was imminent; and
(c) the harm referred to in paragraph (a) did not arise through his or her own fault; and
(d) he or she believed on reasonable grounds that his or her conduct was necessary to avoid the harm referred to in paragraph (a) and that there was no other feasible way of avoiding it; and
(e) by his or her conduct he or she did no more harm than was reasonably necessary to avoid the harm referred to in paragraph (a), and the harm he or she did was not disproportionate to the harm referred to in paragraph (a).
(2) In determining whether harm would cause considerable financial or proprietary loss to a person for the purposes of subparagraph (ii) of paragraph (a) of subsection (1), a court shall have regard to the financial or proprietary resources of the person concerned.

264 Additional requirements for necessity to be complete defence to murder
(1) Subject to subsection (2), the fact that it was necessary for a person accused of murder to do or omit to do anything that is an essential element of the crime in order to avoid harm to himself or herself or to another person shall not be a complete defence to the charge unless the following requirements are satisfied in addition to those specified in paragraphs (b), (c) and (d) of subsection (1) of section two hundred and sixty-three
(a) the harm which he or she sought to avoid would have resulted in his or her death or in the death of his or her spouse, parent or child; and
(b) his or her conduct was necessary to avoid the harm referred to in paragraph (a) and there was no other feasible way of avoiding it; and
(c) he or she had no warning of the harm referred to in paragraph (a) to enable him or her to forestall it by other means.
(2) If the requirements referred to or specified in subsection (1) are satisfied, the defence of necessity shall be a complete defence to a charge of murder, whether the accused is charged as an actual perpetrator or as an accomplice.

265 When necessity partial defence to murder
If it was necessary for a person accused of murder to do or omit to do anything that is an essential element of the crime in order to avoid harm to himself or herself or to another person, he or she shall guilty of culpable homicide if all the requirements for the defence of necessity are satisfied in the case except that by his or her conduct he or she did more harm than was reasonably necessary to avoid the harm he or she sought to avoid.

266 Necessity in relation to other crimes
In relation to all cases other than those specified in this Part, necessity shall not be a defence but shall merely be a factor to be taken into account in the assessment of sentence.