Brief Overview: Defence of Necessity
The English Courts introduced the concept of necessity as early as 1551. In Reninger v Fagossa the court stated that:
“A man may break the law, and yet not break the law itself …. where the words of them are broken to avoid a greater inconvenience, or through necessity, or by compulsion.”
In 1765 William Blackstone recognised that the necessity defence was founded upon the theory that individuals should not be punished when they are not acting out of free will and that “the law ought to promote the achievement of higher values at the expense of lesser values, and that sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.”
Blackstone also described a common law right to bodily integrity as including “a right to the preservation of a man’s health from such practices as may prejudice or annoy it.”
In Australia the necessity defence has been articulated in several cases. See for example T Bogdanoski, in “A Dose of Human Rights: An Antidote to the criminal prohibition of cannabis for medical use? (2009) 33 Crim LJ 251. Several cases in the Lismore District Court were cited where the defense was successfully raised. In 1991 a fine of $500 was overturned involving the cultivation of 6 cannabis plants; and in 1999 a fine and conviction were overturned after the defence had been raised by a patient with lymphoma who had used cannabis for unresolved pain and suffering.
In Queensland caselaw the defence has been referred to in cases involving the defence of extraordinary emergency. See for example R v Patel (No 7) [2013] QSC 65; Carter v Attorney General for the State of Queensland [2013]; QCA 140; Wilkinson v Stevenson [2000] QDC 426; State of Qld v Alyssa Nolan & Anor [2001] QSC 174; Moores v Pearce [2013] QDC 32.
There are no "recorded cases" in Queensland where the necessity defence has been successfully raised in relation to the charges of cultivation, possession or supply of cannabis.
Overseas Medical Cannabis Cases
There have been a number of succesful cases in the United States raising the defence of medical necessity.
US v Randall 1976 was the first legal case to bring about changes to cannabis policy, and to extend the necessity defence to the crimes of possession and cultivation of cannabis. Robert Randall began smoking cannabis after conventional drugs proved ineffective in treating his glaucoma.
With the help of a dedicated team of lawyers, Randall used this finding to argue and eventually win his case, which helped establish the legal concept of medical necessity. He was not only acquitted of the charges against him for the possession of cannabis, he also convinced the federal government to provide him with a consistent, legal supply of cannabis to treat his glaucoma.