Sudden or Extraordinary Emergency (ACT)

By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 20 April 2026.

The defence of emergency in the ACT allows a person to be excused from criminal liability if they committed an offense in response to sudden or extraordinary emergency circumstances. This defence is contained section 41 of the Criminal Code 2002 and section 10.3 of the Commonwealth Criminal Code. This page deals with the defence of sudden or extraordinary emergency in the ACT.

What is required for the defence of sudden or extraordinary emergency to succeed?

For the defence to be successful, the person must have reasonably believed that an emergency situation existed, and that committing the offence was the only reasonable way to deal with it. Additionally, the conduct must be a reasonable response to the emergency. The courts will examine whether a reasonable person in the same circumstances would have acted in a similar manner when faced with the same emergency situation.

It is important to note that neither the ACT or the Commonwealth code provides a specific definition of what constitutes an emergency, so each case will be evaluated based on its individual circumstances. This flexibility allows the courts to consider the unique factors present in each case while maintaining consistent legal principles.

Burden of proof

Evidential burden on the accused

The defence of emergency is a difficult threshold to meet, and it rarely succeeds. The accused must provide evidence to raise the defence, but the burden of proof then shift to the prosecution, which must prove beyond a reasonable doubt that the accused was not acting in response to an emergency.

Prosecution's burden to disprove

Once the defence has been properly raised with sufficient evidence, the prosecution bears the legal burden of disproving the defence beyond reasonable doubt. This means the prosecution must establish that either no emergency existed, that alternative courses of action were available, or that the accused's response was unreasonable in the circumstances.

Emergency or necessity?

Common law origins

The defence of emergency is known as 'necessity' common law. The Criminal Code 2002 restricts the operation of this defence to situations of sudden or extraordinary emergency. Under common law, the defence of necessity was broader in scope, but the codified version in the ACT requires specific circumstances to be met.

Statutory limitations

The statutory version of this defence is more restrictive than its common law counterpart. Section 41 of the Criminal Code 2002 (ACT) specifically requires that the emergency be either sudden or extraordinary, creating a higher threshold than the general necessity defence that may be available in other jurisdictions.

Three main requirements for sudden or extraordinary emergency

The defence of sudden or extraordinary emergency has three main requirements.

Reality of the emergency

• The emergency must have been real or reasonably apprehended as real. The defence is not available to an accused who mistakenly apprehended a situation as an emergency where the mistake was not reasonable.

No alternative means available

• The emergency must have been unavoidable by lesser means. The defence will not succeed if there was another way of dealing with the emergency.

Reasonableness of response

• The accused's response to the emergency situation was reasonable in the circumstances. The defence will not succeed if the acts making up the offence were not a reasonable response to the emergency situation.

These three elements work together to ensure that the defence is only available in genuine emergency situations where the accused had no reasonable alternative but to commit the offence in question.

When is the defence of sudden or extraordinary emergency available?

Scope of application

The defence of sudden or extraordinary emergency is a general defence and is available to even very serious charges such as murder and manslaughter. However, the more serious the offence, the more compelling the emergency circumstances must be to justify the criminal conduct.

Practical examples

Some examples of where the defence may be relied on are:

• Where a person is charged with speeding while rushing to get a seriously injured person to hospital;
• Where a person is charged with trespass while taking refuge from a bushfire on someone's property;
• Where a person is charged with theft or property damage after taking cloth from a stall to bandage a serious wound.

Rationale for the defence of emergency

Philosophical foundations

The defence of emergency is based on the principle that when facing an emergency situation, an accused person should not be expected to be any wiser or better than the rest of mankind. Whether a person's actions were reasonable will be assessed based on how the situation appeared at the time and not with the benefit of hindsight.

Balancing competing interests

This defence recognizes that in exceptional circumstances, the law should not punish individuals who are forced to choose between competing harms. The defence acknowledges that sometimes breaking the law may be the only reasonable option to prevent greater harm or damage.

Limitations and exclusions

Self-created emergencies

The defence may not be available where the accused has created the emergency situation through their own reckless or negligent conduct. Courts will examine whether the emergency arose independently of the accused's actions or whether the accused contributed to creating the circumstances.

Proportionality considerations

The response to the emergency must be proportionate to the threat posed. Minor emergencies cannot justify serious criminal conduct, and the courts will carefully weigh the harm prevented against the harm caused by the criminal act.

Case law and judicial interpretation

Key precedents

Australian courts have consistently held that the defence of emergency requires strict adherence to all three elements. The High Court and ACT Supreme Court decisions have emphasized that the defence should be narrowly interpreted to prevent its misuse while still providing protection for those genuinely caught in emergency situations.

Judicial approach to reasonableness

Courts apply an objective test when determining whether the accused's belief in the emergency was reasonable and whether their response was appropriate. This means the court considers what a reasonable person in the accused's position would have believed and how they would have acted.

Frequently Asked Questions

Can I use the emergency defence for any type of criminal charge?

Yes, the defence of sudden or extraordinary emergency is a general defence available for all criminal charges, including serious offences like murder and manslaughter. However, the more serious the charge, the more compelling the emergency circumstances must be to successfully establish the defence.

What happens if I reasonably believed there was an emergency, but I was wrong?

The defence can still succeed if your belief in the emergency was reasonable, even if no actual emergency existed. The key test is whether a reasonable person in your position would have believed an emergency existed. However, if your belief was unreasonable or based on an unreasonable mistake, the defence will not be available.

Do I need to prove that someone's life was in danger to use this defence?

No, the defence is not limited to life-threatening situations. The emergency must be either "sudden" or "extraordinary" according to section 41