Sudden or Extraordinary Emergency (Qld)

The defence of emergency generally applies in cases where a person feared that they or someone else would die or be seriously injured if they did not do something that would otherwise amount to a criminal offence. It is a defence that is rarely relied on as it is a difficult threshold to meet. This page outlined the defence of sudden or extraordinary emergency in the ACT.

Definition

Under section 41 of the Criminal Code 2002 , a person is not criminally responsible for an act if they carried it out in response to circumstances of sudden or extraordinary emergency.

This section applies only if the accused reasonably believes that:

  • circumstances of sudden or extraordinary emergency existed; and
  • carrying out the act was the only reasonable way to deal with the emergency; and
  • the act was a reasonable response to the emergency.

The Act does not define ‘emergency’.

Burden of proof

The accused must provide evidence that raises the defence of emergency. The prosecution then bears the burden of proving that the accused was not acting in response to an emergency beyond a reasonable doubt.  

What is the test?

The test used by courts to assess whether a person was acting in response to a sudden or extraordinary emergency is what could be expected of a ordinary person with ordinary powers of self-control in the circumstances. The court must consider the situation as it appeared to the accused in the heat of the moment and not with the benefit of hindsight.

The accused must have carried out the act because of the stress of the emergency situation and not for other reasons.

When is the defence of emergency available?

The defence of sudden or extraordinary emergency is available in a range of situations.

Driving offences

The defence may be relied on in relation to driving offences such as speeding, dangerous driving and drink driving. It commonly arises when a person is charged with driving offences while trying to get a seriously ill or injured person to hospital.

The defence has been written into the Heavy Vehicle National Law and can be relied on as a defence to any offence under that act.

Trespass

A person has a defence to a trespass offence if they entered land because they were taking refuge from a sudden or extraordinary emergency.

Activism

In the UK, the defence of sudden or extraordinary emergency has been successfully relied on in response to criminal charges that arose out of direct action protests on environmental issues.

In 2008, in a case known as the Kingnorth Six Trial, a jury acquitted six Greenpeace activists who attempted to shut down a coal-fired power station for a day. They argued that by shutting down the station for a day they were preventing greater damage being caused by the impacts of climate change.

There is no precedent for the defence of emergency to be used in this context in Australia.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.  

Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
7am to 9pm, 7 days
Call our Legal Hotline now