Defence of Sudden or Extraordinary Emergency (SA)

By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 15 April 2026.

In South Australia, a number of criminal defences are set out in the Criminal Law Consolidation Act 1935. These include self-defence, duress and sudden and extraordinary emergency. This page deals with the defence of sudden and extraordinary emergency in South Australia.

The defence of sudden or extraordinary emergency provides individuals with legal protection when they commit criminal acts in response to urgent, unforeseen circumstances that require immediate action. This defence recognises that sometimes people must make split-second decisions in crisis situations that may involve breaking the law to prevent greater harm or address serious emergencies. Understanding when and how this defence applies can be crucial for anyone facing criminal charges in South Australia.

Legislation

The defence of sudden and extraordinary emergency is contained in section 15E of the Criminal Law Consolidation Act 1935.

Under that provision, a person has a defence if they carried out the conduct giving rise to the charge is response to circumstances of sudden or extraordinary emergency and at the time, the accused reasonably believed that:

• Sudden or extraordinary emergency circumstances existed; and
• Carry out the conduct was the only reasonable response; and
• The conduct was a reasonable response to the emergency.

The emergency does not have to involve a risk of death or serious harm.

Legislative History and Purpose

Section 15E was introduced to codify common law principles that recognised necessity as a defence to criminal charges. The provision acknowledges that rigid application of criminal law without consideration of emergency circumstances would lead to unjust outcomes. The legislation balances the need to maintain law and order with the reality that extraordinary situations may compel otherwise law-abiding citizens to act outside legal boundaries.

Interpretation of "Sudden or Extraordinary"

Courts have interpreted "sudden" to mean unexpected or occurring without warning, while "extraordinary" refers to circumstances that are beyond the ordinary course of events. The emergency must be immediate and pressing, requiring urgent action that cannot wait for lawful alternatives. The circumstances must be such that a reasonable person would feel compelled to act immediately to address the situation.

Burden of Proof

It is up to the defence to raise the defence of emergency; once it has been raised, it is up to the prosecution to disprove it. In other words, the prosecution must prove beyond a reasonable doubt that the accused was not acting in response to an emergency in order for the court to find them guilty.

Evidential Requirements

To successfully raise the defence, the accused must present some evidence of the emergency circumstances. This evidence can include witness testimony, medical records, photographs, or expert evidence demonstrating the nature and urgency of the situation. The defence does not need to prove the emergency existed beyond reasonable doubt, but must provide sufficient evidence to make it a live issue for the court to consider.

Prosecution's Responsibility

Once the defence is properly raised, the prosecution bears the heavy burden of disproving at least one element of the defence beyond reasonable doubt. This may involve demonstrating that no emergency existed, that the accused's response was unreasonable, or that lawful alternatives were available and could have been pursued.

What offences does the defence not apply to?

A person cannot rely on the defence of sudden or extraordinary emergency in South Australia in respect of a charge of murder, attempted murder, conspiracy to commit murder or aiding and abetting murder.

The defence is available in response to all other criminal charges.

Rationale for Murder Exclusion

The exclusion of murder-related offences reflects the law's fundamental principle that taking another person's life cannot be justified by emergency circumstances alone. This exclusion ensures that the sanctity of human life is preserved, even in crisis situations. However, other defences such as self-defence may still be available in appropriate circumstances involving homicide charges.

The test for the defence of emergency

To ascertain whether an individual should be acquitted based on a sudden or exceptional emergency, their response to the situation should align with what an average person would do. Even in the face of an exceptional emergency, one may make a misjudgement, but the accused person is not expected to possess more knowledge or skills than an ordinary individual in a similar scenario. The court is obligated to evaluate the circumstances as they presented themselves at the time.

Objective and Subjective Elements

The test combines both objective and subjective elements. The court must consider what the accused genuinely believed at the time (subjective test) and whether those beliefs and the resulting actions were reasonable from the perspective of an ordinary person (objective test). This dual approach ensures that genuine emergency responses are protected while preventing abuse of the defence.

When is the defence of sudden or extraordinary emergency available?

The defence of sudden or extraordinary emergency can be relied on in a range of situations.

Driving offences

The defence can be used to challenge charges of dangerous driving and related offenses, including speeding and drunk driving. This defence is frequently invoked when driving offenses are committed in a rush to transport a seriously injured individual to the hospital.

Courts have recognised that medical emergencies may justify otherwise illegal driving behaviour, such as exceeding speed limits, running red lights, or even drink driving if no alternative transport was available. However, the emergency must be genuine and immediate, and the accused's response must be proportionate to the circumstances.

Trespass

The defence of emergency can also be argued in relation to a trespass or unlawful entry offence if the accused person took refuge from a serious threat on someone else's property.

Examples might include entering private property to escape from violent attackers, seeking shelter during extreme weather conditions, or accessing property to render assistance to someone in immediate danger. The key consideration is whether the trespass was necessary and reasonable given the emergency circumstances.

Activism

In the UK, the defence of sudden or extraordinary emergency has been successfully relied on by environmental activists in relation to criminal charges that have arisen during direct action protests.

This occurred in 2008, when six Greenpeace activists were acquitted of criminal damage valued at €30,000 that was caused by scaling and graffitiing a chimney at a coal-fired power station. The accused activists argued they were compelled to act to prevent greater property damage being caused by climate change. This argument was accepted by a jury.

No precedent exists for the defence to be used in this way in Australia.

Elements Required for the Defence

Immediacy of the Emergency

The emergency must be immediate and pressing, requiring urgent action that cannot be delayed. Courts will examine whether there was time to seek lawful alternatives or official assistance. If reasonable alternatives were available and accessible within the timeframe of the emergency, the defence may fail.

Proportionality of Response