A person charged with a criminal offence is not guilty if they can show that they committed the acts because of a sudden or extraordinary emergency that would have caused any person with ordinary powers of self-control to act the same.
Onus of proof
When an accused raises the defence of sudden or extraordinary emergency, it is up to the prosecution to prove beyond a reasonable doubt that the offence was not committed in circumstances that amounted to a sudden or extraordinary emergency. This is known as a reverse onus.
For a court to find a person guilty after they have raised this defence, it must be satisfied that what the accused did was outside what could reasonably be expected of an ordinary person with ordinary self-control.
What is the test?
The test to determine whether a person should be acquitted on the basis of sudden or extraordinary emergency is whether their reaction to the circumstances was what could be expected of an ordinary person. A person can make a mistake when confronted with an extraordinary emergency but the accused is not expected to be any wiser or better than an ordinary person in the same circumstances. The court must consider the situation as it appeared in the moment.
When is the defence available?
The defence of sudden or extraordinary emergency is available in a range of situations.
Driving offences
The defence is available for a charge of dangerous driving and associated offences such as speeding and drink driving. It commonly arises when driving offences are committing in haste to get a critically injured person to hospital.
The defence has been codified in Section 630 of the Heavy Vehicle National Law and is available as a defence to any offence under that act. It applies if a person reasonably believed that circumstances of sudden or extraordinary emergency existed and that their conduct was the only reasonable way to deal with the emergency and their conduct was a reasonable response.
Trespass
The defence can also be argued in relation to a trespass or unlawful entry offence if the accused was taking refuge from a serious threat on someone else’s property.
Murder
The defence is available for a charge of murder but is limited to cases where the accused believed the emergency involved a risk of death or really serious injury.
Activism
The defence of sudden or extraordinary emergency has been successfully argued by activists in relation to criminal charges that have arisen during direct action protests on environmental issues.
This occurred in the UK in 2008, when six Greenpeace activists were acquitted of criminal damage valued at €30,000 caused by scaling and graffitiing a chimney at a coal-fired power station. The defendants argued they were compelled to act to prevent greater property damage being caused by climate change. A jury accepted this argument.
No precedent exists for the defence to be used in this way in Australia.