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.
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.
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.
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.
The defence is also available in relation to some minor offences, such as urinating in a public place.
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.
In some jurisdictions, the defence of sudden or extraordinary emergency has been codified, while in others it exists at common law. The legislative provisions of the states and territories are summarised below.
In Victoria, the defence of sudden or extraordinary emergency is contained in Section 322R of the Crimes Act 1958. This provision states that a person is not guilty of an offence for conduct done in circumstances of sudden or extraordinary emergency if the person reasonably believed that the conduct was the only reasonable way to deal with the emergency and the conduct was (objectively) a reasonable response to the emergency.
In Queensland, the defence is contained in Section 25 of the Criminal Code 1899. This section states that a person is not criminally responsible for acts done in circumstances of sudden and extraordinary emergency where an ordinary person could not reasonably be expected to have acted otherwise.
In the Northern Territory, the defence is contained in Section 43BC of the Criminal Code Act 1983.
In Western Australia, the defence is contained in Section 25 of the Criminal Code 1913. The defence is constituted slightly differently here, with the provision stating that a person is not responsible for acts done where the person believes that:
- circumstances of sudden or extraordinary emergency exist; and
- their actions are a necessary response to the emergency
Provided that the person’s actions are a reasonable response to the emergency as the person believes it to be and there are reasonable grounds for that belief.
Australian Capital Territory
In the ACT, the defence is contained in Section 41 of the Criminal Code 2002, which states that a person is not criminally responsible for an offence if it was carried out in response to circumstances of sudden or extraordinary emergency provided they reasonably believed that the offence was the only reasonable way of dealing with the emergency and the conduct was a reasonable response to the emergency.
If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Go To Court Lawyers.