The Defence of Emergency (WA)

All Australian jurisdictions have some form of the defence of emergency. In Western Australia, this defence is outlined in section 25 of the Criminal Code Act. This page explores the defence of emergency in WA, including how it operates, when it can be successfully applied, and the legal requirements that must be satisfied for this criminal defence to succeed in Western Australian courts.

Legislation

Under section 25 of the Criminal Code Act, a person cannot be held criminally responsible for an act they committed because of a sudden and extraordinary an emergency. The legislation specifically states that a person is not criminally responsible for an act done under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise.

This means that if a person does an act in response to what they perceive as a sudden and extraordinary emergency believing their actions to be necessary, they have a defence to any criminal charge that results from this. The defence recognises that in crisis situations, people may be compelled to act in ways that would normally constitute criminal offences, but the emergency circumstances justify or excuse their conduct.

The defence of emergency will succeed if the person's actions are found to have been reasonable given the circumstances as they believed them to be, and if there were reasonable grounds for those beliefs. This objective test ensures that the defence cannot be misused by individuals who overreact to minor situations or who have unreasonable perceptions of danger.

Relationship to Other Defences

The defence of emergency under section 25 should be distinguished from other similar defences in the Criminal Code Act, such as self-defence under sections 231-248 and duress. While these defences may overlap in some circumstances, the defence of emergency specifically addresses situations where external circumstances, rather than human threats, compel a person to act.

What must be established?

For an accused person to successfully rely on the defence of emergency, the following elements must be established through evidence presented to the court:

The presence of sudden or extraordinary emergency circumstances

This refers to an emergency situation that is unexpected and exceptional. The emergency must be genuinely urgent and not something that could have been anticipated or prepared for through ordinary planning. Examples include natural disasters, medical emergencies, fires, or immediate threats to safety. The courts will examine whether the situation truly constituted an emergency that would compel immediate action.

The accused acted under those circumstances

This means that the accused committed the act due to the pressure of the emergency situation. There must be a clear causal connection between the emergency circumstances and the criminal act. If the act was unrelated to the emergency, or if the accused had other reasonable options available, the defence cannot be applied. The timing between the emergency and the response is crucial in establishing this element.

A reasonable person would not have acted differently

The circumstances of the emergency must have been such that a reasonable person, with ordinary self-control, would not have acted differently. This objective test considers what an ordinary person with normal powers of self-control would do when faced with the same emergency situation.

The accused's actions should be evaluated in relation to how the emergency situation appeared at the time, and they should not be held to a higher standard than an ordinary person trying their best in a crisis. Therefore, the defence of emergency can apply to an act even if it was a mistake when assessed with hindsight. The court will consider the urgency of the situation, the available alternatives, and the proportionality of the response.

When can the defence of emergency be used?

The defence of emergency can be invoked in various criminal law contexts where urgent circumstances compel otherwise unlawful conduct:

Driving Offences

In situations where a person is attempting to get a critically injured individual to the hospital, offences like dangerous driving or speeding can arise. The defence may also apply to driving without a licence during an emergency, exceeding speed limits to escape immediate danger, or driving under suspension to respond to a family emergency. Courts will consider whether calling emergency services was a reasonable alternative and the severity of the emergency situation.

Trespass

The defence can apply if a person seeks refuge from an imminent threat on someone else's property. This might include entering private property to escape from an attacker, seeking shelter during a natural disaster, or accessing someone's land to provide urgent medical assistance. The necessity of the trespass and the immediacy of the threat will be key factors in determining success.

Property damage

The defence of emergency may be applicable to a charge of property damage if it was carried out as an attempt to respond to an emergency situation. For instance, breaking a window to escape a fire, damaging a fence to access someone requiring urgent medical attention, or breaking into a building to take shelter from extreme weather conditions. The damage must be proportionate to the emergency faced.

Activism

In the UK, activists have successfully invoked this defence in relation to charges related to direct action protests on environmental issues. In 2008, six Greenpeace activists were acquitted of criminal damage charges valued at €30,000 caused by scaling and graffitiing a chimney at a coal-fired power station. The accused persons argued that they were compelled to act to prevent greater property damage due to climate change. The jury accepted this argument.

However, there is no precedent for the defence to be utilized in the context of activism in Australia, and it would likely face significant legal hurdles given the requirement for sudden and extraordinary circumstances.

When can the defence of emergency not be used?

The defence of emergency cannot be used in urgent situations that are foreseeable and part of everyday life. The law recognises that certain situations, while difficult, do not constitute the type of sudden and extraordinary emergency that would excuse criminal conduct.

Foreseeable Circumstances

For example a person would not succeed in arguing the defence in response to a stealing charge on the basis they had no money to pay for essentials, or in response to a charge of urinating in a public place on the basis they had nowhere else to relieve themselves. These situations, while pressing, are considered foreseeable aspects of daily life that can be planned for or addressed through legal means.

Self-Created Emergencies

The defence will not succeed where the accused person created or contributed to the emergency situation through their own criminal or reckless conduct. Courts will not allow individuals to benefit from circumstances of their own making.

Available Alternatives

Where reasonable legal alternatives were available, such as calling police or emergency services, the defence may not succeed. The accused must demonstrate that the criminal act was the only reasonable option available in the circumstances.

Court Procedures and Legal Representation

When raising the defence of emergency in Western Australian courts, proper legal procedures must be followed. The defence should be raised as early as possible in the proceedings, ideally during the initial court appearance or when entering a plea.

Burden of Proof

While the prosecution bears the burden of proving guilt beyond reasonable doubt, once the defence of emergency is raised, the accused must present evidence supporting each element of the defence. This typically involves witness testimony, expert evidence about the emergency circumstances, and documentation of the situation where available.

Evidence Required

Courts will require concrete evidence of the emergency circumstances, including testimony from witnesses, medical records, weather reports, or other documentation that supports the existence of the emergency. The accused's state of mind and perception of the emergency will also be relevant, though this must be objectively reasonable.

Case Law and Precedents in Western Australia

Western Australian courts have considered the defence of emergency in various contexts, developing a body of case law that provides guidance on its application. The courts have consistently emphasised that the defence requires genuine emergency circumstances that would compel an