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.
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.
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 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.
What must be established?
For an accused person to successfully rely on the defence of emergency, the following elements must be established:
The presence of sudden or extraordinary emergency circumstances
This refers to an emergency situation that is unexpected and exceptional.
The accused acted under those circumstances
This means that the accused committed the act due to the pressure of the emergency situation. If the act was unrelated to the emergency, the defence cannot be applied.
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.
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.
When can the defence of emergency be used?
The defence of emergency can be invoked in the following circumstances:
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 can apply if a person seeks refuge from an imminent threat on someone else’s property.
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.
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.
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. 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.
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