Defence of Sudden or Extraordinary Emergency (SA)
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 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.
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.
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.
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.
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.
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.
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.
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.
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