Defence of Sudden or Extraordinary Emergency (Vic)
In Victoria, under section 322R of the Crimes Act 1958, a person who is facing criminal charges can rely on the legal defence of sudden and extraordinary emergency. This defence is applicable when the accused admits doing the physical acts that make up the offence but claims that they had a valid reason as they were acting in response to an emergency. This page outlines the defence of sudden and extraordinary emergency in Victoria.
When will sudden and extraordinary emergency succeed?
The defence of sudden and extraordinary is outlined in Victorian legislation and has been interpreted through Australian case law.
Section 322R of the Crimes Act 1958 only applies if the accused reasonably believed that:
- circumstances of sudden or extraordinary emergency existed; and
- their conduct was the only reasonable way to deal with the emergency; and
- the conduct was a reasonable response to the emergency.
The WA Supreme Court ruling of Counsel v Glynn  WASC dealt with driving offences and the operation of the defence of sudden or extraordinary emergency. Banks-Smith J made the following points:
- The elapsed time between the offender becoming aware of the emergency and their response to it may be relevant in determining whether an emergency is sudden or extraordinary.
- An emergency that catches the accused off-guard and unexpectedly is considered ‘sudden,’ while an ‘extraordinary emergency’ is unexpected. However, the actions taken by the accused must be a reasonable response to the emergency. For instance, speeding to take a loved one to the hospital for a minor cut will not be excused based on emergency.
When is the defence of sudden or extraordinary emergency available?
The defence of sudden and extraordinary emergency is available for all offences in Victoria. However, it is only available for murder, if the accused believes that the emergency involves a risk of death or really serious injury (Section 322R of the Crimes Act).
The nature of the alleged offence is a critical factor in determining whether this defence can or should be invoked. The test to satisfy this defence is challenging. In evaluating the likelihood of the defence succeeding, the following should be taken into account:
- The circumstances surrounding the alleged offence
- The events leading up to the alleged offence
- If the situation involved a medical emergency, any prior medical history and any previous medical advice given
- The offence in proportion to the gravity of the emergency.
Burden of proof
The defence must raise the defence of sudden and extraordinary emergency. The prosecution must then prove beyond a reasonable doubt that the offence did not occur in response to a sudden or extraordinary emergency, that the conduct was not the only reasonable way of dealing with the emergency, or that the accused’s actions were not a reasonable response to the emergency.
Emergency or necessity?
The defence of emergency replaced the common law defence of necessity in Victoria.
The defence of necessity applied when an accused person admitted committing an act but argued that doing so was necessary to avoid harm or to protect another person.
When a court decided whether a person was acting out of necessity, it weighed the offence against the harm that needed to be avoided.
In New South Wales, the common law defence of necessity still exists and no defence of emergency has been legislated.
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