Sudden or Extraordinary Emergency (ACT)
The defence of emergency in the ACT allows a person to be excused from criminal liability if they committed an offense in response to sudden or extraordinary emergency circumstances. This defence is contained section 41 of the Criminal Code 2002 and section 10.3 of the Commonwealth Criminal Code. This page deals with the defence of sudden or extraordinary emergency in the ACT.
What is required for the defence of sudden or extraordinary emergency to succeed?
For the defence to be successful, the person must have reasonably believed that an emergency situation existed, and that committing the offence was the only reasonable way to deal with it. Additionally, the conduct must be a reasonable response to the emergency.
It is important to note that neither the ACT or the Commonwealth code provides a specific definition of what constitutes an emergency, so each case will be evaluated based on its individual circumstances.
Burden of proof
The defence of emergency is a difficult threshold to meet, and it rarely succeeds. The accused must provide evidence to raise the defence, but the burden of proof then shift to the prosecution, which must prove beyond a reasonable doubt that the accused was not acting in response to an emergency.
Emergency or necessity?
The defence of emergency is known as ‘necessity’ common law. The Criminal Code 2002 restricts the operation of this defence to situations of sudden or extraordinary emergency.
Three main requirements for sudden or extraordinary emergency
The defence of sudden or extraordinary emergency has three main requirements.
- The emergency must have been real or reasonably apprehended as real. The defence is not available to an accused who mistakenly apprehended a situation as an emergency where the mistake was not reasonable.
- The emergency must have been unavoidable by lesser means. The defence will not succeed if there was another way of dealing with the emergency.
- The accused’s response to the emergency situation was reasonable in the circumstances. The defence will not succeed if the acts making up the offence were not a reasonable response to the emergency situation.
When is the defence of sudden or extraordinary emergency available?
The defence of sudden or extraordinary emergency is a general defence and is available to even very serious charges such as murder and manslaughter.
Some examples of where the defence may be relied on are:
- Where a person is charged with speeding while rushing to get a seriously injured person to hospital;
- Where a person is charged with trespass while taking refuge from a bushfire on someone’s property;
- Where a person is charged with theft or property damage after taking cloth from a stall to bandage a serious wound.
Rationale for the defence of emergency
The defence of emergency is based on the principle that when facing an emergency situation, an accused person should not be expected to be any wiser or better than the rest of mankind. Whether a person’s actions were reasonable will be assessed based on how the situation appeared at the time and not with the benefit of hindsight.
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