The Defence of Sudden or Extraordinary Emergency

The defence of emergency usually applies to cases where people fear that they or someone else will be killed or seriously injured if they do not do an act that would otherwise be a criminal offence. It is a difficult threshold to meet and will only rarely succeed.


Section 41 of the Criminal Code 2002 provides that a person is not criminally responsible for an offence if the person carries out the conduct required for the offence in response to circumstances of sudden or extraordinary emergency.

This section applies only if the person reasonably believes that:

  • circumstances of sudden or extraordinary emergency exist; and
  • committing the offence is the only reasonable way to deal with the emergency; and
  • the conduct is a reasonable response to the emergency.

Section 10.3 of the Commonwealth Criminal Code provides for the defence in the same terms.

It should be noted that neither Code defines emergency.

Burden or proof

The accused bears an evidentiary onus (call evidence that raises the defence). Once the accused discharges the evidentiary onus, the Prosecution must negative the defence of emergency beyond a reasonable doubt.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.


If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.


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