This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
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 rarely succeed.
Definition
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 of proof
The accused must provide evidence that raises the defence. The prosecution must negative the defence beyond a reasonable doubt.
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