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Defence of Emergency

If a person is charged with an offence but can demonstrate that they committed the act due to a sudden or extraordinary emergency, then they are not guilty of the offence. The circumstances must have been such that an ordinary person possessing typical self-control would have been compelled to act similarly Every state and territory of Australia has some version of the defence of emergency, though in New South Wales it is known as necessity. This page outlines how the defence of emergency operates and the legislative provisions that govern it in each jurisdiction. 

Onus of proof

If an accused person relies on the defence of sudden or extraordinary emergency, the burden of proof then shifts to the prosecution to prove beyond a reasonable doubt that the offence was not committed in response to an emergency. This is known as a reverse onus.

In order for a court to find a defendant guilty after they raise this defence, it must determine that their actions were beyond what a person of ordinary self-control would reasonably be expected to do under similar circumstances.

What is the test?

The criterion for deciding whether an individual ought to be acquitted based on a sudden or extraordinary emergency is whether their response to the situation was what could be expected of an ordinary person. 

The law recognises that a person may make a mistake when facing an emergency and the accused is not expected to possess greater wisdom or abilities than an ordinary person in the same conditions. The court must evaluate the situation based on how it appeared to the accused at the time and not with the benefit of hindsight.

When is the defence available?

The defence of sudden or extraordinary emergency is available in a range of situations. Some examples of where it may be used are outlined below. 

  • when a person commits driving offences in their haste to get a person who is critically injured to hospital;
  • when a person commits trespass or unlawful entry while taking refuge from a serious threat;
  • for a charge of murder where the accused believed the emergency involved a risk of death or really serious injury;
  • in the UK, the defence has been successfully used in relation to criminal charges resulting from direct action protests on environmental issues. However, no precedent exists for the defence to be used in this way in Australia.

The defence of emergency in the ACT

Under section 41 of the Criminal Code 2002, a person is not accountable for a criminal offence in the ACT if they undertake the conduct as a result of a sudden or extraordinary emergency. 

This provision applies only if the person held a rational belief that:

  • there were sudden or extraordinary emergency circumstances;
  • committing the offence was the only sensible means to address the emergency; and
  • the behaviour was a rational reaction to the emergency.

The defence of emergency in Queensland

Under section 25 of the Criminal Code 1899, a person is not guilty of an offence in Queensland if they act in response to a sudden or extraordinary emergency under circumstances where an ordinary person with ordinary powers of self-control could not be expected to act otherwise.  

The defence of emergency in Victoria

In Victoria, a person facing criminal charges can invoke the legal defence of sudden and extraordinary emergency under section 322R of the Crimes Act 1958. This defence is applicable when the accused admits to committing the physical acts that constitute the offence but claims that their actions were justified as they were responding to an emergency.

For section 322R of the Crimes Act 1958 to apply, the accused must have reasonably believed that:

  • there were circumstances of sudden or extraordinary emergency; and
  • undertaking the conduct was the only reasonable way to address the emergency; and
  • the conduct was a reasonable response to the emergency.

The defence of emergency in Western Australia

In Western Australia, the defence of emergency is contained in section 25 of the Criminal Code Act Compilation Act 1913. Under that provision, a person is not criminally responsible for an act performed in an emergency. This means that if someone acts while believing there to be circumstances of sudden and extraordinary emergency, and their conduct is a necessary response to the situation, they have a defence if:

  • their behaviour is a reasonable response to the circumstances as they perceive them to be, and
  • there are valid grounds for holding such beliefs.

The defence of necessity in New South Wales

In New South Wales, the common law defence of necessity applies when a person breaks the law to avoid more dire consequences. 

Once an accused person has raised the defence of necessity, the prosecution must prove that the defence of necessity does not apply. 

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

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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