Sudden and Extraordinary Emergency (Qld)
The Criminal Code 1899 contains a number of legal defences that can be relied on in relation to criminal offences in Queensland. The defence of sudden and extraordinary emergency is found in section 25, which states that “a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.” This article outlines the defence of sudden and extraordinary emergency.
When will the defence of sudden and extraordinary emergency succeed?
The section applies only if the person carrying out the conduct reasonably believes:
- that circumstances of sudden or extraordinary emergency exist; and
- that committing the offence is the only reasonable way to deal with the emergency; and
- that the conduct is a reasonable response to the emergency.
The test laid down by section 25 imposes an objective standard. There are three objective criteria, each of which uses the concept of reasonableness as a limit on the defence.
- The emergency must be real or reasonably apprehended as real.
- The emergency must be unavoidable by lesser means.
- The accuseds response to the emergency must be reasonable in the circumstances
In the notes in his Draft Code, Sir Samuel Griffith stated:
‘This section gives effect to the principle that no man is expected (for the purposes of the criminal law at all events) to be wiser and better than all mankind. It is conceived that it is a rule of the common law, as it undoubtedly is a rule upon which any jury would desire to act. It may, perhaps, be said that it sums up nearly all the common law rules as to excuses for an act which is prima facie criminal.’
The defence of sudden and extraordinary emergency can be relied upon in conjunction with other defences, such as compulsion (section 31) or honest and reasonable mistake of fact (section 24).
In the 1980 decision of R v Warner, the criminal court of appeal held that section 25, 31 and 24 were available to a person charged with dangerous driving of a motor vehicle where there was significant evidence that a terrifying situation may have been created by the driver of another vehicle and that the appellant may have been acting in response to this from fear and to avoid the risk of being harmed by the other driver. To this end, the emergency situation could be either factual or an honest and reasonable but mistaken belief.
In the 2020 Queensland Court of Appeal decision of R v Dimitropoulos, Brown J noted:
The learned trial judge, in the present case, accepted that the phrase “sudden or extraordinary emergency” in section 25 of the Queensland Criminal Code may be read disjunctively, such that sudden is separate from extraordinary, however, he considered that there must still be an emergency which requires immediate action.
In that case, the defendant argued he grew cannabis as a last resort to self-medicate for pain resulting from injuries sustained in a car accident. The trial judge found there was insufficient evidence to support a defence of sudden and extraordinary emergency.
Her Honour noted:
“The defendant to criminal proceedings bears the evidential burden of raising a defence under s 25 of the Criminal Code. The test is whether there is “evidence which, taken at its highest in favour of the accused, could lead a reasonable jury properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived”. Once raised, the onus then falls on the crown to negative the defence beyond reasonable doubt.”
Dangerous driving and sudden and extraordinary emergency
In R v Gardner, the court found that there were facts establishing a defence of sudden and extraordinary emergency. In that case, the accused was charged with dangerous driving causing GBH, in circumstances where the accused was being chased by “skinheads” and “he and the passengers in his vehicle had been attacked and threatened”, including while stopped at a red light. The case was described as “extremely unusual”.
Sudden and extraordinary emergency and climate protests
Section 25 was also considered in Rolles v Commissioner of Police  QDC 331. The appellant had trespassed onto a rail infrastructure and placed and attached a tripod structure onto a railway line and then climbed to the top of the structure in protest about climate change. As a result of his actions, normal rail traffic was unable to travel along that section of railway line. The appellant was placed under arrest for trespass, not following the direction of the police (when asked to leave the offence locations) and rectifying unauthorised interference.
The defendant argued that the “imminent danger” required for the defence of sudden and extraordinary emergency to be made out was the effects and consequences of climate change together with the lack of action being taken by authorities to address this issue. In the Magistrates Court, he gave evidence that climate change was an imminent and ongoing threat to civilisation, of which he had been aware for over 30 years. He further indicated that persons are dying as a result of fires and droughts caused by climate change. He felt compelled to take action as no action was being taken by governments or other authorities.
The appellant court commented that whilst it was noted “extraordinary” does support the emergency developing over time – for example rising floodwaters – “there must be an emergency of such a scale that it requires immediate action, commensurate with the consideration of self-control.” It was held that section 25 was not a defence available for this offending.
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