The Defence of Sudden and Extraordinary Emergency (Vic)

Section 322R of the Crimes Act 1958 allows for a person who is charged with a criminal offence in Victoria to rely on the legal defence of sudden and extraordinary emergency. This defence applies in a situation where the accused admits doing the physical acts that make up the offence, but claims they had a legitimate reason for acting as they did and that the law should recognize that their actions were justified as they were the only reasonable way of dealing with the situation. This article outlines the defence of sudden and extraordinary emergency in Victoria.

When will sudden and extraordinary emergency succeed?

The defence of sudden and extraordinary is outlined in legislation and has been interpreted through case law.

Legislation

Section 322R of the Crimes Act 1958 only applies if:

1. the person reasonably believes that—
   1. circumstances of sudden or extraordinary emergency exist; and
   2. the conduct is the only reasonable way to deal with the emergency; and
2. the conduct is a reasonable response to the emergency.

Case law

The 2017 WA Supreme Court decision of Counsel v Glynn [2017] WASC was a case that involving driving offences. In that decision, Banks-Smith J discussed the principles of the ‘defence of emergency’ as one that ‘exists to meet cases where the circumstances overwhelmingly compel disobedience to the law.’

He went on to state the following:

1. In determining whether an emergency is sudden or extraordinary it may be relevant to have regard to the time which elapsed between the offender becoming aware of the emergency and his or her acting in response to it.
2. A ‘sudden’ emergency has been described as one that comes upon the accused unexpectedly, catching him or her off-guard. An ‘extraordinary emergency’ is one that has been said to be ‘unexpected or sudden’.

The action the person takes must be a reasonable response to the emergency. For example, exceeding the speed limit to get a loved one to the hospital for a small cut on their leg will not satisfy this defence.

Who bears the burden of proof?

The defence bears the onus of raising the defence of sudden and extraordinary emergency. The prosecution then must prove, beyond a reasonable doubt, that the offence was not committed in the ‘circumstances of sudden or extraordinary emergency exist’ or that the conduct was not ‘only reasonable way to deal with the emergency’.

What offences is the defence of sudden or extraordinary emergency available for?

In Victoria, this defence is available for all offences. However, the defence is available in relation to murder only ‘if a person believes that the emergency involves a risk of death or really serious injury’ (Section 322R of the Crimes Act).

The circumstances of the alleged offending are crucial to the determination of whether this defence can be or should be raised. The test is difficult to satisfy. When assessing whether this defence is likely to succeed, you should take into consideration the following:

• The circumstances of the alleged offending,
• The circumstances leading up to the alleged offending,
• If the situation involved a medical emergency:
  • any previous medical history,
  • any previous advice given by a medical practitioner, and
• The offence itself in proportion to the seriousness of the emergency.

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