The Defence of Sudden and Extraordinary Emergency

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.

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 is in proportion to the seriousness of the emergency.