Emergency (WA)

The defence of emergency exists in one form or another in all Australian jurisdictions. In Western Australia, it is set out in section 25 of the Criminal Code Act. This page deals with the defence of emergency in WA.

Legislation

Under section 25 of the Criminal Code Act, a person is not criminally responsible for an act done in an emergency. This means that if a person does something believing that circumstances of sudden and extraordinary emergency exist and that their actions are a necessary response to the situation, they have a defence if:

• Their actions are a reasonable response to the circumstances as they believe them to be; and
• There are reasonable grounds for those beliefs.

Burden of proof

If the defence raises the defence of emergency, the prosecution then bears the burden of proving that the accused was not acting under emergency circumstances. If the prosecution cannot exclude the possibility that the offence was committed because of an emergency, the accused must be found not guilty.

When does the defence of emergency not apply?

The defence of emergency cannot be relied on in cases where the defences of duress, self-defence or provocation apply.

What must be proven?

In order for the defence to succeed the following elements must be proven:

There were circumstances of sudden or extraordinary emergency

This means that there was an emergency and the circumstances were extreme or sudden.  

The accused acted under those circumstances

This means that the accused was driven to commit the acts by the pressure of the emergency situation. If the accused acted for other reasons that were unrelated to the emergency situation, the defence will not apply.

The circumstances were such that an ordinary person with ordinary powers of self-control could not reasonably be expected to act otherwise

The accused’s action must be considered in the emergency of the moment. They are not expected to have been any wiser or better than an ordinary person trying to do their best in an emergency situation. Given this, the defence of emergency may be made out in relation to an act that was a mistake when viewed with the benefit of hindsight.

When can the defence of emergency be argued?

The defence can be relied on in the following situations.

Driving offences

Driving offences such as speeding or dangerous driving may result from an emergency such as where a person is trying to get a seriously injured person to hospital

Trespass

The defence can apply where a person was taking refuge from a serious threat on someone else’s property.

Property damage

The defence may arise in relation to a charge of property damage if this was carried out in an attempt to respond to an emergency – for example, breaking a window to escape a fire.

Activism

The defence has been successfully relied on by activists in the UK in relation to charges that related to direct action protests on environmental issues.

This occurred in 2008, when six Greenpeace activists were acquitted of criminal damage valued at €30,000 that was caused by scaling and graffitiing a chimney at a coal-fired power station. The accused persons argued they were compelled to act to prevent greater property damage resulting from climate change. A jury accepted this argument.

There is no precedent for the defence of emergency to be used in this way in Australia.

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