Sudden or extraordinary emergency
The defence of sudden or extraordinary emergency is available where an accused who is compelled by threats or emergency has no other reasonable option but to commit an offence.
In Victoria, the defence of sudden or extraordinary emergency applies to all offences. The provision states that a person is not guilty of an offence for conduct done in circumstances of sudden or extraordinary emergency if the person reasonably believed that the conduct was the only reasonable way to deal with the emergency. The conduct must have been an appropriate response to the emergency.
There are two distinct rationales for the defence:
- The conduct of the accused is regarded as justifiable if it caused less harm than that which it avoided — this may be described as the ‘greater good’ principle.
- The conduct of the accused is regarded as excusable due to the grave predicament confronting him or her. The law would be unduly harsh if it demanded more from the accused than could be expected of ordinary people when faced with similar threats or dangers.
Section 322R of The Crimes Act 1958
Section 322R of the Crimes Act 1958 (Vic) describes the defence of sudden and extraordinary emergency; it states that:
(1) A person is not guilty of an offence in respect of conduct that is carried out in circumstances of sudden or extraordinary emergency.
(2) This section applies if—
(a) the person reasonably believes that—
(i) circumstances of sudden or extraordinary emergency exist; and
(ii) the conduct is the only reasonable way to deal with the emergency; and
(b) the conduct is a reasonable response to the emergency.
(3) This section only applies in the case of murder if the person believes that the emergency involves a risk of death or really serious injury.
The Test in Relation to the Defence of Emergency
The test is whether, on the version of evidence most favourable to the accused, a jury or other trier of fact, acting reasonably, could fail to be satisfied beyond a reasonable doubt that the accused was not operating under necessity or emergency – s 322I Crimes Act 1958 (Vic).
The way a person reacts needs to be proportional to the level of harm or peril they are facing: R v Loughnan [1981]. The act committed by the person needs to be weighed up against the harm the person would have experienced had they not acted in that manner due to the emergency.
The Evidentiary Burden
A person charged with a criminal offence is not guilty if they can show that they committed the acts because of a sudden or extraordinary emergency that would have caused any person with ordinary powers of self-control to act the same, see Luong & Anor v DPP (Cth) [2013]. The evidentiary burden is always on an accused to raise the issue of necessity. The prosecution must prove that the actions were unreasonable in the circumstances beyond a reasonable doubt.
The accused can raise the issue of intoxication. If intoxication is self-induced, because the defence involves a reasonable belief or reasonable response, the relevant standard is that of a reasonable person who is not intoxicated.
Whether or not this defence is open depends entirely on the facts of the matter. It is a very difficult defence to prove and requires a great deal of work and preparation. Dribbin & Brown have successfully run this defence in Court. If you think it may be applicable to you please contact our office to make an appointment with one of our criminal defence lawyers.
