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. For the offence of murder, the emergency must involve a risk of death or really serious injury. 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.
Case examples of sudden or extraordinary emergency
As you might imagine, there are limited circumstances where this defence can be successfully argued. The cases that discuss this defence describe the circumstances as needing to be extremely unusual and limited to a defendant being confronted by sudden and extreme circumstances where the danger is imminent. In R v GV [2006] QCA 394 the Court found there were facts establishing the defence of extraordinary and sudden emergency. In that case the defendant was charged with dangerous driving causing grievous bodily harm in circumstances where he was being chased by another vehicle and he and the passengers of his vehicle had been attacked and threatened.
However in R v Dimitropoulos [2020] QCA 75 a man charged with unlawfully producing the dangerous drug cannabis unsuccessfully ran the defence of emergency. He attempted to rely upon a honest and reasonable, but mistaken belief, that using cannabis was the only means available to him to alleviate his chronic pain resulting from a motor vehicle accident.
Likewise in the decision of Lynch v Commissioner of Police [2022] QCA 166 the appellant charged with producing and possessing cannabis unsuccessfully argued that she was faced with a sudden emergency, namely unbearable physical pain caused by a chronic illness, which could not be treated adequately with prescription medication without extreme side effects.
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.
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.
