In some circumstances, a person who is charged with a criminal offence in South Australia can rely on the defence of sudden or extraordinary emergency. This defence is based on an argument that the accused had to act as they did in response to an emergency situation and would not otherwise have committed the criminal act. This page deals with the defence of sudden or extraordinary emergency in South Australia.
Legislation
The defence of sudden or extraordinary emergency is set out in section 15E of the Criminal Law Consolidation Act 1935.
That section provides that a person is not guilty of an offence if they carried out conduct under circumstances of emergency if they reasonably believed that:
- circumstances of sudden or extraordinary emergency existed; and
- carrying out the conduct was the only reasonable way to deal with the emergency; and
- the conduct was a reasonable response to the emergency.
The legislation specifically states that an emergency does not have to involve a risk of death or serious harm.
When emergency cannot be argued
The defence of sudden or extraordinary emergency is not available for charges of murder, including attempted murder and aiding and abetting or conspiracy to murder.
Legal test for sudden or extraordinary emergency defence
The legal test for the defence of sudden or extraordinary emergency is whether the accused’s response was in line with what an ordinary person would do under similar circumstances. A person may make an error of judgment in the face of an emergency but an accused person is not expected to have any more insight or skill than an ordinary person similarly placed. The court must assess the circumstances as they appeared at the time and not with the benefit of hindsight.
Burden of proof
The defence must raise the defence of emergency and adduce evidence in support of the defence. The burden of proof then shifts to the prosecution. If the prosecution cannot prove beyond a reasonable doubt that the accused was not acting in response to an emergency, the court must find them not guilty.
When is the defence of emergency available?
The defence can be argued in many different situations, some of which are outlined below.
Driving offences
The defence may be invoked if a person is charged with speeding or dangerous driving and says that the offence occurred because of an emergency – for example, when a person was rushing to get a seriously injured person to hospital for treatment.
Trespass
A person charged with trespass or unlawful entry may rely on the defence of emergency if their actions were done because they were seeking to escape serious danger by entering another person’s property.
UK precedent for activism
The defence of emergency has been upheld in the UK in a case where environmental activists committed offences in the course of direct action protests.
In 2008, six Greenpeace activists were found not guilty on charges of criminal damage valued at €30,000 to a coal-fired power station. The accused activists claimed they acted in response to an emergency situation to prevent greater damage from occurring as a result of climate change. The jury accepted this argument.
There is no precedent for the defence of emergency to be used in this way in Australia.
If you require legal advice or representation in any legal matter, please contact Taylor Rose.
