Australia: Defence of Sudden or Extraordinary Emergency in Victoria

We often get asked by our clients about how they can defend themselves against the charges they are facing. A part of our job is to check whether any defences are made out either under legislation or the common law.

The defence of sudden or extraordinary emergency is a defence that is open to all accused charged with Victorian offences. It replaces what used to be a defence available at common law called 'necessity'.

What is sudden or extraordinary emergency?

Sudden or extraordinary emergency is a defence to charges in Victoria. It can be applied in cases of murder however you need to show that the 'emergency' involves a risk of death or really serious injury.

This defence is not commonly used and there are limited examples of when it has been successfully argued, however it's important to know that it exists and to consider it when thinking about how you are going to defend your case.

As you might have already gathered, to establish this type of defence, you need to show not only that there was an emergency but that the type of emergency was either 'sudden' or 'extraordinary'. We will discuss each one below.

Sudden emergency

Circumstances of sudden emergency
A sudden emergency is something that happens unexpectedly or abruptly. For example, it might be something that happens while you are driving. You might be driving along the freeway and need to take evasive action due to the conduct of another driver. A car might be driving towards you on the wrong side of the road and to avoid serious injury or death to yourself you need to take evasive action.

You had to deal with the sudden emergency by engaging in conduct that would ordinarily constitute an offence
In taking evasive action, you collide with another car causing a car accident. The police then charge you with dangerous driving and other accompanying offences in relation to this incident. In this situation you might be able to argue that there were circumstances of 'sudden' emergency that justified the conduct. You would need to have evidence of what the sudden emergency was – for example by giving your own sworn evidence of what occurred or perhaps tendering dash cam footage you might have in your possession to the court.

Your conduct was a reasonable response to the emergency
The last hurdle to establish this defence under sudden emergency would be to show to the court that your conduct was a reasonable response to the emergency. The court will likely look at all the circumstances of what has happened before making a finding. The court is likely to consider if there was anything else you could have done in the emergency other than engage in the evasive action that has caused the car accident.

If the court finds that there was a sudden emergency and that your response was reasonable, you will be found not guilty of the charge against you.

Extraordinary emergency

Circumstances of extraordinary emergency
The other way to establish this defence is by showing that there was an 'extraordinary' emergency. This can overlap with a sudden emergency.

An example might be where you are caught in a natural disaster like a flood or a bush fire and to escape you need to commit an offence. For example, you might need to trespass on other people's property to escape or cut down trees to make a clear road to exit. In this situation you could likely raise the defence of sudden emergency.

You had to deal with the sudden emergency by engaging in conduct that would ordinarily constitute an offence
As you have probably already gathered, the conduct you engage in to deal with the 'emergency' must be an offence. In our example above, the offence could be trespass or destruction of property. Both offences could lead to your being charged.

Your conduct was a reasonable response to the emergency
Lastly, you need to show that your response, by committing an offence, was a reasonable response to the emergency at hand. You will need to make arguments about why your conduct was reasonable.

Case study: Use of the defence in the context of climate change

Sudden or extraordinary emergency is still a relatively new defence in Victoria. However, it has been trialed as a defence in cases in Queensland where the accused persons are climate activists.¹ For example, a climate activist during his trial in Queensland argued that this defence was established in circumstances where he had erected a tripod over train lines that transported coal to an export terminal. He argued that climate change was a 'sudden emergency'. Unfortunately, for this activist, he was unsuccessful in this argument.

In the United Kingdom, the common law defence of necessity, which the sudden or extraordinary defence is based on, was successfully used in a jury trial where a climate activist was charged with property damage for painting graffiti on the chimney of a power station. The accused was acquitted by a jury and raised the defence of necessity in defending his case.

The use of the sudden or extraordinary defence is an interesting defence in Victoria. It will be of interest to see how it is used in cases and where it can successfully be argued. It could be a worthwhile defence to explore for your case.

If you think the defence of sudden or extraordinary emergency applies to you, please give us a call to discuss. We have a team of experienced criminal lawyers who can help you with your criminal matter including considering any defence that might be available to you.