Legal Defences

Emergency Defense

The Legal Defence of Emergency in Victoria

The emergency defence applies when a person commits an act because it was the only reasonable way to deal with a sudden or extraordinary emergency and the conduct was a reasonable response to the emergency. It may be used as a legal defence to all criminal offences in Victoria.

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What is the Legal Defence of Emergency?

The emergency defence applies when an act is committed because of a sudden or extraordinary emergency. The accused must be found not guilty if it is proven that their conduct was the only reasonable way to deal with the emergency and the conduct was a reasonable response to the emergency.

In Victoria, the sudden or extraordinary emergency defence is legislated under section 322R of the Crimes Act 1958 (Vic). It is applicable to all criminal offences. However, it should be noted that in the case of murder, the defence only applies if the emergency involved a risk of death or really serious injury (s322K).

The law recognises that sometimes people have to commit an offence in order to avoid an emergency. In some circumstances, committing an offence may cause less harm than the emergency would have. Further, the conduct of the accused is excusable because of the dire circumstances that they are confronted with. In an emergency, the law cannot demand more of any one person than it would of an ordinary person.

The statutory defence of sudden or extraordinary emergency (s322R) replaces the common law defence of necessity which has been abolished (s322S).

Emergency in Victorian Criminal Law

In Victoria, the sudden or extraordinary emergency defence is legislated under section 322R of the Crimes Act 1958 (Vic).

This provision applies to all criminal offences. It states that a person is to be found not guilty if at the time of the offence:

The person reasonably believes that:
  • Circumstances of sudden or extraordinary emergency exist; and
  • The conduct is the only reasonable way to deal with the emergency; and
The conduct is a reasonable response to the emergency.

Proving the Emergency Defence in Court

In Victoria, the accused has the evidential burden of raising the sudden or extraordinary emergency defence. That is, the accused must present or point to evidence that suggests a reasonable possibility of facts that establish the defence.

Once the defence has been raised, the prosecution must prove beyond a reasonable doubt that:

  • The accused could not have reasonably believed that the circumstances amounted to a sudden or extraordinary emergency;
  • The accused could not have reasonably believed that their conduct was the only reasonable way to deal with the emergency; or
  • The conduct was not a reasonable response to the emergency.

An objective test is used to determine whether the person’s reaction to the emergency was reasonable. It asks whether the accused’s reaction to the circumstances was what could be expected of an ordinary person.

In assessing the circumstances, the court must consider the situation as it appeared in the moment. The accused must not be considered as any wiser or better than an ordinary person in the same circumstances. And as such, it may be expected that an ordinary person would make a mistake when confronted with the circumstances of the sudden or extraordinary emergency. Further, the way that the accused reacted to the emergency needs to be proportional to the level of harm or peril they were facing (R v Loughnan [1981]).

If the prosecution fails to disprove the emergency defence, the accused must be found not guilty of the charge.

Obtaining Legal Advice

The sudden or extraordinary emergency defence is difficult to prove and requires professional consideration. If you have been charged or are under investigation for allegedly committing a criminal offence, please contact our team at Sher Criminal Lawyers. We will help you achieve the best possible outcome by applying our extensive legal expertise and experience. One of our criminal law specialists will assess whether emergency or any other defence is relevant to your case before planning a unique and calculated legal strategy. We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.

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