LEARN ABOUT OTHER DEFENCES
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s25 Criminal Code 1899 creates the defence of Emergency. The law provides a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise.
How the defence works
Although described as a defence, the onus is on the prosecution to prove beyond reasonable doubt that a person did not act in response to an emergency if that possibility is raised on the evidence.
A person responding to an emergency is not guilty of an offence unless their reaction is outside what would reasonably be expected of an ordinary person in the same situation.
The law requires a Magistrate or jury consider that a person faced with an emergency has to act quickly and does not have the time to weigh up all the options, that they may make the wrong choice.
The question is not what an ordinary person would do in retrospect in the cold light of day. The issue is what was reasonable under the pressure of the emergency.
That a long list of options, other than committing an offence, can be identified after the fact does not defeat the defence. That is because the focus is on what was reasonable at the time.
When the defence applies
The defence of Emergency applies to all offences unless it is expressly excluded by the law.
The courts have ruled that the defence of Emergency does not operate when the facts raise other defences such as Self-Defence, Provocation and Duress. (R v Lacey; ex parte A-G (Qld))
The history of the development of the defence of Emergency at common law includes the infamous case of Dudley and Stephens. They were two of four sailors stranded at sea for 18 days. They had been without food for 9 days. They decided to hasten the death of an already very ill cabin boy. They killed and ate him to survive.
They were rescued 4 days later and charged with Murder. The defence did not succeed in that case.