A person criminally responsible for an offence is not guilty if they show that they committed the acts because of a sudden or extraordinary emergency. In such cases, it causes any person with ordinary powers of self-control to act in the same way as the accused. Moreover, such cases create extraordinary circumstances that are responsible for the offence.

However, it applies only if the person carrying out the conduct reasonably believes that the sudden or extraordinary circumstances existed and that committing the offence was the only reasonable way to deal with such an emergency. The Court will then evaluate if the conduct was a reasonable response to the emergency.

The defence of sudden or extraordinary emergency creates an objective standard. It limits the class of those who can rely on the defence. Generally, there are three objective criteria, each of which will employ the concept of reasonableness as a limit on such a defence. Moreover, with necessary adaptations for differences in subject matter, the criteria are generally the same for all relevant cases.

  • It is crucial that the emergency is real. The defence of sudden or extraordinary emergency will not be available to a defendant where the situation doesn’t apprehend as a situation of emergency within reasonable limits.
  • The emergency must be unavoidable by other means. In such cases, the Court will reject a defence unless the commission of the offence was the only reasonable way to deal with such an emergency. 
  • The defendant’s response to the emergency must be reasonable in relevant circumstances. Otherwise, the defence will not be applicable in Court.

It is implicit in these criteria that individuals facing such an emergency must also sometimes suffer the consequences rather than committing an offence to deal with the emergency. 

Onus of proof

In the case that the accused raises the defence of sudden or extraordinary emergency, the prosecution must prove the offence beyond a reasonable doubt. It implies that they must prove that the commission of the offence was not in response to a sudden or extraordinary emergency.

For a Court to declare a person guilty after they raise this defence, there must be proof for a reasonable response. While the onus of proof is on the defence, the offence must be a reasonable response of any ordinary person with ordinary self-control.

The test to determine the acquittal of an individual depends on the response in the context of the sudden or extraordinary emergency. Any person can make a mistake in such emergencies, but there must be evidence that the accused couldn’t have been any wiser or better than an ordinary person in the same circumstances. Hence, the Court must consider the situation and the tension at the moment to determine the validity of the response.

In which cases will the defence be available?

The defence of sudden or extraordinary emergency is available in various situations.

Driving offences

The defence is available for any charges of dangerous driving and other relevant offences, which may include speeding and drink driving. It commonly arises when driving offences occur in haste. An example may include taking a critically injured person to the hospital, which creates an immediate urgency. In such cases, the Court will take the person’s health and condition into account when evaluating the situation.

The law includes the defence in Section 630 of the Heavy Vehicle National Law. It is available as a defence to any offence under the same act. Moreover, it applies that if a person reasonably believes that the circumstances of a sudden and extraordinary emergency existed, they must evaluate the situation in a limited timeframe. Hence, it can lead to conduct that was the only reasonable way to deal with such an emergency. 

Also Read: Charged With A Drink Driving Offence?

Other offences

In the case of trespassing, the prosecution can argue with the defence in relation to unlawful entry unless the circumstances qualify for an emergency. Such situations may include taking refuge from a serious or life-threatening risk on someone else’s property.

While it may be surprising, the defence is also available for murder charges. However, there are limitations in such cases due to the severity of the charges. It may include acts of self-defence where there is a risk of death or serious injury. Moreover, the Court will require concrete evidence during the evaluation of the situation and relevant circumstances to accept the defence.

In all cases, the defence, prosecution, and Court must take into consideration the following 

  • Relevant circumstances of the offence
  • Any actions leading up to the offence
  • In the case of a medical emergency, all involved parties must verify any previous medical history and get advice from a medical practitioner
  • Evaluation of the offence in proportion to the seriousness of the emergency

These factors shape the circumstances that can render an offence lawful, if the defence can justify these actions. 

If you are facing charges for a different offence that isn’t mentioned here, please reach out to our team of lawyers. Each case is unique, and under special circumstances, the defence of a sudden or extraordinary emergency, can be available for many offences. However, it is crucial that the circumstances match the criteria as per Australian jurisdiction, to ensure the validity of the defence in Court. 

If you are still concerned about your case, we recommend that you reach out to one of our lawyers for legal guidance.

Legislation in different states and territories in Australia

In some jurisdictions, the defence is codified. However, in others, it still exists as common law. Moreover, the legislative provisions of the states and territories are as follows –

Australian Capital Territory

In the ACT, the defence exists in Section 41 of the Criminal Code 2002. It states that a person will not be criminally responsible for an offence if it was a response to the circumstances of a sudden or extraordinary emergency.


The defence of sudden or extraordinary emergency exists in Section 322R of the Crimes Act 1958. Moreover, the provision clearly states that a person is not guilty of any offence in response to a sudden or extraordinary emergency. However, the conduct must constitute a reasonable response to the emergency.

Northern Territory

In the Northern Territory, the defence exists in Section 43BC of the Criminal Code Act 1983.


In Queensland, the defence exists in Section 25 of the Criminal Code 1899

Western Australia

In Western Australia, the defence exists in Section 25 of the Criminal Code 1913. However, the defence is slightly different here. The provision clearly states that a person is not responsible for the offence where the person believes the circumstances of a sudden or extraordinary emergency exist and their actions were a necessary response to avert the emergency. However, there must be reasonable grounds for that belief.

Justifying reasonable responses to a sudden or extraordinary emergency is crucial. Each case is unique, and it highly depends on the relevant circumstances. While many responses may seem reasonable in the context of certain emergencies, the prosecution may argue that another response could be possible, which wouldn’t be against the law. 

Moreover, it will also depend on the state of mind at the time of the emergency. The Court will take in mind the person’s self-control with respect to any other ordinary person’s self-control in such a situation. They will assess the associated risks, events, and logical thinking during the emergency. 

In many cases, it may be difficult to justify your response within reasonable limits in Court, especially with a lack of sufficient evidence. Moreover, there are many legal complexities involved that you will need to navigate.

Many times, a sudden or extraordinary emergency can often be traumatic, which can lead to emotional distress after an event. With the added legal responsibilities and limitations, it can be difficult to go through the process and successfully win your case.

Moreover, in severe cases such as murder charges, the situation can become even more complicated, which leads to unfair charges and punishment.

Talk to a United Legal lawyer today

sudden or extraordinary emergency caseA lawyer is crucial for legal cases, especially because it takes the legal burden away from you. Instead, a legal professional with years of experience and training handles your case for you and represents you in Court.

At United Legal, we have a highly experienced team of lawyers who are dedicated to your legal rights. We invite you in for a detailed consultation, where our lawyers will go over the intricacies of your circumstances and the associated legal law that will apply. 

Our team values your mental and physical well-being. Hence, in such cases, we recommend that our clients try to overcome the after-effects of the situation and leave the legal burden on us. We will evaluate your case, tell you where you stand, and gather the evidence you need, to successfully present your defence. 

So, take the first step today, and contact our team of lawyers. We work on a no win-no fee basis to ensure that financial limitations don’t come in the way of fighting for your legal rights. 


United Legal

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