The law recognises that, in extreme circumstances, individuals may have no choice but to commit an offence to prevent serious harm or death. In Western Australia, the defence of emergency, outlined in Section 25 of the Criminal Code (WA), provides a legal justification for actions taken in response to immediate and unavoidable danger. If proven, this defence can result in an acquittal.
This article examines the legal framework surrounding the defence of emergency, the necessary legal elements, and its application in criminal cases.
What is the Defence of Emergency?
The defence of emergency is set out in Section 25 of the Criminal Code (WA) and applies when a person commits an offence in response to a sudden or extraordinary emergency. This defence can excuse criminal responsibility if the accused’s actions were necessary and reasonable in the circumstances.
Under Section 25(3) of the Criminal Code (WA), a person acts in an emergency if:
- They believed that a sudden or extraordinary emergency existed – The situation must have been unexpected and required an immediate response.
- They believed that their actions were necessary to deal with the emergency – The accused must have genuinely believed that their conduct was the only viable response to the crisis.
- Their actions were a reasonable response to the emergency – The accused’s reaction must have been proportionate to the perceived danger.
- There were reasonable grounds for their beliefs – The court assesses whether a reasonable person in the same situation would have shared the accused’s view that an emergency existed and that their response was necessary.
This defence recognises that individuals may sometimes need to act unlawfully to prevent greater harm. However, it is not automatically accepted—it requires strong evidence to establish that the situation was a true emergency and that the response was justified.
Legal Requirements for the Defence of Emergency
To successfully rely on the defence of emergency under Section 25 of the Criminal Code (WA), an accused must establish the following key elements:
1. Existence of a Sudden or Extraordinary Emergency
Under Section 25(3)(a)(i), the accused must have believed that circumstances of sudden or extraordinary emergency existed.
- The situation must have been unexpected and serious, requiring immediate action.
- A hypothetical or anticipated danger in the future is insufficient. The threat must have been present and urgent at the time of the offence.
2. Necessity of the Response
Under Section 25(3)(a)(ii), the accused must have believed that doing the act or making the omission was a necessary response to the emergency.
- The accused’s actions must have been taken as a direct response to the emergency.
- If a lawful alternative was available, but the accused chose an unlawful act instead, this defence is unlikely to succeed.
3. Reasonableness of the Response
Under Section 25(3)(b), the act or omission must have been a reasonable response to the emergency in the circumstances as the accused believed them to be.
- This requires proportionality—the accused’s actions must have matched the level of the threat.
- If the response was excessive or unnecessary, the defence may fail.
4. Reasonable Grounds for Belief
Under Section 25(3)(c), the accused must establish that there were reasonable grounds for their beliefs.
- The court applies both a subjective and objective test:
- Subjective Test: Did the accused genuinely believe the emergency existed and that their response was necessary?
- Objective Test: Would a reasonable person in the same situation have formed the same belief and acted similarly?
If the court determines that the accused’s belief was irrational, unfounded, or not objectively reasonable, the defence will fail.
How Does the Defence of Emergency Differ from Duress?
While both the defence of emergency and duress involve external pressures forcing a person to commit an offence, there are critical differences:
- Defence of Emergency: Arises from a general threat, such as a medical crisis or a natural disaster, where unlawful conduct is the only means of preventing serious harm.
- Duress: Occurs when an individual is forced by another person to commit an offence under the threat of harm (e.g., being coerced into committing a crime under threat of violence).
Although these defences share similarities, their application depends on the nature of the threat and the circumstances of the offence.
Case Review: R v Loughnan (1981) VR 443
This case examines the defence of necessity (now aligned with the defence of emergency in Western Australia) and whether a person can justify escaping from lawful custody due to a fear of harm. It establishes key legal principles regarding the immediacy of danger, necessity of response, and proportionality, which continue to influence Australian criminal law.
Background
- Charge: Loughnan was charged and convicted of escaping from lawful custody at Pentridge Prison.
- Defence Argument: He claimed he escaped because he feared for his life due to a violent prison riot.
- Key Context:
- Loughnan argued that the prison environment had become dangerous and he had no choice but to flee.
- He maintained that remaining in prison posed an imminent risk to his safety.
Appeal Arguments
The appellant raised two main arguments on appeal:
- Immediacy of Threat
- Loughnan contended that the trial judge failed to properly consider whether his fear of harm was immediate and unavoidable.
- He argued that, given the prison riot, the threat to his life was active and ongoing, making escape the only rational response.
- Availability of Legal Alternatives
- The appellant claimed that the jury should have been directed to consider whether he had other lawful options, such as:
- Seeking protection from prison authorities.
- Waiting for the riot to subside rather than fleeing.
Outcome
- Appeal Dismissed: The Victorian Supreme Court rejected Loughnan’s arguments and upheld his conviction.
- Reasoning:
- The court ruled that the danger must be immediate and unavoidable for the defence of necessity to succeed.
- Loughnan’s situation did not meet this threshold because:
- The threat was not direct or specific to him.
- He had alternative legal options, such as requesting protection from prison staff.
- His decision to escape was not proportionate to the perceived threat.
Legal Principles Highlighted
This case established foundational legal standards for the defence of necessity (now the defence of emergency in WA law under Section 25 of the Criminal Code (WA)):
- Immediate and Unavoidable Threat Required – The accused must face an imminent danger of death or serious injury, not a general or future fear.
- No Reasonable Legal Alternatives – The accused must prove that all lawful options were unavailable before resorting to illegal conduct.
- Proportionality of Response – The accused’s actions must match the level of danger; excessive or unnecessary responses will not be justified.
The R v Loughnan case reinforces that the defence of emergency (necessity) is only available in rare cases where:
- The danger is immediate and unavoidable.
- There are no legal alternatives.
- The accused’s actions are proportionate to the threat.
This case remains a key precedent in Australian law for applying the defence of emergency strictly and with clear limitations.
When the Defence of Emergency is Unlikely to Succeed
Although the defence of emergency is recognised in Western Australian law, it is not applicable in all circumstances. Some key limitations include:
- Serious Criminal Offences: The defence is unlikely to succeed for violent crimes such as murder, manslaughter, or serious assaults, unless there are exceptional circumstances.
- Availability of Alternative Actions: If the accused had the opportunity to contact authorities or pursue a legal alternative, the defence may not be accepted.
- Voluntary Participation in Criminal Conduct: If the accused knowingly placed themselves in a situation that led to the emergency, the defence may not be available.
Each case is assessed on its own facts, and the success of this defence depends on the strength of the evidence supporting the accused’s claims.
Seeking Legal Advice
Individuals facing criminal charges must seek legal representation as soon as possible. The defence of emergency is highly complex, and its success depends on a detailed legal analysis of the circumstances surrounding the offence.
At WN Legal, we provide comprehensive legal advice and representation in criminal defence matters. If you believe the defence of emergency applies to your case, we can assess your legal options and advocate for the best possible outcome.
**Please Note**
The material provided here is for informational use only and does not constitute binding legal advice. You should not use this information as a replacement for an individual consultation with a trained legal professional.
