10.3 Sudden or extraordinary emergency

Subsection 10.3(1) provides a person is not criminally responsible for an offence when conduct constituting the offence is carried out in response to circumstances of sudden or extraordinary emergency.

The usual term for this defence at common law is “necessity”. Chapter 2 amalgamates principles underlying the common law of necessity and its equivalent in s25 of the Griffith Code and restricts the application of the defence to circumstances of “sudden or extraordinary emergency.”

In the notes in his Draft Code, Sir Samuel Griffith stated:

This section gives effect to the principle that no man is expected (for the purposes of the criminal law at all events) to be wiser and better than all mankind. It is conceived that it is a rule of the common law, as it undoubtedly is a rule upon which any jury would desire to act. It may, perhaps, be said that it sums  up nearly all the common law rules as to excuses for an act which is prima facie criminal.²⁶²

Like 10.2 Duress, the defence of sudden or extraordinary emergency imposes an objective standard, limiting the class of those who can rely on the defence. There are three objective criteria, each of which employs the concept of reasonableness as a limit on the defence. With necessary adaptations for differences in subject matter, the criteria are the same as those which determine the availability of a defence of duress:

• The emergency must be real or reasonably apprehended as real: The defence of sudden or extraordinary emergency is not available to  a defendant who is unreasonably mistaken in apprehending a situation of emergency;
• The emergency must be unavoidable by lesser means: The defence is barred unless commission of the offence was the only reasonable way to deal with the emergency;
• The defendant’s response to the emergency must be reasonable in the circumstances: The defence is barred if commission of an offence was not a reasonable response to the emergency.²⁶³

It is implicit in these criteria that individuals faced with an emergency must sometimes suffer the consequences or allow them to occur, rather than commit an offence which will avert the emergency.

Like duress, the defence of sudden or extraordinary emergency is a general defence, available even to a charge of murder or attempted murder.