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Defence of ‘extraordinary emergency’ not likely to apply to climate protesters
Protesters with groups such as Extinction Rebellion who get charged with actions such as gluing themselves to the road will probably not be able to rely on the “extraordinary emergency” defence in Queensland, argues one firm.
Jerome Doraisamy
Creevey Russell Principal Dan Creevey said that s25 of the Criminal Code Act 1899 (Qld) contains a defence of extraordinary emergency, which relates to acts done upon compulsion or provocation or in self-defence, where a person is not criminally responsible for an act or omission done or made under circumstances of sudden or extraordinary emergency.
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Protest groups such as Extinction Rebellion have been arguing that governments should declare a “climate emergency” and have reportedly been considering the use of s25 when defending charges, he said.
“While each individual matter is dependent on its own unique circumstances and is ultimately a matter for the court, we would be surprised if a section 25 defence was successfully relied upon by those charged as a result of their involvement in climate change protest activity,” he said.
“It would ultimately be a matter for a court to determine in the event the defence were to be raised, but we would anticipate that the actions of protesters would not be found to be consistent with how an ‘ordinary person’ exercising ‘ordinary powers of self-control’ may behave. The rationale for this is that there is no sudden situation that exists, and there are alternative avenues available.”
Creevey Russell senior associate Trent Jones said the defence of extraordinary emergency is usually raised in circumstances where an individual is confronted by a sudden situation, and they do not have the time or ability to process rationale thinking.
In one case, he continued, the Court of Appeal set aside a plea of guilty entered by an applicant who had been involved in a road rage incident and directed that a plea of not guilty be entered.
“The applicant was harassed and followed by occupants of the second vehicle for a period of approximately 11 kilometres, who were at times threatening and aggressive towards the applicant,” he said.
“In the applicant’s attempt to drive away from the second vehicle, he ran a red light at an intersection at high speed, colliding with a third motorist who sustained significant injury. The applicant was subsequently charged with, and entered a plea of guilty to, one count of dangerous operation of a motor vehicle causing grievous bodily harm.”
“But the Court of Appeal determined that the case raised the existence of a defence of extraordinary emergency and the sentencing judge ought to have refused the plea of guilty entered by the applicant and directed that a plea of not guilty be entered. This case is just one example of where the defence of extraordinary emergency was raised on the factual basis and evidence.”
