1 Alf has been charged with murder under s 279 of the Criminal Code Act Compilation Act (WA) ('Code Act'). Once the prosecution proves each element of the of fence beyond any reasonable doubt, Alf may raise a defence prescribed under the Code Act to escape liability. Emergency The defence of emergency exists to serve cases where the overwhelming circumstances compel a person to disobey to law. 1 This defence is not to allow people to choose freely for themselves which laws they will obey or apply their own interpretation contradicting what is written in the law.2 Once the accused satisf i es the jury, with evidence, that there is any reasonable doubt that the defence is meritorious to the accused, 3 the prosecution must then negative any one of the elements of the defence beyond any reasonable doubt to nullify the defence.4 The first two elements require an assessment of the accused's subjective beliefs, whilst the last two elements involve an objective assessment.5 a) 1 Floyd v Western Australia [2013] WASCA 33, [25] (McLure P, Newnes JA agreeing at [49], Mazza JA agreeing at [50]). 2 Ibid. 3 Braysich v The Queen (2011) 243 CLR 434, 454 [36]. 4 Lund v Davies [2013] WASC 52, [35], citing Stingel v The Queen (1990) 171 CLR 312, 333-335; Van Den Hoek v The Queen (1986) 161 CLR 185, 161-162. 5 Counsel v Glynn (2017) 264 A Crim R 195, 198 [13].
The first limb of the defence is whether the accused did believe circumstances of sudden or extraordinary emergency existed.6 The emergency does not need to be both sudden and extraordinary. 7 The following def i nes a sudden or extraordinary emergency: 'a sudden emergency is one which comes up with the accused unexpectedly, catching her or him of f -guard, whereas an extraordinary emergency may also be unexpected or sudden but must be a situation of extreme gravity and abnormal or unusual danger.'8 In clarifying the aforementioned further, the term of 'imminent peril', explained by Young CJ and King J in R v Loughnan, can be referred to: an imminent peril is where no interval of time existed between the threat inf licted upon the accused and the criminal act that the accused executed.9 Here, their dinghy was capsized unexpectedly and sank at far sea: it was a sudden emergency. The wooden plank was incapable to endure the weight of two adult males but one. If Alf did not remove Bob from the plank, both Alf and Bob's life would be immediately in jeopardy. There was no one around to rescue them. Given the incapability of the plank, waiting for the rescue arrival for an undef i ned time would not be an option. There was no interval time between the foreseeable drowning, which would subsequently cause death, and Alf's act executed on Bob. That is, an extraordinary emergency of unusual danger, namely death by drowning, existed. It follows that Alf would have believed that circumstances of sudden and extraordinary