What offence is the Defendant charged with?

1. [1]
   The Defendant is charged with one count of Drive motor vehicle without driver licence disqualified by Court Order:

A person must not drive a motor vehicle on a road unless the person holds a driver licence authorising the person to drive the vehicle on the road.^[1]

If the person committed the offence while disqualified by any Court Order, the maximum penalty is 60 penalty units or 18 months imprisonment. ^[2] (Underlining added)

2. [2]
   The Defendant did not dispute the elements of the offence. The uncontested evidence from the Prosecution was on 25 February 24, the Defendant was driving a black Holden Commodore on a road near Widgee. Exhibit 3^[3] is unchallenged evidence proving she did this while disqualified by a Court Order.^[4]

Does the Defendant have a Defence of Extraordinary Emergency?

3. [3]
   The Defence raised the defence of ‘Extraordinary Emergency’.

4. [4]
   This defence is that a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency, that an ordinary person possessing ordinary power of self-control, could not reasonably be expected to act otherwise.^[5]

5. [5]
   Where a Defendant raises this defence, it is not for the Defendant to prove that she acted as she did because of the stress of an extraordinary emergency. It is for the prosecution to satisfy me beyond reasonable doubt that she did not.^[6] Has the Prosecution satisfied me that the circumstances that confronted the Defendant did not amount to an extraordinary emergency?

6. [6]
   The defence of ‘extraordinary emergency’ raises two issues:

1. Whether there is an extraordinary emergency; and

2. If so, whether an ordinary person possessing ordinary power of self-control could not reasonably be expected to act other than the Defendant did.^[7]

7. [7]
   I must therefore direct myself to be in the Defendant’s position at the time and not use hindsight reason to determine the best course available to the Defendant. I must be satisfied beyond reasonable doubt that the Defendant’s reaction in the circumstances was outside what I could reasonably expect of an ordinary person with ordinary powers of self-control.

Was there an extraordinary emergency?

8. [8]
   ‘Emergency’ requires immediate action, commensurate with the consideration of self-control – a person must be reacting to imminent danger.^[8] An emergency can include likely danger to life or property.^[9]

9. [9]
   The Defendant’s unrefuted evidence was at the time she decided to drive, she was scared because her then-partner threatened to kill her dog. Her version is consistent with the police bodycam footage showing her dog was with her in the car when intercepted.^[10] I accept this is the reason the Defendant made the decision to drive.

10. [10]
    The Defendant has since had a Protection Order naming her as the Aggrieved and her former partner as the Respondent. That Order can only be made with the consent of her then-partner or after findings of domestic violence have been made. In either case, the making of the Protection Order naming the Defendant as an Aggrieved establishes her as a vulnerable person.

11. [11]
    A threat to kill an aggrieved’s animal is a well-recognised act of coercive control going beyond a mere threat to property. As a matter of law, I am therefore satisfied the threat to kill the Defendant’s dog can constitute an emergency.

12. [12]
    I make a finding of fact the threat to kill the Defendant’s dog was an extraordinary emergency. This is in circumstances where:

1. the dog was her companion;

2. close proximity in time and space between her then-partner and her dog; and

3. her unrefuted evidence of it being the latest incident in an ongoing pattern of domestic violence by the her then-partner including being physically violent towards the Defendant, locking her out of the house, breaking things, damaging her property, falsely accusing her of what he believed to be inappropriate behaviour, and trying to make her feel bad about furthering herself.

13. [13]
    I am satisfied the Defendant’s decision to drive was a reaction to imminent danger from her then-partner – namely the threat to kill her dog. Assessing the Defendant’s act of driving with her dog within holistic principles of domestic violence,^[11] I am satisfied she reacted to an objectively based fear of imminent danger from her then-partner to her dog and ultimately, to herself.

Would an ordinary person with ordinary powers of self-control have acted as the Defendant?

14. [14]
    If in such circumstances of extraordinary emergency, it was reasonable to expect that an ordinary person with ordinary powers of self-control could have acted as the Defendant did, the Defence will not have been excluded.^[12]

15. [15]
    The test is whether an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act other than as the Defendant.

16. [16]
    The Prosecution submitted the Defendant’s demeanour when intercepted by police was not consistent with escaping danger and she had other reasonable courses of action available including:

1. Using her phone to call for help;

2. Driving to the closest police station or a nearby fertiliser factory; or

3. Alerting the intercepting police when it passed her or once pulled over.

17. [17]
    Consistent with holistic principles for assessing domestic violence, I do not accept the Defendant’s emotional state as determinative of her situation.^[13]  The Defendant is not expected to be wiser or better than an ordinary person in the same circumstances.^[14] She must act quickly and do the best she can. A person is not to be condemned simply on the basis that in the agony of the moment and without the opportunity to weigh up and deliberate upon what action to take, she made a wrong choice.^[15]

18. [18]
    The Defendant was a vulnerable woman in an isolated rural area being confronted by a partner who was threatening her animal companion. This was not only a direct threat to the dog. Because of the Defendant’s relationship to her dog, it was also a threat to her own mental and emotional wellbeing.

19. [19]
    Using her phone to call for help would not have removed the Defendant from the immediate situation.

20. [20]
    The closest neighbouring properties to the Defendant were occupied by her then-partner’s landlord and his parents. Given the commercial, historical and familial connections the people occupying those properties had with the Defendant’s then-partner, I am not satisfied they were places of sanctuary or refuge for the Defendant.

21. [21]
    The Defendant gave evidence she did not alert police because she believed they had not previously taken her concerns seriously. Even if that belief was mistaken, I am satisfied it was honest and reasonable^[16] given:

1. Like many institutions who serve the public, the quality of the police response will often depend on the skill, training and insight of the investigating officer; and

2. The Defendant’s unrefuted evidence that on an earlier occasion the police had taken six hours to attend upon her in response to a complaint she made against her then-partner.

22. [22]
    Police resources are limited and delay in response time can have many reasons. But that does not detract from the reasonableness of the Defendant’s belief because the consequence for her is the same – her concern not being readily addressed by police.

23. [23]
    It is well-recognised - albeit belatedly - that victims may not immediately report domestic violence, whether it be due to concerns about retribution from the perpetrator or concerns about obtuse responses from authorities. At the very least, it must create some reasonable doubt for the Defendant. This then makes it reasonable for her to consider other options to remove herself from imminent danger to a place of safety.

24. [24]
    I do not consider visiting upon a fertiliser factory - or any place where the Defendant had no prior connection - to be a viable alternative option. Places and people unfamiliar to anyone, let alone a woman in fear of domestic violence, carry their own risk. It may have well been a case of “out of the pan, into the fire”.

25. [25]
    The Defendant’s unrefuted evidence was she was driving to her girlfriend who lived nearby. She said she wanted to go where she felt safe. Because of gender issues surrounding domestic violence and the Defendant’s established relationship with her female friend, I am satisfied that her friend’s home was the closest place she could go where she was most likely to be given shelter and understanding. It was her ‘safe harbour’ in the tumult.

26. [26]
    The Defendant was an isolated and vulnerable woman seeking refuge from an imminent threat of domestic violence. She removed herself from that extraordinary emergency by removing herself and her valued companion from the source of that threat by driving to the nearest place of refuge. It is reasonable to expect an ordinary person in that situation to have acted in that way.

What Orders are appropriate?

27. [27]
    Because the Prosecution has not discharged its burden to prove that the circumstances confronting the Defendant did not amount to an extraordinary emergency, the Defendant is not criminally responsible for the act of driving while disqualified as alleged.

28. [28]
    The appropriate Orders are:

1. 1.
   Charge is dismissed.

1. 2.
   Enter a verdict of acquittal.

1. 3.
   Defendant is discharged.