(08) 9278 2575Accident
The defence of accident is based on the principle that a person should not be held criminally responsible for unintended and unforeseeable consequences of their actions.
The defence of Accident under section 23B of the Criminal Code Act Compilation Act 1913 (WA) (“the Code”) operates as a complete legal defence for any person charged with an offence under the criminal law in WA.
The following paragraphs outline the defence, noting circumstances where a defence of accident may apply as well as limitations in claiming this defence.
What is the Defence of Accident?
Section 23B(2) of the Code states that a “person is not criminally responsible for an event which occurs by accident”.
The defence of accident applies when a person commits an act that leads to harm or damage, but the outcome was not intended and could not have been reasonably foreseen. In criminal law, this principle is tied to the concept of mens rea or a “guilty mind”, which refers to the intention or knowledge of wrongdoing. For most offences, a person cannot be convicted of a crime unless it is shown that they intended to commit the crime or acted with recklessness or negligence at the time.
When Does the Defence of Accident Apply?
The defence of accident typically arises in cases involving offences where intent is a key element, such as manslaughter, assault, or property damage. Generally, if a person unintentionally causes serious injury or death during an activity where harm was not foreseeable, they may be able to raise the defence of accident.
In Kaporonovski v The Queen (1973) 133 CLR 209, the High Court of Australia clarified that the test for accident requires assessing whether the event was “a consequence that was not intended, nor was it reasonably foreseeable.” This subjective and objective test means that both the specific intent of the accused and the reasonable foreseeability of an ordinary person are taken into account.
Limitations of the Defence of Accident
While the defence of accident may excuse a person from criminal liability in some situations, it has several limitations.
The defence is not available if the defendant’s actions were objectively reckless or negligent. That is, if a reasonable person could have foreseen the consequences, even if the defendant did not, they may still be held criminally responsible. A typical example is driving at excessive speed and accidentally hitting a pedestrian, as a reasonable person could foresee the potential harm of this action.
Further, some offences, such as certain traffic or regulatory offences, are classified as absolute liability offences, meaning intent is irrelevant, and the defence of accident cannot be claimed. For these offences, the mere fact that the act occurred is enough to establish guilt, regardless of intent or foreseeability.
Finally, the defence of accident may not apply for offences involving the killing of another or infliction of grievous bodily harm, if the victim had a pre-existing condition that made them more vulnerable to harm. Section 23B(3) of the Code states that if a use of force causes death of or grievous bodily harm to a victim, they remain criminally responsible even if the harm would not have occurred but for an abnormality, defect, or weakness in the victim. This applies regardless of whether the offender intended, foresaw, or could reasonably foresee the death or grievous bodily harm.
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