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7.1.4 - Accident

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Overview

  1. In the Code jurisdictions there is a specific defence of "accident", which excuses the accused from responsibility for events which are the unintended, unforeseeable consequences of a willed act (see, e.g., Kaporonovski v R (1973) 133 CLR 209; R v Van Den Bemd (1994) 179 CLR 137). There is no such defence in Victoria (R v Fowler [1999] VSCA 135).
  2. However, where a person commits an act "accidentally", one or more of the elements of the charged offence may not be met. It is this type of "accident" that is the focus of this topic.

    Meaning of "Accident"

  3. The word "accident" is ambiguous. It is sometimes used to refer to an involuntary act, and sometimes used to refer to an unintentional act (Ryan v R (1967) 121 CLR 205 per Barwick CJ; R v Fowler [1999] VSCA 135; Stevens v R (2005) 227 CLR 319).
  4. As the necessary directions will differ depending on the way in which the term "accident" is used in a case, it is essential that judges clarify what is meant by the term whenever it is used.

    Involuntary Acts

  5. In some cases, an act which is committed independently of the accused’s will is described as an "accident" (e.g., where the accused trips over and "accidentally" bumps into someone) (Ryan v R (1967) 121 CLR 205 per Barwick CJ; R v Fowler [1999] VSCA 135; R v Schaeffer (2005) 13 VR 337).
  6. As the existence of a voluntary act is an essential element of a crime, the accused must not be convicted for such "accidental" acts (Ryan v R (1967) 121 CLR 205; R v O’Connor (1979) 146 CLR 64; R v Falconer (1990) 171 CLR 30; R v Fowler [1999] VSCA 135). [1]
  7. Where this type of "accident" is in issue, it is for the prosecution to prove, beyond reasonable doubt, that the relevant act was voluntary (Ryan v R (1967) 121 CLR 205; R v O’Connor (1979) 146 CLR 64; R v Falconer (1990) 171 CLR 30; R v Fowler [1999] VSCA 135).
  8. See Voluntariness for further information concerning the voluntariness requirement.

    Unintentional Acts

  9. In some cases, the word "accident" is used to refer to an outcome that the accused did not intend to cause. For example, where the accused shoots a gun intending only to scare the victim, but unintentionally kills him or her, the killing may be said to be "accidental" (see, e.g., Ryan v R (1967) 121 CLR 205 per Barwick CJ; R v Fowler [1999] VSCA 135; R v Schaeffer (2005) 13 VR 337).
  10. In such cases, the claim is not that the accused acted involuntarily (e.g., in the example provided above, it is not disputed that the accused fired the gun voluntarily). The claim is that the accused did not intend to cause the outcome that resulted from his or her actions (Ryan v R (1967) 121 CLR 205 per Barwick CJ; R v Fowler [1999] VSCA 135).
  11. The accused’s guilt in such cases will depend on what offence he or she is charged with. For instance, in the example provided above:

    When Must the Jury be Directed about Accident?

  12. It is not necessary to direct the jury about accident simply because it has been suggested that an act or outcome was accidental. A direction is only required where there is some evidence of accident on which a reasonable jury could act (Mancini v DPP [1942] AC 1; Bratty v AG for Northern Ireland [1963] AC 386; R v Fowler [1999] VSCA 135; R v Chang (2003) 7 VR 236).
  13. Judges must therefore determine whether it is open on the evidence for the jury to find:
  14. The judge only needs to direct the jury about whichever matter is in issue. For example, where it is alleged that the accused’s acts were "accidental" in the sense of being unintentional, there is no need to focus on the issue of voluntariness (R v Edwards [2005] VSCA 92).
  15. However, the fact that the issue of voluntariness may logically be subsumed within the issue of intention does not relieve the judge of the duty to direct the jury about voluntariness where it is in issue (Stevens v R (2005) 227 CLR 319 per Kirby and Callinan JJ).
  16. In some cases, the judge may need to direct the jury about both voluntariness and intention (see, e.g., R v Schaeffer (2005) 13 VR 337).
  17. Where the evidence leaves open the possibility that the accused’s acts were accidental (in either sense), the trial judge must give a direction, even if defence counsel has not raised the matter or requested a direction (R v Fowler [1999] VSCA 135; Stevens v R (2005) 227 CLR 319).

    Content of the Charge

  18. The issue of accident is most appropriately integrated into the judge’s charge on voluntariness or intention. It should not be treated as a separate defence (R v Schaeffer (2005) 13 VR 337).
  19. Care must be taken not to reverse the onus of proof by suggesting that it is for the accused to establish the "defence" of accident. The onus always remains on the prosecution to prove voluntariness and intention beyond reasonable doubt (R v Cascone Vic CA 4/6/98).
  20. If the word "accidental" has been used by the parties or the judge, care must be taken to explain how it has been used (i.e., to refer to involuntary and/or unintentional acts) (Ryan v R (1967) 121 CLR 205 per Barwick CJ; R v Schaeffer (2005) 13 VR 337).
  21. The judge must not direct the jury to acquit the accused if they find that the result caused by the accused’s action was not intended or foreseen, and would not reasonably have been foreseen by an ordinary person. Such a direction is only appropriate in the Code jurisdictions (R v Schaeffer (2005) 13 VR 337; R v Fowler [1999] VSCA 135).
  22. Where accident is open on the evidence, but not raised by defence counsel, a detailed exposition of the issue may not be required (see, e.g., R v Fowler [1999] VSCA 135 per Batt JA).
  23. See Voluntariness for information about charging the jury on the issue of voluntariness.

Notes

[1] While the accused must not be convicted for such accidental acts, he or she may be held criminally responsible for acts committed immediately prior to the accident (see, e.g., Jiminez v R (1992) 173 CLR 572; Kroon v R (1990) 55 SASR 476).

Last updated: 26 September 2011

See Also

7.1 - General Directions

7.1.1 - Voluntariness

7.1.2 - Causation

7.1.3 - Recklessness

7.1.5 - Course of Conduct Charges