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Defence of Accident

When a voluntary or intended act has unintended, unexpected or reasonably unforeseeable consequences, the defence of accident is available to an accused person.

ACT legislation

While the other Criminal Code jurisdictions (Queensland, Tasmania and the Northern Territory) speak directly of accident or intention and motive, the ACT’s Criminal Code 2002 does not. Rather, it speaks of four fault elements, which are intention, knowledge, recklessness and negligence. Matters can be successfully defended in the ACT where the prosecution cannot prove beyond a reasonable doubt that the accused’s actions were not accidental.

Case law

Justice McHugh of the High Court defined accident in Povey v Qantas Airways Ltd (2005) 223 CLR 189, where he said, “Voluntary or intended acts of a person that cause harm to another may constitute an ‘accident’ where the harm was not intended or reasonably foreseeable.”

His Honour noted an earlier judgement of Justice Gibbs, in Kaporonovski v The Queen (1973) 133 CLR 209, where it was said, “It must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person.”

Other states

The NT Code says specifically, “A person is excused from criminal responsibility for an act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct.

“A person who does not intend a particular act, omission or event, but foresees it as a possible consequence of his conduct, and that particular act, omission or event occurs, is excused from criminal responsibility for it if, in all the circumstances, including the chance of it occurring and its nature, an ordinary person similarly circumstanced and having such foresight would have proceeded with that conduct.”

Tasmania’s Code says, “No person shall be criminally responsible for an act, unless it is voluntary and intentional; nor, except as hereinafter expressly provided, for an event which occurs by chance.”

Queensland’s Code talks of motive, saying, that, subject to the express provisions of the Code relating to negligent acts and omissions, a person is not criminally responsible for:

  • an act or omission that occurs independently of the exercise of the person’s will; or
  • an event that:
    • the person does not intend or foresee as a possible consequence; and
    • an ordinary person would not reasonably foresee as a possible consequence.

Traffic Accidents

Section 9 of  the Road Transport (Road Rules) Regulation 2017 provides that it is a defence to an offence against the Regulation if the defendant proves that the offence:

  • was the result of an accident; or
  • could not have been avoided by any reasonable efforts by the defendant.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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