Defence of Accident
By: Andrew Anderson
Published: 27 February 2021
Published: 27 February 2021
By: Andrew Anderson
Defence of Accident – Queensland
The Criminal Code of Queensland contains a defence of accident. The defence means a person may not be criminally responsible for the consequences of their actions if they did not intend those consequences or reasonably foresee them, and an ordinary person in their position would not have reasonably foreseen the consequences as a possibility from their actions.
Each legal issue is unique. This information cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about the defence of accident.
If you face a criminal charge or are a friend or family member of somebody who does, contact Anderson Legal. This firm provides expert advice and representation. Andrew Anderson is a former Principal Crown Prosecutor and is recognised as a leading criminal defence lawyer in Queensland. He has substantial experience in assisting individuals with issues of this nature.
- Defence of Accident – Queensland
- Queensland Law
- Defence of Accident: Interpretation
- Defence of Accident: Case Examples
- Significant Cases
Section 23(1)(b) Criminal Code (Qld)
Section 23(1)(b) of the Criminal Code makes accident a defence to certain criminal offences in Queensland. The law states:
- Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—
- 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.
It has been observed by academics, such as Professor Paul Fairall and Professor Eric Colvin, that the defences under section 23, combined with the structure of the Criminal Code of Queensland, make ‘negligence’ the basic fault standard for criminal responsibilities. Examples of other fault standards in criminal law may be based on ‘intention’, ‘knowledge’ or ‘recklessness’. It means that the prosecution doesn’t have to prove the defendant had any particular state of mind for many offences in Queensland. All that needs to be shown to disprove the defence of accident is that the person foresaw what occurred as a possible consequence of their act (or omission), or an ordinary person would have done so.
There is an important limitation on the defence of accident as a result of section 23(1A) of the Criminal Code. The defence of accident will not apply if death or grievous bodily harm results because of a defect, weakness, or abnormality:
(1A) However, under subsection (1)(b), the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality.
This law derives from an old legal principle called the ‘eggshell skull’ rule, which essentially means that you take your victim as you find them. If a person happens to have some frailty that makes them more susceptible to death or serious injury, it is no defence to a charge to say that their defect, weakness, or abnormality resulted in a worse outcome than could reasonably be contemplated.
The ‘presumption of innocence’
When people think about a ‘defence’ to a charge, they generally thinking about what makes them ‘not guilty’ of the offence. For that reason, it is important to keep in mind that it is for the prosecution to prove a defendant is guilty – and to do so beyond a reasonable doubt. The presumption of innocence means that the defendant carries no onus of proof, and that includes excluding defences like the defence of accident. What that means in practical terms is that it is for the prosecution to disprove any defences raised on the evidence, such as events that occur accident.
How are defences raised on the evidence?
A defence may be raised on the evidence of both the prosecution and the defence. That is, people who give witness statements to police may indicate that an event occurred accidentally, or a person appeared to act in self-defence. Generally speaking, the prosecution have an obligation to call all material witnesses at a trial – even those unfavourable to its case. Alternatively, a person charged with an offence may also call their own witnesses at a trial, which may provide the basis for a defence to be raised.
One of the important roles of a criminal lawyer is to identify, as early as possible, the relevant defences that may apply in a given case. The reason it is important to do it as early as possible is to ensure relevant witnesses are found while matters are freshest in their mind, or to prevent other evidence being lost or destroyed.
Offences that exclude accident as a defence
If there is evidence to raise a defence of accident, it may still not apply because of the nature of the charge or the facts. The defence does not apply to charges specifically based on negligent acts or omissions (such as manslaughter by criminal negligence). Furthermore, a defendant is not excused from criminal liability for causing “death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality” under section 23(1A) Criminal Code (Qld). Certain charges may also exclude the defence of accident, such as in cases of unlawful striking causing death under section 314A of the Criminal Code (Qld).
Defence of Accident: Interpretation
The change to the law in 2011
In 2011, the Queensland Parliament amended the defence under section 23(1)(b) of the Criminal Code (Qld) to how it was worded. Before that amendment, the law had stated (for a long time):
- Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—
- an event that occurs by accident.
Generally, changes to words of a law are designed to change the meaning or something about its operation. That is not so for this amendment. The current law includes a note, which guides interpretation of the law, which states the following: “Parliament, in amending subsection (1)(b) by the Criminal Code and Other Legislation Amendment Act 2011, did not intend to change the circumstances in which a person is criminally responsible.” While this passage confirms that the change to the law was not intended to change how it applied, it is important to keep in mind how important a single word in a law can be to the outcome. For example, the word ‘by’ was formerly used in section 23(1)(b) of the Criminal Code but was removed by the amendment in 2011. In the High Court case of Murray v The Queen  HCA 26, Justice Kirby at paragraph  considered the outcome of appeal centred on the word ‘by’ being part of the section.
What is meant by the word ‘event’?
The word ‘event’ in section 23(1)(b) of the Criminal Code (Qld) is critical to the interpretation of the defence of accident. In the High Court case of Kapronovski v The Queen  HCA 35, it was stated by the then Justice Gibbs:
“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”.
The meaning of the word ‘event’ was further considered in the Queensland Court of Appeal decision of R v Taiters; ex parte Attorney-General (Qld)  QCA 232, in which it was stated by the Court at :
It should now be taken that in the construction of s.23 the reference to “act” is to “some physical action apart from its consequences” and the reference to “event” in the context of occurring by accident is a reference to “the consequences of the act”. Even if, as has been said, there can on occasion be some difficulty, in an exceptional case, in distinguishing the border line between act and event so viewed, this theoretical distinction is clear. Taking an example from Kaporonovski itself, the thrusting of the glass by the accused was the act and the injury to the victim’s eye which constituted the grievous bodily harm was the event. A number of occurrences can as a result of the operation of one or more chains of causation follow upon the doing of an act. However, s.23 is concerned to excuse from criminal liability so the relevant event for the purpose of the section should be taken to be the one which, apart from the operation of the section, would constitute some factual element of an offence which might be charged. In cases when grievous bodily harm is charged the state of bodily harm will be the relevant event and when unlawful killing is charged, the death will be the relevant event.
The interpretation of the word ‘event’, as explained in R v Taiters; ex parte Attorney-General (Qld)  QCA 232, remains the law in Queensland. However, there has been inconsistency in the Queensland Court of Appeal regarding the ‘event’ that needs to be foreseen as a possibility. The cases of R v Stuart  QCA 138, R v Peachey  QCA 162, and R v Coomer  QCA 6 indicate that it is not necessary for the prosecution to prove the precise nature of the harm, or the precise mechanism whereby it might be inflicted, be foreseeable. However, in R v Condon  QCA 117, it was argued successfully that the event was the actual injury, which in that case was a broken jaw. The reasoning in R v Condon  QCA 117 was influenced by the words ‘factual element’ from R v Taiters; ex parte Attorney-General (Qld)  QCA 232. In R v Condon  QCA 117, the then President of the Court of Appeal stated:
It follows that in the present case the “event” was the injury suffered by the complainant constituting the factual element of the offence of doing grievous bodily harm, namely, a broken jaw. The issue for the jury was whether an ordinary person in the appellant’s position would reasonably have foreseen the complainant’s broken jaw was a possible outcome of the appellant striking the complainant. The primary judge three times misdirected the jury by widening that concept to any injury amounting to grievous bodily harm. This could include a less serious injury than a broken jaw. His Honour stated the issue was whether an ordinary person in the appellant’s position would reasonably have foreseen that an injury to the complainant amounting to grievous bodily harm was a possible outcome from the appellant’s blow.
The issue may have been settled by the High Court of Australia in Irwin v The Queen  HCA 8, in which it was stated at paragraph  that the prosecution must prove “beyond reasonable doubt that an ordinary person in the position of the accused would reasonably foresee the possibility of the type of injury in fact caused”.
What is meant by the words ‘possible consequence’?
In R v Trieu  QCA 28, a case heard before the Queensland Court of Appeal, the appellant sought to argue that the defence of accident should have been considered by hte jury as part of its deliberations. In that case, Chief Justice de Jersey, with whom the judges agreed, equated the words ‘possible outcome’ with “something which could happen, excluding remote or speculative possibilities”. It is noted that in other parts of the Criminal Code (Qld), the words ‘probable’ and ‘likely’ are used. However, in that case, Justice Fryberg noted that even when the same word is used, it can carry a different meaning based on its context. Referring to the law as it existed at the time, it was said in paragraph :
The words “possible”, “likely” and “probable” are all used in the Code. There are two instances of “possible”, 54 instances of “likely” and five of “probable”. The two instances of “possible” were added by way of relatively recent amendment as were three of the five instances of “probable” and a number of those of “likely”. It would be unsound to presume that any of the three words necessarily has the same meaning on every occasion it is used, or that the relativity between “likely” and “probable” remains constant. The matter is one dependent upon context.
Defence of Accident: Case Examples
As already noted, the defence of accident is not available for every homicide offence, specifically the charge of unlawful striking causing death. However, depending on the evidence, it can be a defence to a charge of murder or manslaughter, although not manslaughter based on criminal negligence.
There has been judicial debate as to whether the defence of accident really ought to operate with a charge of murder due to the inconsistency between intention and accident. However, in Murray v The Queen  HCA 26, Justice Callinan explained why the defence of accident should still be left for consideration by a jury even on a charge of murder (assuming it arises on the facts):
The direction should be given, even in a case in which the substantial issue is intention, in order to draw to the attention of the jury the matters which are capable of forming a foundation for a conclusion that the prosecution had not negatived an unwilled act or accident. The directions should identify the evidence from which the “act” and the event are discernible and distinguish between them. The fact that the Code makes specific provision for defences on these bases, independently of the creation of offences of which intention is a specific element, provides an indication that separate and specific treatment of matters capable of falling within s 23 is required. Section 23 is concerned with all offences, except for ones of negligence. It is hardly likely that it would have been enacted as part of the Code if reference to it were optional or unnecessary in the vast range of offences of which intent is an element.
In the High Court of Australia, it was recognised by Chief Justice Gleeson that there are many “deaths in circumstances that constitute manslaughter could properly be described as accidental”: see Stevens v The Queen  HCA 65 at paragraph . The point being that a death occurring unintentionally may properly be described as an ‘accident’, even though it does not fit the defence of accident under section 23(1)(b) of the Criminal Code (Qld). The case of Stevens v The Queen  HCA 65 illustrates both the difficulty and importance of applying the defence of accident to a murder charge. In summary, the prosecution case was that the appellant shot the deceased intending to kill him. The appellant had said to police, and repeated it in evidence at trial, what had actually occurred was that when he entered the deceased’s office for a pre-arranged meeting, he had found the deceased holding a gun to his head. Trying to stop an apparent suicide attempt, the appellant said he grabbed the gun and it discharged, killing the deceased. The defence of accident was not left for the jury to consider, as the trial was conducted on the basis that either he was guilty of murder (an intentional killing), or was entitled to be acquitted. In the High Court, it was successfully argued that on the evidence arising from the appellant, the defence of accident arose under section 23(1)(b) of the Criminal Code..
Grievous Bodily Harm
R v Condon  QCA 117 is a case demonstrating the importance of properly identifying the relevant issue within the defence of accident. The case involved a charge of grievous bodily harm arising in circumstances in which it was alleged the appellant had caused the complainant’s jaw to be broken, apparently from an open hand. The trial judge directed the jury that either the appellant or an ordinary person in his position “would reasonably have foreseen serious injury amounting to grievous bodily harm as a possible outcome” of the force used. The Court of Appeal ruled that this direction was an error, as it did not require the jury to consider the type of injury actually suffered by the complainant, which was a broken jaw. The Court of Appeal explained:
The issue for the jury was whether an ordinary person in the appellant’s position would reasonably have foreseen the complainant’s broken jaw was a possible outcome of the appellant striking the complainant. The primary judge three times misdirected the jury by widening that concept to any injury amounting to grievous bodily harm. This could include a less serious injury than a broken jaw. His Honour stated the issue was whether an ordinary person in the appellant’s position would reasonably have foreseen that an injury to the complainant amounting to grievous bodily harm was a possible outcome from the appellant’s blow.
As a result of the misdirection by the trial judge, a retrial was ordered.
The defence of accident has involved a number of significant legal decisions over time, including in the High Court of Australia. These decisions, among others, shape the advice of lawyers who are called to represent individuals who may have a defence of accident to their charge.
High Court of Australia
In Stuart v The Queen  HCA 54, the High Court of Australia considered the operation of the defence accident so far as it relates to a ‘felony murder’ under section 302 of the Criminal Code (Qld). It was noted in the judgment of Justice Gibbs that the defence of accident mitigates “the apparent severity” of the operation a felony murder charge, as it still required proof that an ordinary person in the position of the accused could have foreseen death as a likely outcome of the criminal act. In that case, the prosecution successfully argued that lighting a fire in a nightclub at a time when people were inside, was an act likely to endanger life and the resulting deaths were foreseeable.
Queensland Court of Appeal
In R v Charles  QCA 320, the Court of Appeal unanimously allowed a conviction in relation to a charge of grievous bodily harm on the basis of an error with respect to section 23(1A) of the Criminal Code (Qld), which relates to the ‘eggshell skull’ rule. It was argued successfully on appeal that it was an error to only refer to that provision, which essentially operates as a proviso to the defence of accident, without actually referring to the defence of accident. In that case, the Court of Appeal ruled that although the defence of accident did not really arise on the evidence, reference to section 23(1A) of the Criminal Code (Qld) in isolation is “clearly misleading” and therefore would have been confusing to the jury.
The following are some of the defences set out in the Queensland Criminal Code, which are often raised in criminal trials:
- Defending Another
- Defence of Dwelling
- Extraordinary Emergency
- Honest Claim of Right
- Mental Health Defences
- Mistake of Fact
- Self Defence
- Unwilled Acts