The Defence of Accident (ACT)
In the ACT, a person has a defence to some criminal charges if the act making up the offence was an accident. This defence is applicable when a voluntary act has unintended, unexpected or reasonably unforeseeable consequences. This page deals with the defence of accident in the ACT.
ACT legislation
The ACT Criminal Code 2002 does not specifically make reference to accident as a defence. Rather, it described four fault elements – intention, knowledge, recklessness and negligence. A matter can be successfully defended in the ACT if the prosecution cannot prove beyond a reasonable doubt that any of these four fault elements applied to the accused. In other words, the accused’s actions were accidental.
When can the defence of accident be relied on?
The defence of accident, or an absence of intention, recklessness or foresight, is relevant to a range of offences.
Assaults
To be found guilty of an assault, a person must have intended or foreseen the assault. If a person strikes another person accidentally in circumstances where it was not foreseeable that a person would be struck, they have not committed an offence.
Criminal damage
To be found guilty of property damage in the ACT, a person must have intentionally or recklessly damaged property belonging to another person. If the property was damaged accidentally, no offence has been committed.
Traffic accidents
Section 9 of the ACT Road Transport (Road Rules) Regulation 2017 makes it a defence to an offence against the Regulation if the offence:
- was the result of an accident; or
- could not have been avoided by any reasonable efforts by the accused.
Case law
Justice McHugh of the High Court defined the defence of accident in the 2005 decision of Povey v Qantas Airways Ltd (2005) 223 CLR 189. His Honour stated:
“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.”
The decision referred to an earlier judgment of Justice Gibbs, Kaporonovski v The Queen (1973) 133 CLR 209, where the court 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 jurisdictions
Most Australian jurisdictions have legislation that deals explicitly with the defence of accident.
Under Northern Territory legislation, a person is explicitly 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.’
Under Tasmanian legislation, “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.”
Under Queensland’s Criminal Code, 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.
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