The Defence of Accident (ACT)

By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 14 April 2026.

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. The defence of accident is a fundamental principle in criminal law that protects individuals from criminal liability when their actions result in unintended harm. Understanding how this defence operates in the Australian Capital Territory is crucial for anyone facing criminal charges where intent is a key element of the alleged offence.

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.

Understanding fault elements

The Criminal Code Act 2002 defines these fault elements comprehensively. Intention requires the accused to have meant to bring about the prohibited consequence. Knowledge requires awareness of circumstances or consequences. Recklessness involves being aware of a substantial risk that circumstances exist or consequences will occur. Negligence occurs when the accused's conduct involves such a great falling short of the standard of care that would be exercised by a reasonable person.

Burden of proof

The prosecution bears the burden of proving these fault elements beyond reasonable doubt. If the defence can raise doubt about whether the accused possessed the requisite mental state, the defence of accident may succeed. This places the evidential burden on the defence to point to evidence suggesting the act was accidental, after which the prosecution must disprove this beyond reasonable doubt.

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. The key consideration is whether the accused's conduct was voluntary but the consequences were unintended and unforeseeable.

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. For example, if someone is gesticulating while telling a story and accidentally strikes a person who unexpectedly walks behind them, this may constitute an accidental assault where no criminal liability arises.

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. The key test is whether the damage was foreseeable to a reasonable person in the accused's position. Accidental damage during lawful activities, where reasonable care was taken, may attract this defence.

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.

This provision recognises that traffic violations may occur due to circumstances beyond a driver's control, such as mechanical failure or medical emergencies.

Elements required for the defence

For the defence of accident to succeed in the ACT, several key elements must be established. These elements work together to demonstrate that while the accused's initial act may have been voluntary, the harmful consequences were genuinely accidental.

Voluntary act with unintended consequences

The accused must have performed a voluntary act - involuntary acts such as those during seizures or unconsciousness are dealt with differently under the law. However, the consequences of that voluntary act must have been unintended and unforeseeable by both the accused and a reasonable person in their position.

Absence of negligence

The defence may fail if the accused was negligent, meaning they failed to exercise reasonable care. Even if consequences were unintended, if a reasonable person would have foreseen the risk and taken precautions, the defence of accident may not apply.

Reasonable foreseeability test

Courts apply both a subjective test (what the accused actually foresaw) and an objective test (what a reasonable person would have foreseen). Both tests must favour the accused for the defence to succeed.

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."

Application in ACT courts

ACT courts have consistently applied these High Court principles when considering accident defences. The courts emphasise that the defence requires genuine accident rather than mere denial of intent, and careful consideration of what a reasonable person in the accused's position would have foreseen.

Limitations and exceptions

The defence of accident is not available in all circumstances and has several important limitations that accused persons should understand.

Strict liability offences

Some offences are classified as strict liability offences, where the prosecution does not need to prove fault elements. For these offences, accident may not provide a complete defence, though it may be relevant to sentencing considerations.

Statutory exceptions

Certain statutes may specifically exclude accident as a defence or impose higher standards of care. Regulatory offences often fall into this category, particularly those relating to public safety or environmental protection.

Dangerous activities

When engaging in inherently dangerous activities, the courts may apply stricter standards for what constitutes reasonable foreseeability. The defence may be more difficult to establish in these circumstances.

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