What is the defence of Accident?
The word ‘accident’ is ambiguous. It can refer to an involuntary act or an unintentional act but also to an intentional act with an unintended consequence. When relevant to defending a criminal charge, it is an important concept to understand if you wish to avoid criminal liability.
To rely upon the defence of ‘accident’, an accused person must claim that the alleged offending occurred due to actions that were unintended, involuntary or unforeseeable. Where you are accused of a criminal act and you can demonstrate it came about due to an accident, you will not be held directly liable for your actions because you will be negating the element of intent.
The Prosecution Must Prove Intent
It important to recognise that it is not up to the accused to prove that the offending is the result of an ‘accident’, but rather, it is up to the prosecution to prove, beyond a reasonable doubt, that the offending was committed voluntarily and intentionally.
If an act is committed independently of an accused’s will, the act is involuntary and will be considered an accident at law. Using property damage as an example, where it is alleged that an accused has damaged another persons property by kicking, in circumstances where the accused person has tripped over and as a result of falling, has accidentally kicked and broken the other person property, the accused person could properly rely upon the defence of accident in relation to this offence, by creating a reasonable doubt as to the element of intent.
In some cases, accident might be available in relation to a consequence of an intentional act that the accused did not intend to cause, that is, it was unintentional that certain consequences would flow from the initial intended act. In some circumstances this may negate criminal liability in relation to a serious charge requiring intention, but leave an accused person susceptible in relation to a lesser charge that might only require recklessness or negligence. An example is a person shooting an arrow at a target, where the accused person has missed the target and hit a nearby bystander. In these circumstances the accused person has accidentally hit the bystander but maybe guilty of an offence by way of recklessness or negligence.
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. The defence of accident is really an alternative explanation to the prosecutions theory of a case. That is, the accused did not act with intention but accidentally has caused the damage or injury. It has long been established that there is no such defence in Victoria (R v Fowler  VSCA 135), nevertheless the principle must be understood as it can be relevant to negating the prosecutions case.
Example of the Defence of Accident
To expand on our first example, the defence of ‘accident’ is often used in cases where the offence contains an element involving intention. In circumstances where an accused person is charged with criminal damage, the prosecution must prove the following elements beyond reasonable doubt;
That the Accused-
- Without lawful excuse
- Damages property
- Belonging to another
Section 197 (4) goes on to say:
“For the purposes of subsections (1) … a person who destroys or damages property shall be taken as doing so intentionally if, but only if—
In the example where the accused has tripped, it is a defence to the charge for the Accused to establish that the damage resulted due to an accident (the tripping over) and that there was no intention to damage the property.