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The Law of Accident - S23 of the Criminal Code by Peter Callaghan

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					     THE LAW OF “ACCIDENT” – S.23 OF THE CRIMINAL CODE, REVIEWED




1.      Criminal Code (Qld)

        s.23 (1):-

               "(1) Subject to the express provisions of this Code relating to

               negligent acts and omissions, a person is not criminally responsible

               for -

                        (a)   an act or omission that occurs independently of the

                              exercise of the person's will; or

                        (b)   an event that occurs by accident.

               (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 even though the offender does not intend or

                        foresee or can not reasonably foresee the death or grievous

                        bodily harm."


2.      Model directions appear in Chapter 75 of the Queensland Supreme and

        District Courts Bench Book - go to www.courts.qld.gov.au and click on

        "Practice and Procedure".


3.      Availability:

        (a)    “Subject to the express provisions of this Code relating to negligent

               acts and omissions…”



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           See s.289 of the Code;

           (i)    R. -v- Hodgetts and Jackson [1990] 1 Qd. R. 456; (1989) 44 A

                  Crim R 320;

           (ii)   Griffiths -v- R (1994) 125 ALR 545;


     (b)   Where the charge involves an element of specific intent:

           (i)    See Bench Book, Footnote 9.

           (ii)   Stevens -v- R (2005) 222 ALR 40.



4.   What is the act; what is the event?

     (a)   R. -v- Taiters [1997] 1 Qd. R 333 - at 335.6:

                   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.

     (b)   Stevens -v- R (2005) 222 ALR.



5.   What is an "accident":

     (a)   Kaporonowski -v- R. (1973) 133 CLR 204 at 231:-

                   "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: see: Vallance v. The Queen,

                   Mamote-Kulang v. The Queen, Timbu Kolian v. The Queen

                   and Reg. v. Tralka"

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     (b)   R. -v- Taiters (supra) at 335.30 (adopts this text).




6.   What is it that the Crown must establish was "reasonably foreseeable"?

     (a)   In a case of grievous bodily harm: R. -v- Stuart [2005] QCA 138 - at

           [25]:

                   "In any event, it was admitted that the injury which occurred,

                   which involved scarring of the gums and the loss of several

                   teeth, constituted grievous bodily harm. It was not

                   necessary that the precise number of teeth damaged or the

                   precise extent of scarring to the gums should have been

                   foreseeable. What had to be foreseeable was that the

                   punch might cause that kind of damage". (emphasis added)

     (b)   Compare this passage with the statement of Derrington J in R. –v-

           W [1999] QCA 202 at [8]:

                   “In assessing this, the correct issue is whether the relevant

                   consequential event is a reasonably foreseeable possibility.

                   It need not be reasonably foreseeable as a certainty nor

                   even as a probable consequence. This means that it is not

                   necessary that the exact nature of the resulting harm or the

                   mechanical processes of its causation should be precisely

                   understood; only that harm amounting to grievous bodily

                   harm might possible follows: cf The Queen –v- West

                   (unreported) Court of Appeal (Qld) CA No. 288 of 1996 – 26

                   November 1996.”

     (c)   In a case of unlawful killing: R. -v- Taiters, supra,

                                                                                   3
           -      At 335.15:

                         "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 operation of the section, would

                         constitute some factual element of an offence which

                         might be charged. In cases where 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."




7.   What is an "ordinary person"? How far into the accused's position must

     that person be placed?

     (a)   R. -v- Taiters (supra) at 338.20:

                  "The references which have been made in the cases to

                  "reasonably" and "ordinary person" in the context under

                  discussion, give an emphasis to the fact that the relevant

                  test calls for a practical approach and is not concerned with

                  theoretical remote possibilities. It directed inquiry to what

                  would be present in the mind of an ordinary person acting in

                  the circumstances with the usual limited time for assessing

                  probabilities, this being a factor which is applicable to a

                  great deal of human activity."



8.   Section 23(1A) - (not to be the subject of detailed attention):

                                                                                  4
(a)   (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

      even though the offender does not intend or foresee or can not

      reasonably foresee the death or grievous bodily harm.

(b)   Legislative reversal of the effect which Van den Bemd had on the

      “eggshell skull” Rule.

(c)   R. -v- Charles 123 A Crim R. 253

             "Subsection (1A) is essentially a proviso to s.23(1)(b) and it

             is only intelligible when read in conjunction with the relevant

             law on s.23(1)(b). referred to in isolation it is clearly

             misleading."

(d)   See also R. -v- Steindl [2002] 2 Qd R 542.




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