THE LAW OF ACCIDENT S.23 OF THE CRIMINAL CODE, REVIEWED. "(1) Subject to the express provisions of this Code relating to

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1 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 - an act or omission that occurs independently of the exercise of the person's will; or an event that occurs by accident. (1A) However, under subsection (1), 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 and click on "Practice and Procedure". 3. Availability: Subject to the express provisions of this Code relating to negligent acts and omissions 1

2 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; Where the charge involves an element of specific intent: (i) See Bench Book, Footnote 9. (ii) Stevens -v- R (2005) 222 ALR What is the act; what is the event? R. -v- Taiters [1997] 1 Qd. R 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. Stevens -v- R (2005) 222 ALR. 5. What is an "accident": 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" 2

3 R. -v- Taiters (supra) at (adopts this text). 6. What is it that the Crown must establish was "reasonably foreseeable"? In a case of grievous bodily harm: R. -v- Stuart [2005] QCA 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) 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 November (c) In a case of unlawful killing: R. -v- Taiters, supra, 3

4 - At : "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? R. -v- Taiters (supra) at : "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

5 (1A) However, under subsection (1), 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. 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) and it is only intelligible when read in conjunction with the relevant law on s.23(1). referred to in isolation it is clearly misleading." (d) See also R. -v- Steindl [2002] 2 Qd R