Legal Defences

Accident as a Defence in Criminal Law

The Legal Defence of Accident in Victoria

Although not legislatively recognised as a criminal defence, accident is an essential factor that must be considered in any criminal matter. The accused may be able to defend a criminal charge and avoid liability if they can prove that their offending was involuntary, unintentional or caused unforeseeable consequences.

accident as a defence in criminal law

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Is Accident a Legal Defence in Victoria?

An accident as a defence in criminal law is a complicated area of the law. Many criminal offences in Victoria require the prosecution to prove an element of ‘intent’. That is, the prosecution must be able to show that the accused:

Intended to commit the offending act;
Voluntarily committed the offending act; and
Intended to achieve a reasonably foreseeable result.

The accused may negate the element of intent by claiming that the alleged offending was unintentional, involuntary or reasonably unforeseeable. If the prosecution cannot prove the element of intent beyond a reasonable doubt, the accused cannot be held directly liable for their actions.

However, it is important to note that “accident” is not strictly recognised as a criminal defence in Victorian legislation. Rather, it is an alternative explanation of events presented by the accused. The onus is on the prosecution to prove that offending was intentional and not an accident.

Accident in Victorian Criminal Law

Victoria’s Crimes Act 1958 (Vic) does not directly note accident or lack of intention as a criminal defence. However, many of the criminal offences legislated in the Act require an element of intent.

For example, s 31 of the Act (Vic) dictates that a person is guilty of an indictable offence if they “assault or threaten to assault another person with intent to commit an indictable offence.” In this case, the accused might be found innocent if an “application of force” to another person was done accidentally. That is, without intent to cause “bodily injury, pain, discomfort, damage, insult or deprivation of liberty.”

The Criminal Code Act 1995 (Cth) defines “intention” in regard to federal offences. Section 5.2 dictates that a person has intention:

  • With respect to conduct if he or she means to engage in that conduct.
  • With respect to a circumstance if he or she believes that it exists or will exist.
  • With respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

This helps us to clarify the definition of ‘intent’ in regard to Victorian criminal law:

  • An intentional act is one that the accused means to engage in. This is the same as a voluntary act.
  • Circumstances are foreseeable if the accused believes they exist or will exist.
  • Results are intentional and foreseeable if the accused means to bring them about or is aware that they will arise in the ordinary course of events.

Proving Accident in Court

Because accident is not recognised as a legal defence in Victorian legislation, it should be raised by the accused as an alternative explanation to the prosecution’s theory. The accused is not responsible for proving that offending was “accidental”. Rather, the burden of proof is on the prosecution. The prosecutors must demonstrate beyond reasonable doubt that the offending act was committed voluntarily and intentionally.

If the accused did not mean to engage in an offending act, this would be considered an accident because there is a lack of intent or voluntariness. The onus would be on the prosecution to prove that the accused did indeed mean to engage in the offending conduct. For example, if the accused was to accidentally trip and cause bodily injury to another person whilst falling – their conduct would likely lack the necessary intent and voluntariness to warrant liability for an assault charge.

Further, intentional actions can sometimes result in unintentional or unforeseeable consequences. This scenario might negate criminal liability against some criminal charges. That is, in some cases, the accused might be able to claim an accident if their intentional conduct resulted in unintentional or unforeseeable outcomes. However, this often means that the accused is instead charged with a different or lesser offence, in which the prosecution is only required to prove recklessness or negligence. For example, a murder charge might be downgraded to manslaughter, because the accused lacked intent but was nonetheless reckless.

If the prosecution cannot prove the elements of intent or voluntariness beyond a reasonable doubt, the accused cannot be held directly liable for their actions.

Obtaining Legal Advice

Accident is a complex legal issue and requires professional consideration. If you have been charged or are under investigation for allegedly committing a criminal offence, please contact our team at Sher Criminal Lawyers. We will help you achieve the best possible outcome by applying our extensive legal experience and expertise. One of our criminal law specialists will assess whether accident or any other defence is relevant to your case before planning a unique and calculated legal strategy. We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.

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