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5. [s23(1)(b)] Accident

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Queensland University of Technology

Accident: s23(1)(b) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for— … (b) an event that occurs by accident. Onus—excuse—the accused to raise some evidence | R to negative BRD • Some evidence from which the jury might reasonably conclude that it is reasonably possible that the result could not have been foreseen: Bojovic [2000] • Judges do not have to search their mind for fanciful versions in order to put to jury: Paine → Although judge may offer the excuse if not put forward by counsel: Paine → Particularly where not suggested by counsel • Test—Attempting to conduct a sensible direction: R v Skerritt Effect—Acquittal: s646 Proposed Reform • Proposed Bill involving offence of assault causing death (7 years)—failed: Criminal Code (Assault Causing Death) Amendment Bill 2007 (Qld) 1. Event Focus on the result of the accused’s conduct— (Kissier (wilful damage to property  the breaking of the glass was the ‘event’)) • Homicide → death is the event: Stevens v R [2005] per Gummow J • Personal injury cases → wounding of the victim is the event: R v Condon (2010) • The actual injury suffered: R v Condon (2010) (conviction of GBH—misdirection by TJ as to event —identified event as injury amounting to GBH  should have been actual injury suffered = broken jaw) 2. That occurs by accident An event occurs by accident if not intended, foreseen or reasonably foreseeable (must satisfy all three to raise excuse): R v Kaporonovski; R v Skerritt • Test should be framed in the positive to avoid confusion: R v Taiters (Model direction—The Crown is obliged to establish that the accused intended that the event in question should occur or foresaw it as a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome) a. Subjective Tests—(1) not intended & (2) not foreseen by accused • Taken to foresee natural & probable consequence of actions: Kaporonovski (2 men struggling over beer—glass broke & suffered injury  act of forcing glass into face was intentional | accused said didn’t mean to cause GBH—result of injury was probable and obvious so would have been foreseen —GBH was not so unlikely that not reasonably foreseeable → accident not available) • Special knowledge of the accused is relevant: R v Knutsen • Need not foresee exact injury—but must foresee and intend manner of injury: R v Knutsen (attacked & left V on highway at 1am—left under a street lamp—run over by motorist  no evidence that foresaw or intended V to be run over—even though left on a highway… → no GBH || Philp J dissent: left on road, should have realised V would be hit by a car) b. Objective Test—(3) not reasonably foreseeable Ordinary person would not foresee it as more than a remote possibility: R v Taiters (fighting on street— fell & struck head on footpath  had a substantial likelihood of occurring → not accident) Andrew Trotter LWB239 Criminal Responsibility o ↔ One punch causing death—not foreseeable: R v Little (murder—assault involving punch in the head  defence applies); Moody (manslaughter—brawl over cab queue—victim punched once, victim died  acquitted as unforeseeable accident) o BUT since then we have had the ‘one punch can kill’ campaign which might change things • Degree of probability required—not accident if— (R v Taiters) o outcome certain or even just more probable than not o there is a substantial likelihood although something less than a preponderance of probability that a particular outcome will occur and the risk of the outcome is voluntarily accepted by the one acting • Where acts are so likely to result in the harm caused—no accident: R v Skerritt (2001) (fight—many blows to abdomen—testified that V fell down stairs but contradicted by other evidence  must have foreseen (2) & should have foreseen (3) that death or GBH might result) Eggshell skull principle: s23(1A) restoring rule in Martyr’s case [1962] However, under subsection
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