The Defence of Accident in Western Australia

In Western Australia, the Criminal Code recognises that people should not be held guilty of a crime for something that happened entirely by accident. This is called the Defence of Accident, and it can be a complete defence to many criminal charges if the event was truly unforeseen and unintentional.

 

What is the Defence of Accident According to WA Law?

The Defence of Accident is set out in Section 23B of the Criminal Code Act Compilation Act 1913 (WA).

The key rule is:

A person is not criminally responsible for an event which occurs by accident.

This means that if something harmful happens, but it was genuinely an accident, then the accused may not be legally blamed for it.

 

How It Works in Practice

The defence applies when:

• A person’s actions lead to harm, damage, or another event; and
• The outcome was not intended, and
• The result was not reasonably foreseeable.

The idea behind this is that most criminal offences require mens rea or a “guilty mind” — meaning the person must have intended the harm, or at least been reckless or negligent.

If neither intention nor foreseeable risk existed, then it is fair that the person not face criminal liability.

An accident is different from simply careless conduct. If a reasonable person could have foreseen the harmful outcome, then it might not be an “accident” under the law.

 

Examples of When It Might Apply

Here are examples of situations where someone might raise this defence:

• A chef slips in the kitchen and unintentionally spills hot oil, seriously burning someone standing nearby. The injury was not intended, and if the spill could not reasonably have been foreseen, the Defence of Accident could apply.
• A property owner accidentally knocks over an unstable shelf that injures a visitor, and they had no reasonable way to know it might fall.

This defence is most likely to arise in cases where intent is a key element of the offence, such as in some assaults or serious harm cases.

 

Limits of the Defence

The Defence of Accident has important limits:

1. It Does Not Apply if the Act Was Reckless or Negligent

If the harmful result was something a reasonable person could have foreseen, the defence may fail. For example, if someone was driving dangerously and causes serious injury, the court may find that the harm was reasonably foreseeable and therefore not an accident in legal terms.

2. Serious Harm Caused by Force

The Criminal Code specifically states that if death or grievous bodily harm is caused by another person’s deliberate use of force but for an abnormality in the victim, the defendant cannot rely on the Defence of Accident alone just because they did not intend or foresee the harm.

This means in some serious violence cases, even if the harm was unforeseen, the person may still be criminally responsible.

3. Does Not Apply to All Offences

Some offences in WA law are strict or absolute liability. For these offences, fault such as intention or foresight does not need to be proved. In such cases, the Defence of Accident often cannot be used.

Traffic offences are a good real-world example. If someone is charged with a strict liability traffic offence, the fact the event was accidental may not stop a conviction unless the law allows an excuse.

 

Defence Example and Case Review: R v Falconer (1990) 171 CLR 30

This case is a leading Australian authority on accident and criminal responsibility. It examines whether a fatal shooting could result in criminal liability where the accused’s actions may not have been voluntary or consciously controlled. The decision explains when an act may be considered accidental in law and therefore incapable of supporting a criminal conviction.

Background

• Charge: Mrs Falconer was charged with the murder of her husband following a fatal shooting at their home.
• Relationship History: The marriage involved long-term domestic violence and psychological abuse. On the day of the incident, an intense confrontation occurred, escalating the already volatile situation.
• Events Leading to the Incident: During the argument, Mrs Falconer retrieved a rifle from inside the house. Shortly afterwards, a single shot was fired, killing her husband. Mrs Falconer did not dispute that she fired the weapon.
• Defence Argument: The defence argued that although the physical act occurred, the shooting was not a voluntary or conscious act. Medical and psychological evidence indicated Mrs Falconer entered a dissociative state caused by extreme emotional distress, meaning she lacked conscious control at the time the shot was fired. The defence contended the event was accidental in law.
• Prosecution Case:The prosecution argued that retrieving the rifle and firing it were deliberate acts. They submitted that emotional distress did not remove criminal responsibility and that the shooting was intentional.

Court’s Findings

The High Court of Australia held that:

• Criminal liability requires a voluntary and conscious act.
• An act performed without conscious control cannot ground criminal responsibility.
• The concept of accident is not limited to physical mishaps and can include acts occurring during a dissociative mental state.
• Once evidence raises the possibility that an act was unwilled or accidental, the prosecution must disprove that beyond reasonable doubt.

The Court found the jury directions at trial were legally inadequate because they failed to properly explain the requirement of voluntariness.

Outcome

• The High Court allowed the appeal.
• Mrs Falconer’s murder conviction was quashed.
• The case was remitted for a new trial due to the misdirection to the jury.

Importantly, the High Court did not declare Mrs Falconer innocent. Instead, it ruled that the trial process was flawed because the jury was not correctly directed on whether the shooting was a voluntary act.

The case therefore stands as authority for how accident and voluntariness must be assessed, rather than a final determination that the shooting was accidental.

Legal Principles Highlighted

This decision confirms several core principles relevant to the Defence of Accident:

• Voluntary Act Requirement: Criminal responsibility cannot arise unless the act was conscious and willed.
• Accident Includes Mental Dissociation: An act may be accidental if performed without conscious control due to psychological disturbance.
• Prosecution Burden: Once accident is raised, the prosecution must disprove it beyond reasonable doubt.
• Limits Remain: Emotional distress alone is insufficient unless it results in loss of conscious control.

Why This Case Matters for the Defence of Accident

Although decided by the High Court, R v Falconer is applied across Australia, including Western Australia. It informs how courts interpret section 23B of the Criminal Code (WA) by reinforcing that criminal liability depends on voluntary conduct, not merely the physical act or its consequences.

R v Falconer is a foundational case explaining the Defence of Accident in Australian criminal law. It demonstrates that even in cases involving death, criminal responsibility depends on whether the accused acted voluntarily. The decision remains a key reference point for accident-based defences and jury directions in serious criminal trials.

 

When to Seek Legal Advice

If you are charged with a criminal offence and believe the event was truly accidental, this defence might be relevant.

A qualified criminal lawyer in Perth can:

• Review whether your actions were truly accidental.
• Analyse if the harm was reasonably foreseeable.
• Explain how other defences might also apply.

This is especially important in serious cases involving injury or death where the consequences of conviction are high.