Crim B Unwilled act and Accident PDF

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Unwilled Act and Accident ...

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Unwilled act and Accident

Unwilled act is called the first limb Accident is called the second limb S23B provides that a person is not criminally responsible for an event occurring via accident S23A provides a person that is not responsible criminally responsible from an act or omissions occurring independently from a person will.  

If the act was unintended, s23A is the defence to use (unwilled act) If the event was unintended then s23B is the defence to use (accident)

So we need to work out if its an act or an event then find the suitable defence. The basic relationship between the 2 defenses was established in the high court by Kaparanovski. Gibbs: Act refers to physical action An event refers to consequences of those actions such as death Vallance 1961 Facts: A man fired an air-rifle, aiming close to a girl in order to scare her. She was hit by the pellet and injured. Held:  Dixon CJ and Windeyer J held that the term “act” included all of the physical elements of the offence (and so, in that case, included the victim’s injury). This is the “wide view”.  Kitto J and Taylor J held that the act was limited to the pulling of the trigger. This is the “narrow view”.  Menzies J thought that the act included pointing the gun in the direction of the victim as well as pulling the trigger. Timbu v Kolian 1968  Facts: During the course of a domestic dispute in the dark, the accused person aimed a blow with a stick in the direction of his wife’s voice. The stick struck and killed their 5 month old child, who, unbeknownst to the accused, was being held by his wife.  Held:  Windeyer J and McTiernan J felt that the act related to all of the physical elements of the offence (wide view).  Barwick CJ felt that striking with the stick rather than the wielding of the stick was the act (less wide, but still “a little bit wide”.

Kaparanovski 1973 Facts: During an altercation in a hotel bar, Kaparanovski grabbed the victim’s wrist and pushed the victim’s hand, (which was holding a glass of beer) towards the victim’s face. The glass broke and was pushed into the victim’s eye, causing the GBH. Held: In my opinion, the ‘act’ to which the first rule refers is some physical action, apart from its consequences – the firing of the rifle rather than the wounding in Valance v R. (Gibbs J) This meant that the physical act here was viewed as pushing the victim’s hand towards the victim’s face, rather than anything relating to the injury to the victim’s eye.  This settled the law in favour of the narrow view of “act”. Falconer 1990 This was another case relating to the discharge of a gun. “In one sense, it can be said that the discharge of the gun is a consequence of a bodily movement of contracting the trigger finger. In our opinion, however, a consequence which the bodily movement is apt to effect and is inevitable and which occurs contemporaneously with the bodily movement is more appropriately regarded as a circumstance that identifies the character of the ‘act’ which is done by making the bodily movement … [T]he act with which we are concerned in this case is the discharge by Mrs Falconer of the loaded gun; it is neither restricted to the mere contraction of the trigger finger nor does it extend to the fatal wounding of Mr Falconer. Falconer (1990) 171 CLR 30, 39 (Mason CJ, Brennan and McHugh JJ).  So, perhaps the definition of “act” can be expanded to include consequences that are inevitable and contemporaneous with the physical act.  Theoretically speaking, there is absolutely no need for this expansion to the definition ... but it is now possible to argue it.  Judges stated ‘act’ is that which justice Kiddo in Valence attributed to act;  Act refers to some physical action over the accused over which they have controlled.  It is some physical action of the accused considered a part from its consequences, it is this physical action which must be wielded by the accused

Event  The definition of what is the event is derived from the definition of “act” given in Kaparanovski: it is the consequences of the physical act.  The result that is brought about by the accused conduct.  For example in homicide it will be the death of the victim  It is all of the consequences not just the last one. Once you have distinguished if its act or event… 1. What was unintended?  Identify everything in a factual scenario which you would say was “unintended”.  For each, is it the “act” or the “event” which is unintended?

Availability of the defence  The defence is in Chapter V of the Criminal Code, so it can be used as a defence to offences contained in statutes apart from the Criminal Code (s36).  However, s23A expressly makes the defence subject to the duty provisions in Chapter XXVII. Thus, if the charge is grounded in negligence, this defence will not be available.  In R v Young [1969] Qd R 417, it was held that it is not necessary for the words “negligent”, “negligence” or “negligently” to occur in order to exclude the defences. Hence any section which seems to cover negligent acts or omissions as well as willed acts or omissions will exclude the defence.  In R v Fitzgerald (1999) 106 A Crim R 215, the Court also said that proof of the requisite intention for an intentional form of murder would, in the context of a shooting, be inconsistent with a defence of unwilled act applying. Onus of proof  The evidentiary onus is nominally on the accused … but the trial judge must ensure that all relevant defences are considered by the jury. If no evidence given the judge will tell the jury there is no evidence to support the evidentiary burden.  The persuasive onus is then on the prosecution to disprove the defence beyond reasonable doubt. Unwilled  Having identified the act, you simply need to decide whether or not that act was unwilled or not.  There are two “usual” situations: (1) For a short period of time, the person has no control over their body (e.g. they have tripped). (2) Everything the person is doing for a significant period of time is unwilled (e.g. “sleepwalking”). This is called “sane automatism” when it leads to this defence.  We will be looking more at sane automatism next week, as the defence of insanity is often also a consideration in these cases.  Automatism is when the accused behaviour is directed by the unconscious mind. Section 23K- provides a complete condition if the condition is affected by an external cause that is not intoxication or insane mind. Availability of the defence if intoxicated If the accused is voluntarily intoxicated:  if the intoxication leads to a state of sane automatism (sleepwalking etc.), then you CANNOT use the s23A defence.  i.e. the accused went out drinking and got so drunk that he sleepwalked. During that sleepwalk he committed an offence. Here, you cannot use s23A defence as the intoxication led to the sane automatism.  if the intoxication leads to the accused tripping, it IS treated as an unwilled act, and the accused CAN use the s23A defence.

 i.e. the accused went out drinking and tripped on the pavement. During the process of falling, he committed an offence. He could use s23A defence, as the intoxication lead to the tripping.  s23A can’t be used if the external cause is intoxication.  Obviously, the evidentiary and persuasive burdens would still need to be discharged to the relevant standard (see next slide)  It would also be a matter for the jury to decide, ultimately, whether the defence would be successful. In summary:  intoxication doesn't allow you to use s23A if the basis of the use of s23A is sane automatism;  intoxication does allow you to use s23A if the basis of the use of s23A is tripping etc. Duffy v R facts: The accused was holding a glass in his hand and struck the victim with it in a bar fight, leading to a charge of wounding. He claimed that he had forgotten that he had a glass in his hand and hence the act was unwilled. Held: The act of striking with a weapon is different from striking with a fist. Therefore, if the accused was unaware of the existence of the glass, the wounding could be viewed as an unwilled act. Wounding is a different charge to assault. If he forgot the glass was in his hand, he cant be charged of wounding because it was unwilled that he had a weapon that could pierce the skin. Cooper v Mckenna Facts: The accused was charged with dangerous driving. He claimed to have suffered a concussion in a rugby match earlier in the day and hence the driving was an “unwilled act”. Held: If true, this could lead to a defence. However the Court also said “it is common knowledge that ‘blackout’ … is one of the first refuges of a guilty mind and a popular excuse”.  Note, however, that in Jiminez v The Queen (1992) 173 CLR 572 the High Court said in obiter comments that while it might be a defence that the driver was asleep, there might have been a breach of duty to drive whilst so tired. Post traumatic autonomism can amount to an excuse Is s23A I successfully applied  If the defence is successfully raised, the person is “not criminally responsible”.  This means that it will act as a complete criminal defence to the charge.

Accident s23B  The defence is in Part V of the Criminal Code, so it can be used as a defence to offences contained in statutes apart from the Criminal Code (s36).  However, s23B expressly makes the defence subject to the duty provisions in Chapter XXVII. Thus, if the charge is grounded in negligence, this defence will not be available.  R v Fitzgerald (1999) 106 A Crim R 215 also excludes the defence in s23B from the intentional forms of murder and s281 (Unlawful Assault Causing Death) RELATES KING PUNCHING SOMEONE ON TO THE ROAD AND KILLING THEM excludes the defence of accident, but we will need to examine the defence in more detail in order to explain why this is the case.

Onus of proof  The evidentiary onus is nominally on the accused … but the trial judge must ensure that all relevant defences are considered by the jury.  The persuasive onus is then on the prosecution to disprove the defence beyond reasonable doubt. The event  Remember that ALL of the consequences of the physical act are going to be viewed as part of the event.  The relevant consequences to be considered are going to be those that relate to an element of the offence charged. ‘Accident’ “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.” R v Taiters [1997] 1 Qd R 333, 338.  So, an event occurs by accident where it is: (a) Not intended by the accused; (b) Not foreseen by the accused; and (c) Not reasonably foreseeable.  It must be now 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.”  Kaparanovski (1973) Exclusions  Cant have scenarios where elements of intentional murder are made out and thenn you use the unwilled act defence as the intention element would not be made out in the first place

The wording in the new s281 also excludes the use of accident from that offence: s281(2) states “a person is criminally responsible under (1) even if the person does not intend or foresee the death of the other person and even if the death was not reasonably foreseeable”.

Egg shell skull  Historically in WA, authority has favoured the defence not being available in these situations – see R v Hubert (1993) 67 A Crim R 181.  The case of R v Van Den Bemd (1994) 179 CLR 137 led to some doubt about this …  … but now s23B(3) and s23B(4) expressly exclude “eggshell skull” scenarios from the defence in any case where it is likely to be useful....