Criminal Law 2000
2nd Semester Part 4
Week 5-7 Accident, Acts Independent
of Will, Insanity, Diminished
Responsibility, Intoxication
S23 [Titled Intention - Motive]
includes the two excuses of accident and
acts independent of will:
No criminal responsibility for
§ s23(1)(a) acts independent of will
- an excuse resulting in acquittal
s646
§ s23(1)(b) events occurring by
accident - an excuse resulting in
Note also
– s23(1) Qualification which excludes the use of
s23 where offences are based on criminal
negligence
– s23(1A) ‘eggshell skull’ provision
– s23(2) excluding the operation of the common
law doctrine of mens rea (guilty mind)
– s23(3) declaring motive immaterial for criminal
responsibility (still evidence of intention)
Insanity S26, S27 Defence
s26 Everyone presumed sane
s27(1) provides defence of unsoundness of
mind
s27(2) where suffering from delusions,
criminal responsibility limited as if reality was
the same as delusion
Intoxication s28
s28 (1) applying s27 insanity provisions only
where the intoxication is involuntary
s28(2) insanity provisions do not apply where
the person is to any extent intentionally
intoxicated
s28(3) intoxication can be considered when the
offence has an element of intent to cause a
specific result
Diminished Responsibility s304A
s304A (1) in relation to murder
Where person in a state of abnormality of the
mind impairing 3 capacities
s304A(2) onus of proving diminished
responsibility on the defence
Some Preliminary Matters
• Intention: s23(2) immaterial to the
accused’s criminal responsibility
unless it is a stated element of a
Code offence
• Fault elements are stated within the
offences
• There is no need to consider the
common law doctrine of Mens rea
Motive is also not material to criminal
responsibility under the Codes - separate
from intent - but still useful as evidence
Qualification regarding negligent
acts and omissions
Section subject to the express provisions
in the Code relating to Negligent Acts and
Omissions ie
where the offence charged is based on the
negligence provisions then s23 excuses
cannot be used
Point of difference between the
excuses
• S23(1) (a) ACT independent of will
• S23(1) (b) EVENT which occurs by
accident
s23(1)(b)
A person is not criminally responsible for an
Event which occurs by accident
S23(1)(b) Accident
• ‘an event which occurs by accident’ (the
result)
• evidential onus rests with the accused
• the Crown must negative the excuse beyond
a reasonable doubt
• Test stated by Gibbs J in Kaporonovski
restated in the positive in Taiters
Kaporonovski Test
(for determining wh event occurred by accident)
• Not intended by the accused (subjective)
• Not foreseen by the accused (subjective)
• Not reasonably foreseen by an ordinary
person (objective)
All three aspects of the test must be satisfied
before excuse can be successfully raised
McTiernan ACJ and Menzies J
* The EVENT 23(1)(b) = grievous bodily harm
suffered by the person
* The ACT 23(1)(a) = the forcing of the glass
against and into the person’s face
Taiter’s formulation of test for
determining if event occurred by
accident
338 ‘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.’
Taiters
•If outcome certain or even just more
probable than not, then not accidental.
•If 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, it
should not, if it results, be called accidental.
•something which a reasonable [person]
might think of as no more than a remote
possibility which does not call to be
taken into account and guarded against
can, when it happens, be fairly described
as accidental.
Accident _______________________Not accident
Certain
More probable
than not
Substantial likelihood
Likely
Possible
Remote possibility
What about the ‘eggshell skull’
cases?
• According to the s23(1A) amdt ‘97 you take
the victim as you find them
• Therefore, if the person has some defect or
sensitivity which contributes to the severity
of the event that occurs then that is
irrelevant
• The rule from Martyr’s case has been
restored
S23(1)(a) Act independent of will
Three views of ‘act’
Wide view Dixon J Vallance
Act + consequence eg all acts + results
Intermediate Barwick J Timbu Kolian
Totality eg striking of blow on
child’s head
**Narrow Menzies J Vallance
***Physical action eg
firing the gun*****
Narrow View
Falconer 39:
'bodily movement over which an accused has
control and its contemporaneous and inevitable
consequences'.
Firing of the rifle
wielding of the stick
pushing of the hand holding the glass
Independent of the person’s will
‘A choice consciously made to do an act
of the kind done’
SO
where there is no choice
where there is no consciousness
THEN
act may be independent of will
Test to distinguish sane
automatism s23 and insanity s27
Radford v The Queen
internal - ‘an underlying pathological infirmity of the mind
be it of long or short duration and be it permanent or
temporary which can be properly termed mental illness’
external - ‘as distinct from the reaction of a healthy mind to
extraordinary external stimuli’
Identified Categories
reflex or muscular spasm
somnambulists or sleep walkers
concussion
hypoglycaemia
dissociative states caused by psychological blow, stress,
anxiety and/or fear
But not
Weak personality traits which fall below the standard
of a healthy mind, as does a propensity to surrender
to anxiety or stress.
Excitability, passion, stupidity, obtuseness, lack of
self control, impulsiveness