The plea of accident in the criminal law

AuthorClifford G. Hall
PositionSenior Lecturer in Law, Faculty of Law, University of the West Indies, Cave Hill Campus, Barbados
The plea of accident in the Criminal Law has received only slight treatment,
if any, in the standard academic texts in England.1 The position is different
in Australia and Nigeria,2 for in their various jurisdictions Criminal Codes
make explicit and uniform reference to accident in the context of unwilled acts
and omissions. Some Commonwealth Caribbean Codes mirror this
Though there are relatively few English criminal cases where accident is
coherently discussed, in the Commonwealth Caribbean accident is commonly
raised in the context of murder and manslaughter cases4 and, accordingly,
there is a fairly substantial judicial exegesis of which this paper is offered as a
Traditionally, reference has been made to a 'defence' of accident but this
has been criticised, quite properly, in two interrelated ways, interrelated
because, although differently expressed, at the root of the criticisms much the
same point is being made. That is that whenever accident is raised or, indeed,
any matter of justification or excuse save the standard exceptions, the legal
burden does not shift from the prosecution which, in the traditional formula,
*Senior Lecturer in Law, Faculty of
University of the West Indies, Cave Hill
Campus, Barbados.
1 The topic is not covered in Smith & Hogan,
Law 9th ed. (1999); Ashworth,
Law (1991); and Gl. Williams,
Law (1978)
covers the topic in two sentences linked with mistake at p. 113. Card, Cross and Jones,
Criminal Law 14th ed. (1998) has four short paragraphs and two cited cases at p. 99.
2 See Howard, Criminal Law 3rd ed. (1977), pp. 399-404; Elliot, "Mistakes, Accidents and
the Will; The Australian Criminal Codes," (1972) 46
255, 328; Morris,
"Section 23 of the Criminal Code of Queensland " (1965) 4 Univ. of
L. R.
254; Aguda,
of Criminal Liability in
(1965), pp. 134-136; Okonkwo &
Naish, Criminal Law in
2nd ed. (1980), pp, 97-98.
3 See discussion infra.
4 To date there are some 30 reported and unreported cases.
must prove its case beyond all reasonable doubt. It must prove not only that
D committed the actus reus of the offence with the appropriate mens
as part of this probative process, must cause the jury to discount D's
version of events where accident is asserted or some justification, such as
self-defence, or some excuse, such as provocation. Moreover, even where D
asserts an alibi yet sufficient evidence of accident or excuse or justification
exists which might still be left to the jury, that legal burden, the general and
specific, subsists enmeshed by the "golden thread" of the presumption of
innocence derived from Woolmington.5
The first criticism derives from the judgment of Edmund Davies, L.J., in
Abraham,6 following Wheeler,7 where in relation to self-defence, the Lord
Justice trenchantly referred to the impropriety of labelling matters of justifi-
cation as 'defences', since that might insinuate to a jury that an onus rests upon
D to prove his version of
Rather, such matters were "explanations" or
"special pleas" which the prosecution must disprove as an essential part of its
case.\"By the plea of self-defence" - and accident - "the accused is raising in
a special form the plea of Not Guilty. Since it is for the Crown to show that
the plea of Not Guilty is unacceptable, so the Crown must convince you [the
jury] beyond reasonable doubt that self-defence has no basis in the present
case."8 The persuasive force of this argument has clearly been accepted by
courts in the Commonwealth Caribbean.9 Consequently, in this paper refer-
ence will be made to the 'plea' of accident. However, at the end of the day it
is surely a question not so much of the use of a word like 'defence' which is
critical, but the manner in which the trial judge explains the legal burden and
the presumption of innocence in the context of D's account. Moreover, to say
of D "his defence was alibi" really raises no different considerations but it
would surely be inappropriate to speak of his "explanation"or "special plea."
Secondly, it has been forcefully argued by Professor Howard10 that to speak
of a 'defence' of accident is unnecessary and misleading since what D asserts
D.P.P. [1935] A.C. 462.
6 (1973) 57 Cr. App. Rep. 799.
7 (1967) 52 Cr. App. Rep. 28.
8 Supra n. 6, at p. 803.
9 See,
(1983) 34 W.I.R. 1 (The Bahamas), Lynch Belize (unrep.)
22 of 1995 (3.8.96) and
States. Simmons (1976) 24 W.I.R. 149 where the trial
judge had referred to the "defence" of accident but the Court of Appeal of Guyana, per
Luckhoo, J.A., was emphatic that the appropriate terminology was "an explanation or
plea or issue raised" (at p. 153); and implicitly Sankar v The State Trinidad and Tobago
(unrep.) No. 38 of 1988 (12.10.91) and
Jamaica (unrep.) No. 74 of 1994
(31.7.95) which refer to the "plea" of self defence.
10 Supra n. 2, at pp. 399 and 401.

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