The plea of accident in the criminal law

• Author: Clifford G. Hall
• Position: Senior Lecturer in Law, Faculty of Law, University of the West Indies, Cave Hill Campus, Barbados
• Pages: 208-234

THE PLEA OF ACCIDENT

IN THE CRIMINAL LAW

CLIFFORD G. HALL*

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

position.3

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

critique.

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

Law,

University of the West Indies, Cave Hill

Campus, Barbados.

1 The topic is not covered in Smith & Hogan,

Criminal

Law 9th ed. (1999); Ashworth,

Principles

of

Criminal

Law (1991); and Gl. Williams,

Textbook

of

Criminal

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

AUST.

L.

F.

255, 328; Morris,

"Section 23 of the Criminal Code of Queensland " (1965) 4 Univ. of

Queensland

L. R.

254; Aguda,

Principles

of Criminal Liability in

Nigeria

(1965), pp. 134-136; Okonkwo &

Naish, Criminal Law in

Nigeria

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

rea

but

also,

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

events.

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

5

Woolmington

v.

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,

e.g.,

explicitly

Ferguson

(1983) 34 W.I.R. 1 (The Bahamas), Lynch Belize (unrep.)

No.

22 of 1995 (3.8.96) and

The

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

Lewis

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.