ACCIDENT (S.80) 4.1 Definition
Per Gibbs J in Kaporonovski (1973) CLR 209 at 231 “it must be regarded as settled that an event occurs by accident within the meaning of the rule if it was consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person.”
S. 80 of Penal Code deals with acts act s which would be criminal is done intentionally, but protected because it happened accidently
Accident must be genuine accident & not due to negligence or carelessness of carelessness of the accused
It is available defence in all cases in which particular intent or state of mind is of the essence of the offence
To qualify an act as accidental under s. 80, it must be : a)
A ‘lawful’ act
b) Done in willful manner c) By lawful means
DEFENCE OF ACCIDNET IS AVAILABLE
DEFENCE OF ACCIDENT IS NOT AVAILABLE
KING EMPEROR TIMMARA (1901)
TIMBU KOLIAN (1968)
The accused and a companion went into a The accused, after argument with his wife, jungle hunting porcupines. They agreed
left their house and sat down in short
to take up certain positions in the jungle
distance away in darkness. His wife followed
and lie in after a while, accused heard a
and continued to berate him. In order to
rustle, and believing it was a porcupine
chastise her, he picked up a stick and threw
fired in that direction. The shot however
it in the direction of her voice. Unknown to
reached his companion and caused his
him, his wife was holding their baby in her
death.The accused was shooting with
arms. The stick struck the baby causing his
unlicensed gun.
death.
Held: it was pure accident and the fact that the gun unlicensed did not affect his
Held: defence of accident not available.
defence JAGESHAR V. EMPEROR (1923) A man struck at a woman, missed her and hit the baby she was carrying and the baby died. Held: could not plead the defence of accident coz he was doing an unlawful act.
4.2 Distinctions between misfortune and accident
Accidents can happen by mistake but misfortune is bad luck that makes sure it will happen in future
4.3 Shooting accident
4.4 Accident as a defence in sporting event
Other example of lawful acts under s. 80 include games which are attended with apparent danger to life and players are actuated by any malicious motive or intention.
So, where a person is accidentally killed. The act causing the death is not criminal.
However, the rules of the game per se will not render lawful that which in itself unlawful.
Prize-fighting is example of an illegal sports as was held in the case of R v Coney (1950) ALL 95.
A person may not be guilty if he broke the rules. R V TUNDA (1882)
The accused and a friend were having a friendly wrestling bout. Whilst wrestling, the deceased was thrown and his head knocked the edge of the spring resulting fracture of skull which caused the death.
Held: appellant and defendant agreed to wrestle and there was implied consent to suffer accidental injuries. As it was accidental and no wrestle and there was implied consent to suffer accidental (no proof of foul play by accused), there was no offence by reason of s. 80 and 87.
4.5 Proper care and caution
The act must be lawful as well as accompanied with ‘proper care & caution.’ R V. ARCHER (1858)
During a struggle for a loaded gun, to the possession of which the accused was entitled, it went off.
Held by Lord Campbell CJ: accused was guilty on the ground that the accused had no right to take the gun by force.
The law does not require utmost care and caution, but only reasonable precaution KONG POH ING v PUBLIC PROSECUTOR [1977]
In her statement, she admitted to a desire to commit suicide, in the presence of the deceased. She wished to reproach him by this demonstration for his betrayal in now refusing to marry her. For this purpose she waited for him. She had bought with her a knife for the purpose she had in mind. When he came, she showed him the knife. Then according to her, he hugged her and told her not to die. There was an obvious attempt to wrench the knife away from her. They fell. He was stabbed. She ran away
Held: allowing the appeal, on the ground of accident under s 80 of Penal Code. RATNAM V. R [1937]
The accused had stabbed his over-seer. He was charged with murder. During the trial, in answer to a question put by the judge, the appellant stated that he did not intentionally stab the deceased. His evidence was that the death was purely accidental, that he turned round with such force that the knife accidentally hit the deceased and that he had no intention of stabbing the deceased.
Held: acquitted because of accident
SECTION 105 EVIDENCE ACT 1950
When the accused put forward a substantive defence of accident under s. 80, it is incumbent upon him to prove it. By virtue of s. 105 of the Evidence act, the burden of proving the existence of circumstances bringing the case within a general exception was on the accused. The burden was discharged on a balance of probabilities.
His defence must be adequately put in.
