Defence of Accident Under Nigerian Law

This article provides a succinct yet, detailed introduction and evaluation of the defence of accident, the burden of Proof and their applications.

Defence of Accident 

Under the Nigerian law pursuant to the relevant criminal code and penal code provisions, and their respective applications, the defence of accident is one of the defences that can be raised by the accused or defendant to avoid criminal liability.

However, the application of the defence of accident is subjected to some burden of Proof that lie on the accused to satisfy. 

This article provides a succinct yet, detailed introduction and evaluation of the defence of accident, the burden of Proof and their applications.

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Definition of Defence of Accident 

Accident can be defined as an unforeseeable and unexpected turn of events that causes loss in value, injury, and increased liabilities. The event is not deliberately caused and is not inevitable.

 In Okpa V. State, Karibi-Whyte, JSC defined accident as thus:

“An accident is the result of an unwilling act, and means an event without the fault of the person alleged to have caused it.”

In Agbo v. State, accident was seen as a event without apparent cause, unexpected, unforeseen course of events, unintentional act, chance, fortune.

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According to the provisions of Section 24 of the Criminal Code, subject to the provisions of the Criminal Code in relation to negligent acts and omissions, a person is not criminally responsible for an act that occurs independently of the exercise of his will or if it occurs by accident. 

Where The Defence of Accident May Apply

It is been suggested that to say that an event occurred independently in respect of crimes of intention is to say that the prosecution has failed to prove the essential element of the offence.

Thus, accident as a legal defence applies as long as the defendant has no criminal intent, no evil design and didn’t engage in any culpable negligence. But it also applies where a defendant is engaged in a lawful conduct. 

In the Queensland's case of R v. Martyr [1962] Qd. R. 398 (C.C.A.), M struck a blow at S who subsequently died from a haemorrhage. The medical evidence was that it would not be usual for such a blow to cause death, and that S had a peculiar weakness. Nevertheless the Court of Criminal Appeal upheld the conviction for unlawful killing. They thought that the section would apply where the final result was caused by a subsequent unforeseeable happening, e.g. M would not have been liable if he gave S a slight blow and S tripped over a floor-mat and fell, struck his head on a hard object, and died. But they did not think that accident could include an event resulting from an existing physical condition, such as an inherent weakness, or an eggshell skull; death in such a case would be a direct and immediate consequence of the accused's blow. "If a haemophilic bleed to death from a small cut, his death cannot be said to be an accidental outcome of the act."

In the same case, Mansfield, C.J. quoted, without comment while delivering judgement, the following passage from Stephen's Digest of the Criminal Law:

"An effect is said to be accidental when the act by which it is caused is not done with the intention of causing it, and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precautions against it."

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Thus, in the case of Iromantu vs State (1964) 1 All NLR 311, the deceased grabbed a gun from the accused. In the struggle to collect back the gun, the accused mistakenly touched the trigger and the gun went off, killing the deceased. The court held that the accused was not criminally liable since the act occurred independently of the exercise of his will.

Burden of Proof For The Defence of Accident Under Nigeria Law 

To assert the defence of accident, the burden is on the defendant to prove that he or she acted with no criminal intent or culpable negligence. The accused may negate the element of intent by claiming that the alleged offence was unintentional, involuntary or reasonably unforeseeable.

Noteworthy, a plea of accident disputes only the mens rea and not the actus reus of an offence. In Iromatu v. The State (1964) 1 ALL N.L.R. 311, the court stated that the accused admits the actus reus by implication on his plea of accident.

What Must Be Proved For The Defence Of Accident To Be Successful 

The defence of accident presupposes that the accused personally committed the offence but should be acquitted because it was an accidental act.

In the case of Achiku V. State (2015) 6 NWLR (PT.1456) PG. 425, it was stated that for the defence of accident to avail the Appellant (accused), he must show:

(a) that the act was done by accident

(b) that there was no criminal intention or knowledge and 

(c) that the act was done in the course of doing a lawful act in lawful manner by a lawful means and with proper care and caution. 

An accident is an event which is too remote and indirect a consequence of the accused's unlawful act. This is based on the test of directness and immediacy of consequences.

Based on the subjective test, an accident is an event which the accused himself could not reasonably have foreseen as likely or probable.

 In Timbu Kolian v. R., during a domestic quarrel with his wife, the accused tired of the verbal exchanges, went outside the house and sat down. His wife followed him outside and continued to "berate" him. He picked up a slight stick and as it was very dark he aimed a moderate blow in the direction of the voice. Unknown to the accused his wife was then carrying their baby in her arms. The blow struck the baby on the head and killed it. It was unlawful for a native husband physically to chastise his wife in Papua and New Guinea where the facts arose. The trial judge felt bound by the decision of the High Court of Australia in Mamote- Kulang of Tamagot v. R. that death cannot be an event for the purpose of section 23 of the Queensland Code. He therefore convicted the accused of manslaughter.

On appeal, it was held that the accused was exonerated by section 23 (our s.24). Barwick, C.J. and McTiernan, J. held that he was exculpated by the first limb of the section, that is, which occurs independently of the exercise of his will. The relevant act, they held, was not merely the wielding of the stick but "the bodily movement involved in striking with the stick and the impact of the blow on the child, the cause of death. Kitto, Menzies and Owen JJ. held that the accused was exculpated by the second limb. Windeyer, J. held that he was exculpated by either limb.

Based on the objective test, it should however be noted that the defence of accident would not apply if it is reasonably foreseeable that the criminal event would occur. Thus, the provisions of Section 24 only covers cases where the event is due to the inherent and not reasonably foreseeable weakness of the victims, as well as those where it is due to supervening unforeseeable occurrences. The High Court of Australia in Vallance v. R. [1961-62] 35 A.L.J.R. 182, considered section 13 (1) of the Tasmanian Criminal Code which is in similar terms to the first paragraph of section 24 that:

"No person shall be criminally responsible for an act unless it is voluntary and intentional; nor, except as hereinafter expressly provided, for an event which occurs by chance."

In the case, the accused fired an airgun at a group of children and hit one, but claimed that he intended only to frighten them and was not aiming to hit. He was acquitted. On appeal by the Attorney General, the High Court defined an event occurring by chance in terms of foresight. Dixon, C.J. said:

I think that this somewhat difficult phrase covers events which the person who might otherwise be criminally responsible neither intended nor foresaw as possible results of his conduct: they must, too, be fortuitous in the sense that no one would reasonably expect them to occur as a consequence of that conduct.

Other cases where the objective test of reasonably foreseeable has been applied are:

In the case of State vs Appoh (1970) 2 All NLR 218, two boys were pushing themselves near the river. While doing this, they were warned by another boy that the two boys were playing a dangerous game. As they continued, one of the boys pushed the other into the river and he drowned. The court held that the defence of accident would not apply since it is reasonably foreseeable that pushing near a river could lead to drowning.

Also, in the case of Ukot vs State (1992) 5 NWLR pt 240, the accused swung a pen knife in a crowd in order to escape. While swinging the knife, it hit someone and killed him. The accused pleaded accident but the court did not grant his plea because it was reasonably foreseeable that by swinging a pen knife in a crowd, the knife could hit anyone.

Thus, on this test of objective reasonable foresight, any event which is not reasonably foreseeable - whether or not resulting from an existing physical condition such as haemophilia - is an event occurring by accident.

Effect Of The Defence Of Accident 

A successful plea of accident relieves a person of criminal responsibility as it would constitute a negation of any deliberate act or omission. However, willed deliberate act, negatives the defence of accident. The defence of accident avails the accused only for the purpose of exoneration from criminal responsibility—BRAIDE v. THE STATE (1997) 5 N.W.L.R. (Pt. 504) 141 at 150.

Conclusion

In conclusion, the defence of accident can be a viable option for defendants in criminal cases who can demonstrate that their actions were unintentional and not the result of recklessness or negligence. However, it is important to note that the success of this defence will depend on the specific facts and circumstances of the case.

REFERENCES

Elements that must be Present for the Defence of Accident to Succeed http://loyalnigerianlawyer.com/elements-that-must-be-present-for-the-defence-of-accident-to-succeed/

Defence of Accident In Criminal Law http://www.thetidenewsonline.com/2015/06/10/defence-of-accident-in-criminal-law/

Whether an accused person can rely on the defences of accident and self defence in a case

https://legalpediaonline.com/whether-an-accused-person-can-rely-on-the-defences-of-accident-and-self-defence-in-a-case/

Effect of Raising The Defence Of Accident

https://www.courtroommail.com/effect-of-raising-the-defence-of-accident/

Okonkwo and Naish: Criminal Law In Nigeria