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Abstract

This article considers s 281 of the Criminal Code (WA), which was introduced in 2008 to create an offence of unlawful assault causing death and to exclude the defence of accident (and the test of reasonable foreseeability) in those cases. The author argues that, given the ‘unfixed’ state of the common law of criminal causation in Australia, triers of fact may still consider the reasonable foreseeability of consequences in deciding the primary question of causation. If triers of fact may still have regard to the reasonable foreseeability of consequences in deciding causation as a separate issue, then s 281 might not achieve what it is intended to achieve. An accused might be acquitted of a charge of unlawful assault causing death on the basis that the death was not reasonably foreseeable even before the defence of accident arises. While this argument remains open, s 281 may be a vehicle for further appellate consideration of the law of criminal causation and the relationship of (legal) causation with accident in code jurisdictions.

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