7.1.2.1 – Bench Notes: Voluntariness[1]

The Voluntariness Requirement

1.  The existence of a voluntary act or omission is an essential element of a crime. The accused must not be convicted for an act or omission which was independent of his or her will (Ryan v R (1967) 121 CLR 205; R v O’Connor (1979) 146 CLR 64; R v Falconer (1990) 171 CLR 30; R v Marijancevic (2009) 22 VR 576).

2.  Unless it is expressly excluded by statute, the voluntariness requirement applies to every offence (Bratty v AG for Northern Ireland [1963] AC 386; R v O’Connor (1979) 146 CLR 64; He Kaw Teh (1985) 157 CLR 523; Jiminez v R (1992) 173 CLR 572).

3.  This includes offences which do not require proof of mens rea (see, e.g., R v Carter [1959] VR 105; Edwards v Macrae (1991) 15 MVR 193).

4.  Where the relevant fault element is negligence, the negligent act or omission must have been committed voluntarily (R v Martin (1983) 9 A Crim R 376; R v Tajber (1986) 23 A Crim R 189).

5.  The cause of any involuntariness is irrelevant. A person whose actions are involuntary cannot be found guilty of an offence (R v O’Connor (1979) 146 CLR 64; Jiminez v R (1992) 173 CLR 572).

When is an Act or Omission “Voluntary”?

Acts

6.  An act is committed voluntarily if it is subject to the control and direction of the accused’s will (Ryan v R (1967) 121 CLR 205; R v O’Connor (1979) 146 CLR 64; R v Falconer (1990) 171 CLR 30).

7.  For an act to be voluntary, the accused does not need to have intended to attain the result caused by doing that act. It is sufficient that he or she was conscious of the nature of the act committed, and chose to do an act of that nature (R v Falconer (1990) 171 CLR 30; R v Williamson (1996) 67 SASR 428).

8.  A person who is not conscious or aware of what he or she is doing acts involuntarily. However, the key issue is the lack of the exercise of will, not the lack of consciousness or knowledge (Ryan v R (1967) 121 CLR 205 per Barwick CJ. See also R v Schaeffer (2005) 13 VR 337).

9.  It is therefore possible for a person to act involuntarily even though he or she is conscious and has some awareness of what is happening (R v Radford (1985) 42 SASR 266; R v Falconer (1990) 171 CLR 30). See Bench Notes: Automatism for further information.

10.  The accused does not need to have appreciated the wrongfulness of his or her conduct for it to have been voluntary. However, the level of the accused’s awareness and understanding of his or her actions is a factor to be taken into account in determining whether he or she acted voluntarily (R v Morrison (2007) 171 A Crim R 361).

11.  The fact that a person’s thought processes were affected by a mental illness does not mean that he or she acted involuntarily. There is a distinction between an unwilled act and a willed act that is the product of a diseased mind (Ryan v R (1967) 121 CLR 205 per Barwick CJ; R v Falconer (1990) 171 CLR 30. See also R v Harm (1975) 13 SASR 84).

12.  An act is not to be regarded as involuntary simply because:

·  The accused cannot remember it;

·  The accused could not control his or her impulse to do it;

·  It was unintentional or its consequences were unforeseen (Bratty v AG for Northern Ireland [1963] AC 386; R v Radford [1985] 42 SASR 266; R v King (2005) 155 ACTR 55. See also Nolan v R WA CCA 22/5/97).

13.  Although it is sometimes said that acts committed under duress are “involuntary” or “unwilled”, it is incorrect to treat duress as related to the voluntariness requirement. A person who acts under duress deliberately chooses to perform some act (although under constrained circumstances), and thus acts “voluntarily” in the sense outlined in these Notes (see, e.g., R v Palazoff (1986) 43 SASR 99).[2]

Omissions

14.  Although it is often stated that a person can only be held criminally responsible for voluntary omissions (see, e.g., Ryan v R (1967) 121 CLR 205; R v Falconer (1990) 171 CLR 30), it is not clear when an omission should be considered to be involuntary.

Types of Involuntary Acts

15.  There are at least five types of acts that may raise issues of voluntariness:

i)  Involuntary muscular movements, such as spasms, convulsions and reflex actions;

ii)  Acts performed whilst asleep;

iii)  Accidental actions;

iv)  Acts performed in a state of automatism;

v)  Acts performed in a state of gross intoxication.

16.  These Notes only address the first two types of involuntary actions. See the Bench Notes on Accident, Automatism and Intoxication for information concerning the other types of involuntary actions.

Involuntary muscular movements

17.  An act which results from a muscular movement that occurs without any control by the mind is involuntary (Bratty v AG for Northern Ireland [1963] AC 386; Ryan v R (1967) 121 CLR 205).

18.  It is clear that this includes:

·  Spasms and convulsions (Bratty v AG for Northern Ireland [1963] AC 386; Ryan v R (1967) 121 CLR 205);

·  Actions which a person is physically compelled to do by an external force;[3] and

·  “Reflex action” in the strict neurological sense (i.e., a predictable and nearly instantaneous movement in response to a stimulus) (Ryan v R (1967) 121 CLR 205 per Windeyer J).

19.  However, the term “reflex action” is also used to denote the probable but unpredictable reaction of a person when startled. It is unclear whether such a reaction is “involuntary” in the sense addressed in these Notes:

·  In some cases the court seems to have accepted that such an instinctive reaction is involuntary (see, e.g., R v Ugle (2002) 211 CLR 171);

·  In other cases it has been suggested that an act is not to be treated as involuntary simply because the mind worked quickly and impulsively (Ryan v R (1967) 121 CLR 205 per Windeyer J; Murray v R (2002) 211 CLR 193 per Gaudron J).

20.  If the latter position is accepted, it will not be sufficient to tell the jury to acquit if they find that the accused acted reflexively. They will need to decide whether that reflex action was itself an unwilled act (Murray v R (2002) 211 CLR 193 per Gaudron J).

Acts performed whilst asleep

21.  A person cannot be held criminally responsible for an action committed while asleep. Such acts are necessarily involuntary (Jiminez v R (1992) 173 CLR 572; Kroon v R (1990) 55 SASR 476).

22.  However, the accused may be held criminally responsible for acts committed prior to falling asleep, such as driving while fatigued and aware of a real risk of falling asleep (see, e.g., Jiminez v R (1992) 173 CLR 572; Kroon v R (1990) 55 SASR 476. See also Maher v Russell Tas SC 22/11/93).[4]

23.  For information concerning actions committed whilst sleepwalking, see Bench Notes: Automatism.

Which Act Must be Voluntary?

24.  It is the “deed which would constitute the crime” that must be performed voluntarily (Ryan v R (1967) 121 CLR 205 per Barwick CJ).

25.  Precisely which act (or omission) must be committed voluntarily will differ depending on the offence in question. For example:

·  In relation to murder, it is the “act that caused the death” (Ryan v R (1967) 121 CLR 205; R v Falconer (1990) 171 CLR 30);

·  In relation to manslaughter by unlawful and dangerous act, it is the “unlawful and dangerous act that exposed the victim to an appreciable risk of serious injury” (R v Haywood [1971] VR 755; R v Williamson (1996) 67 SASR 428).

Acts and Consequences

26.  It is the act which must be voluntary, not its consequences (Ryan v R (1967) 121 CLR 205; R v Falconer (1990) 171 CLR 30; R v King (2005) 155 ACTR 55; R v Abdul-Rasool (2008) 18 VR 586).

27.  Thus, in relation to murder, the accused does not need to have voluntarily caused the death. It is sufficient if he or she voluntarily committed the death-causing act (R v Falconer (1990) 171 CLR 30; R v Ugle (2002) 211 CLR 171; Murray v R (2002) 211 CLR 193).

28.  While in most cases it will not be difficult to identify which act must be voluntary (R v Williamson (1996) 67 SASR 428), occasionally there may be a dispute about precisely what constitutes the “act” and what constitutes the “consequences”. For example, where the accused is charged with murdering another person by striking them with a stick, it could be argued that:

·  The “act” is wielding the stick, and the “consequence” is the stick striking the victim and causing his or her death; or

·  The “act” is striking the victim, and the “consequence” is causing his or her death (see Kolian v R (1968) 119 CLR 47).

29.  The law in this area is not settled, with some judges holding that it is the bodily action alone (e.g., wielding the stick) which must be voluntary, and others looking more broadly at the aspect of the offence which creates the liability to punishment (e.g., striking the victim) (see, e.g., Vallance v R (1961) 108 CLR 56; Kaporonovski v R (1973) 133 CLR 209; Kolian v R (1968) 119 CLR 47; R v Falconer (1990) 171 CLR 30; R v Williamson (1996) 67 SASR 428; Murray v R (2002) 211 CLR 193; R v Ugle (2002) 211 CLR 171; R v Winter [2006] VSCA 144).

30.  It has been suggested that neither view should be rigidly adhered to, and that the matter should be resolved on a case by case basis (Kaporonovski v R (1973) 133 CLR 209 per Walsh J; R v Williamson (1996) 67 SASR 428).

31.  However, judges have been urged to avoid an overly refined analysis when addressing this issue (Murray v R (2002) 211 CLR 193 per Gummow and Hayne JJ; R v Katarzynski [2005] NSWCCA 72).

Causal Acts

32.  Where an offence requires proof that the accused’s actions caused a particular result, it is the causal act that must be voluntary (Ryan v R (1967) 121 CLR 205; Kolian v R (1968) 119 CLR 47; R v Katarzynski [2005] NSWCCA 72).

33.  For example, in relation to murder it is the act that caused the victim’s death that must have been voluntary (see, e.g., Kolian v R (1968) 119 CLR 47; R v Winter [2006] VSCA 144).

34.  Where there is a dispute about which act caused the requisite result, it is for the jury to determine (Ryan v R (1967) 121 CLR 205 per Barwick CJ ; R v Demirian [1989] VR 97; Royall v R (1991) 172 CLR 378; R v Katarzynski [2005] NSWCCA 72). See Bench Notes: Causation for guidance on this issue.

35.  In such cases, the jury’s determination of the voluntariness issue may differ depending on what they find to be the causal act. For example, where it is alleged that the accused murdered the victim by shooting him or her, and the jury accepts that the trigger was pulled involuntarily:

·  They must acquit the accused if they find that the causal act was firing the gun;

·  They may convict the accused if they find that the causal act was drawing the gun in the circumstances in which it was drawn (e.g., cocked and loaded, with no safety catch applied), which the accused did voluntarily (Ryan v R (1967) 121 CLR 205 per Barwick CJ. See also Royall v R (1991) 172 CLR 378; Murray v R (2002) 211 CLR 193; R v Katarzynski [2005] NSWCCA 72).

36.  Consequently, where there are multiple possible causal acts in issue, it is important that the judge identify the different possibilities and explain the consequences of the jury’s findings (Ryan v R (1967) 121 CLR 205 per Barwick CJ, Menzies J; Murray v R (2002) 211 CLR 193 per Callinan J; White v Ridley (1978) 140 CLR 342; Royall v R (1991) 172 CLR 378 per Mason CJ; R v Katarzynski [2005] NSWCCA 72).

Knowledge of Circumstances

37.  In most cases, an act may be voluntary even if the accused is unaware of fundamental facts that will determine his or her culpability. Knowledge of the circumstances in which an act is committed is generally a component of intention not volition (R v O’Connor (1979) 146 CLR 64).

38.  For example, where the accused is charged with murder, the accused does not need to have known that the victim would be shot to make the discharge of the gun a voluntary act (see, e.g., Ryan v R (1967) 121 CLR 205).[5]

39.  However, some acts require a certain level of knowledge. For example, if it is held that the act that must have been voluntary in a particular case was stabbing the victim, this requirement will only be met if the accused knew there was a knife in his or her hand (R v Williamson (1996) 67 SASR 428; R v Winter [2006] VSCA 144. See also Kolian v R (1968) 119 CLR 47; Duffy v R (1981) WAR 72).

The Evidentiary Presumption of Voluntariness

40.  Ordinarily, the prosecution does not need to address the issue of voluntariness. Instead, they may rely on the evidentiary presumption that an act done by an apparently conscious person was done voluntarily (the “evidentiary presumption of voluntariness”) (R v Falconer (1990) 171. See also Bratty v AG for Northern Ireland [1963] AC 386; Ryan v R (1967) 121 CLR 205; R v Radford [1985] 42 SASR 266; Bush v R (1993) 115 ALR 654; Hawkins v R (1994) 179 CLR 500; MG v R (2010) 200 A Crim R 433).[6]

41.  The evidentiary presumption of voluntariness reflects the ordinary and universal experience that a person's will ordinarily accompanies his or her actions (R v Falconer (1990) 171 CLR 30).

42.  The evidentiary presumption of voluntariness is a provisional presumption only. Unlike the presumption of sanity,[7] it does not put the legal burden on the defence. The burden of proving voluntariness always remains on the prosecution (R v Falconer (1990) 171 CLR 30; Bratty v AG for Northern Ireland [1963] AC 386 per Lord Denning; Ryan v R (1967) 121 CLR 205 per Barwick CJ; R v Radford [1985] 42 SASR 266; R v Marijancevic [2009] VSCA 135).