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7.1.1 - Voluntariness

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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) 25 NSWLR 89).
  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) 13 FCR 524).
  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 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:
  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 this commentary (see, e.g., R v Palazoff (1986) 43 SASR 99).[1]

    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:
    1. Involuntary muscular movements, such as spasms, convulsions and reflex actions;
    2. Acts performed whilst asleep;
    3. Accidental actions;
    4. Acts performed in a state of automatism;
    5. Acts performed in a state of gross intoxication.
  16. This topic only addresses the first two types of involuntary actions. See Accident, Automatism and Common Law 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:
  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 relevantly "involuntary":
  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).[3]
  23. For information concerning actions committed whilst sleepwalking, see 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:

    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:
  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. In particular, where the case involves a scuffle over a weapon, the prosecution must prove that the particular use of the weapon to inflict the death-causing or injury-causing wound was voluntary. For example, in Herodotou v The Queen, to prove that the act was voluntary, the prosecution needed to prove that the accused intended to inflict the particular stab wound which caused death, given the evidence that the accused and the deceased had been grappling over a knife (Herodotou v The Queen [2018] VSCA 253, [123]-[124]).
  35. 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 Causation for guidance on this issue.
  36. 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:
  37. 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; Koani v R [2017] HCA 42).

    Knowledge of Circumstances

  38. 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).
  39. 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).[4]
  40. 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

  41. 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 CLR 30. 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) 43 FCR 549; Hawkins v R (1994) 179 CLR 500; MG v R (2010) 29 VR 305).[5]
  42. 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; [1990] HCA 49).
  43. The evidentiary presumption of voluntariness is a provisional presumption only. Unlike the presumption of sanity,[6] 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) 22 VR 576).
  44. Thus, if the evidentiary presumption of voluntariness is displaced, the prosecution must prove, beyond reasonable doubt, that the relevant act or omission was voluntary (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).
  45. For the evidentiary presumption of voluntariness to be displaced, there must be sufficient evidence from which it may reasonably be inferred that the relevant act was involuntary (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 Youssef (1990) 50 A Crim R 1; R v Marijancevic (2009) 22 VR 576).
  46. The mere fact that the accused has made a credible assertion of a lack of memory is not sufficient to displace the presumption (R v O’Connor (1980) 146 CLR 64 per Barwick CJ).
  47. See Accident, Automatism and Common Law Intoxication for information concerning some of the circumstances in which the presumption will be displaced.

    When Must the Jury be Directed about Voluntariness?

  48. For most offences,[7] it will only be necessary to direct the jury about voluntariness if the evidentiary presumption of voluntariness has been displaced (R v Falconer (1990) 171 CLR 30; Bratty v AG for Northern Ireland [1963] AC 386; Ryan v R (1967) 121 CLR 205; R v Marijancevic (2009) 22 VR 576; Cvetkovic v R [2010] NSWCCA 329).
  49. As there ordinarily will not be sufficient evidence to displace the presumption, it will usually not be necessary to give a direction on voluntariness (Ryan v R (1967) 121 CLR 205; R v Falconer (1990) 171 CLR 30; R v Fowler [1999] VSCA 135; R v Le Broc (2000) 2 VR 43; R v Chang (2003) 7 VR 236).
  50. Where the presumption has been displaced:

    Content of the Charge

  51. Where a voluntariness direction is required, the judge must:

    Give a separate voluntariness direction

  52. When voluntariness is in issue, the jury must be specifically directed about it (R v Ugle (2002) 211 CLR 171; Stevens v R (2005) 227 CLR 319 per Kirby and Callinan JJ; MG v R (2010) 29 VR 305).
  53. It is not sufficient to direct the jury that the accused’s acts must have been intentional. The judge must draw to the jury’s attention any matters which can show that the prosecution has not proven the relevant act was voluntary (R v Ugle (2002) 211 CLR 171; Murray v R (2002) 211 CLR 193 per Callinan J; Stevens v R (2005) 227 CLR 319 per Kirby and Callinan JJ; MG v R (2010) 29 VR 305. But see R v Tucker (1984) 36 SASR 135).[8]
  54. As the issue of voluntariness is logically anterior to issues such as whether the act was committed in self-defence, or whether it was done with the requisite intention, it should be addressed first (R v Ugle (2002) 211 CLR 171; Stevens v R (2005) 227 CLR 319 per Kirby and Callinan JJ).

    Define voluntariness

  55. The judge must explain the legal meaning of "voluntariness" to the jury (R v Tait [1973] VR 151).
  56. This requires the judge to explain to the jury that the relevant act must have been the product of the accused’s will (R v Tait [1973] VR 151).
  57. No set form of words is essential (R v Tait [1973] VR 151).
  58. It is not necessary to tell the jury that "the mind must accompany the act", although that may be an appropriate direction in some cases (R v Tait [1973] VR 151).
  59. The words "conscious" and "deliberate" may be used to help the jury to assess and understand whether the relevant act was voluntary (R v Schaeffer (2005) 13 VR 337. See also Ryan v R (1967) 121 CLR 205; R v Winter [2006] VSCA 144).
  60. If the word "deliberate" is used, the judge must:
  61. To avoid confusing the issue of voluntariness with that of intention, judges should not use the word "intentional" to describe the voluntariness requirement (R v Marijancevic (2009) 22 VR 576. See also Kolian v R (1968) 119 CLR 47 per Barwick CJ; MG v R (2010) 29 VR 305).

    Identify the relevant act

  62. Where there are multiple possible acts in issue, it is important that the judge carefully identify the act that must have been voluntary (Ryan v R (1967) 121 CLR 205 per Barwick CJ, Menzies J; Murray v R (2002) 211 CLR 193 per Callinan J; Royall v R (1991) 172 CLR 378 per Mason CJ).
  63. In some cases the question of which act must have been committed voluntarily will be a factual issue for the jury to resolve. This will be the case, for example, in a murder trial involving multiple possible causes of death. In such a case, it is for the jury to determine:
  64. Where there are multiple possible causal acts in issue, it is important that the judge clearly 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; Royall v R (1991) 172 CLR 378 per Mason CJ).

    Explain any knowledge requirements

  65. In some cases the judge must tell the jury that they need to be satisfied that the accused had knowledge of certain facts in order to find that he or she acted voluntarily (see, e.g., R v Williamson (1996) 67 SASR 428; R v Winter [2006] VSCA 144).
  66. For example, where the accused is charged with murder by stabbing, and claims that he did not know he was holding a knife when he punched the victim, the jury must be directed that in order to find that the stabbing was voluntary, they must be satisfied that the accused knew he was holding a knife (see, e.g., R v Williamson (1996) 67 SASR 428; R v Winter [2006] VSCA 144. See also Duffy v R (1981) WAR 72).

    Relate the law to the evidence

  67. The judge must relate the law to the evidence (R v Tait [1973] VR 151; Ryan v R (1967) 121 CLR 205; MG v R (2010) 29 VR 305).
  68. The jury may take into account the sequence of acts leading up to the act in question (e.g., choosing to carry a knife) in determining whether the relevant act was voluntary (R v Ugle (2002) 211 CLR 171 per Callinan J; Murray v R (2002) 211 CLR 193 per Callinan J).

    Do not tell the jury about the presumption of voluntariness

  69. The jury should not be told that there is a presumption that an act done by a person who is apparently conscious is done voluntarily (Murray v R (2002) 211 CLR 193 per Gummow and Hayne JJ; Middleton v R [2000] WASCA 213; R v Marijancevic (2009) 22 VR 576).
  70. The jury also should not be told to only consider the issue of voluntariness if they are satisfied that there is at least a reasonable possibility the accused's actions were involuntary. It is for the judge to determine whether there is a sufficient evidentiary basis for the issue of voluntariness to be considered. Once such a basis has been established, it is for the jury to decide whether the prosecution have proved beyond reasonable doubt that the relevant act was voluntary (R v Marijancevic (2009) 22 VR 576).

 

Notes

[1] The law concerning duress is addressed in Common Law Duress.

[2] Physically compelled acts must be distinguished from acts performed under the mental compulsion of threats. As noted above, while the defence of duress may be available to a person who commits such acts, the acts are not involuntary in the sense outlined in this topic (R v Palazoff (1986) 43 SASR 99).

[3] In such circumstances, the issues of causation and contemporaneity will need to be carefully addressed (see, e.g., Jiminez v R (1992) 173 CLR 572).

[4] The accused’s lack of knowledge will, however, be relevant to the question of whether he or she intended to cause death or really serious injury.

[5] The evidentiary presumption of voluntariness is sometimes called the "presumption of mental capacity" (see, e.g., Bratty v AG for Northern Ireland [1963] AC 386; Ryan v R (1967) 121 CLR 205).

[6] See Mental Impairment.

[7] For some offences, such as murder, the jury should always be directed about voluntariness. Where this is the case, the issue of voluntariness is addressed in the commentary for that offence.

[8] Although a judge should direct the jury about voluntariness and intention separately, where the issue of voluntariness is factually subsumed by the issue of intention an omission to direct the jury about voluntariness may not give rise to a substantial miscarriage of justice (see, e.g., MG v R (2010) 29 VR 305; Coulson v R [2010] VSCA 146).

[9] See Accident for further information.

[10] See Causation for assistance with this issue.

Last updated: 27 March 2019

In This Section

7.1.1.1 - Charge: Voluntariness

See Also

7.1 - General Directions

7.1.2 - Causation

7.1.3 - Recklessness

7.1.4 - Accident

7.1.5 - Course of Conduct Charges