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7.1.1.1 - Charge: Voluntariness

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When to use this charge

This charge should be used where there is sufficient evidence to displace the evidentiary presumption of voluntariness,[1] and the voluntariness requirement is not addressed in the relevant offence charge.

If it is alleged that the accused’s actions were "accidental", care must be taken to ensure that the argument relates to voluntariness rather than intention. See Accident for assistance.

How to use this charge

The charge has been designed as an additional element to insert after the conduct element, with the numbering of subsequent elements to be altered accordingly.

With suitable modifications, it may instead be incorporated into the directions about the conduct element, as an additional matter the prosecution must prove (see, e.g., the first element of the rape charges).

Other charges

If the only possible cause of involuntariness is a "disease of the mind" (insane automatism),[2] use Charge: Mental Impairment instead.

If the accused may have acted involuntarily due to intoxication, Charge: Intoxication and Voluntariness should be given where indicated.

 

 

Voluntariness

The [insert number] element the prosecution must prove beyond reasonable doubt is that the accused’s act of [describe act, e.g., "driving"] was a voluntary act.[3]

The law says that an act is committed voluntarily if it is subject to the control and direction of a person’s will.

Some examples of involuntary acts include:

In each of these examples, the person’s actions are involuntary because they are unwilled. The person has exercised no control or direction over his or her bodily movements.

[If it is alleged that the accused caused a particular result, add the following shaded section]

The focus of this element is on NOA’s conduct, not the consequences of that conduct. Thus, NOA does not need to have intended to [describe result, e.g., "injure NOV"] for his/her actions to have been voluntary. It is sufficient that his/her act of [describe act, e.g., "driving"] was willed.

[In rare cases where the accused needs to have known a particular fact for his/her acts to have been voluntary, add the following shaded section.]

Some actions cannot be done voluntarily unless the person is aware of certain facts when doing them. For example, a person cannot shoot someone voluntarily if s/he is not aware that he or she is holding a gun.

In this case, to find that NOA’s act of [describe act, e.g., "stabbing"] was voluntary, you must find that s/he knew [describe relevant matter, e.g., "that s/he was holding a knife when s/he hit NOV].

 

[Where relevant, the remainder of this charge should be replaced by Charge: Intoxication and Voluntariness.]

The defence has argued that NOA’s act of [describe act, e.g., "driving"] was not voluntary because [identify reason for alleged involuntariness, e.g., "s/he was asleep at the time"].

[Summarise relevant evidence and arguments.]

If the prosecution cannot prove that NOA [describe act, e.g., "drove"] voluntarily, then you must find him/her not guilty of [identify offence].

 

Notes

[1] See Voluntariness for guidance.

[2] See Automatism for further information.

[3] Judges must take care to precisely identify which act must have been committed voluntarily. In some cases this will be a matter for the jury to determine. See "Which Act Must be Voluntary?" in Voluntariness for guidance.

[4] If it is alleged that the accused’s actions were "accidental", care must be taken to ensure that the argument relates to voluntariness rather than intention. See Accident for assistance.

Last updated: 30 September 2011

See Also

7.1.1 - Voluntariness