4.2 Voluntariness

The Code, like common law, distinguishes between offences committed by persons whose choices are coerced by threats or necessity and the conduct of those who simply lacked the capacity to choose whether or not to engage in forbidden conduct or comply with legal obligations. Offences induced by fear of catastrophe or threatened harm may be excused by a defence of sudden emergency,  duress or self defence but the conduct of the defendant is not,   in the sense required by the Code,  involuntary.³⁴  Conduct is involuntary only “if it is [not] a product of the will of the person”: s4.2(2). In the  absence of willed conduct, there is no offence.  Considerations of the ways  in which absence of willed conduct may be manifest requires separate consideration of acts, omissions and states of affairs:

1. Unwilled acts: There is a broad and imprecise distinction between things we do and things which happen to us. One who collides with another when thrown from a moving vehicle does nothing. So also in the old example where A seizes B’s  hand, when B is holding   a dagger, and stabs C. In these instances, the collision or the stabbing is a product of physical forces over which the person has no control.³⁵ There is no act of striking the victim of the collision and it is A, not B, who stabs C. In law, harms which result in this way from the operation of physical forces on a hapless defendant are said to have been done involuntarily.³⁶ But the plea of involuntariness extends well beyond those occasions when a hapless defendant cannot really be said to have done anything at all.  If D strikes V by a convulsive  or spasmodic movement during a fit or fever, there is an act on D’s part, though it is clearly involuntary. In cases of automatism, the defendant commonly acts, in a purposeful and directed way, though the act is said to be unwilled. The classic instances are of violent or fatal attacks by somnambulists though the plea of automatism has a far broader range of applications in modern caselaw. Though an involuntary act is one which is “not a product of the will of the person”, it is quite apparent that these acts can be both involuntary and intentional. So, for example, a plea of automatism in murder may succeed though it is clear beyond reasonable doubt that the defendant intended to kill.³⁷
2. Unwilled omissions: Omissions can, of course, be wilful. It is common for individuals to refrain deliberately from compliance with obligations to provide information. Often, however, omissions result from forgetfulness, apathy or procrastination. Though these omissions are in a sense “unwilled”, Chapter 2 qualifies the requirement of will. Omissions are only involuntary if the person was incapable of performing the required act. As in the case of involuntary acts, failure to act may result from the operation of physical forces beyond the person’s control. But involuntary omissions can also result from impairments of consciousness, cognition or physical capacity. So, for example, s197 of the Customs Act 1901 imposes strict liability for failure to stop a conveyance when required to do so by a customs officer. The prosecution is not required to prove that the driver consciously disregarded an order to stop. Failure to do so would be involuntary, however, if an oral command was addressed to a driver who could neither hear the command nor perceive circumstances indicating that a command had been issued.
3. Unwilled states of affairs: A state of affairs, such as possession of some incriminating item of property, may be a consequence of action or inaction on the part of the defendant. Liability is not imposed, save indirectly, for the preceding act or omission however. Instead, liability is imposed on a defendant who stands in a prohibited relationship to the state of affairs.  Offences of  this nature require proof of fault unless strict or absolute liability is imposed.³⁸  If that is done, the prosecution must still prove   that the state of affairs was voluntary. There appears to be little  or no difference between the criteria for voluntariness in omissions and states of affairs. A state of affairs is voluntary on the part of the defendant only if the person was capable of exercising control over it.

   INVOLUNTARINESS AND CRIMINAL LIABILITY FOR A STATE OF AFFAIRS

   Section 230 of the Migration Act 1948 imposes strict liability on the master, owner,  agent and charterer of a vessel if a person without a  visa is concealed on board the vessel arriving in Australia.³⁹ Since the offence does not require proof of intention, knowledge, recklessness  or negligence, the defendant can escape liability only by a plea that  the presence of the stowaway was beyond their control or by reliance on a defence of reasonable mistake of fact, duress, sudden or extraordinary emergency or the like. In most, and perhaps all situations, the master could be said to have the capacity to exercise control over the ship and its occupants. That is not necessarily true, however, of the owner, charterer or agent. So far as those individuals are concerned, the state of affairs might be involuntary.

The Code makes voluntariness an essential element of every offence. Defendants who claim that conduct was involuntary deny that there was   any offence: they do not seek to rely on a defence to liability. It follows that they not bear an evidential burden on this issue: 13.3 Evidential burden of proof - defence. Any allegation of an act, omission or state of affairs which constitutes an element of an offence necessarily implies an allegation that   the conduct was voluntary.  The voluntariness requirement is no different,  in this respect, from the requirements of proof of intention with respect to conduct or recklessness with respect to circumstances or results imposed by s5.6 of the Code.

Though the prosecution must prove that conduct was voluntary, the burden on the prosecution may be lightened by the operation of Code provisions relating to mental impairment and intoxication. They require evidence in support of a plea of involuntariness to be consistent with sanity and sobriety.

1. A denial of voluntary conduct cannot be based on evidence of mental impairment: The defence of mental impairment imposes both evidentiary and legal burdens of proof on the accused: s7.3 Mental impairment. In many instances of involuntary conduct, the defendant’s aberrant behaviour is a consequence of mental illness or abnormality.  The Code makes specific provision to ensure  that a denial of guilt which should be expressed as a defence of mental impairment cannot be recharacterised as a denial of voluntary conduct: s7.3(6). Evidence of mental impairment, which is broadly defined to include senility, intellectual disability, mental illness, brain damage and severe personality disorder, cannot provide grounds for a denial that conduct was voluntary. Defendants who are disordered in any of these ways must rely on the mental impairment defence if they wish to avoid liability.
2. A denial of voluntary conduct cannot be based on evidence of self- induced intoxication: If intoxication is self induced, the prosecution is not required to prove that the defendant’s conduct was voluntary: s4.2(6).⁴⁰ Chapter 2 does recognise a defence of accidental or involuntary intoxication: 8.5 Involuntary intoxication. That is, however, a true defence, and the defendant accordingly bears the evidentiary burden: s13.3(2).

Some offences of strict or absolute liability consist entirely of conduct. Section 230 of the Migration Act 1948, for example, which was mentioned above, imposes liability for being the master of a vessel in which a stowaway is concealed. There is no additional element of circumstance or result required for liability. But offences of strict or absolute liability may include, in addition to conduct, physical elements of circumstance or result. Offences of dangerous driving causing death in state and territorial law are perhaps the most familiar examples.⁴¹ Since Chapter 2 restricts the plea of involuntariness to a denial that conduct was voluntary, a defendant who pleads absence of the capacity to control the circumstances or results of that conduct must bring that plea within the ambit of one of the defences. There is no provision for a plea that the incriminating circumstances or results  came about involuntarily.  A defendant who relies on a defence, rather than  a denial of voluntariness, must adduce acceptable evidence in support of the defence. Failure to do so will result in withdrawal of the defence from the trier of fact.  The distinction is important because the defences, unlike a   plea that conduct was involuntary, share the common requirement that the conduct of the defendant was reasonable. Self defence, duress and extraordinary emergency require a reasonable response to the threat or emergency and mistake is no defence to offences of strict liability unless it was reasonable: Division 10 – Circumstances involving external factors. The same limitation applies to the defence in 10.1 Intervening conduct or event. Like the plea of involuntary conduct, s10.1 bars criminal responsibility for physical elements of an offence that are beyond the defendant’s control. Unlike the denial of voluntariness, however, the defence is qualified by a requirement of due diligence.  It  is only available if it   would be unreasonable to expect the defendant “to guard against the bringing about of that physical element”. The effect of this limitation on the defence is uncertain. It is, however, a limit which has no counterpart when voluntariness is in issue. For that reason, the distinction between conduct,  on the one hand, and circumstances or results, on the other, is potentially important when a defendant denies responsibility on the ground of incapacity to do otherwise. The characterisation issue, which will arise in the discussion of 5.6 Offences that do not specify fault elements, arises here as well.

INVOLUNTARY CONDUCT AND UNCONTROLLABLE CIRCUMSTANCES IN STRICT LIABILITY OFFENCES

The prosecution must prove that conduct was voluntary in order to establish that an offence has been committed: 4.2 Voluntariness. When incriminating circumstances or results are in issue, however, a defendant who could not help committing an offence must resort to one of the defences in Part 2.3 – Circumstances in which there is no criminal liability. The offence of harassing whales, contrary to s229C(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) provides an illustrative example.⁴² Among other prohibited activities, it is an offence to “interfere with a cetacean” if the creature is “in the Australian Whale Sanctuary”. The structure of the prohibition makes it clear that this is a prohibition of an act of interference in circumstances where the cetacean is in the Sanctuary. The Act imposes strict liability with respect to each element of the offence. Imagine a boatload of marine biologists which strays into a whale sanctuary by mistake. Whilst there, the boat collides with a  baby whale. The collision is presumably an “interference” with the whale. The marine biologists commit no offence, however, if the collision was accidental and unwilled; the act of interference is involuntary. If, on the other hand, the marine biologists catch, tag  and release the baby whale, there can be no doubt that their act was voluntary. If they are to escape conviction for this activity, they must seek an excuse among the defences of Part 2.3.  The evidence that  they were mistaken about their location might provide them with a defence, but their mistaken belief that they were not in a sanctuary must be reasonable before it could excuse their act of interference: 9.2 Mistake of fact (strict liability).

32. The “physical elements” of an offence, defined in s4.1 Physical elements, can include circum- stances and results. The requirement of conduct is fundamental, however, since circumstances and results which are elements of an offence must be circumstances or results of the offender’s conduct.

33. See ss6.1(1); 6.2(1). Quite distinct from these are offences which dispense with requirements of fault with respect to some particular element or elements of the offence: ss6.1(2), 6.2(2).

34. Yeo, “Voluntariness, Free Will and Duress” (1996) 70 ALJ 304.

35. Liability may be based, however, on earlier voluntary conduct which led to the collision. See Leader-Elliott, “Criminal Cases in the High Court: Jiminez” (1993) 17 Crim LJ 61.

36. See, for example, HLA Hart, “Acts of Will and Responsibility” 90, 95-96, citing earlier, classic authorities in Punishment and Responsibility: Essays in the Philosophy of Law (1968). It is equally possible, in these cases, to say that involuntariness is irrelevant in these cases since there is a complete absence of any act on D’s part.

37. S Bronitt & B McSherry, Principles of Criminal Law (2001) 226-229 Leader-Elliott, “Cases in the High Court of Australia: Hawkins” (1994) 18 Crim LJ 347. Earlier caselaw often suggested that conduct which was involuntary could not be intentional. See, for example, Radford (1985) 20 A Crim R 388.

38. This is considered with the common law - see He Kaw Teh (1985) 15 A Crim R 203.

39. See Item 28 of Schedule 1 to the Migration Legislation Amendment (Application of Criminal Code) Act 2001.

40. Fault elements required for the offence must still be proved, however, subject to the special rules in CC s8.2 Intoxication (offences involving basic intent) and s8.3 Intoxication (negligence as fault element).

41. Jiminez (1992) 173 CLR 572.

42. The example is simplified in the interests of brevity, omitting some further definitional elements of the offence. A more elaborate scenario would be necessary in an advice to marine biologists about their legal liabilities