R v Musa

My approach at trial

1. I took the view that a voluntary act at law means an act that is a willed movement of the muscles, and nothing more than that. My view was based upon the analysis in Ryan v The Queen (1967) 121 CLR 205, especially that of Barwick CJ commencing at page 212. I regarded that case as the seminal, binding discussion by the High Court of Australia requiring the narrow view. I did not consider that case to have been called into question by any subsequent High Court case, or to have been extrapolated upon by any decision of the New South Wales Court of Criminal Appeal. And I believed that, since then, many cases that were binding on me had adopted the same approach [3] .
2. Separately, I found support for that in statute, in that s 428G of the Crimes Act 1900 (NSW) contains the following: 428G Intoxication and the actus reus of an offence (1) In determining whether a person has committed an offence, evidence of self-induced intoxication cannot be taken into account in determining whether the relevant conduct was voluntary. (2) However, a person is not criminally responsible for an offence if the relevant conduct resulted from intoxication that was not self-induced. (emphasis added)
3. I interpreted that statement by Parliament as supporting the view that the concept of voluntariness is not speaking about a mental element of an offence, in other words a state of mind, whether that be intention, recklessness, inadvertence, or anything else. Rather, it is speaking of something much more fundamental and physiological, and that is why, in that section, voluntariness is spoken of as on the assumption that it is part of the actus reus (or physical elements) of an offence.
4. Furthermore, when I gave those documents to the jury and returned to them in my summing-up, I was speaking of the elements of murder and manslaughter. But for one exception, which I shall explain shortly, I was not seeking to place before the jury evidentiary concessions that may have been made by the Crown as to what its case was, or concessions that may have been made by the accused, regarding elements or matters that were not in dispute. Although at one stage I believed that that would be useful to the comprehension of the jury, I ultimately took the view that the elements alone should be explained originally, and the respective cases expanded upon subsequently. I believed that it was incumbent upon me to provide the jury with the elements of the offences that were for their consideration. Later of course, in my summing-up, I provided the jury with my understanding of the elements that were not in dispute and the real issues in the trial, [4] both in writing and orally.
5. The exception to the above focus on elements in those documents and oral directions was the following. For manslaughter by way of unlawful and dangerous act, the Crown relied upon the offence of assault (in the form of battery). Although that offence can be committed either intentionally or recklessly (see R v Venna [1976] QB 421; [1975] 3 All ER 788), it can be seen from Document 3 that I directed the jury that, for manslaughter, the Crown would need to prove beyond reasonable doubt an intentional application of force. In other words, I did not direct the jury about recklessness as a possible mental element for battery. That was the only point at which I "tailored" the elements to fit the real issues in the trial.
6. In short, I believed that it was incumbent upon me to provide the jury with the elements of both forms of homicide; to explain the concept of voluntariness; and to express it in accordance with the narrow view that I have discussed above.

Decisions to the contrary?

1. Senior counsel relied upon five decisions in support of her submission that my understanding of voluntariness was mistaken. Before turning to discuss them in chronological order, I make the following preliminary remarks about them.
2. First, none of them are decisions of the High Court.
3. Secondly, none of them are decisions of the New South Wales Court of Criminal Appeal.
4. The result of those two aspects is that, although they may be persuasive, none of them are strictly binding as a matter of judicial hierarchy.
5. Thirdly, respectfully, many of them are plagued by the problems of ambiguous terminology and nomenclature about which Barwick CJ warned over fifty years ago: see Ryan v The Queen at 212-213, 244.
6. Turning first to the decision of the Court of Criminal Appeal in South Australia in R v Williamson (1996) 67 SASR 428; (1996) 92 A Crim R 24, it is true that it provides some support for the proposition that voluntariness connotes not just a willed movement of the muscles, but also knowledge, or at least awareness, of the nature of the act that one is performing.
7. In that case, the appellant had fatally stabbed another person, and claimed that he had no awareness that there was a knife in his hand. The Court of Criminal Appeal, led by Doyle CJ (particularly at pp 28-31), did seem to come to the view that it was incumbent upon the trial judge to direct the jury "that the accused committed the act causing death voluntarily only if aware of the nature of the act": at p 31 para 4. That seemed to go beyond a mere willed movement of the muscles.
8. If that is indeed what the Court decided, I respectfully declined to follow it, because I believed that such an understanding of voluntariness was inconsistent with Ryan v The Queen, inconsistent with the understanding of the concept in our Crimes Act, and not an understanding that has found favour in our Court of Criminal Appeal in the more than 25 years since R v Williamson was delivered.
9. Furthermore, it is noteworthy that that decision was referred to in none of the subsequent cases to which I was taken.
10. In R v Schaeffer (2005) 13 VR 337; [2005] VSCA 306, the second paragraph of the judgment of the Chief Justice shows that the jury at trial was misdirected fundamentally about voluntariness. That is because, seemingly founded upon the approach in at least one Code State, the jury had been directed about concepts of reasonable foreseeability informing voluntariness. That is not, of course any part of the understanding of the concept in this State, or indeed Victoria in 2005.
11. As the judgment of Eames JA shows, quite apart from that error, the jury had been directed that the act causing death needed to be "a conscious voluntary and deliberate act or acts": at [24].
12. But even that apparently anodyne statement, seemingly a standard direction in Victoria at the time, in my opinion presents conceptual difficulties. That is because, just like the word "accident", the word "deliberate" has many different meanings. In my respectful opinion, it has the potential to elide voluntariness, at one end of the "spectrum", with intention to bring about a result, at the other. For that reason, as can be seen, I declined to use the word "deliberate" as a direct synonym in my written directions to the jury when explaining voluntariness, whatever its attractions.
13. Bearing in mind the fundamental error that was readily identified in that case, and the problems in terminology evident in the discussions, I did not find anything in the decision of R v Schaeffer that caused me to question my long-standing conceptualisation of voluntariness.
14. In R v Winter [2006] VSCA 144, the self-represented appellant had been found not guilty of murder but guilty of manslaughter at trial. He appealed against the latter conviction. The facts were that, whilst sitting in the driver's seat of his vehicle, he had admittedly picked up a knife on the passenger seat when another motorist came to his car window. He stated that he "threw my arm up across my face so he wouldn't hit me". He denied having thrust the knife towards anybody. Clearly enough, unless the act causing death was voluntary, the appellant could not have been convicted of anything, whether murder, manslaughter, or anything else.
15. Again, in my respectful opinion, the judgments are troubled by problems with terminology; for example, at [20] there is discussion of the jury having "rejected the defence of accident". It is noteworthy that the judgment of Maxwell ACJ reverts to that part of Ryan v The Queen that emphasises that, if voluntariness is truly in dispute, and there is some evidence to call it into question, then the jury must be told that it is something about which they must be satisfied beyond reasonable doubt. In other words, Ryan v The Queen remained the touchstone.
16. Ultimately, the conviction for manslaughter was undisturbed. But I did not see anything in the judgments in Winter that truly calls into question my narrow understanding of voluntariness.
17. In Herodotou v R [2018] VSCA 253, the ground of appeal was not that there had been a misdirection at trial, but rather that a verdict of guilty of murder was unreasonable or unable to be supported. The Crown case was that the appellant had stabbed the deceased during a fight between the two of them.
18. In discussing that ground, Weinberg JA at [62] recounted the submission that, if the knife could have entered the neck of the deceased without any deliberate "thrust" on the part of the applicant, then that would simply have been an involuntary act on his part. I interpolate that that accords entirely with my understanding: if two persons were struggling, one was armed with a knife, and the other in effect impaled themselves on the knife, then there would be no voluntary act on the part of the person holding the knife. Indeed, in a more fundamental sense, there would have been no act at all on the part of that person.
19. At [120], his Honour warned against conflation of, on the one hand, voluntariness, and, on the other, the necessary mental elements for murder, an approach with which I respectfully agree.
20. On the basis that the jury had been correctly directed about, and well entitled to be satisfied about, voluntariness as defined as "consciously, voluntarily, and deliberately" stabbing the deceased in the neck, the appeal ground was dismissed.
21. To the extent that at [124] his Honour may have gone further, and approved the direction that the stabbing needed to have been intended to have been to the neck of the deceased in order for the "action in inflicting the stab wound" to have been deliberate (if that adjective is to be equated with "voluntary"), I respectfully do not consider that to be the law of New South Wales, with regard to the discrete question of voluntariness. That shows, in my respectful opinion, the dangers of ambiguity in the concept of "deliberateness". But it may be that I am misunderstanding the judgment, because it is clear that another nomenclature issue arises: the discussion at [123] of the difference between basic and specific intent in Victoria in 2018 does not accord with our understanding of those concepts in this State, based upon our own legislative bifurcation, to be found in Part 11A of our Crimes Act.
22. Finally, I was provided with the reasons for verdict of Hidden AJ in the judge alone trial of R v Meakin [2019] NSWSC 1311. In that case, the Crown case was that, after a disagreement in a hotel, the accused fatally drove his vehicle into the deceased whilst the latter was on the footpath. The main issue in the trial was whether the Crown could prove the location of the deceased at the time of the collision, as opposed to him being on the roadway. And the word "deliberate" was used more than once in resolution of the central question in the trial in terms of proof of guilt of murder.
23. The experience and learning in criminal law of that judicial officer is well known. But my reading of those reasons for verdict is that his Honour was referring to the Crown allegation as to how a necessary mental element for murder could be established. Indeed, in my opinion, the very fact that, at the start of the trial, the accused pleaded not guilty to murder but guilty to an alternative count of aggravated dangerous driving causing death demonstrates that voluntariness was not the real issue in the trial.
24. In short, none of the judgments with which I was supplied caused me to take the view that it would be appropriate for me to direct the jury that the collision between the SUV and the deceased had to be "deliberate" (or any other such word). I also shied away from emphasising the word "deliberate" as a direct synonym for "voluntary" (although I did include it in an explanatory phrase in a footnote), because I believe it leads to confusion, not comprehension, on the part of juries. I considered that I simply needed to direct the jury that, at the time of the collision, the accused was engaging in a willed movement of the muscles that constituted her driving the vehicle.

Other aspects

1. Having said that, as I have shown, I certainly told the jury in writing and orally more than once that, before there could be a verdict of guilty for murder, the Crown must prove, beyond reasonable doubt, either an intention to kill or an intention to cause really serious physical injury, contemporaneous with the act causing death.
2. In similar vein, with regard to manslaughter, I directed the jury repeatedly that the Crown needed to prove, beyond reasonable doubt, an intention on the part of the accused to apply force to the deceased at the same time.
3. In other words, I believed that the concern of senior counsel, whilst not accommodated under the rubric of voluntariness, was met by way of my directions about the necessary mental elements for murder, and the necessary mental element for the unlawful act of battery upon which manslaughter was founded.
4. Finally, contrary to the submission of senior counsel, I included a number of examples of undoubtedly involuntary acts in my written and oral directions about voluntariness. I did that in accordance with my narrow understanding of the concept, and because I believed that the idea of a willed movement of the muscles could best be explained by everyday examples of acts that are not voluntary.

Conclusion

1. Those are the reasons why I gave the jury the direction that I did about voluntariness that were disputed at the trial. MUSA DOCUMENT 2 TO JURY (13094, pdf) MUSA DOCUMENT 3 TO JURY (18817, pdf) MUSA VD MFI 4 (24096, pdf) MUSA VD MFI 5 (32988, pdf)

Endnotes

1. See voir transcript (VDT) at 4-6, 45,48; and trial transcript (TT) at 2, 29, 38-47, 113-114, 116, 157-162, 225-228.
2. See VD MFI 4 and 5, in the form of draft written directions that it was submitted I should provide to the jury.
3. See, for example, in the High Court, Jiminez v R (1992) 173 CLR 572 at 577-585; Ugle v R (2002) 211 CLR 171 at 178-180 (Gummow and Hayne JJ); Murray v R (2002) 211 CLR 193 at 198-199, 207-214; in the NSW Court of Criminal Appeal, R v Whitfield [2002] NSWCCA 501 at [79]-[86], [101]-[105]; Penza and Di Maria v R [2013] NSWCCA 21 at [154]-[167].
4. Summing-up (SU) at 62-63; see also topic C on Document 4 (not appended). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 March 2023