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This article was written by Laura Turner - Senior Associate - Brisbane

Laura Turner holds a Bachelor of Laws and Bachelor of Arts (majoring in psychology) from the University of Tasmania. She also holds a Graduate Diploma of Legal Practice from the College of Law and is admitted to practice in the Supreme Court of Queensland. Laura began her practical legal experience whilst at university, volunteering with the Student Legal Service offering...

Unwilled Acts (Qld)


Automatism is a legal defence to a broad range of criminal offences in Queensland, though it is complex and rarely used. Automatism is also referred to as ‘unwilled acts’ and can be found in the Criminal Code Act 1899 at section 23. It is important to note that the defence applies to both acts, which are physically done by a person, and omissions, which occur where a person fails to do an act that they were obliged to do. This article outlines the defence of unwill acts as it applies in Queensland.

Criminal responsibility and unwilled acts

A defendant is not criminally responsible for an act unless it was an act that was consciously and purposely chosen and done by the defendant. A defendant is not criminally responsible for omitting to do an act if they were incapable of performing the act at the time.

This means that to amount to an offence, an act or omission must be a voluntary choice by the defendant. Automatism provides a defence in situations where a defendant was acting involuntarily.

An act or omission that was conducted by the defendant because of threats, fear or coercion does not fall within the defence of automatism. However, there are other defences that may apply in these circumstances.

Burden of Proof and unwilled acts

In order for a person to be found guilty of most criminal offences, the prosecution must prove, beyond a reasonable doubt, that the act was a ‘willed or voluntary’ act. This means that the prosecution must show that the defendant made a conscious decision to commit the act or omission. The prosecution must prove that the accused willed the act, not that they willed the outcome.

If the prosecution cannot prove that the act or omission was willed by the defendant, then the elements of the offence cannot be made out. This means that the defendant is acquitted of the offence and is discharged from any further proceedings.

Examples of unwill acts

There are many different unwilled acts or omissions that arise.

Some common examples as are as follows:

  1. Acts done whilst asleep;
  2. Reflex actions of the body;
  3. Unwilled body movement;
  4. An act caused by a medical issue such as an epileptic fit, spasm or convulsion; or
  5. Acts or omissions done because a person has blacked out.

The above is not an exhaustive list. In each case, it must be determined as to whether the defendant did the act or omission voluntarily.

Offences where this defence is not available

The defence of an unwilled act does not extend to circumstances where death or grievous bodily harm is inflicted. This means that a person cannot be excused from criminal responsibility in relation to homicide offences or very serious assaults, even if they had no intention of causing the outcome as they were acting involuntarily.

There are some other situations where the defence of an unwilled act cannot be used. For example, if a person falls asleep at the wheel of a car and hurts or kills someone, they cannot be excused from responsibility on the basis that it was an unwilled act because they were asleep. This is because whilst the act was not willed, they should not have been driving whilst exhibiting signs of tiredness.

Alcohol

In Queensland, voluntary intoxication is not a defence (section 28 of the Criminal Code Act 1899). Voluntary intoxication occurs where a person freely and knowingly consumes alcohol or another drug. Voluntary intoxication is not a defence because, as a general rule, the law provides that a person should not be excused for the consequences of their actions when they have placed themselves in a voluntary state of intoxication.

However, in some limited circumstances, the defence of automatism may still apply despite the defendant being intoxicated at the time of the act or omission. An example of this is where a person falls asleep while intoxicated and then commits an act while sleepwalking.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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