AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 21 March 2023

R v Musa (No 2)

[2023] NSWSC 247

Homicide
VOLUNTARINESS AS A LEGAL CONCEPT

Citation: R v Musa (No 2) [2023] NSWSC 247
Court: Supreme Court of New South Wales
Date: 21 March 2023
Judge(s): Button J

Background

The accused was charged with the murder of a man who died after being struck by an SUV she was driving. The central factual dispute was whether the collision between the vehicle and the deceased was the result of a voluntary act on the accused's part.

Before and during the summing-up, a significant disagreement arose between the trial judge and senior counsel for the accused about how the jury should be directed on the legal concept of voluntariness. The Crown was content with the judge's approach throughout.

This judgment sets out Button J's reasons for the directions he gave, explaining why he adopted a narrow construction of voluntariness and declined to incorporate the word "deliberate" as a defining characteristic of the required voluntary act.

  • Whether "voluntariness," as a legal element of murder and manslaughter, requires only a willed muscular movement, or whether it also requires the accused to have deliberately brought about the specific act causing death (here, the collision).
  • Whether the jury should be directed that the collision had to be "deliberate" to satisfy the voluntariness element.
  • Whether five interstate decisions relied upon by senior counsel supported a broader understanding of voluntariness inconsistent with the High Court's approach in Ryan v The Queen.

Decision

Button J directed the jury in accordance with the narrow view: a voluntary act, in law, means no more than a willed movement of the muscles. The foundation for this approach was the High Court's analysis in Ryan v The Queen (1967) 121 CLR 205, particularly the reasoning of Barwick CJ, which Button J regarded as the seminal and binding statement of the principle. His Honour found that no subsequent High Court decision had disturbed that analysis, and that the NSW Court of Criminal Appeal had consistently adopted the same narrow view.

Additional support came from s 428G of the Crimes Act 1900 (NSW), which addresses voluntariness as part of the actus reus rather than the mental element of an offence. Button J interpreted this statutory placement as confirming that voluntariness is a physiological concept, distinct from intention, recklessness, or any other state of mind.

His Honour rejected the submission that the word "deliberate" should be used as a synonym for "voluntary" in the jury directions. He observed that "deliberate," like "accident," carries multiple meanings and risks collapsing the distinction between voluntariness (a physical element) and intention to bring about a result (a mental element). That elision, in his view, would introduce conceptual confusion.

Senior counsel relied on five decisions from South Australia, Victoria, and New Zealand in support of a broader interpretation. Button J declined to follow them on the basis that none were decisions of the High Court or the NSW Court of Criminal Appeal, and that several suffered from the very terminological ambiguity Barwick CJ had warned against in Ryan. The concern underlying the defence submission was, in any event, addressed through the judge's separate and repeated directions on the mental elements of murder (intention to kill or cause really serious injury) and manslaughter (intention to apply force).

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under the narrow construction adopted from Ryan v The Queen, voluntariness as a legal element of homicide requires only a willed movement of the muscles; it does not extend to a requirement that the accused deliberately brought about the specific harmful outcome.
  • Section 428G of the Crimes Act 1900 (NSW) treats voluntariness as part of the actus reus, not the mental element, of an offence, a classification Button J found consistent with the physiological understanding of the concept.
  • The word "deliberate" carries sufficient semantic ambiguity that directing a jury to find a "deliberate" act, as a proxy for voluntariness, risks conflating a physical element with the mental element of intention.
  • Interstate and New Zealand decisions suggesting a broader conception of voluntariness (including awareness of the nature of the act) were persuasive at most; Button J declined to follow them as inconsistent with binding High Court and NSW Court of Criminal Appeal authority.
  • Where the defence concern is truly about whether an accused intended the outcome, that concern is appropriately addressed through directions on the requisite mental elements of murder or manslaughter, not by expanding the concept of voluntariness.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 428G (Part 11A)

Cases
- Ryan v The Queen (1967) 121 CLR 205 (central authority)
- Jiminez v R (1992) 173 CLR 572
- R v Falconer (1990) 171 CLR 30
- Ugle v R (2002) 211 CLR 171
- Murray v R (2002) 211 CLR 193
- R v Whitfield [2002] NSWCCA 501
- Penza and Di Maria v R [2013] NSWCCA 21
- R v Venna [1976] QB 421
- Bratty v Attorney-General (Northern Ireland) [1963] AC 386
- R v Williamson (1996) 67 SASR 428 (declined to follow)
- R v Schaeffer (2005) 13 VR 337 (declined to follow)
- R v Winter [2006] VSCA 144
- Herodotou v R [2018] VSCA 253
- R v Cottle [1958] NZLR 999
- R v Hines (No 1) [2014] NSWSC 701
- R v Meakin [2019] NSWSC 1311