Criminal Responsibility (Queensland) Notes

Objectives

Understand the elements of an offence (physical and mental elements).
Understand the interplay between elements, excuses and defences.
Grasp concepts relating to criminal responsibility including the criminal responsibility of young people.
Learn about act independent of will and the concepts of unintentional and unforeseeable acts (including s 23(1), (1A) QCC).

Elements of Criminal Responsibility

s 2 QCC defines an offence as “an act or omission which renders the person doing the act or making the omission liable to punishment.”
Prosecution burden: generally must prove the elements of an offence beyond a reasonable doubt.

Structure for Assessment of Criminal Responsibility

I. Physical elements: Can the physical elements of the offence be established?
II. Mental elements: Are mental elements required for the offence according to the QCC? If so, can they be established?
III. Defences and excuses: Do defences, excuses, or justifications exist that could affect liability?
IV. Conclusion

I. Physical elements

Physical elements relate to conduct that causes a certain (sometimes specific) result.
Example: grievous bodily harm (GBH) under s 320 QCC requires an act that causes GBH (a specific result).
These elements are referred to in the course as physical elements, though not formally called that by the QCC.

Example: Physical elements, s 320 QCC

Any person who unlawfully does grievous bodily harm to another is guilty of a crime.
Maximum imprisonment: 14\,\text{years}.

II. Mental elements

The common law principle of mens rea ("guilty mind") does not apply in Queensland in the sense of a blanket presumption; there is no automatic presumption that offences contain a mental element.
Generally, prosecution only needs to establish the physical elements unless the QCC expressly requires a mental element.
S 23(2) QCC – Intention/Motive: Unless the intention to cause a particular result is expressly declared as an element of the offence, the result intended to be caused by an act or omission is immaterial.

Example: Mental elements, s 302 QCC

Except as otherwise set forth, a person who unlawfully kills another under the following circumstances: (a) if the offender intends to cause the death of the person killed or some other person, or if the offender intends to do to the person killed or to some other person some grievous bodily harm.

1. Intention

Intention is usually inferred from what the accused has done and the surrounding circumstances (Willmot no 2).
Direct intention: the desire of the accused is to bring about a certain result or consequence by the criminal act or omission; foreseen that the result will follow from the act or omission.
Indirect (or oblique) intention: the accused foresees the results as virtually certain but does not necessarily desire the outcome (Vallance (1961)).
However, in R v Reid (2006) the court took a narrower view and concluded that intention means the person’s purpose.

2. Reckless Indifference

In 2019, ‘reckless indifference’ to human life was introduced as a state of mind for murder in s 302(1)(aa) QCC.
If the accused knows death would result from their act or omission, they can be criminally responsible for murder even if they do not desire the death.

3. Criminal Negligence

Some offences require negligence as an explicit element (e.g., s 328 QCC).
The QCC establishes duties in Chapter 27; courts have interpreted this as creating criminal negligence for offences against the person (e.g., manslaughter, grievous bodily harm).
Negligence is assessed objectively.

4. Time

The mental element must be present at the time of the alleged offence.
Best practice: analyse the physical elements before considering the mental elements (where applicable).

III. Defences and Excuses

‘Unlawful’: No excuses or defences or other justification can apply to an unlawful act; exceptions may be carved out by the QCC.
Unless otherwise specified, the excuses and defences in Chapter 5 of the QCC apply to all criminal offences created in Queensland.
Possible defences and excuses will be considered in more detail in upcoming Study Modules.

Criminal responsibility of Children and Young People

Children under 10 are exempt from criminal responsibility (s 29(1) QCC).
A person aged 10 to 13 is not criminally responsible unless they have the capacity to understand their actions and know that the conduct was wrong (s 29(2) QCC). The prosecution bears the persuasive burden.
A person aged 14 or over is criminally responsible for their conduct.
Persons between 14 and 17 will be tried before a special court (Youth Justice Act 1992 (Qld)).

Section 23(1)(a)-(b) QCC (I) and (II): Two independent excuses

(I) Consequence: Complete acquittal.
Act independent of will, s 23(1)(a) QCC: ‘Accident’ (now known as unintentional and unforeseen event).
(II) Operational notes: The operation of excuses in s 23(1) QCC is subject to express provisions relating to negligent acts and omissions; s 23(1) does not apply to offences based on criminal negligence (ss 285-290 QCC).

Act independent of will, s 23(1)(a) QCC – I: Elements

Elements: 1) Act or omission 2) Occurring independent of will.
This excuse is also referred to as sane or insane automatism or involuntarism.

Act independent of will, s 23(1)(a) QCC – II: Focus and evidence

Focus on the act done or the relevant omission leading to criminal responsibility.
The act/omission must be willed; evidence to raise doubt as to voluntariness is required.
It will not be enough for the accused to merely assert involuntariness; evidence of the condition at the time must be supported by expert evidence (Falconer (1990)).
The accused must raise the issue; the prosecution must negate beyond a reasonable doubt if a defence is advanced or supported by evidence; if the excuse is supported by evidence but not raised by the accused, the judge may direct the jury accordingly.

Act independent of will, s 23(1)(a) QCC – Act (I)

Narrow meaning of ‘act’: the physical act (bodily action) giving rise to criminal responsibility.
Falconer (1990): ‘bodily movement over which an accused has control and its contemporaneous and inevitable consequences’.

Act independent of will, s 23(1)(a) QCC – Act (II): Example of Act

Examples: pulling the trigger on a gun; Kaporonovski (1973): pushing of victim’s hand holding a glass into the victim’s face (eye injury).

Act independent of will, s 23(1)(a) QCC – Will (I)

The notion of will imports consciousness of the nature of the act and a choice to do an act of that nature.
Falconer (1990) identified categories within s 23 QCC:
- Acts independent of will due to reflex action or muscular spasm.
- Sane automatisms (the person is not conscious of what they are doing).

Sanity/External Cause Test (Act independent of will)

External Cause Test: Radford (1985).
Core idea: there must be an underlying pathological infirmity of the mind (mental illness) or a properly identified external stimulus that triggers a defective mental state.
Internal vs external distinction: insanity vs reaction of a healthy mind to extraordinary external stimuli.

Healthy Mind (External Cause Test)

Focus on whether the mind is healthy but subject to external stimuli.
Temporary disorder or disturbance of an otherwise healthy mind caused by extraordinary external stimuli.
Falconer (1990) distinguishes between a healthy mind and mental illness.
Distinction between sane and insane automatisms; further discussion to be covered in Week 9.

Case References (Automatism and related concepts)

Ryan v R [1967]; Murray v R – reflex or muscular spasm caused by independent muscular action (independent of mind).
Cooper v McKenna – concussion after being hit in the head by a football.
R v Burgess (1991) (UK); R v Parks (1992) – somnambulism (sleepwalking).
Burgess casts doubt on automaticism in some contexts; Canadian decision in Parks distinguishes sane automatisms and acquittal on a healthy mind.

Accident(al) events: Unintentional and Unforeseen Events, s 23(1)(b) QCC

A person is not criminally responsible for an event that they did not intend or foresee as a possible consequence and that an ordinary person would not reasonably foresee as a possible consequence.

s 23(1)(b) – Focus and standards

Focus of s 23(1)(b) is the event (consequence) of an act, which may give rise to criminal responsibility (R v Taiters).
In comparison, s 23(1)(a) deals with acts or omissions independent of will.
Example: Act = pushing a hand holding a broken glass into the victim’s face; Event = injury to the eye.

Negative operation of s 23(1)(b) (Beyond Reasonable Doubt)

Prosecution must establish beyond a reasonable doubt that the accused:
- Intended that the event should occur (subjective); or
- Foreseen it as a possible outcome (subjective); or
- That a reasonable ordinary person in the position of the accused would have foreseen the event as a possible outcome (objective).

Special knowledge and foresight (s 23(1)(b))

If the accused had special knowledge that would enable foresight of the event, the event may not be considered accidental, even if an ordinary person would not have foreseen it (Vallance v The Queen; R v Knutsen).
This can defeat the accidental/forseeability defense and sustain liability.

Unforeseen events (accident) and inherent defects, weaknesses or abnormalities, s 23(1A) QCC

Subsection (1A): However, under subsection (1)(b), a person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality (often described as an egg-shell skull, or constitutional defects).
Includes the concept that a pre-existing condition’s effects may be exacerbated by the act of the accused and bear on injury severity (e.g., haemophilia, cataract surgery displacement).
Examples include conditions that occur naturally or due to medical interventions.

Egg-shell skull / inherent defects (s 23(1A))

Pre-existing condition exacerbated by the act of the accused, with direct bearing on injury severity.
Illustrative examples: haemophilia leading to greater bleeding, cataract surgery complications, etc. (Steindl [2002]).

Overview: Summary of s 23(1) QCC

I. Physical elements: Can the physical elements of the offence be established?
II. Mental elements: Is a mental element required, and can it be established?
III. Defences and excuses:
- S 23(1)(a): Did the act occur independent of will?
- S 23(1)(b): Was the act an unforeseen event?
Note: s 23(1)(a) and (b) are independent excuses with distinct tests and evidentiary requirements.

Connections and implications

The framework integrates physical conduct with mental state to determine liability.
Young people have tailored rules for criminal responsibility, emphasizing moral and cognitive capacity.
Automatism and external/internal cause tests balance the need to punish wrongdoing with recognition of involuntary acts or extenuating circumstances.
Egg-shell skull doctrine ensures defendants are liable for the consequences of their actions even if the victim’s pre-existing conditions intensify harm.

Key case references to remember

Willmot; Vallance (intent) (1961)
R v Reid (2006) (intent as purpose)
Falconer (1990) (bodily movement and control; automatism)
Radford (1985) (external cause test)
Ryan v R (1967); Murray v R; Cooper v McKenna; Burgess (1991); Parks (1992) (automatism and sanity debates)
Taiters (1996) (foresight and event as a possible outcome)
Vallance v The Queen; R v Knutsen (special knowledge and foresight)
Steindl (2002) (eggshell skull concept)

Notes on structure for exams
Be able to identify: physical element, mental element, and whether the offence requires a mental element.
Apply s 23(1) tests to determine if the act occurred independent of will or if the event was unforeseen/unforeseeable.
Use case law to illustrate distinctions between direct vs indirect intention, sane vs insane automatism, and the role of expert evidence where automatism is raised.
Remember the youth-specific provisions and the age boundaries for criminal responsibility in Queensland.