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Unwilled Acts (Qld)

Automatism is a well-established defence to a range of criminal offences. Automatism is defined in the common law as ‘action without conscious volition’ and refers to a person’s conduct of which they are not conscious, and which is done as a series of unwilled acts. This defence is based on the principle that a person cannot be held criminally responsible for an act which that person did not commit voluntarily.

While this defence has been successfully established in cases of very serious crimes including murder and rape, its application to the law today remains controversial.

Are there different types of automatism?

The two different types of automatism that are commonly referred to are ‘sane’ automatism and ‘insane’ automatism.

Sane automatism occurs when a person reacts to external factors such as a concussion, spasm, or seizure.

Insane automatism occurs when a person reacts to the delusions of their own sound mind. The difference is that, if successfully argued, sane automatism can result in a full acquittal, whereas insane automatism can only result in a finding of not guilty due to mental impairment. This will usually result in the court making a hospital order or another order designed to ensure that the accused person does not harm other people in the future as a result of automatism.

What are unwilled acts?

While the defence of automatism is well-established in the common law system, the defence is more commonly referred to as unwilled acts in Queensland. Under Section 23 of the Criminal Code Act 1899, a person is not criminally responsible for an act or omission that occurs independently of the exercise the person’s will or that occurs by accident.

This means that a person is excused from criminal responsibility for an act that the prosecution cannot prove beyond reasonable doubt was a willed act. Proof that an act was “willed” does not involve a requirement that the accused intended or wished to cause a particular result by doing the act. What the prosecution are required to prove is that the accused consciously made a choice to do a physical act. In other words, the prosecution must exclude beyond a reasonable doubt the possibility that the act has occurred independent of the will of the accused.  They must exclude any possibility that it was an unwilled act such as a reflex or automatic action. Some examples of unwilled acts are a reflex action caused by pain, a seizure, a spasm, or an act done while asleep or in a state of concussion.

When does this defence not apply?

Section 23 provides that a person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim due to a physical defect, weakness or abnormality of the accused, even though the accused did not intend, or was unable to reasonably foresee, the death or grievous bodily harm of the victim.

Other defences that may be available

It is important to remember that the prosecution must prove, beyond a reasonable doubt that the accused person committed the offence. An accused person may successfully defend a criminal charge by relying on a defence, or a combination of defences. A defence, where argued successfully, may result in reducing the offence charged to a less serious offence, or provide a complete defence to the charge, which would result in a full acquittal.

There are a variety of defences available under the Criminal Code,  including:

  • Provocation;
  • Self-defence;
  • Honest claim of right;
  • Unwilled and accidental acts;
  • Mistake of fact;
  • Sudden or extraordinary emergency;
  • Insanity;
  • Alibi;
  • Intoxication; and
  • Diminished responsibility.

What should you do if you have been charged with an offence?

If you have been charged with an offence and want more detailed advice about whether a defence applies to your matter, we recommend that you seek immediate legal assistance.

If you require legal advice or representation in a criminal matter or in any other legal matter, please contact Go To Court Lawyers.


Temeka Sue-Tin

Temeka Sue-Tin is a solicitor in the Maroochydore office on the Sunshine Coast. Temeka holds a Bachelor of Laws from Griffith University and a Graduate Diploma of Legal Practice from the College of Law. She is admitted to practice in the Supreme Court of Queensland and in the High Court of Australia. Temeka completed her Practical Legal Training at GTC Lawyers. She has strong interests in criminal and traffic law, family law, civil law and succession law.

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