Involuntary conduct and the criminal law: The case of the unconscious driver

International Journal of Law and Psychiatry

Volumn 21, Issue 3, 1998, Pages 305-314

  McCutcheon, J Paul ^a  

^a UNIVERSITY OF LIMERICK   (Ireland)

Author keywords

[No Author keywords available]

Indexed keywords

CRIMINAL LAW; DRIVER; HUMAN; LAW SUIT; LEGAL LIABILITY; RESPONSIBILITY; REVIEW; SEIZURE; TRAFFIC ACCIDENT; UNCONSCIOUSNESS;

EID: 0032102552     PISSN: 01602527     EISSN: None     Source Type: Journal    
DOI: 10.1016/S0160-2527(98)00013-2     Document Type: Article

References (41)

1. 1 Eg., R v. Parks, 95 D.L.R. (4th) 27 (1992).
2. 2 E.g., Rabey v. R, 114 D.L.R. (3d) 193 (1980); Falconer v. The Queen, 171 C.L.R. 30 (1990).
3. 3 See D. Lanham, Involuntary Acts and the Actus Reus 17 CRIM. L.J. 97, 99 (1993).
4. 4 173 C.L.R. 572 (1992).
5. 5 J.P. McCutcheon, Involuntary Conduct and the Case of the Unconscious 'Driver': Reflections on Jiminez 21 CRIM. L.J. 71(1997); see also, A. McCall Smith & C. Shapiro, Sleep Disorders and the Criminal Law, in FORENSIC ASPECTS OF SLEEP 54-59. (C. Shapiro & A. McCall Smith eds., 1997).
6. 5 J.P. McCutcheon, Involuntary Conduct and the Case of the Unconscious 'Driver': Reflections on Jiminez 21 CRIM. L.J. 71(1997); see also, A. McCall Smith & C. Shapiro, Sleep Disorders and the Criminal Law, in FORENSIC ASPECTS OF SLEEP 54-59. (C. Shapiro & A. McCall Smith eds., 1997).
7. 6 S.C. (J.) 45 (1926).
8. 7 Later Scottish decisions have rejected Ritchie; see H.M. Advocate v. Cunningham J.C. 80 (1963); Clark v. H.M. Advocate J.C. 53 (1968). As Ritchie has been cited throughout the common-law world, its rejection in Scotland has aptly been considered ironic; see Gordon, CRIMINAL LAW (2d ed. 1978). In a recent decision, Ross v. H.M. Advocate J.C. 210 (1991), the court expressed approval of the judgment in Ritchie. However, in Ross the court spoke of automatism as involving a lack of mens rea, and it is not certain to what extent its observations apply to the more elemental requirement of voluntary conduct.
9. 8 St. R. Qd. 38 (1945).
10. 9 Id., at 43.
11. 10 173 L.T. 191 (1945).
12. 11 E.g., People v. Freeman 61 Cal. App. 2d 110 (1943); State v. Olsen, 108 Utah 377 (1945); State v. Gooze, N.J. Super. 277 (1951); Smith v. Commonwealth, 268 S.W. 2d 937 (1954); People v. Eckert, 2 N.Y. 2d 126 (1956); Virgin Islands v. Smith, 278 F. 2d 169 (1960).
13. 12 E.g., People v. Robinson, 253 Mich. 507 (1931); State v. Olsen, 108 Utah 377 (1945).
14. 13 State v. Gooze, 81 A. 2d 811 (1951).
15. 14 People v. Decina, N.Y. 2d 133 (1956).
16. 15 People v. Freeman, 61 Cal. App. 2d 110 (1943).
17. 16 112 C.C.C. 29 (1955).
18. 17 Id. at 34.
19. 18 3 D.L.R. 140 (1938); see also, R v. Longhurst, 75 C.C.C. 356 (1940).
20. 19 4 D.L.R. 568 (1947); aff'd , 4 D.L.R. 33 (1948).
21. 20 1 Q.B. 277 (1958).
22. 21 See, e.g., Watmore v. Jenkins, 2 Q.B. 572 (1962); R v. Issit, 67 Cr. App. Rep. 44 (1978); Broome v. Perkins, 85 Cr. App. R. 321 (1986); Attorney-General's Reference (No. 2 of 1992), Q.B. 91 (1994).
23. 22 1 Q.B. 277, 286 (1958) (emphasis added). See also R v. Isitt, 67 Cr. App. Rep. 44, 48 (1977) per Lawton L.J. "[T]he position is that, in general, certainly with offences like dangerous driving, the Crown have to prove that the conduct which is alleged to be criminal was voluntary conduct, in the sense that the accused's mind went with the acts alleged to be criminal. If his mind for any reason did not go with the acts alleged to be criminal, then he cannot in law commit an offence."
24. 23 173 C.L.R. 572 (1992).
25. 24 Id. at 577; McHugh J., at 586, in a concurring judgment took a different view, stating that it was arguable that a vehicle is "being driven" by a person who falls asleep "for a second" as was said to be the appellant's case; see Lanham, supra note 3, at 97.
26. 25 Id. at 578, citing McBride, 115 C.L.R. 44 (1966); the relevant provision - Crimes Act 1900 (N.S.W.), § 52A - required the dangerous driving to occur "at the time of the impact"; under § 52A driving is dangerous if as a matter of "objective fact" it is a danger to the public, at 579; see also R v. Kroon, 52 A. Grim. R. 15, 18 (1991).
27. 26 Id. at 578.
28. 27 Id. at 581 (reference omitted).
29. 28 J-E. Stannard, Stretching out the Actus Reus 28-30 IR. JUR. (new series) 200 (1993-1995); G.R. Sullivan, Cause and the contemporaneity of actus reus and mens rea C.L.J. 487 (1993).
30. 28 J-E. Stannard, Stretching out the Actus Reus 28-30 IR. JUR. (new series) 200 (1993-1995); G.R. Sullivan, Cause and the contemporaneity of actus reus and mens rea C.L.J. 487 (1993).
31. 29 For instance, it is accepted for the purposes of homicide that the act which causes death may be temporally separated from the mens rea provided that both are part of the same sequence of events; see, e.g., R v. Thabo Meli, 1 W.L.R. 228 (1954); R v. Church, 1 Q.B. 59 (1966); R v. Le Brun, 1 Q.B. 61 (1992). This might explain why an accused is guilty of homicide where the "gun went off accidentally" - the discharge of the gun is part of a voluntary sequence of events; see Ryan v. The Queen, 121 C.L.R. 205 (1967); State v. George, 681 S.W. 2d 43 (1984).
32. 30 But see, e.g., I. Leader-Elliott, Case and Comment, 17 CRIM. L.J. 62, 64 (1993), considering the solution to be a "stopgap measure."
33. 31 See A. Leavens, A Causation Approach to Criminal Omissions 76 CAL. L. REV. 547 (1988).
34. 32 See The Queen v. Falconer, 171 C.L.R. 30, 40 (1990) per Mason, C.J., Brennan, & McHugh, J.J. - the concept of voluntariness relates to what is done not to the consequences of what is done.
35. 33 The inference of fault is drawn more readily in some jurisdictions than in others, but this is primarily a matter involving the law of evidence. In Jiminez, the High Court of Australia refused to draw the inference that the appellant drove dangerously in circumstances where their counterparts in England or America would in all likelihood have done so. It does not of course follow that a future case on similar facts would result in an acquittal as it can be presumed that the prosecution will be alert to the proofs of fault which the decision requires.
36. 34 See authorities cited in supra note 29.
37. 35 E.g. R v. Hennigan, 3 All E.R. 133 (1971); R v. Cato, 1 All E.R. 260 (1976); Smithers v The Queen, 75 D.L.R. (3d) 321 (1977).
38. 36 E.g. R v. Bristow, S.A.S.R. 210 (1960); The Queen v. Hallett, S.A.S.R. 141 (1969).
39. 37 E.g. R v. Roberts, 56 Cr. App. R. 95 (1971); Royall v. The Queen, 172 C.L.R. 378 (1991); R v. Williams, 1 W.L.R. 380 (1992).
40. 38 In fact, the coincidence requirement in Jiminez was more exacting than that normally demanded by the criminal law in that the statute specified that the dangerous driving should occur at "the time of the impact."
41. 39 93 C.C.C. (3d) 21, 58-59 (1994), citing studies to that effect; per Cory, J. "[i]t has not been established that there is such a connection between the consumption of alcohol and the crime of assault that it can be said that drinking leads inevitably to the assault." In contrast, the Court seemed more willing to accept the existence of a causal link between alcohol consumption and impaired driving in R v. Penno 59 C.C.C. (3d) 344 (1990).