RESPONSIBILITY FOR THE ACTUS REUS - NZLII

RESPONSIBILITY FOR THE ACTUS REUS

I. INTRODUCTION "Actus Reus" is a term of doubtful pedigree.' It has been termed "a convenient solecism" ,2 and is often said to be of limitect analytical utility. Such comments are frequently made by those who wish to wield criminal law in a robust manner, uninhibited by abstract theory . To a pragmatic century this seems an admirable objective, even though it looks more like law according to justice than justice according to law. This, after all, has been the pattern which caused S. F. Milsom to remark"Nothing worthwhile was created. There is no achievement to trace" .3

Still, if we are interested in doing justice according to law, some attempt to elucidate and salvage concepts such as actus reus seems worthwhile. This discussion refers to a number of recent New Zealand decisions on actus reus and some of the defences which have been s"id to negate actus reus. It seeks to argue that the issue of responsibility for the actus feus is always bound up with the way in which actus reus is defined and that such responsibility is a matter that is inevitably intimately associated with our every-day moral notions. Judicial perceptions of what everyday morality requires by way of criminal liability are mediated through these concepts (except when "robust common­sense',' takes over). An attempt will be made to trace this association in the judgments under consideration. .

As to the question of responsibility for the actus reus, I make the preliminary observation that (once it is established that a f6r\jidden event has occurred) the question in criminal law is always whether the defendant is responsible for the acts or omissions said to constitute anactus reus, Responsibility in this sense is not solely a matter to be considered in connection with mens rea. There are a number of situatiolls where criminal responsibility is denied which do not involve the' claim that the defendant is not responsible because s/he did not intend to bring about or do that event or act. The "defences" of impossibility or compliance, necessity, and compulsion are three such instances. These defences also raise interesting questions as to their relationship with the require­ment that an actus reus be "voluntary" and that a nexus of causation between the defendant and the prohibited event be established (or that the defendant -to use the language of Woodhouse J in Kilbride v Lske4 - produced the actus reus'. Sometimes all of these defences are reduced to the claim that, according to everyday conceptions of moral responsibility, the defendant was not "responsible" for the prohibited event. But anexaminstion of past cases deal­ing with these "defences", and of some of the recent Ne~ Zealand cases, shows confusion and conflicts of principle on two matters: 1 1. What Is the actus reus of an offence? How is It to be analysed? What are its

components? . 2. Attendant on 1, what are the principles (apart from matters of mens rea) by

R. C. Clark (ed) Essays Oil Criminal Law. ill New. Zealalld(1971) 48. suggests that the term was coined by Kenny, in 1902, in the first edition of Outlines of Criminal Law.

2 8y lord Hailshem in D.P.P. v Morgan [19761 AC 182 at 208. He was referring to the fact that actus reus is.a corruption of the phrase "actus non facit reum nisi mens sit rea" and that alagally prohibited act need not be evil or bad in any moral sense: N.B. Haughton v Smith 119751 AC 467 at 49l. A more recent attack on the term as leading to a mistaken requirement of a positive act in all offences is made by lord Oiplock in Miller [19831 1 All ER 978.

3 S. F. C. Milsom Historical Foundations of the Common Law (1969) 353. 4 [19621 NZlR·590 at 592.

7

which responsibility is ascribed fOf a prohibited event?

II. DEFINING "ACTUS REUS" I take the term "actus reus" to refer to a prohibited act, omission, or state of affairs (not necessarily "bad" or "harmful"). Such a definition, white helpful in avoiding any idea that actus reus camiot be constituted by an omission or that the criminal law cannot prohibit· a state of affairs, does not take us very far. What is an "act" for these purposes? Are the "circumstances" and "results" which make otherwise innocuous behaviour a prohibited actfomission/state of affairs part of the actus reus? These are important questions in a number cif con­texts: - where questions arise as to whether the actus reus was voluntary; - where questions arise as to the commencement/completion/duration of the

actus reus;s - where questions arise as to what matters the defendant must know in order

to satisfy mens rea requirements. In Tipple v. Pain & McQuoid'Hardie Boys Jadopted the view that the actus

reus of an offence is the initial act (or omission) of the defendant, rather than that act together with its circumstances and consequences. The question arose as follows.

Tipple, an arms dealer, was. charged with an offjlnce against s 38(1) of the Explosives Act 1957, "consigning an explosive for carriage in an aircraft to Ne,w Zealanct. vvithol,ltprior consent in ~rit'ng of the Chief Inspector of Explo­si~esr': The consign~ent OCCl,lrre«,tln ~Ydney. He submitted that the charge was btlyonctthet~rritgiia' jur{sdictioh qftheNew Zealand Court, arguing that courts hereh~\re jurisctic~fon only SlVero~!ei1ces committed in this country (s 6, Crimes Act 19'131)~ .'wlilir~~~ s 7 ,of the Crimes Act 1961 deems an offence to be com­mitted in NewZe.aland "where any act or omission forming part of any offence, or any ev~nt necessary to the completion of any offence, occurs in New Zealand". It was,submitted thats 7 referred to the actus reus of an offence and that the actus reus of an offence is solely the initial act of the defendant, exclu­sive, of the circum~t8nces and rellults gf that act. The. omission to obtain con­s~nt from the Chief rnspect9r wall a .circumstanc~. not part of th~ actus reus. Thus the Court hadf}o jurisdiction, for the initial act/actus reus here was the consignment in Sydney.

Hardie Boys J ~~emingly a.greed with parts of this argument, but ultimately held· that the> District Court dkJ haye j!Jrisdiction, for three alternative reasons. First, the a,ctus reus here .incructed the consignment (a PC?sitive act) amI the omis­sion to obtain <:onsent. The omis~ionwas not a circumstance. Thus the first limb of s 7 applied to give jurisdic,ion. Secondly, the omission could be said to be "part of the ()ffence" within the first limb of s 1. even If It was not part olthe actus reus; there Is nothing In s· 7 indicating that its first limb refers only to the actus reus. Thirdly, the arrival of t,he goods in New Zealand was an "event necessary to the completion of the offehce",thus satisfying the second limb of s 7.

Hardie Boys J did, however, adopt a narrow conception of actus reus:

The term actus reus therefore is more correctly descriptive of the act done (or the omission made) by the accused. rather than of the 'event' or the 'physi-

5 See A. C. lynch. "The Mental Element In the Actus Reus" (19821 98 LOR 109 for examples of this type of situation. . .

6 Unreported. High Court. Christchurch. 10 February 1982 (A42/81 I Hardie Boys J.

8

cal ~Iement' Ito use Woodhouse J's expressions [in Kilbride v Lake7 )) which is brought about, in whole or in part, by the act lor omission). Thus understood, it is clear that the actus reus is complete when the accused has done all he needs to do to constitute the Crime. The crime, however, may not be complete until the result of what he has done has worked itself out. This distinction makes it necessary to recognise that in many crimes there is another component in addition to the actus reus and the mens rea. 8

The different view taken by Woodhouse J in KI1bride v Lake is worth noting:

. . . Actus reus . . . is not the line of conduct which prpduces the prohibited event, but it is the event itself. It is an occurrence brought about by some activity or inactivity or by both. The crime therefore lexcluding for the moment the possible ingredient of mens reans constituted by the event, and not by the discrete acts or omissions Which preceded it.'

Hardie Boys J's conception of "actus reus" is at variance with most of the standard understandings of the term. Before spelling these out I wish to note one particular consequence of adopting his view. This consequence is that a narrow focus on the initial act done by the accused tends to equate actus reus with the physical acts (or, more precisely, physical behaviour) of the accused. This creates difficulties when one comes to consider the application of the widely accepted requirement that the actus reus not be "involuntary", i.e. not done in a state of automatism, unconsciousness, or as a result of some external' force moving one's body. 10 A case frequently used to illustrate this difficulty is Ryan v. R.11 The accused carried out a robbery of a service station while armed with a loaded rifle. When the victim, the service station operator, made a sud­den move, the accused's finger tightened on the trigger, he claimed "by reflex action". The rifle fired; the victim died. If the accused's story were believed he would seemingly have a defence of involuntary actus reus. The High Court of Australia thought not, one salient reason being that the "act causing death" was not solely the pressing of the trigger, but included the loading and coct<ing of the rifle, the failure to apply the safety catch, and the presentation of the rifle at the victim in the course of the robbery. These acts were all plainly voluntary. In other words, the relevant "act" of the accused was a complex series of physical activities.12 One could not separate out the pulling of the trigger as the "initial act". The "transaction" had to be viewed as a whole.

ithink Ryan's conviction was sound commonsense and good public policy. Yet if a narrow view of actus reus were to be adopted, this result could not be achieved without doing some violence to the usual requirement of "voluntari­ness".

Hardie Boys J's conception of the actus reus is also at odds with many of the standard understandings of the term. Smith and Hogan state that actus reus "includes all the elements in the definition of the crime, except the accused's· mental element : . . [It] is made up generally but not invariably of conduct and sometimes its consequences and also of the circumstances in which conduct takes place (or which constitute the state of affairs) in so far as they are rele-

7 Supr~. n 4. 8 Supra. n 6. pp 5-6. 9 Supra. n 4. p 592.

10 Hill v Baxter(1958J 1 OB 271. 11 (1967) 40 AlJR 488. 12 This was cartainly the view of Taylor and Owen JJ, and a possibility canvassed by Barwick CJ.

9

vant"." Glanville Williams adopts a similar conception, including both circum­stances and consequences of conduct within the actus reus. 14 Perhaps the reason for Hardie Boys J's approach was an overconcentration on the "bad Latin"1S ofthe term "actus reus". "Actus" suggests the need for an act, but it is trite learning that actus reus can refer to omissions or states of affairs. '8 No "act" or even "behaviour" by the defendant is necessarily required. "Actus reus" is a legal term of art. We are not dealing solely with the question of whether a person has "acted" as we use that phrase in everyday speech, but with the question of whether s/he has acted/omitted to act in a way/in circum­stances/with results that the criminal law proscribes. And it is possible for the law to impose a criminal sanction on a person when a certain state of affairs comes into being, regardless of how that state of affairs came into being.

In any event, the words "actus reus" or "act" cannot sensibly be used to refer to some "bare" physical_conduct of a defendant. When we say that something was 0' s "act", we are often not describing conduct, but ascribing responsibility. And we always do this against the background of circumstances and results. There are two steps to the argument in support of this observation. First, there is the observation of Salmond that:

An act has no natursl boundaries, any more than an event or a place has. Its limits must be artlfically defined for the purpose in hand for tha time being. It is for the law to determine, In e.ach particular case, what circumstances and what consequences shall be counted within the compass of the act with whi.ch it is concerned. To ask what act .a man has done Is like asking In what place he Iives,11

This is a realist, some might spy sceptical, point of view, but it sharply reminds us that "ther.a is a goad deal of freedom in 'struoturing' the history of somQone' Sf.cactivities'·, t Ii. by rneansof words like ' 'act". If the relevant act in Ryan's case was the pulling of the trigger, then Ryan was not guilty, for the act was not voluntary ("voluntariness" is. a requirement of "act"). But if his "act" was the shooting of the victim in the course of a robbery, he was guilty. The ambit of am "act" is entirely convenllonat (though current usage or convention sets outer bound~ries to how that ambit m~y sensibly be set).

How do we set .this ambit? This is the second step in the argument. Hart sug­gests that we say things like "he did it". We are, outside the simplest of examples, not describing .what occurred but 8scribing responsibiiity for what has occurred. Hart denies that "actlon" Is Ita descriptive concept definable through a set of necessary and sufficient conditions". 18 We are not

13 Smith and Hogan. Criminal Law 14th edl. 32-33. 14 Glanville Williams. Criminal Law: The General Part (2nd edl 16. and Textbook of Criminal Law

(1978) 31-32. 15 Per Lord Dlplocl< In Miller {slIpra. n· 2. atp 9801. 16 See. e.g .• J. Hall. General Principles of'Crlmlnal Law (2nd edl 222. 17 Salmond. Jurir;prudence (1902) 402-403. Salmond earlier in the same chapter maintains that

an act Is comprised of 111 Its origIn m some mental or bodily activity or passivity of the doer; (21 its circumstances; (3) Its conseEf~nl:.l!s. at'ld'rejects the notions of Allstin end Holmes that the only acts properly so called are."VQ{untary muscular contractions. "-

18 This is a phrase of J. L. Austin. Austin wos. in fact. referring to the structuring of activities by the way words like "intention" are deployed. but the general argument seems epplicable to the generality at which we choose to say a person "acted". See J. l. Austin. Philosophical Papers (2nd edt 284.

19 H. l. A. Hart. "The Ascriptiol1 of Rasponsibility and Rights". in A. Flew (ed) Logic and Language {first seriesl (1955). 165.

to

"dHS(:r!ll:Jin,gt wh1,m W'fJ W,,~1, such [::J!hl"SS8!W bu.it tlCCILIS131tions'\

tha~ s,r.imEr, penMJJn or i,~ til:r,r whrnl: has o:ccun·i:,1:t "'. .• Our con­c(ipt of ~n ,M~tic,r1:, like irl'ur ccm!l::ept {,il properft'I/, ls . .s1 soci,,:,I conc1E1pt, arn:11 uo!]icallv d1apenclent Oii'il accepted rules o~ rn:mduc:t". :w Thi8 apprm:ch !!] aclmed by Fifi:.:,gernld:

One reason fo!f the oH trying 1e!m:kfiotc{ ,criterricil of ""~nna,,c,01n,11,,·h,1

,u,n'"'·""'""n'" r~n act on the def,,mdant' s part, m11d then n3versia~ to ~orw1e a;rt,an"fc the of n,rni:n.",""' epeech the 1wcwd "aicI" is m1ed wnot so mu,ch to describe

to i~r;;r.;rr~b1E HJsponsiUJ!ij~_ity. ,_ . @ "'l~/s e1ct caus,e~:~ Er:a de,Eithi' as ~es~ iEI what hem lr1appanE1.l than anmth<t~r wav of that ti!

kn H,,21 'l~OJ'utiilK~ of "' discmmion tvf C€JIJ;,ation, mic1kes '!Ile sam&', point nn saying thlit Ihe l}f ''cause'' rrmst be related to definite nc,e~,,-,,,;r,·fd,,"'"'" lh1e c,f a inquiry, h& thinks, is not 11on1e ce111.m0 "1JIT"u ge1ner!fi!", bi.'lt some ',c:ciuse for Vlihicl"u th(-i d,eforn:im1t is a·,gapor,sii,i&' ". n

... it is st imprndst'i am',' thrr:i foctuai cause ,ol SJ cdmi01mi ihr:mn is fin;;t detem1ined, then the is to fo, if a definite p0rnpe:c-fr11e ls essential to cogerr! 1·11e<111in1J riI th!;} ternrn, relevant 1a,,v rmmt be employed frmn rth® o!l!tsei1: !'o demark Ihose m.,pectri of tJi situation wfthin vvhk:h cc1ur;e .. in-fact is deten,rnirim:i. i 3

Hall goes on to say that:

It iil nrit to accept th;0 thesi:~ :that in prn,c'ik:al a,lffaiu·s, v~1!m1l:km has to do with th1~ mef.iining am:l r.,f cmisfils,

al! this .:o actus mm,, to be made is thart h,xc1:J1::ttlng the state of aifairn ol'fo11ces1 w!um wie j)iur11oril to w!u;ther or 11101t th,S! actt.1s rems of some hai~ ber~n committed w11;1 am in foe! '"·""n,rn,m·,,

than dem:::ribing srime in the SliGh ii'l!l ltl:~Kli.m p!8!C0 ir.i tJw 31:,Unng o!' mn ""''"'"""'""'' ,,,.,,,.,,,r,,,,.,.ii,,,~,,,,, what is pos:;.;ii:J!e ,md probable, and it is 'Wffl/' of activitv or restraint. The view foat "ocl:" !which he 1.mes k1 Ih,~ e,11:mse I a1T1 ''\11ctus n,ms"l inchides and results, and th!iit 't&f1ich cin::umstances and res1.iits am in thll'i "artificial deiinifa:m" """'"'"""rt"' upon the purpose in tmrn:i, make,,. more sern,e, T1:1ik of the act.us mus as "the initial acr' of the defomfant obscures thii> <l pmcess Hhe

"'""'"'"r1m, com:eptions ol morality and responsibility are bu!![ into ti,l'J WfiY actus mus is and the decision as to whetl11::r the defern:lBJnt "did" it. In additirn1, srn::h a conception has the sorriewhat odd ,..ml, within the ow the criminal !aw, illogical comieqm,mces noted above.

JI,. Scrrna; pmbi<:1uns :!ltatad Puzzies of grearrier comp!exitv ;,wise 'wu·Mm w1I'! ccme to c1i)lfl:Siifor

bfi~We£m fr,e corn::ept (1U "'actus r,,ms" and the "defcmces" (Yf

20 /:fr.id, 1 '31 . 21 Po J. Eitu01ma!<l in 1t,. H. (1ti;a:al !([id~ 0Jli;o,rd /,'fssett.S in Jw'l.o;prudtJi1,1:...N1 l 19l'.J,"i },, 22 Hill!, 11 ff,. 24£1.

!bid,

compliance and lack of "voluntariness". These defences are sometimes said to involve a denial of responsibility for the actus reus or even to "negate" the exis­tence of an actus reus. Consequently their relationship with the concepts of "strict" and "absolute" liability also arises; surely if one is not "responsible" for the occurrence of an actus reus, or if there is no actus reus, one cannot be subjected to criminal liability in respect of it 7 One way to get to grips with these issues is to explore the conceptual and moral bases for defences such as "impossibility" and "involuntariness", and in the last section of this part, this is attempted. Before that discussion, some recent New Zealand cases which raise these Issues and make some contribution to their resolution must be noted.

B. Impossibility, Voluntariness, and Causation: THaga'. case In Tifaga v Department of Labour,24 the appellant had come to New Zealand from Samoa, entering this country under a temporary visitor's permit.2S The per­mit was extended from time to time. Mr Tifaga was now convicted of an of­fence and sentenced to 6 monthsir:nprisonment. His entry permit was revoked. On being released from prison he failed to leave New Zealand and was charged with the offence of failing to leave New Zealand within the period prescribed (3 weeks after his release from prison) by the Revocation Notice. This, it was agreed on all sides, was an offence of strict liability.

His defence was th,t at the time of release from prison he had no money and could not raise his ,iiinome by the time the revocation notice prescribed for his departure. Since he had had no choice in the matter, his remaining in New Zealand was involuntary. This "inVoluntariness" was, of COlilrse, the argument developed by W<?9~h9u~e Jin,,;lbrirle v Lak.e. 28 The argument failed in the Magistrate's Court~ tile ~tJprem~ <::Q:Ui1:and the, Court of Appeal.

The Court of, App~al was,howeve~" divided as to what the proper basis of this defen~e eould/l)e;Woodhol!{S'~'U(fealt with the matter as Kilbride v Lake argument. He stated that the firstqu{Jstionany court must answer in a criminal prosecution, even where the offenc~ is one of strict liability, was whether the defendant "had been shown in terrhll of causation or otherWise ~Q be-respon­sible for the occurrence of the forbJdi:leh event ...• "27 If the forbidden event "occurred independently" of the (fefendant, the chain of causation would be broken. However, "conscious volition or opportunity of choice" was "an essential basis for testing reponsibility for acts ororhissions";211 and also for de.ciding whether there was a causal relationship between the defendant and the occurrence of the proscdbed situation'. His Honour indicated that the absence of stich "Volition" or "mental stimulus" was the basis of the defence of automatism, and that its presence was necessary if the bodily movement of a person was to be termed an "act".

But the defendant in the present case had produced a forbidden situation. No "Extraneous" cause which produced that situation could be identified; criminal liability could properly be attributed to him. This for the reason that the defen­danthad voluntarily come to New Zealand on a temporary permit that would eventually expire; he had a "continuing responsibility" to maintain the means to leave in due time.

24 (198012 NZLR 235. 25 Section 14 Immigration Act 1964. 26 Supra. n 4. 27 Supra. n 24. p 238. 28 Idem.

12

· . . The more recent circumstances that undoubtedly have affected him can­not -in my opinion be regarded as some in.tervening cause that can have changed that situation.29

With respect, several matters are conflated in this argument. The questions of voluntariness and causation are subsumed one in the other, and the concept of a novus actus interveniens is somehow, it seems, seen as relevant to volun­tariness. In fact the use of the term "involuntariness" in relation to a situation where the force of events and the defendant's improvidence (by one cultural standard' combined to ultimately deprive the defendant of any reasonable options for choice30 is distinctly unhelpful. This is especially so when the situa­tion is compared with one of automatism. I suggest thatthe term "involuntari­ness" is best confined to the "automatism" cases. "Opportunity of choice" is the more important and helpful concept, appealing as it does to our common moral sense that 's/he could not have chosen to act otherwise" is a good excul­patory argument in moral reasoning. 31 In a general way, this was the approach of Richardson J. He saw the case as one where the defence of "impossibility of compliance" was raised. Richardson J first bemoaned the fact that in the branch of the criminal law dealing with strict liability "there is no consensus as to the precise concepts involved in determining the elements of criminal res­ponsibility" .32 Responsibility for the actus reus was variously taken to require: 1. consciousness-or awareness of conduct; 2. physical ability to control conduct; 3. true choice of action (absence of this making conduct involuntary'. He also noted confusion as to whether "defences" such as impossibility, necessity and coercion, were indeed defences or justifications or whether they negated actus reus. 33 He did not find the KIlbride v Lake approach very helpful, because Mr Tlfaga wasnot oblivious of the true position; his failure to leave was a conscious failure on his part. Consideration of the common law defence of im­possibility (preserved by s 20 of the Crimes Act 1961) was more helpful. This defence he took to refer to the situations where there was inability to comply with the law at all.

While impossibility could be a defence, it would only operate if the defendant were free from fault; indeed Richardson J thought that impossibility was virtually identical with the "defence" of "freedom from fault" adumbrated in Police v Creedon. 34 In that case, and in The Generous,31 such a defence was excluded if the impossibility/necessity was created by the defendant's own act or if s/he did not use all reasonably practicable means to surmount the difficulties which formed such a necessity. In the present case the impossibility had arisen through the defendant's own act; he could by due diligence have avoided the impossible situation.

29 Ibid. 239. 30 But he did retain a choice. He could have tried to swim. row. or stowaway ... 31 Alf Ross. On Guilt, Responsibility and Punishment (1975) ch 6, H. L. A. Hart. Punishment and

Responsibility (1968) passim. 32 Tifaga, supra, n 24. 241. 33 The question of whether "defences" of this type are indeed defences or are simply modes of

denying the existence of a definitional element of the offence seems problematic. Glanville Williama has recently suggested that there is no satisfactory way of resolving the question - it turns on accidents of drafting. language. and tradition. See "Offences and Defences" (1982) 2 legal Studies 233.

34 1197611 NZlR 571.

13

What did Richardson J see as the basis of the impossibility defence 7 While there are some puzzling phrases in his judgment, it seems that the following is the essence of his view:

Necessity and impossibility are distinct but related concepts .... Although an action constrained of true necessity is one made without true choice of action, necessity has come to be used to denote a situation where circum­stances face a person not with no choice at all but with the choice between two evils, so that he can hardly be blamed if he chooses the lesser. In con­temporary usage inability to comply at all is the subject of the related concept of impossibility. 39

The last section of this part will discuss the question of the nature of the impossibility defence. It is first useful to explore the implications of this line of defence for a large and growing class of offences - those of "strict" and ''absolute'' liability.

C. lmposslbfflty, Voluntariness and Strict Liability In Tifaga's case it was agreed that the offence in question was one of "strict liability". The central meaning of that term is that, prima facie, criminal liability follows upon proof of actus reus only. Strict liability has given rise to many ingenious attempts to mount defences which allegedly "negate" the actus reus or deny responsibility for the actus reus. Many such arguments involve attempts to extend the ambit of "involuntariness" to include "necessity", "latent defect", 0physical compulsion" ( ''impo~sibility".

Another recent New Zeahmd case wllfch provides an Illustration and a useful set of facts for e~positionls Rude v.finau. 37 Mrs Finau entered New Zealand on a te1J:1porary'yis'ft()r'sperm1t: 1.t .v,,~s extelide.d from time to time. She became piegnllnt. ~fi~ i:lid.rlotreaUse encl w~s not advised that she would be refused air travel once'thep~~Qnancy had passed a certain stage. By the time she did realise this, that stQ~e had be.en reached. She. consequently did not leave New Zealand by the expfry date of her extended permit. It was found as a fact tll.at she did not become pregnant with the intention of circumventing the Immigration Act 1964.

Impossibility was seemingly clearly established on these facts, but Quilliam J was able.to avoid such a result by invoking the proviso to s 20 of the Crimes Act to the effect that common law · defences continue to apply in New Zealand unless "inconsistent with this Act or any other enactment". The charge in the present case was one of failing to leave at the expiry of the permit, not failure to leave on notice of revocation as it had been in Tifaga's. case. If the defence of impossibility succeeded here, Mrs Finau would secure a new immigration status since she could plead autrefois acquit to any fresh charge. There would thus be no way to get her out of New Zealand. This would plainly be inconsistent with the provisions of the Immigration Act 1964, and the appeal of the immigration authorities succeeded.

What if counsel for Mrs Finau had argued along the lines taken by Woodhouse Jin Kilbdde v lake and in Tifaga's case, that the defendant has not "produced" the actus reus, that the actus reus was thus not "voluntary"? Arguably, since this would involve a negation of actus reus, and thus the

35 1181812 Dods 322: 165 ER 1501. 36 Supra, n 24, 243. 37 Unreported, High Court, Auc!dand, 9 September 1982 (M590/821 Quilliam J.

14

rn!Js,ra,1c1:'J tr! i::mo ,Jf' the, ,.kllfin:!tional filerm.mrn of the re>ffener1, H ,1x1uld not 1bfi c,mght s 20, ,rn iii' such arn 1\r; e1cc.apted it :ro1tD;'1t v ,eomp!et1s ,msw,1,1 to 0He1ne,a,, :strict !iaha!ity, and 1w1:1ru "absolute" iiBomty,

The re!ev.snce ol' !:his line of :argumt1mt ln emrns of st,ict 111nls u-urth.'ir ·"·'·''•""''"'''';'""''M' in Und v i,<Vl/HH1son 81 Si:m Uri!. J~ t,, Ir:::ni!er o,wneci by the defondc]fft fom ,11ms four.d b'f 51 trnrnc orncer to l't31ve a ma[Ium:;ti.:ming [rmbodome1:er iia disti:ilnce rnicon:l!rng rfavk:e flUed to vehides for fixing mad tnser J;,m). lt had pro, bab!y bem'u rnaifunctioning for rilbo.ut one month, ·n,a foi!ov;in[l; day the; ckifori­.rianl hBd the device iched,e<tt ut was tlho:'ln fcmnid to be, In i,mmd vvorldng ,,:m:h,r e:m:l rermii!ned in such good oidler at the date oI foe h0arin1;.i in the District Court. The Road Usef ,l;ct 1 ST! cr1:,@l:r~s an o•ffence of certain fiype,s c,f irrioltor vehic!,a: on the n:11.]d 1m!ess, inter ,'l!Jlft:JJ, they with s ln,bodometer in c:orn:li1tion, T!ha rnsv:rk:t Coun diemh11sed thteJ

partly fm the n;;eson tliat "Hmrn vva11 no 111ct or ornission on ilhe part of the respondent" ,,_ the: Kiibl!'ide v Li1ke f1tl'gun1e11t But Hardie J disagre;.EM:l. There had be,F;ri opportunity here for the defoct to be d!':!tected, so i:he d•Eifandants wer1£1 in Ill cav1sa:dv1~ s0mm for the

conteint, the actus rnm, ,o,f thia offom::e", Neverthe!esi, H,m:lie J spoke ~,1provingl'if' r»i !(flb1cfde v lak,1; 1.::eriJsa'drn1 or v1Dkm-tB1r~ness~

?\!lost ot ~he judgment, ho1N€!V!Elr, vv;r,m co,n.:;imied with whether the st,Jtute cref.,teci an r,ffonce (Jf "&bsohJt1,~ liability". Maniie J held thal' it frw 1:h,e reascm that s 2314,l a t,ta,tuto,v defonci:i which would co\,:er rnost sit11Jatnorn;; wheni there was abseru:a,1 orr m,;,ns re;e1. thi1:1, Man:lie Boys J seenrm Hi have ber&n c,f th,'l v!ic,v" thr.1t th~ !(lf.brida d,-ifonc,a wm.11d 01:3 <1vailabl1: to an "absolut:,i" oHence.

This fmab!m; a ir;oirisidarni:km l:o be made of the crnwo!u'tell pr,oblems inv[:iived with such as whr,m "'si,rici'" o,, "absolute" is tmder consider.e,th::m. Hardie not discuss the !:listim:tion between "'absolute" and "'strict" drn,Nlfl in /'J v of Sault Ste Marie;io the New Zea!,md Court oil in 1Vmc:Kenzi,:.1 V .,,.,.,,,~,,,n.,,u~wu ,t 1 ?r!or il:n these d,acisim1s, "strict" oind "absolute" is J did not discuss the1 divkk, oHe;ices into three .r,i::1i-,rn,u·o1l'ii.••i·

'I, '"Mens re,il"' cri'fonces - those that ,u,a "tmly criminal" w!wma intent, krmwiedge, recklessness et al must be p.ove{t

2. "Strict liability" offence:; - where tha doing of the lfacie

38

imports the offence but the defendant can avoid liability on tht~ balance of that s/he took all reasonable care or was otherwise

discussad in n.33, 1mtG. The dim:ussion of s 20 in Adams, Criminal edl ffl 101, no Gssistm1iea, Adams do,es treal cibmmce

o! mans nm as a common !!lw delern:e, 11a,arn,i:,1~!v Ona Canadhin dl!8CUJstion ci· the ~qtdv&Jient ~r, !ht~! ito,ls.dictikm A:rn3ts krvolUJntarir~12,ss B$ a n1ajtter of dii:1fonce~ r@ther than a dei"trdHona~ raill.'lment,: Crfrnirtl!J! Code !Jf Cansxia (;11th edi 7,

40 1lHfl!ll !B!!S DlJl (3,dl Hl1, ti.'! [ 1903~ NZlr1 78. CniLllfr of App1aflt £~ Jtm8 "iJ ij83 ~CA 2fili/8l3) Dlavhh'Jn CJ, Cioc~k J, fUclhardstJn J,

Mo::MullinJ, 42 Clgr(,, op cit n 't. ell 3l

]5

completely without fault. 3. "Absolute liability" offences - where it is not open to the defendant to

avoid liability by showing absenoe of fault. The contentious nature of the second category of offences is obvious. 43 1 do not wish to discuss the merits of this new departure. but to consider two matters: first. what the courts have said about the relevance of involuntariness/impossi­bility/necessity defences to this schema. and secondly. whether these observa­tions conflict with the usual understandings as to the nature of actus reus and attribution of responsibility for it.

The New Zealand Court of Appeal in MacKenzie thought that. in cases of "absolute" liability. no defence o(absence of fault would be available. And the Court considered that:

Concepts such as impossibility. inevitability. necessity, involuntariness, reasonable mistake of fact, the act of 8 stranger, and absence of negligence are different routes to that social goal of excluding liability for conduct which is considered non-culpable in that regard (i.e. because the situation is one of absence of fault} .... Whatis important is to determine, having regard to the scheme and object of the statutory provision in question, what factor in addi­tion to the external manifestation of conduct falling within the provision must be present in order to warrant attribution of criminal responsibility for that conduct.44

(Richardson J In Tifagaseemingly saw "lack of freedom of choice" and compul­sl~h as ~eing addi110.nal "ab!;enee of fault" defences.)

1t is worth rioting that th~ Supreme Court of Canada in R v City of Sault Ste Marie implicitly eql!ated "absent:eof fault" with "absence of negligence or intention" or "presence of mistake". The Court of Appeal's inclusion of involuntariness, necessityandac'tdfatttranger within the phrase is. seemingly. an ~xtension. Impossibility, 'neces~ity and involuntariness would not be defences i,n cases within the class of "absolute" offences. though they would survive in the "~tritt liability" class. liability is truly" absolute" • Tffags, Flude v Finau and Und v Laurenson & Son Ltd must (though the Court did not discuss these cases) have involved "strict liability" rather than "absolute liability" offences.

How far will this view of things be carried through? As an example, one com­mentator has said that Heileman v Collector of Customs4B involved an offence of "absoluteliabllity" in the MacKenzie sense.48 The statute read:

If any ~hip Ibeing fiUed VIIith any smuggling devices) comes or is found within one league of the coast of New Zealand . • . the master. . . shall be liable ....

This is a classic "state of affairs" offence vis a vis the Master. Suppose such a ship is en route from Australia to the U.S.A. and is, despite its Master's best efforts. blown by a storm on to the New Zealand coast. Is the Master to have no

43 McMullin J delivered' a !.Itro'lgly dissenting judgment In MacKenzie. 44 MacKenzie. supra, n 41. maj(lrity judgment at p 81. The Judgment does not acknowledge that

this is a direct Quotation from the judgment of Richardson J in Tifaga supra. n 24 p 241. Richard­son J there takes a simil!!r fine to MacKenzie in subsuming impossibility or lack of voluntariness under "absence of fault".

45 /19661 NZlR 705. 46 See J. S. Kos. "Criminal law - Involuntariness" /19831 NZlJ 407.

16

defence? On the approach of the New Zealand Court of Appeal it would seem not. (Hall sees the case where a ship is washed ashore by a storm as·a case of "physical causation" or "physical necessity" - where the defendant even in a "public welfare" offence is not liable.)47

Can this position be supported given the normal requirement (discussed in Part II, ante) that the actus reus must be voluntary; is it not illogical and inconsistent to say that liability can be established merely on proof of actus reus if voluntariness is said to be a requisite to actus teus? This is an argument fre­quently urged in justifying the extension of defences of lack of causai nexus, physical compulsion, or automatism to offences of purported "absolute liability" . But the argument from logic and consistency fails, for it seeks to make theory "grow on the back of definition".41 As Part II of this piece makes clear, it is possible to make the occurrence of a state of affair's a necessary and suffi­cient condition for inflicting criminal liability on some person; "actus" in the phrase tractus reus" has never been tliken to mean that there is always a need for an "act" (or omission) in criminal liabilitY, though that proposition might be a sound tenet of moral philosophy. And the ambit of "actus reus" is purely con­ventional, though usually circumscribed by our everyday moral notions about when a person can properly be said to be "responsible" for some event. A per­son can be made liable for a state of affairs for which he was in no moral sense "responsible" .

Notwithstanding this, there may be some doubt that the Supreme Court of Canada in R v City of Sault Ste Marie did in fact intend "absolute liability" to extend so far. The Court equated "absence of fault" with "absence of mens rea", and the following passage suggests some residual requirement of volun­tariness or causation:

In strong contrast, absolute liability entails conviction on proof merely that the defendant committed the prohihited act constituting the actus reus of the offence. There is no relevant mental element. It is no defence that the accused was entirely without fault. He may be morally innocent in every sense .... 49 (emphasis added)

These queries aside, impossibility, necessity, involuntariness and seemingly lack of causal nexus are now trellited by the New Zealand courts as defences which may be subsumed under the rubric II absence of fault". In offences of strict liability, it seems that they must be proved by the defendant on the balance of probabilities. They are not, despite any theory or argument that they negate actus reus, available in the very limited class of offences known as "absolute liability" offences. These offences may be understood as offences where the existence of a certain state of affairs results in the infliction of a penalty on some person, regardless of how such a state came about.

D. The conceptual basis of these defences Is "impossibility of compliance" a discrete and separate defence? Or is it a species of, e.g. necessity? What is its relationship with absence of volun­tariness or volition, or the absence of a causal nexus? On what moral principles is impossibility a defence?

47 Hall. op cit n 16. 43. 48 A. T. H. Smith. "On Actus Reus and Mens Rea" In R. R. Glazebrook (ed) Reshaping the Criminal

Law (1978) at 97 (n 11) and 107. 49 Supra. n 40. 170.

17

Woodhouse J, in Tifaga's case, conflated absence of voluntariness, absence of opportunity of choice and absence of causal nexus together as a test for "responsibility" for the actus reus. His Honour spoke mainly in terms of voli­tion. I suggest that this is an unhelpful approach. On the face of things it seems appropriate to speak of "involuntariness" or "absence of choice" or "extraneous cause" when it is impossible for the defendant to comply with the law. But this fails to make distinctions which may be important, for not all of the "defences" of which Woodhouse J speaks rest upon the same moral principles. 60

It has sometimes been suggested that the defences of compulsion, neces­sity, involuntariness and impossibility rest upon the moral principle that we do not regard a person as responsible for anything if "s/he could not have chosen to do anything else", In the sense that it was not in the person's power to act or to choose to act otherwise. The following defences rest upon this principle: 1. Physical necessity&l or physical compulsion - as where A grasps B's hand,

which has a knife in It, and forces the hand to stab V. This class includes "in-evitable accident" . .

2. Absence of causal nelCUS (which might be no more than a repetition of 1). An example might be a novus actus interveniens. Another is the "latent mechlJnical defect" type of case.1I

3. Involuntariness in the narrow sense of physical movement/omission to move while "unconsci()us"; "automatism" through epilepsy, sleepwalking or a blow on the head IS an.9xample.S3

In all these caSeS we would not fiR~ it unl,lsual to say that the defendant did not .. act" in any legally relevant senSe oJthe term. (Pure cases of 1 and 2 are in fact rather rare.) It is also worth noting that even in this class of case a moral judg­ment is built into OUf reasoning as to whether the defendant could have chosen to dQ anything e~!3e: "How did 8 get into the situation of standing before V with a knife in hishttnd1" or "How did B get into an automatic state1" will often be a relevant question.84 Bl,lt there will be some, perhaps many, c:aseswhere on a commonsense view this question does not present any obstacle to a finding of "physical necessity"; the facts speak for themselves.

There is, however, another moral principle which Is frequently confused with that involved in the claim "s/he could 110t have chosen to do anything else". This is that we regard a person as having an excuse for. performing a prohibited act if s/he was faced with a choice between two evils and could not reasonably be expected to choose otherwise than slhe did. The confusion ar.ises when such a situation is said to invoive fIno choice at all", so that the defendant was "acting involuntarily". As lord Simon pointed out in D.P.P. v Lynch,58 "necessity" has not been confil1ed jurididially to its true sense of behaviour without trueclioice oJoction, so that the defendant does not" act" at all; it has been used to refer to $Ituations where tl;te defendant is forced to choose between two evils so that s/hecan hardly be. blamed if slhe chooses the lesser evil. Fletcher, in a recent important work, makes the same point in a more

50 Hart. op cit. n 19. 153. 51 The term is Hall·s. See Hall. op cit. n 16.420-424. 52 Bums v Bidder 1196712 OB 227. 53 See. ego Sir F: B. Adams. "Volurltarlness in Crime: A Critical Examination of Kilbride v Lake"

(197212 Qtago tR426 at 431 .• 54 See A. J. Ashworth. "Reason. Logic and Criminal liability;; 119751 91 LOR 102. 55 [19751 AC 653 at 685.

18

general way. He draws a distinction between "physical involuntariness" (e.g. physical compulsion or automatism) and "normative" or "moral" involun­tariness. ee Moral involuntariness involves such cases as choice of two evils. Fletcher says that in deciding whether conduct is "morally involuntary", we apply our normal expectations of appropriate and normal resistance to pressure; we make a moral judgment about what we expect people to be able to resist.

Fletcher at once clarifies and confuses. The term "involuntariness" applied to situations of "choice between two evils" is grossly misleading. A person in situations of compulsion (duress) or necessity does have a choice, agonising as it maybe. To say that such a person could not have acted otherwise is to use a beguiling figure of speech. &7

This class of cases, referred to by Jerome Hall as cases of 'teleological" (i.e . .. end-directed") necessity, 18 is a class where we feel the defendant could not reasonably be expected to choose otherwise than sihe did (although slhe could have chosen otherwise,. We therefore regard the defendant as being excused from liability. We ask what reasons the defendant had for choosing in a par­ticular way.'8 And an additional moral dimension, or question of evaluation, is built into this excusing principle, in that it is again necessary to ask how the .. choice of two evils" arose. If we consider that with reasonable care the defen­dant could have avoided being placed in this situation, then we will not think the excuse operative.

Defences which plainly fall under the heading of "choice between two evils" ~. ate:

1 . Necessity (despite R v Dudley & Stevens80 and Buckoke v G.L. C."1 there have been recent Australian and United States cases recognising the defencelt2).

2. Compulsion (duress). What of impossibility? On consideration it does not clearly fall under either of the two conceptions outlined. Sometimes physical events could make com­pliance with the law impossible (e.g. if Mr Tifaga had been run down by a car and thus hospitalised while on his way to the afrport). Such situations are best described as cases of physical necessity or physical compulsion, but in many cases which might be seen as cases of impossibility (Flude v Finau?) the defen­dant did have a choice although in practical terms we would not expect him/her to choose the alternative to breaking the law. It may well be that "impossibility of compliance" is a concept which in fact refers to at least two distinct defences, which are premised upon two distinct bases for denying criminal responsibility, namely ,. physical necessity" and.' 'teleological necessity".

it will be apparent that on the above analysiS the judgment of Richardson J in Tifagais preferable to that of Woodhouse J in that it does not contlate defences based on absence of power to choose othlJrwise together with defences based on choice between two evils. Neverthel.s, Richardson J's use of the term

56 G. Fletcher, Rethinking Criminal Law (19781802. 57 Ross, op cit, n 31, ch 6. 58 Hall, op cit, n 16, 420. 59 Victoria Law Reform Commissioner, Report No 9, Duress, Necessity and Coercion (19801 para

1.07-1.18. . 60 (18841 14 aBO 273. 61 119711 Ch 655. 62 Eg., State of Washington v Diana (19791604 P 2d 1312, People v Harmon 119141 220 NW 2d

212, Rv Loughnan 119811 VR 443. But cf W. J. 8rookbanks, The Defence of Compulsion -An Overview, Legal Research Foundation Publication No 20, 26.

19

"impossibility" is itself misleading, because the term as he uses it uneasily straddles the two bases for denying criminal responsibility just outlined. Thus, while Richardson J speaks of necessity (in the sense of teleological necessity) and impossibility being distinct but related concepts, he also says that Tifaga's case could be approached from the standpoint of involuntariness "for it may be said that conduct which is not of one's choosing is not a product of the will and in that sense is involuntary". 113 This moves towards the same confusion that is found in the judgment of Woodhouse J.

Can the distinction between denial of responsibility based on absence of choice to act otherwise and excuses based on choice between two evils be col­lapsed by the notion of "total absence of fault" as deployed in MacKenzie v Civil Aviation Department7 It will be remembered that in this case the Court of Appeal seemingly conflated impossibility, inevitability, necessity, involuntari­ness, reasonable mistake of fact, act of a stranger, and absence of negligence together as being defences or "exculpatory factors" of "absence of fault". Does this not tidy up all the conceptual and analytical difficulties of Tifaga and similar cases 7

In my view it does not, for two reasons. First, use of the phrase "absence of fallit" invites a judge to Proceed on a wide inquiry with little in the way of clear statements .as to when there is indeed absence of fault. I argue that at least some olthe "defences" conflated together in MacKenzie can be understood as insta.nces of, the two quite discrete principles for the denial of responsibility that I have outlined. Those principles are more precise, controlled and useful statements of"wl:lereand ho,wthe oy.ster-kl'life goes In, in the process of ascri­bing responsibility, than the C(i)utt .of Appeal gives us.!n MacKenzie. Secondly, the blanket use of the tarm "absence of fault" obscures the fact that in the "choice of two evil.s" principle there are two evaluative steps the judge must take. First it must . be decided whether the defendant is in any legally relevant way responsible for being confronted with the agonising choic.e: "Was slhe careless in letting the situation develop; could slhe have esca~d7"-Next there is the question of whether the defendant could reasonably be required to choose otherwise than slhe did, Here the Court must evaluate the relative importance of "the respective. interests sacrificed and preserved". 114 Cases where a person escapes from prison to avoid homosexual rape and raises necessity as a defence to a charge of es(?aping provide an example.e~ Talk of "absence of faUlt" will provide oniy litl'}ited guidance here. A major part of the. true task of the Court is to evaluate which fo[ms of pressure are -legitimate and in what circumstances.

My conclusion is the surprising one that talk of "impossibility" as a discrete defence ought to be abandoned and that the cases where impossibility has been raised ought to be seen as instances of either "physical" or "teleological" necessity. Tbese two modes of nec::essity are in turn premised on the two discrete. bases for denial of responslkU!W that I have outlined above.

IV. CONCLUSION ,. Actus reus" has been a misleading term. It might be better to abandon it and concentrate upon the statutory or common law statement of what act, omission, or state of affairs is proscribed. In relation both to this issue and to the

63 Supra. n 24, 242. 64 H. L. A. Hart and A. M. Honore. Ci1usation In the Law (19591672. 65 See cases referred to in n 62, supra.

20

issue of the nature of defences such as impossibility, we should maintain a lively sense that our reasoning as to whether a person is "responsible" for an act, omission or state of affairs is determined not by any "natural", "essential", "scientific" analysis of "what a person has done", but that our conception of what the person has done, what "act" is involved, is the product of our moral conceptions and our conceptions of what is normal. In endeavouring to clarify our reasoning about when it is appropriate to say that a person is "responsible", we must therefore try to identify the basic moral principles which underlie the reasoning of the courts on this matter. Some of the recent New Zealand cases (above) represent a useful attempt to do this, albeit that the analysis has not been pressed far enough by the courts.

This is a sociological insight as much as a jurisprudential one. The task of a common law judge in this sphere is to mediate everyday moral conceptions through legal doctrine into the disposition of concrete cases. Of course there may be debate about whose moral concepts are so mediated; a "conflict" soci­ology of law" would deny that the moral concepts so mediated are those of some "consensus" in society. Rather, they are those of the judges, with all that the class origins, background, education and life experiences of the judges imply. That question aside, perhaps the kinds of case discussed in this article could be seen as instances of the process of lawyers and judges acting as "con­ceptive" ideologists;87 generating public statements about what is to count as a cause or an excuse, legitimating these statements as an outcome of legal doc­trine, and all this by a hidden dialectic of morality and doctrine.

JOHN HANNAN Faculty of Law

University of Auckland

66 See A. Hunt, "Dichotomy and Contradiction in the Sociology of law" 119811 8 British Journal of ~. Law and Society 47.

67 For an account of the lawyer as "conceptive ideologist" see M. Cain, "The General Practice lawyer and the Client; Towards A Radical Conception" (1979) 7 International Journal of the Sociology of Law 331.

21