Huey v O'Callaghan[2017] QMC 7

MAGISTRATES COURT OF QUEENSLAND

1. [1]
   Mr Jared O'Callaghan appears before the Court charged with one offence under s. 168(1)(a) of the Local Government Electoral Act 2011 (LGEA). The section provides inter alia:-

1. “(1)
   An elector for an election must not –

1. (a)
   fail to vote at the election without a valid and sufficient excuse;

…

Maximum penalty – 1 penalty unit.”

2. [2]
   This is a criminal proceeding. The onus of proving the offence rests, at all times, upon the prosecution^[1]. This involves proof, beyond reasonable doubt, of each and every element of the offence. These principles are fundamental to any criminal prosecution, irrespective of whether the defendant faces a maximum penalty of substantial imprisonment or, as in the present case, 1 penalty unit.

3. [3]
   The basic proposition encompassed by the prosecution case is that Mr O'Callaghan failed to vote in the local government elections held in Queensland on the 19^th March 2016^[2].

Agreed Facts:

4. [4]
   There has been tendered, and received, an agreed Statement of Facts, by which certain facts, central to the proof of the prosecution case, have been admitted by the defendant. Those agreed facts consist of the following^[3]:-

1. Mr Jared James O'Callaghan (“Mr O'Callaghan”) was enrolled on the Electoral Roll for the local government area of Mackay Regional Council, as at the cut-off date of 12^th February 2016 for the Electoral Roll for the quadrennial election held in 2016 (“the election”);
2. The election was held on 19^th March 2016;
3. Mr O'Callaghan did not vote at the election;
4. On 25^th July 2016, the Electoral Commission of Queensland (ECQ) issued an Apparent Failure to Vote (AFTV) notice to Mr O'Callaghan in relation to his alleged failure to vote at the election. This AFTV Notice was mailed to 3/1 Piccolo Street, North Mackay, QLD 4740, which was the address where Mr O'Callaghan was enrolled to vote.
5. The ECQ received Mr O'Callaghan’s returned AFTV notice on 8^th August 2016. The following was handwritten Option 2: Valid and Sufficient Excuse: : ”I do not watch the news, read newspapers or talk to many people so I was not aware of the local election, The only form of media I see is Facebook and there was nothing about it on there. There was information on there on the federal election and I prevoted meaning I absolutely would have voted had I known.”

Oral evidence:

5. [5]
   Against the background of the agreed facts, evidence was taken from four witnesses. The prosecution called evidence from Mr William Huey, Ms Nicole Butler, and Ms Georgia Peard. Mr O'Callaghan gave evidence in his own defence. In the course of Mr Huey’s evidence, a Certificate was tendered and received into evidence, pursuant to s. 168(4) of the Act. That Certificate^[4] stated:-

1. (a)
   A quadrennial election occurred on 19^th March 2016 (“2016 Quadrennial Election”);
2. (b)
   Jared James O'Callaghan, an elector within the meaning of the Local Government Electoral Act 2011 enrolled on the voters roll for the local government area of Mackay Regional Council, failed to vote at the 2016 Quadrennial Election; and
3. (c)
   An Apparent Failure to Vote (“AFTV”) notice was sent by the Electoral Commission of Queensland to Jared James O'Callaghan under section 165 of the Local Government Electoral Act 2011 on 25^th July 2016.

6. [6]
   Mr Huey was the Team Leader (Election) with the ECQ, whose role was to supervise the follow-up of apparent failures to vote in the election. Mr Huey was responsible for assessing Mr O'Callaghan’s response to the AFTV. He had contact with Mr O'Callaghan, communicating with him by email. Mr Huey deposed that the excuse provided by the Defendant in his AFTV response was “a reason that I could not accept under my instructions from the Electoral Commissioner as being valid and sufficient under the Act”^[5]. Through Mr Huey was tendered a copy of a Voter Information Letter, a copy of which was sent to all enrolled electors advising of the forthcoming election^[6]. A copy of this letter, he said, had been sent to Mr O'Callaghan’s enrolled address at “74 Canberra Street, North Mackay, Queensland, 4740”^[7]. Mr Huey was also able to tell the Court that the ECQ “had a ‘Facebook’ page”. Mr Huey was able to tell the Court that there were “3 point something million” eligible electors for the election.

7. [7]
   Ms Nicole Butler, was a media and communication adviser for the ECQ. She was responsible for maintaining the ECQ’s social media presence, including its ‘Facebook’ page. Ms Butler joined the ECQ after the quadrennial election, in January 2017. She told the Court that as at the 12^th April, the ECQ had 6,487 people who liked the ECQ’s ‘Facebook’ page^[8]. Ms Butler was also able to tell me that it was possible to “boost” the reach of a ‘Facebook’ page by paying a monetary fee to ‘Facebook’. It was possible for ECQ to access statistics on the number of people who liked ECQ’s page, and also to ascertain the number of additional consumers who had been contacted through the “boosted post”.

8. [8]
   Ms Butler informed the Court that on 26^th February 2016, a boosted post was made which reached 276,042 consumers^[9]. Of these contacts, 267,389 were additional contacts reached through the boost procedure. Ms Butler also said that the “total” page reach “was higher than that”^[10]. The ECQ’s ‘Facebook’ posts featured information pertaining to the coming election from the date the election was announced through until polling day on 19^th March 2016.

9. [9]
   In cross-examination of Ms Butler, Mr O'Callaghan put the proposition to Ms Butler that, based on the information available, the boosted ‘Facebook’ post would have reached nine percent of the electorate. Ms Butler was unable to assist with that percentage^[11].

10. [10]
    The final witness called by the prosecution was Ms Georgia Peard, who had been the communications officer for the ECQ at the time of the 2016 quadrennial election. Ms Peard largely confirmed Ms Butler’s evidence as to the ECQ’s use of ‘Facebook’ for promotion of the 2016 election. She advised that age groups were targeted through the boosted posts, and ‘Facebook’ users of voting age or above were targeted. No specific areas of the State were targeted through these boosted posts^[12].

Evidence of Mr O'Callaghan:

11. [11]
    The defendant Mr O'Callaghan gave evidence on his own behalf^[13]. He advised the Court that he had changed his address “in the end of December” 2015, before the election^[14]. He changed the address on his licence, and when he did so he exercised the option, which was offered to him at renewal, to send his information about the change of address to other Government institutions. He gave evidence that he had received, on 7^th April 2016, a letter from the Australian Electoral Commission acknowledging his change of address. This was about 3 ½ months after he had renewed his licence.

12. [12]
    I accepted a tender from Mr O'Callaghan of the AEC’s letter to him^[15]. The purpose of his tender, I believe, was in support of a contention that, as the AEC had taken 3 ½ months to confirm his change of address advice of late December, I am able to infer that the ECQ would have similarly received his advice through the Department of Transport licence renewal some considerable time after his licence renewal. Because of this, he would contend, the ECQ did not have his current address when it sent out the Voter Information Letter. I don’t believe I can go that far by inference from the AEC’s address acknowledgement. There is no evidence as to any information exchange between AEC and ECQ; it cannot be assumed that the exercise of the information exchange option would include notice to the ECQ; I am not even sure that it can be assumed that the AEC’s receipt of new address data was facilitated through the Transport Department, although it is a possibility. In the end result, the AEC letter does not assist me to any real extent.

13. [13]
    Mr O'Callaghan also gave evidence of a weekly wage, earned as a pizza delivery driver, of $310.57 after tax for the one-week period prior to the election. After his expenses, of $251.68, he would have $50 to $60 left for food. He explained the relevance of his income^[16]:

“…I know that I have to vote. I know there’s a fine if you don’t, so in that situation if – I have the motivation to vote if I see anything regarding to it I’m going to look into it. I’m not going to --- but it – because I can’t afford to pay the fine in that situation.”

14. [14]
    Under cross-examination by Mr Cater, for the complainant, Mr O'Callaghan agreed he had not voted in the 2012 State election^[17]. At this point, I advised Mr O'Callaghan of his right to claim self-incrimination privilege. After doing so, I had some considerable doubt that he had indeed understood what I was trying to tell him, and a review of the transcript of that examination has not allayed my doubt as to his understanding. He was asked by Mr Cater whether he had voted in the 2009 State election^[18]. Mr O'Callaghan exhibited apparent uncertainty in this regard, but he did agree that, in 2009, he received an AFTV letter^[19].

15. [15]
    It was established that Mr O'Callaghan was 26 years old, and that he worked as a pizza delivery driver up to 18 hours per week.

16. [16]
    Mr O'Callaghan stated he had seen information on the Federal election via ‘Facebook’. He received that information in a “news feed”. He researched this event, to find out where the pre-voting was^[20].

17. [17]
    Upon being asked the question by the Bench, Mr O'Callaghan stated he had no recollection of receiving a Voter Information Letter^[21]. Mr Cater, very fairly, accepted that Mr O'Callaghan may not have received the letter if he had changed address. Following completion of his cross-examination, I asked Mr O'Callaghan what argument he wished to put to me as to whether he claimed to have a valid and sufficient excuse for not voting. He responded^[22]:

“I didn’t receive the letter in the mail … And I don’t recall seeing anything on ‘Facebook’. I know that there were posts shown, but I didn’t, I don’t recall seeing them. And my financial situation would compel me to – like, if I had caught any information …”

Assessment of the evidence:

18. [18]
    The agreed facts, and the contents of Exhibit 3, speak for themselves. I accept the oral evidence given to the Court by Mr Huey, Ms Butler, and Ms Peard. It was direct and freely provided, without any evasion or apparent uncertainty. The fact that the ECQ maintained extensive records of many aspects of the election preparation further supports my confidence in the accuracy of their evidence.

19. [19]
    Mr O'Callaghan is a young man, 26 years of age, who works limited hours as a pizza delivery driver. In his presentation, he conveyed the impression of a quiet and possibly shy person, who was well out of his “comfort zone” in a forensic setting. He did not impress as a gregarious individual; in fact, quite the opposite. His understanding of his ability to claim self-incrimination privilege, to my perception, was limited. This matter was mentioned on the 28^th April. It had been my intention, on that day, to deliver my decision in this case. After considering a number of aspects of the case, I was compelled to defer judgment, in order to consider the matter further, and to request assistance from Mr Cater by the provision of submissions as to the potential scope of s.23 of the Criminal Code on the facts of this case. At the 28^th April mention, Mr Cater appeared by telephone from Brisbane, and Mr O'Callaghan appeared in person. During this mention, I became aware that Mr O'Callaghan was in tears at the Bar table. I attempted to convey to Mr Cater, by telephone, that Mr O'Callaghan was having some difficulty with his attendance. Mr O'Callaghan did not offer any reason for his apparent distress, and I can only assume that the situation overwhelmed him. Such a response is consistent with limited assessment I was able to make of his personality from his language, demeanour and behaviour.

20. [20]
    When Mr O'Callaghan provided his response to the AFTV letter, he set out, quite clearly, what, he claimed, had occurred. He maintained his version of events in oral evidence before me. From the account he has supplied, he was alive – at the least during the Federal election campaign – to his duty to vote. He did not contend otherwise in his evidence, readily conceding his awareness of his electoral duty. His reason for his awareness was directly linked to his financial position, and the probable serious (in his opinion) impact upon him of being fined for failing to vote. I don’t find his motivation to be unacceptable. I suspect that there may be many electors who vote so as not to be fined. The financial impact of failing to vote upon Mr O'Callaghan may be more severe than in the case of others. In any event, it is a reasonable motivation, and, perhaps more importantly, a believable one. His pre-vote in the previous Federal election bears out his desire to avoid a fine.

21. [21]
    I did not gain the impression, as I watched Mr O'Callaghan both in the witness box, and at the Bar table, that he was anything other than what he claimed to be – a young man, who kept mainly to himself, and confined his social contact largely to ‘Facebook’. His driving around at night, on pizza deliveries, throws up the possibility that he may have passed election advertising. It is probable that, at some time, he did. But whether he noticed the signage, and whether, if he did, he took in, in the dark, the message seeking to be conveyed, is another question. It is in keeping with his occupation that his aim would be to deliver the pizza as quickly as possible, and return to his base to be ready for the next job. I do not expect that he would be looking particular closely at his surrounds, other than at the road before him, and for the address to which his delivery was to be made.

22. [22]
    In all of the circumstances, I accept that the evidence he gave to the Court was the truth. I accept that the explanation he provided to the ECQ in his response to the AFTV letter, was true. I find, as a matter of fact, that he did not know, prior to and up to and including the polling day, that the 2016 quadrennial election was being held. I accept his evidence in its totality.

Consideration:

23. [23]
    The offence of failing to vote is an offence of omission – it is the failure, or omission, to do the required act – namely, to vote - which constitutes the offence^[23]. An offence based upon an omission must be supported by a legal obligation, or duty, to do the act in question^[24]. Section 168(1)(a), by its very terms, creates such a duty on the part of every elector to vote in an election^[25]. Further, this duty is expressly declared by section 66 of the Act, which provides:-

“Voting at an election is compulsory for electors.”

“Valid and sufficient excuse”:

24. [24]
    The prosecution, in its written submissions, has contended that the decision in this case may turn upon the application, or otherwise, of the expression “valid and sufficient excuse”, in s.168(1)(a).

25. [25]
    Further, the prosecution contends that the onus of proof, with respect to the establishment of any “valid and sufficient excuse”, lies upon the Defendant Mr O'Callaghan.

26. [26]
    I agree that the potential operation of a “valid and sufficient excuse” may well be an important issue in this proceeding. I am unable, however, to accept that there is any persuasive onus upon Mr O'Callaghan to “prove” this defence to the requisite standard.

27. [27]
    In Dowling v Bowie^[26], the High Court gave consideration to the matters relevant to a determination of whether a particular expression in a statute was a matter to be alleged and proved by the prosecution, or was a matter in respect of which the defendant carried the burden of proof. Dixon CJ said (at 139-140):

“The argument treats the case as governed by the common law doctrine that where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it. The common law rule distinguishes between such a statutory provision and one where the definition of the grounds of liability contains within itself the statement of the exception or qualification, and in the latter case the law places upon the party asserting that the liability has been incurred the burden of negativing the existence of facts bringing the case within the exception or qualification. See Barritt v. Baker [1948] VLR 491, at p 495. The distinction has been criticized as unreal and illusory and as, at best, depending on nothing but the form in which legislation may be cast and not upon its substantial meaning or effect. The question, however, where in such cases the burden of proof lies may be determined in accordance with common law principle upon considerations of substance and not of form. A qualification or exception to a general principle of liability may express an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind. If that is the effect of the statutory provisions, considerations of substance may warrant the conclusion that the party relying on the qualification or exception must show that he comes within it. Cf. Pye v. Metropolitan Coal Co. Ltd. (1934) 50 CLR 614; (1936) 55 CLR 138; Darling Island Stevedoring & Lighterage Co. Ltd. v. Jacobson (1945) 70 CLR 635.”

28. [28]
    In my opinion, section 168(1) of the LGEA is a provision “where the definition of the grounds of liability contains within itself the statement of the exception or qualification”. It follows that the burden of proving the absence of a “reasonable excuse” rests upon the prosecution^[27]. I would accept that Mr Callaghan would bear “an evidentiary burden of adducing or identifying evidence”^[28] capable of underpinning a defence of “valid and sufficient excuse”. However, it is my opinion that by his response to the Electoral Commission’s inquiry as contained in the AFTV^[29], supported by his evidence in this Court, Mr O'Callaghan has effectively discharged that evidential burden^[30].

29. [29]
    I defer, for later consideration, my conclusions as to whether or not Mr O'Callaghan could be said to have had a “valid and reasonable excuse” for not voting.

Section 23 and omission liability:

30. [30]
    In the course of considering the evidence in this case, I have kept in mind the provisions of Chapter 5 of the Criminal Code. Mr O'Callaghan has been unrepresented throughout these proceedings. He could not be expected, of his own volition, to raise any potential exculpation under Chapter 5, should such a defence be available. It is appropriate, I believe, that in considering the evidence I should have regard to any potential implications arising from Chapter 5 which may reasonably be raised by the evidence.

Section 23 of the Criminal Code provides, so far as relevant:-

31. [31]
    “Intention – motive

23 (1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for –

1. (a)
   an act or omission that occurs independently of the exercise of the person’s will; or

2. (b)
   an event that occurs by accident.”

32. [32]
    Section 23, in substance, remains in the same terms as those in which it was expressed when it first passed into law in 1901. The particular aspect of s. 23 which has caused me some concern in this case is that which relates to what could be called an “unwilled omission”, that is:-

“an …omission that occurs independently of the exercise of the … will”

33. [33]
    The law relating to omission liability is not frequently examined at an appellate level in Queensland. The usual type of case receiving superior court consideration relates to charges arising out of deaths which are caused by criminal negligence, and which involve the duties laid down in Chapter 27 of the Code. These cases are more likely to have to consider whether the facts are sufficient to support a finding of criminal negligence, or whether a legally-imposed duty underpins the relevant omission. Another common usage of omission liability is in the field of statutory regulation of activities, eg workplace health and safety; once again, appellate review of these cases is uncommon. By far the most common use of omission liability involves the innumerable statutory offences, generally of a summary nature, which depend for their commission upon a “failure” to do a certain act, or to perform a certain duty. This case provides an example. Offences involving a “permitting” or “allowing” may also be based on omission liability^[31]. In spite of the volume of criminal prosecutions at this lower level of severity, very little consideration has been afforded to basic ideas of what might constitute an omission, and in particular, an “unwilled omission”. My research into applications of s.23(1)(c) has failed to yield any helpful consideration of an “unwilled omission” either in Queensland or in any other “Griffith” Code jurisdiction. It may be that the Queensland provision is unique. For that reason, it may be beneficial to consider s.23(1)(c) at a fundamental level.

Origins of section 23(1)(c):

34. [34]
    In drafting the Criminal Code, Sir Samuel Griffith drew heavily upon the English^[32] draft Criminal Code and, to a lesser extent, upon the Italian Penal Code^[33]. It is the latter which provided Sir Samuel with the model from which his section 23(1)(a) was drawn^[34]. The relevant provision in the Italian, or “Zanardelli” Penal Code, was as follows^[35]:-

“Article 45: No-one can be punished for an offence if he has not willed the act which constitutes it, except where the law imposes a liability on him otherwise, as a consequence of his act or omission.”

35. [35]
    The first limb of the Italian text refers only to an “act”, but the clause does refer to an “act or omission” in its latter part. The Queensland descendent^[36] read:

“Subject to the express provisions of this Code relating to negligent acts or omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.”

36. [36]
    The Queensland provision expressly includes “act or omission” within the first limb, and as a result leaves little room for argument that either action – act or omission – may constitute the basic unit of liability under Queensland criminal law. This would seem to have been a deliberate effort to remove any doubt as to the capacity of an omission to underpin criminal responsibility^[37]. The opening words of section 23, “subject to the express provisions of this Code relating to negligent acts or omissions” may also have a crucial bearing upon the proper content of “omission” under the Code.

37. [37]
    There is no further discussion of “omission” in this context in any of the documents which constitute the early history of the Queensland Code. A contemporary legal observer, Professor E C Clark^[38], in his Analysis of Criminal Liability^[39], considered the nature of omissions in the criminal law. After noting that “omission” could have different connotations, he said^[40]:\

“Forbearance and omission are, then, both, as regards externals, the not doing something which a person could have done. The difference lies entirely in his state of mind, and is very well drawn by Austin. ... Omission is the simpler case, and the simplest case of omission is, where a man does not do an act because he never thinks about it, and of course never wills to do it. ‘The will,’ to use that popular abstraction, is perfectly dormant: there is no volition whatever.”               [bold type in original]

38. [38]
    Under s 23, the term “omission” does not stand alone, but is qualified by the phrase “that occurs independently of the exercise of the … will”. These plain words, in my opinion, mean that to constitute a “willed omission”, and thus attract criminal responsibility, there must be a deliberate decision not to do the act demanded by the duty in question, ie the duty to vote. In the peculiar facts of this case, I accept that Mr O'Callaghan’s omission to vote was an omission which was not a “willed omission”, in that, not even knowing that the election was being held, his will at no time accompanied his failure to vote – he made no decision not to vote^[41], and his will was never engaged in this respect. Almost certainly, whatever Mr O'Callaghan’s acts were on voting day, they were all willed acts; when he should have been voting, he was doing something else. But that does not translate into a “willed omission” – an “omission” undoubtedly, but an “unwilled omission”.

39. [39]
    The introductory words to s.23 support this construction. It is generally accepted that a negligent omission is an unintentional omission. In the context of a failure to perform a legally-imposed duty, the failure may be intentional or unintentional. If it is intentional, it will attract criminal liability (and may still fall within the ambit of criminal negligence). If it is unintentional, it is not a willed omission, and will not render the actor criminally responsible. The purpose of the opening words of s.23 is to ensure that omissions (even if they are not willed) which breach the duties laid down under Chapter 27 of the Code can be prosecuted to conviction; the fact that the omission in question may not have been willed will not exculpate the defendant in those cases.

40. [40]
    Physical incapacity to perform a legally-prescribed act or duty is one example of an omission which is not a “willed omission”. But there are others – impossibility to perform a mandated act or duty should provide a defence under s.23, and this impossibility may be physical, psychological, or even economic^[42]. There may be cases where the intercession of a third party engages the “unwilled omission” defence^[43].

41. [41]
    The effect of this construction of s.23(1)(a) is that an offence of omission under Queensland law contains a mental element^[44]. This result, in my opinion, is compelled by the introduction of considerations of the will into offences of omission. If there were no mental elements involved in general omission liability, all offences of omissions would in essence be strict liability offences. This would be unusual for Queensland criminal law. Section 36 of the Code expresses an intention that all offences under criminal law are subject to s.23^[45], and thus have a mental element. It would be a bold exercise to find, by implication, an offence of strict liability under the LGEA^[46]. In his seminal work Criminal Law: The General Part^[47], Dr Glanville Williams adverted, albeit briefly, to a mental element in omission liability:-

“The application of the idea of voluntariness to an omission is troublesome. If the defendant has directed his mind to the question whether to act or not, and has decided not to act, one may speak of his omission as an intentional one; and it is even possible to speak of an omission as intentional when the defendant is merely aware of the fact that he is not acting. In some crimes, however, like manslaughter, a mere negligent omission is punished, as when a man thinks he has acted properly but in fact has not acted^[48]. Here it is difficult to find an ‘act’ in any meaning of the term; the culprit is punished not because of any wrongful act or of any mental state that he possesses, but because he has not done the act or had the mental state that he ought to have done or had. It is assumed that the culprit could have done or had it if he had been more conscientious in directing his mind to his legal duties; and, accordingly, impossibility is a defence. For the purpose of exposition, whatever the ultimate theory may be, it is convenient to treat a negligent omission as a type of act.”

42. [42]
    Sir Samuel Griffith’s inclusion of the concept of a “willed omission” in s 23, has laid down what the “ultimate theory” is to be in Queensland; and the only remaining question is as to the content to be given to his words^[49].

43. [43]
    Since publication of the second edition of Dr Williams’ General Part, a great deal more thought has been given to omission liability by criminal law theorists. Most modern treatises deal with the subject, to a greater or lesser extent. Mr William Wilson provides an example of modern analysis of what he terms “involuntary omissions”^[50] as compared to involuntary “acts”^[51]:-

“Behaviour is involuntary where, under some description or other, the actor lacked the capacity to have acted otherwise either because of an absence of physical control or because of a failure of those cognitive or other processes which enable people to act systematically in accordance with rules. This analysis sits, however, somewhat uncomfortably with omissions-based liability. While bodily movement might be appropriately described as ‘automatic’, non-movement cannot. The mirror image of reflex, spasm, sleepwalking or convulsion for bodily movements is, for omissions, paralysis or coma, but, as with affirmative action although for different reasons, the appropriate measure of moral responsibility must stretch further than these core cases. … Accordingly, involuntary omissions cover failures to act for reasons as diverse as unconsciousness, paralysis, incarceration and third party restraint.

An examination of case law suggests, however, that a still broader, as yet inchoate, defence of impossibility is the counterpart of automatism as applied to cases of omission. This has long been implicit in criminal law doctrine, albeit imperfectly realised. So, in the nineteenth century it was a defence to manslaughter in cases where the death resulted from the defendant’s breach of duty to provide necessaries that he lacked the means to do so. The full scope of such a defence is uncertain but it seems reasonably clear that it is not and cannot be limited to cases of physical incapacity.”

44. [44]
    Although written from a common law perspective, Wilson’s contentions – that what might excuse a physical “act” on the ground of “involuntariness” must differ in type from what might excuse an “omission”; and that liability for involuntary omissions may still be imperfectly understood – seem to be equally applicable to omission liability under s.23(1)(a).

45. [45]
    In this case, Mr O'Callaghan at no time gave any thought to voting on the 19^th March 2016, because he was unaware the election was being held. It follows that his omission to vote was an unwilled omission as described by s. 23(1)(a) of the Criminal Code.

The rule in Harding v Price:

46. [46]
    In Harding v Price^[52], the defendant was driving a truck to which was attached a trailer. He was charged with failing to stop after he had been involved in a road accident, and failing to report the accident to police. It was found, as a fact, that because of the noise his trailer was making, he did not hear the collision take place and was unaware that it did. He was convicted before justices, and appealed to the Divisional Court. The case was argued against the common law background of mens rea, and the contention that the offence was one of strict liability. The Divisional Court quashed the conviction. Rejecting the strict liability argument, Lord Goddard CJ observed^[53]:-

“Unless a man knows that the event has happened, how can he carry out the duty imposed? If the duty be to report, he cannot report something of which he has no knowledge. That is the ratio decedendi of Nicholls v Hall [5 LR 8 CP 322, 326] and, in my opinion, it is applicable to and decisive of the present case. Any other view would lead to calling on a man to do the impossible.”

47. [47]
    The decision in Harding v Price has been said to be “authority for the general proposition that if an offence imposes a duty to do something on the happening of a given event, D must have knowledge of the given event”^[54].

48. [48]
    In Belling v O'Sullivan^[55], Ligertwood J adopted a similar approach in respect of a “failure” offence:-

“In my opinion, a person cannot be said to criminally fail in the performance of an active duty, unless he knows of circumstances, which either positively call for its exercise or which at least put him on inquiry as to whether it should be exercised.”

49. [49]
    Harding v Price has been frequently noticed in legal literature in connection with omission liability. It continues to find citation in modern cases and commentary^[56], and I cannot find any indication that it has ever been overruled. Whether or not it represents an aspect of “impossibility” as suggested by Lord Goddard, it is a matter of defence which, I believe, is applicable to the facts of this case. In the absence of knowledge that a local government election was being held, Mr O'Callaghan is not liable where it has been found, as a fact (as I have done), that he was not aware that the election was being held on 19 March 2016.

50. [50]
    There is, perhaps, an obvious rejoinder to the principle in Harding v Price, namely that an elector should know that an election entailing compulsory voting is being held. As a matter of civic duty, this is undoubtedly correct. It seems to me however that, in legal terms, it would be necessary to find a collateral duty to the duty to vote, viz a duty to know, or become aware, of the facts which give rise to the existence of the duty to vote – that an election was being held. Professor Perkins instanced the existence of such a duty:-

“If the legal duty of the person requires him not only to take positive action, but also to acquaint himself with certain facts in this connection, his forbearance or omission to do the latter will of itself constitute a negative act on his part.”

51. [51]
    Other United States commentators have also suggested the existence of such a duty:-

“…sometimes there may be a duty to take care to know the facts, as well as a duty to go into action when the facts are known. Thus a grandmother, who undertook the care of her infant grandchild, who did not know the child was smothering to death because, after taking charge of the child, she had put herself into a drunken stupor, was held criminally liable for the child’s death (Cornell v State, 159 Fla 687; 319 SE 2d 610 (1947)^[57]

52. [52]
    Any such duty to be aware of the relevant facts must, it seems, be implied as an addition to the duty to vote. Further, it would seem to involve a requirement to possess at least some degree of political or civic awareness. Does it entail a duty to watch television, or read newspapers? If so, which newspapers, or which television station or programme?^[58] Does the imposition of such a duty require interaction with politically-conscious peers? Is there a duty to interact in the community to such a degree as will impart knowledge of forthcoming elections? To take the converse proposition – is there a right (or, at least a liberty) to “mind one’s own business”, and choose to keep mainly to oneself? If a person chooses to work at night, perhaps sleep late, eschew the printed and broadcast media, and confine himself, for human contact, to “Facebook”, is this conduct which should attract criminal liability?

53. [53]
    I am not prepared to hold that such a legal (as opposed to a civic) duty exists in tandem with the duty to vote. If such a duty is to be created or acknowledged, it should be created by the Legislature or acknowledged following careful consideration by a superior appellate Court. In taking this approach, I am fortified by the often-cited opinion expressed by Gibbs CJ in Beckwith v The Queen^[59], where his Honour said:

“The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modem times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences.”

54. [54]
    While this rule might be infrequently applied in modern practice, in the circumstances of this case I find it to be particularly relevant. I am not sure that the principle of legality would be satisfied by anything less.

“valid and sufficient excuse”:

55. [55]
    To return to the question of “valid and reasonable excuse”, the prosecution has urged that Mr O'Callaghan could not be found to have had a “valid and reasonable excuse”. It is important to confine this case to its facts: Mr O'Callaghan did not know that the election was being held on the 19 March. It is not a case where he had that knowledge, but had forgotten about it. The considerations which might govern a case of “forgetting” are not necessarily identical to a case where the actor never possessed the necessary knowledge^[60].

56. [56]
    The High Court considered the concept of a “valid and sufficient reason” for not voting in the case of Judd v McKeown^[61]. The appellant was convicted of failing to vote in the 1925 New South Wales Senate election. His reason was that all the candidates for the election in whose favour he was able to cast his vote (in summary) “support and do all in their power to perpetuate capitalism with its exploitation of the working class, war, unemployment, prostitution, etc”. The Socialist Labour Party, of which the appellant was a member, prohibited its members from voting for these “supporters of capitalism”. The majority of the Court found that the reason provided by the appellant was “no more than an expression of an objection to the social order of the community in which he live[d]”, and did not constitute a valid and sufficient reason for not voting.

57. [57]
    Isaacs J went further, and offered some suggestion as to the potential content of “valid and sufficient reason”^[62]:

“In my opinion, a ‘valid and sufficient reason’ means some reason which is not excluded by law and is, in the circumstances, a reasonable excuse for not voting. If it be, as in this case, an open challenge to the very essence of the enactment, it is, of course, excluded by law and not valid. So also, if there be any express provision of any law with which the alleged reason is in conflict. … Physical obstruction, whether of sickness or outside prevention, or of natural events, or accident of any kind, would certainly be recognised by law in such a case. One might also imagine cases where an intending voter on his way to the poll was diverted to save life, or to prevent crime, or to assist at some great disaster, as a fire; in all of which cases, in my opinion, the law would recognize the competitive claims of pubic duty. These observations are not, of course, suggested as exhaustive, but as illustrative, in order to dispel the idea that personal physical inability to record a vote is the only class of reasons to be regarded as ‘valid’. The sufficiency of the reason in any given instance, is a pure question of fact dependent on the circumstances of the occasion.”

58. [58]
    The prosecution also provided me with a copy of the decision of Olsson J in Gannat v Becker, an unreported South Australian decision^[63]. Again, the appellant was convicted of failing to vote without a valid and sufficient reason. The reason given by the appellant, to the justices, was that he was “at home immersed in his studies as a medical student and was unaware that the referendum was being held”. In some respects, the appellant’s evidence is very similar to Mr O'Callaghan’s explanation provided to the Electoral Commission by way of response to the AFTV sent to him by the Commission: Mr Gannat was aware of his obligation to vote at elections (as was Mr O'Callaghan), he did not receive nor regularly read printed media, seldom listened to broadcast media, and moved in a restricted social circle. He claimed to have received no notices of the pending election, nor seen any notices, brochures or literature about the election, nor heard any discussion about it.

59. [59]
    However, when cross-examined about his claim, the appellant resiled to some degree from his initial evidence, and conceded that he “had an underlying feeling that some kind of vote was going to be forthcoming during the week”. He did not recall any specific date, and made no inquiries about a possible compulsory vote. His Honour said^[64]:

“It is quite clear that the Justices were quite sceptical of his expressed ignorance and the reason for it. They obviously took the view that, being aware that the referendum was pending that week, he ought to have taken some positive steps to find out when he was required to vote, yet he had done nothing. They were not prepared to accept that his explanation amounted to a valid and sufficient reason for not voting.”

60. [60]
    The judgment then notes that the appellant, in his notice of appeal, also “faintly raised the issue of conscientious objection” and “some degree of psychological incapacity”. His Honour refused to allow these freshly-raised grounds to be argued^[65]. His Honour went on to say^[66]:

“Having heard him give evidence in chief, and under cross-examination, the Justices plainly did not accept his explanation. … in this they were clearly correct. It was not a proper reason for failure to vote, even if that, factually, was the case, for an elector, knowing that a referendum was to be held during a particular week, to simply neglect to seek information concerning his obligation to vote”. [italics added by me].

61. [61]
    As an authority supporting a contention that absence of knowledge^[67] concerning a current election is not a “valid and reasonable excuse”, I regret that I am unpersuaded by the Gannat case. It seems to me to be clearly based upon the fact that the appellant had heard about the election, but had neglected to ascertain the details which would have been obtainable through reasonable inquiry. At best, it might be a case about “forgetting”; but in the light of the Justices’ findings as to credibility, that seems unlikely.

62. [62]
    Nothing in any of the cases on failing to vote I have been able to identify bear upon the issue of absence of knowledge. On the contrary, they invariably involve what Isaacs J called “an open challenge to the very essence of the [voting] enactment”. In each case, the elector has made a conscious decision not to vote for a reason personal to that elector, which in each case was found not to be a “valid and sufficient excuse”.

63. [63]
    Is a lack of knowledge a “valid and sufficient excuse”? The answer to this question can only become relevant if my conclusions as to the applicability of s.23(1)(a) are mistaken.

64. [64]
    The frequency of failures to vote due to an absence of knowledge of the election are not known. Mr Huey, who gave evidence for the Commission, advised that “a small number” of electors had advised in response to their AFTV notices that they had not been aware of the holding of the election. He was unable to quantify further the number of electors who provided that reason^[68]. Had there been a large number of electors who claimed ignorance of the election, there might be sound reasons of policy for refusing to find that explanation to be a “valid and sufficient reason”. Based on the limited evidence that I have before me, I cannot take that any further.

65. [65]
    The common law of crime forged its defences upon the perceptions of fairness and justice reflected by the constitution of a highly-experienced common law Bench. The judgment in Harding v Price, discussed above, provides an example of that process in action. I have some difficulty in accepting that circumstances which have been held to provide a criminal defence at common law are incapable of constituting a “valid and sufficient excuse” under a statutory system of criminal law.

66. [66]
    Further, there is no express provision of law to which I have been referred, or of which I am aware, which specifically prevents absence of knowledge of an election from constituting a “valid and sufficient excuse”^[69].

67. [67]
    It would seem to me to be a task of undoubted enormity to inform every elector in the State of Queensland that a local government election was to be held on a given day. I would not consider it surprising if there remained some – quite possibly a very small number, as suggested by Mr Huey – who remained unaware, in spite of admirable efforts to fully inform the electorate by the Commission. The process of disseminating information about the forthcoming election, as with everything else in today’s world, must operate within its logistical and economic limitations.

68. [68]
    In all of the circumstances, and based upon the evidence I have received in this case, I think Mr O'Callaghan’s excuse was both valid, and sufficient. I find, as a matter of fact, that Mr O'Callaghan had a “valid and sufficient excuse” for failing to vote in the 2016 quadrennial local government election.

69. [69]
    If I am incorrect in my decision as to the location of the burden of proof in respect of a “valid and sufficient excuse”, and Mr O'Callaghan in law carries the onus of proving such excuse to the balance of probabilities, I have no hesitation in finding that he has done so. The explanation he provided in writing to the Electoral Commission, in my opinion, was clear and unequivocal, and, as I have already indicated, I find that his explanation was, in fact, the true reason for his failure to vote. The prosecution was clearly alerted to the direction Mr O'Callaghan’s defence would take.

70. [70]
    I find Mr O'Callaghan not guilty of the charge against him. Accordingly, I dismiss the charge, and discharge Mr O'Callaghan.

J M Aberdeen

Acting Magistrate

5^th June 2017