Previous Topic

Next Topic

Book Contents

Book Index

8.8 - Automatism

Click here to obtain a Word version of this document.

Overview

  1. In some cases, it may be alleged that the accused committed an offence involuntarily, in a state of "automatism" (see, e.g., R v Falconer (1990) 171 CLR 30; Hawkins v R (1994) 179 CLR 500).
  2. The consequences of successfully raising the defence[1] of automatism depend on the cause of the automatism:
  3. Due to these different consequences, where it is alleged that the accused acted in a state of automatism, the judge must determine which type of automatism (if any) to charge the jury about. This will largely depend on an assessment of what the evidence supports as being the possible cause of the state of automatism (R v Falconer (1990) 171 CLR 30; Hawkins v R (1994) 179 CLR 500).
  4. In most cases, the evidence will solely point to one particular type of automatism, and charging the jury will be relatively straightforward. For example:
  5. However, in rare cases there will be competing explanations of the cause of the state of automatism, with some evidence suggesting that it was caused by a "disease of the mind", and other evidence suggesting it was caused by something else.[6] In such cases the judge may need to explain the concept of a "disease of the mind" to the jury, and direct them that it is for them to decide:
  6. In some cases the jury will also need to be directed that evidence of automatism may also be relevant to the issue of intention (Hawkins v R (1994) 179 CLR 500; Cvetkovic v R [2010] NSWCCA 329).
  7. It is unclear what effect the Crimes (Mental Impairment) Act 1997 has had on the law in this area. In particular, it is unclear whether that Act has altered:

    Structure

  8. This topic proceeds in the following order:
  9. As the law concerning automatism is a subset of the law concerning voluntariness, this topic should be read in conjunction with Voluntariness.

    What is "Automatism"?

  10. Automatism is not a medical term. It is a legal concept that refers to acts that are committed without volition (i.e., where the accused’s will does not govern the movement of his or her body) (R v Cottle [1958] NZLR 999; Bratty v AG for Northern Ireland [1963] AC 386; R v King (2004) 155 ACTR 55).
  11. The term "automatism" implies the total absence of control and direction by the accused’s will. Impaired, reduced or partial control is not sufficient (Williams v R [1978] Tas SR 98; R v Milloy [1993] 1 Qd R 298; Edwards v Macrae (1991) 25 NSWLR 89; Re AG’s Reference (No.2 of 1992) [1994] QB 91; Maher v Russell Tas SC 22/11/93).[7]
  12. A person who is not conscious or aware of what he or she is doing acts as an automaton. However, the key issue is the lack of the exercise of will, not the lack of consciousness or knowledge (Ryan v R (1967) 121 CLR 205 per Barwick CJ; R v Radford (1985) 42 SASR 266; R v Falconer (1990) 171 CLR 30).
  13. Consequently, a degree of awareness or cognition is not necessarily fatal to the defence of automatism. The issue is whether or not there was an absence of all the deliberative functions of the mind so that the accused acted automatically (R v Radford (1985) 42 SASR 266; R v Burr [1969] NZLR 736 per Turner J).
  14. People who are aware of events occurring as if they are in a dream, but who cannot control their conduct (e.g., because they are in a state of dissociation), may therefore be in a state of automatism (see, e.g., R v Mansfield Vic SC 5/5/94; R v Rabey (1981) 54 CCC (2d) 1; R v Parks (1992) 75 CCC (3d) 287).
  15. There is a distinction between automatism and irresistible impulse. The mere fact that a person could not control his or her impulses does not mean that he or she acted involuntarily (Bratty v AG for Northern Ireland [1963] AC 386; R v Harm (1975) 13 SASR 84; Nolan v R WA CCA 22/5/97; R v King (2005) 155 ACTR 55).
  16. There is also a distinction between automatism and dissociation. It is possible to act voluntarily while in a dissociative state (Nolan v R WA CCA 22/5/97; R v Joyce [2005] NSWDC 13).[8]
  17. The fact that the accused did not know that his or her actions were wrong is not relevant to the defence of automatism (R v Isitt (1978) 67 Cr App R 44; R v Hennessy [1989] 1 WLR 287).
  18. Acting involuntarily due to the consumption of drugs or alcohol may be considered to be a type of automatism (see, e.g., R v Keogh [1964] VR 400). However, due to the specific issues raised by intoxication, the topic is addressed separately in Common Law Intoxication.

    Loss of Memory

  19. Amnesia is one of the main symptoms of having acted in a state of automatism. Where the defence is raised the accused will therefore usually claim to have no memory of the relevant events (R v King (2005) 155 ACTR 55).
  20. While amnesia may indicate that the accused acted in a state of automatism, the fact that amnesia exists does not inevitably lead to that conclusion. There may be other explanations for amnesia, such as trauma resulting from the commission of the offence which caused the memory of it to be blocked (R v King (2005) 155 ACTR 55).
  21. Thus, even if the jury are satisfied that the accused has no memory of the events in issue, they do not need to acquit on the basis of automatism. The question is not what the accused remembers, but what his or her state of mind was at the relevant time (Broadhurst v R [1964] AC 441; R v Stockdale [2002] VSCA 202; R v King (2005) 155 ACTR 55).
  22. Conversely, the absence of amnesia does not necessarily mean that the accused acted voluntarily. For example, people who act in a state of dissociation may have some memory of the relevant events, even though they could not control their conduct at the time (R v King (2005) 155 ACTR 55. See also Donyadideh v R [1995] FCA 1425).

    "Sane" and "Insane" Automatism

  23. The consequences of successfully raising the defence of automatism depend on the cause of the automatism:

    What is a "disease of the mind"?

  24. The expression "disease of the mind" is synonymous with "mental illness" (R v Falconer (1990) 171 CLR 30; R v Radford (1985) 42 SASR 266).
  25. To fit within the definition of a "disease of the mind", the accused must have been suffering from some kind of mental disease, disorder or disturbance, rather than "mere excitability, passion…stupidity, obtuseness, lack of self-control and impulsiveness". A "disease of the mind" exists where a person’s ability to understand is thrown into "derangement or disorder" (R v Porter (1933) 55 CLR 182).
  26. Historically, the courts used two different tests to determine what mental conditions should be considered to be "diseases of the mind":
    1. The recurrence/continuing danger test: A mental condition is a "disease of the mind" if it is prone to recur (see, e.g., R v Carter [1959] VR 105; Bratty v AG for Northern Ireland [1963] AC 386 per Lord Denning; R v Meddings [1966] VR 306; R v Burgess [1991] 2 QB 92);
    2. The internal/external test: A mental condition is a "disease of the mind" if it is "internal" to the accused (as opposed to arising from an external cause) (see, e.g., R v Quick [1973] QB 910; R v Sullivan [1984] AC 156; R v Radford (1985) 42 SASR 266; R v Hennessy [1989] 2 All ER 9).
  27. These have now been replaced by the sound/unsound mind test, which holds that a mental condition is a "disease of the mind" if it is the reaction of an unsound mind to its own delusions or external stimuli (as opposed to the reaction of a sound mind to external stimuli) (R v Falconer (1990) 171 CLR 30; R v Radford (1985) 42 SASR 266; R v Youssef (1990) 50 A Crim R 1; Woodbridge v R [2010] NSWCCA 185).
  28. The fundamental distinction is between those mental states which, although resulting in abnormal behaviour, are or may be experienced by normal people (e.g., a state of mind resulting from a blow to the head), and those which are never experienced by or encountered in normal people (R v Falconer (1990) 171 CLR 30 per Gaudron J).
  29. The sound/unsound mind test incorporates aspects of both of the previous tests, but differs slightly:
  30. There need not have been a physical deterioration in the cells of the brain, or an actual change in the constitution of the brain, for a condition to be a "disease of the mind" (R v Falconer (1990) 171 CLR 30; R v Porter (1933) 55 CLR 182; R v Kemp [1957] 1 QB 399; R v Hennessy [1989] 1 WLR 287).
  31. A "disease of the mind" may be permanent or temporary, organic or functional, curable or incurable (R v Falconer (1990) 171 CLR 30; R v Radford (1985) 42 SASR 266; R v Youssef (1990) 50 A Crim R 1).
  32. The expression "disease of the mind" is not to be narrowly construed. The dichotomy is not between a mind affected by psychotic disturbances and a mind affected by less serious ailments. The distinction is between those minds which are healthy and those suffering from an underlying pathological infirmity (Woodbridge v R [2010] NSWCCA 185).
  33. Where drugs or alcohol are involved, the classification of the resulting state will depend on the role played by those substances:
  34. Cases of sane automatism will be quite rare, as there are not many conditions which cause a state of automatism that will not be considered to be "diseases of the mind" (R v Falconer (1990) 171 CLR 30; DPP v Olcer [2003] VSC 457; Edwards v Macrae (1991) 25 NSWLR 89).
  35. However, the categories of sane automatism are not limited to those which have been mentioned in the cases to date (R v Pantelic (1973) 1 ACTR 1).

    Examples of "diseases of the mind"

  36. Examples of conditions which have been stated to be diseases of the mind include:
  37. Examples of conditions which have been stated not to be diseases of the mind include:
  38. Sleepwalking is usually considered to be a form of sane automatism (see, e.g., R v Parks [1992] 2 SCR 871; R v Carter [1959] VR 105; R v Youssef (1990) 50 A Crim R 1). However, this view has been disputed in England (see R v Burgess [1991] 2 QB 92).

    Dissociation

  39. Automatism resulting from a dissociative state may be classified as either sane automatism (see, e.g., R v Radford (1985) 42 SASR 266; R v Falconer (1990) 171 CLR 30) or insane automatism (see, e.g., R v Milloy [1993] 1 Qd R 298; Woodbridge v R [2010] NSWCCA 185).[11]
  40. For automatism resulting from dissociation to be considered to be sane automatism, there must be a shock precipitating the state of automatism. Dissociation caused by a low stress threshold and surrender to anxiety is not sufficient (and is thus considered to be insane automatism) (R v Falconer (1990) 171 CLR 30; R v Rabey (1981) 54 CCC 1 per Dickson J; R v Milloy [1993] 1 Qd R 298).
  41. The shock can be the product of a physical or emotional blow (a "psychological trauma") (R v Falconer (1990) 171 CLR 30 per Toohey J; R v Radford (1985) 42 SASR 266).
  42. If the shock acted upon some underlying infirmity of mind to produce the automatism, it will be a case of insane automatism. If the shock produces a transient malfunction of an otherwise sound mind it will be sane automatism (R v Falconer (1990) 171 CLR 30; R v Milloy [1993] 1 Qd R 298).
  43. The key question is whether the accused’s actions were caused by the shock (sane automatism), or whether they were caused by the susceptibility of the accused’s mind to being affected by shock (insane automatism) (R v Falconer (1990) 171 CLR 30 per Mason CJ, Brennan and McHugh JJ).

    Epilepsy

  44. Epilepsy may have a number of different causes, such as brain damage due to birth trauma, head injuries or brain tumours that occur at any stage of life, or cerebral infections from various diseases (R v Youssef (1990) 50 A Crim R 1).
  45. Automatism resulting from an epileptic seizure may be classified as sane or insane automatism, depending on its cause (R v Youssef (1990) 50 A Crim R 1. See also R v Foy [1960] Qd R 225; R v Meddings [1966] VR 306; R v Sullivan [1984] AC 156; Bratty v AG for Northern Ireland [1963] AC 386).
  46. The appropriate classification depends on whether the epileptic seizure in issue falls within the definition of "disease of the mind":
  47. Where the accused’s pre-existing epileptic condition is triggered by an external stimuli (such as a blow to the head), any resulting state of automatism should be classified as "insane" (as it is the reaction of an unsound mind to external stimuli). It is only where an epileptic seizure is solely caused by an external stimuli that it may result in a state of sane automatism (see, e.g., R v Meddings [1966] VR 306).
  48. If it is unclear what the cause of the epilepsy is, the question of whether or not it is a "disease of the mind" (and thus whether any resulting state of automatism is sane or insane) should be left to the jury to determine (R v Youssef (1990) 50 A Crim R 1).

    Consequences of acting in a state of sane automatism

  49. If the accused committed the relevant act in a state of "sane automatism" he or she must be acquitted (R v Falconer (1990) 171 CLR 30; Hawkins v R (1994) 179 CLR 500).
  50. This is because the accused cannot be convicted for an act which was independent of his or her will. The existence of a voluntary, willed act is an essential element of a crime (Ryan v R (1967) 121 CLR 205; R v Falconer (1990) 171 CLR 30; Hawkins v R (1994) 179 CLR 500).[12]
  51. It is important to keep in mind that the issue is not simply whether there was "automatism", but whether the acts of the accused were voluntary, in the sense that they were the result of his or her conscious volition (R v Falconer (1990) 171 CLR 30 per Toohey J; R v Pantelic (1973) 1 ACTR 1).

    Consequences of acting in a state of insane automatism

  52. Where the accused committed the relevant act in a state of "insane automatism", the defence of automatism is subsumed by the defence of mental impairment (R v Falconer (1990) 171 CLR 30; Bratty v AG for Northern Ireland [1963] AC 386; R v S [1979] 2 NSWLR 1).
  53. This means that unlike cases of "sane automatism" (see above), the accused must not be acquitted on the grounds of having acted involuntarily. Instead, the jury must consider whether the requirements of the defence of mental impairment have been met:[13]
  54. Evidence of insane automatism must not be considered in relation to the issue of voluntariness (Hawkins v R (1994) 179 CLR 500).[16]

    Onus of proof

  55. In cases where only sane automatism is in issue, the onus of proof is clear. It is for the prosecution to prove, beyond reasonable doubt, that the accused acted voluntarily. If it is reasonably possible that the accused acted involuntarily due to a state of sane automatism, he or she must be acquitted (R v Falconer (1990) 171 CLR 30).
  56. The onus of proof is also clear in cases where only insane automatism is in issue.The onus of proving the defence of mental impairment rests on the party who raises the issue. It must be proved on the balance of probabilities (Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s21).
  57. However, difficulties arise in cases where it is possible that the state of automatism was either sane or insane. In particular, it is unclear what the verdict should be in a case where:
  58. This issue was addressed in R v Falconer (1990) 171 CLR 30, in the context of the Western Australian Criminal Code. The majority (Toohey, Gaudron, Deane and Dawson JJ) held that the accused should be acquitted in such circumstances, as the prosecution will have failed to prove, beyond reasonable doubt, that his or her acts were voluntary.
  59. It is not clear, however, whether this is currently the law in Victoria, due to section 20 of the Crimes (Mental Impairment) Act 1997, which states:

    (1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that—

    (a) he or she did not know the nature and quality of the conduct; or

    (b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

    (2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

  60. It is arguable that s20(2) requires a person to be found not guilty by reason of mental impairment whenever the requirements in s20(1) have been proven on the balance of probabilities (see s21), even if it is possible that he or she acted involuntary due to another cause.
  61. However, it should be noted that the Crimes (Mental Impairment) Act 1997 was enacted after Falconer was decided, and does not explicitly address the issue of voluntariness. It is therefore also arguable that the Act was not intended to change the general principles outlined in Falconer, and that even if the requirements of s20(1) have been proven on the balance of probabilities, the accused must be acquitted if it is reasonably possible that the accused acted involuntarily due to sane automatism.

    Automatism and Intention

  62. Evidence that is led to prove that the accused acted involuntarily due to automatism may also be relevant to the issue of intention (Hawkins v R (1994) 179 CLR 500; R v Hall (1988) 36 A Crim R 369; R v Arnold [2002] QCA 3; Cvetkovic v R [2010] NSWCCA 329).
  63. For example, where the accused is charged with murder, and claims that he or she was acting in a state of sane automatism due to suffering a blow to the head, the jury may:
  64. The accused should not be acquitted merely because his or her mind was not functioning properly. Even when people’s minds are not working as they ordinarily do (e.g., where, due to stress, their minds block out the moral inhibitions which ordinarily control their lives), they can act intentionally (R v Isitt (1978) 67 Cr App R 44).

    Judge’s Role

  65. Where automatism is in issue, the judge must resolve two issues before charging the jury:
    1. Whether a proper evidential foundation for the defence has been laid; and
    2. Whether the evidence shows the case to be one of sane or insane automatism (R v Falconer (1990) 171 CLR 30; R v Youssef (1990) 50 A Crim R 1; R v Burgess [1991] 2 QB 92).

    Is there a proper evidential foundation for the defence?

  66. The issue of automatism must not be left to the jury unless the judge has determined that a proper foundation has been laid (R v Falconer (1990) 171 CLR 30; R v Youssef (1990) 50 A Crim R 1; Cvetkovic v R [2010] NSWCCA 329).
  67. The accused bears an evidentiary burden[17] to point to or to produce evidence which, taken at its highest, is capable of raising a reasonable doubt that the act was committed in a state of automatism (Braysich v R (2011) 243 CLR 434. See also R v Youssef (1990) 50 A Crim R 1; R v Falconer (1990) 171 CLR 30; Cvetkovic v R [2010] NSWCCA 329; Woodbridge v R [2010] NSWCCA 185).
  68. For this burden to be satisfied, there must be credible evidence which supports the claim that the accused acted in a state of automatism (R v Falconer (1990) 171 CLR 30; [1990] HCA 49; Bratty v AG for Northern Ireland [1963] AC 386 per Lord Denning; DPP v Olcer [2003] VSC 457; R v Gibson [2006] ACTSC 114; Cvetkovic v R [2010] NSWCCA 329).
  69. The evidence of the accused him or herself will rarely be sufficient to meet this burden, unless it is supported by medical evidence which points to the cause of the automatism (Bratty v AG for Northern Ireland [1963] AC 386 per Lord Denning. See also R v Falconer (1990) 171 CLR 30; DPP v Olcer [2003] VSC 457; R v Gibson [2006] ACTSC 114; Cvetkovic v R [2010] NSWCCA 329).
  70. A claim of involuntariness which is not based on mental illness is almost certain to be treated as frivolous unless supported by medical evidence that identifies a mental state in which acts can occur independently of the will, assigns a causative explanation for that state and postulates that the accused did or may have experienced that state (R v Falconer (1990) 171 CLR 30 per Gaudron J).
  71. Sane automatism is, by its nature, extraordinary and so the evidence must be very persuasive before involuntariness will be a reasonable possibility (R v Falconer (1990) 171 CLR 30 per Gaudron J).
  72. Medical evidence is especially important where the relevant act is said to have been caused by a "medical or pharmacological condition". In such cases, there must be evidence from an expert in the relevant field supporting that proposition (DPP v Olcer [2003] VSC 457).
  73. Evidence that the accused could have been in a state of automatism at the relevant time is sufficient. There does not need to be evidence showing that the accused was in fact acting in a state of automatism (R v Youssef (1990) 50 A Crim R 1).
  74. Even if the judge is sceptical about whether the accused acted involuntarily, if there is sufficient evidence to raise the issue of automatism it must be left to the jury to decide (R v Radford (1985) 42 SASR 266; R v Scott [1967] VR 276).
  75. However, it is not appropriate to invite the jury to engage in fanciful supposition (R v Clarke (1995) 78 A Crim R 226; R v Boyle (2009) 26 VR 219; Woodbridge v R [2010] NSWCCA 185).
  76. It will generally not be sufficient for the accused to simply say "I had a black-out" or "I can’t remember what happened", even if that evidence is credible (R v Cottle [1958] NZLR 999; Bratty v AG for Northern Ireland [1963] AC 386 per Lord Denning; Cook v Atchison [1968] Crim LR 266).

    Is the case one of sane or insane automatism?

  77. Where there is sufficient evidence of automatism to leave the issue to the jury, the judge must determine which type of automatism (sane, insane or both) is supported by that evidence (Hawkins v R (1994) 179 CLR 500; R v Hennessy [1989] 1 WLR 287; R v Falconer (1990) 171 CLR 30).

    Evidence of sane automatism

  78. If it is reasonably possible that the state of automatism was caused by something other than a "disease of the mind",the jury must be directed about sane automatism (R v Falconer (1990) 171 CLR 30; R v Radford (1985) 42 SASR 266; R v Youssef (1990) 50 A Crim R 1; Hawkins v R (1994) 179 CLR 500).
  79. Where there is sufficient evidence to raise the issue of sane automatism the jury must be directed about it, even if a direction is not raised or sought by defence counsel (R v Falconer (1990) 171 CLR 30; R v Milloy [1993] 1 Qd R 298).
  80. The fact that the automatism may have resulted from a "disease of the mind" does not relieve the judge of the obligation of leaving sane automatism to the jury where there is sufficient evidence to raise the issue (R v Radford (1985) 42 SASR 266; Bedelph v R (1980) 1 A Crim R 445).
  81. However, the judge must not direct the jury about sane automatism if the only possible cause of the automatism was a "disease of the mind" (Hawkins v R (1994) 179 CLR 500; R v Radford (1985) 42 SASR 266; R v Milloy [1993] 1 Qd R 298; R v Arnold [2002] QCA 3).

    Evidence of insane automatism

  82. In a number of cases it has been held that, where it is reasonably possible that the state of automatism was caused by a "disease of the mind", the judge must give a direction about insane automatism, regardless of whether such a direction is sought by either party (See, e.g., Hawkins v R (1994) 179 CLR 500; R v Starecki [1960] VR 141; R v Meddings [1966] VR 306; R v Joyce [1970] SASR 184; R v Ayoub [1984] 2 NSWLR 511; Nolan v R WA CCA 22/5/97).
  83. It is not clear, however, whether this is currently the law in Victoria. Section 22 of the Crimes (Mental Impairment) Act 1997 states:

    (1) The question of mental impairment may be raised at any time during a trial by the defence or, with the leave of the trial judge, by the prosecution.

    (2) If there is admissible evidence that raises the question of mental impairment and a jury has been empanelled—

    (a) the judge must direct the jury to consider the question and explain to the jury the findings which may be made and the legal consequences of those findings; and

    (b) if the jury finds the accused not guilty, it must specify in its verdict whether or not it so finds because of mental impairment.

  84. It seems clear from this provision that a direction about insane automatism must be given if there is sufficient evidence to raise the issue, and a direction is sought by defence counsel.
  85. It also seems clear that a direction about insane automatism may be given, at the judge’s discretion, if there is sufficient evidence to raise the issue, and a direction is sought by the prosecution.
  86. However, it is unclear whether the judge may refuse a prosecution request to direct the jury about insane automatism, where there is sufficient evidence to raise the issue.
  87. Similarly, it is also unclear whether the judge must direct the jury about insane automatism where there is sufficient evidence to raise the issue, but a direction is not sought by either party:

    Evidence of sane and insane automatism

  88. If it is reasonably possible that the state of automatism was caused either by a "disease of the mind" or by something else, the jury may need to be directed about both sane and insane automatism (R v Falconer (1990) 171 CLR 30; R v Radford (1985) 42 SASR 266; R v Youssef (1990) 50 A Crim R 1; Hawkins v R (1994) 179 CLR 500).

    Content of the Charge

  89. The charge will differ depending on whether the evidence supports the issue of sane automatism, insane automatism or both forms of automatism. These possibilities are addressed in turn below.

    Charging the jury about sane automatism alone

  90. There are no special rules of law relating to sane automatism. It is simply an issue of voluntariness (Hall v R (1988) 36 A Crim R 368; R v Falconer (1990) 171 CLR 30; Cvetkovic v R [2010] NSWCCA 329).
  91. The jury should therefore be directed in accordance with the principles outlined in Voluntariness.
  92. The judge should direct the jury that the issue is not whether the accused suffered from the alleged condition (e.g., psychological blow dissociation), but whether he or she acted involuntarily as a result of that condition (R v Falconer (1990) 171 CLR 30 per Toohey J).
  93. Similarly, the judge should direct the jury that the issue is not whether or not the accused was conscious or aware of what he or she was doing. It is whether he or she was acting involuntarily. A person can act involuntarily even if he or she is conscious of what he or she is doing (see, e.g., Ryan v R (1967) 121 CLR 205; R v Falconer (1990) 171 CLR 30).
  94. Care must be taken not to suggest that it is for the accused to prove that he or she suffered from the alleged condition, or for the accused to prove that that condition caused him or her to act involuntarily. It is for the prosecution to prove beyond reasonable doubt that the accused was not acting involuntarily due to a state of automatism (R v Manly SA CCA 22/8/95. See also R v Falconer (1990) 171 CLR 30).

    Charging the jury about insane automatism alone

  95. Where the evidence solely supports insane automatism, the judge should direct the jury using Charge: Mental Impairment, relating the evidence of automatism to the requirements of that defence.
  96. The judge must take care not to lead the jury to believe that the defence of mental illness will only be proven if they find that the accused acted involuntarily due to a disease of the mind. The defence of mental impairment may be proven even if the accused acted voluntarily (e.g., if the accused did not know that what he or she was doing was wrong, despite acting voluntarily) (R v Radford (1985) 42 SASR 266; Taylor v R (1978) 22 ALR 599).

    Charging the jury about both sane and insane automatism

  97. In some cases it will be for the jury to decide whether, upon the evidence they accept, the automatism was sane or insane in nature (R v Falconer (1990) 171 CLR 30; R v Youssef (1990) 50 A Crim R 1).
  98. Due to the uncertainties surrounding the onus of proof in this area (see above), it is not possible to provide firm guidance about the best way to charge the jury in such cases. Consequently, the Charge Book does not contain a charge on this issue.
  99. It is recommended that a judge who is required to address both sane and insane automatism in the one charge carefully consider the issues outlined in the ‘Onus of proof’ section above, the provisions of the Crimes (Mental Impairment) Act 1997 and the judgments in R v Falconer (1990) 171 CLR 30 and Hawkins v R (1994) 179 CLR 500.
  100. In drafting a charge on this issue, it is essential that the judge carefully explain the legal meanings of "voluntariness" and "disease of the mind" to the jury (R v Radford (1985) 42 SASR 266; R v King (2005) 155 ACTR 55).

    Charging the jury about automatism and intention

  101. Where the evidence that is led to prove that the accused acted involuntarily due to automatism is also relevant to the issue of intention, the jury should be directed about that issue (Hawkins v R (1994) 179 CLR 500; R v Hall (1988) 36 A Crim R 369; R v Arnold [2002] QCA 3; Cvetkovic v R [2010] NSWCCA 329).[18]
  102. In determining whether this direction is required, the judge must consider whether a direction is requested or whether there are substantial and compelling reasons for giving a direction in the absence of any request (see Jury Directions Act 2015 ss14 - 16).
  103. For example, where the defence of automatism is raised in relation to a crime of specific intent, and it is possible the accused acted in a state of "mental confusion" rather than automatism, the judge must:
  104. The jury must not be left with the impression that an accused person is deemed to lack specific intention only where there is a total absence of control or knowledge of what is being done. A reasonable doubt about specific intention can be raised by evidence of other forms of mental abnormality (R v Hall (1988) 36 A Crim R 369; Hawkins v R (1994) 179 CLR 500).
  105. The jury must not consider the issue of intention until any issues of voluntariness or mental impairment have been resolved (Hawkins v R (1994) 179 CLR 500).

    Charging the jury about loss of memory

  106. Where the accused claims to be unable to answer the charge due to a loss of memory, a direction about that issue may be warranted (Russell v HM Advocate [1946] SLT 93; R v Podola [1960] 1 QB 325; Broadhurst v R [1964] AC 441).
  107. In such circumstances, it may be appropriate to:

    Charging the jury about expert evidence

  108. In most cases where automatism is in issue, an expert witness will have given evidence about the matter. It will therefore generally be appropriate to give either Charge: Contested Expert Evidence or Charge: Uncontested Expert Evidence. See General Principles of Opinion Evidence for further information.
  109. Depending on the circumstances, it may be appropriate to tell the jury that it is not for an expert witness such as a psychiatrist, to determine whether the accused suffered from a "disease of the mind". That is a question of fact for the jury to determine, based on the judge’s definition of the term (Woodbridge v R [2010] NSWCCA 185; R v Falconer (1990) 171 CLR 30).

     

    Notes

[1] While automatism is not technically a defence – it is a claim that the prosecution has not proven one of the elements of the offence (voluntariness) - for the sake of simplicity it will be referred to as a defence.

[2] This verdict will only be appropriate if the requirements of the defence of mental impairment have also been met: see below.

[3] While historically the term "non-insane automatism" was used, the term "sane automatism" is now preferred (R v Milloy [1993] 1 Qd R 298).

[4] See Mental Impairment.

[5] See Voluntariness.

[6] For example, a dissociative state may be caused by a psychological blow ("sane automatism") or by an underlying mental illness ("insane automatism"). See "Dissociation" below.

[7] Evidence that the accused’s control was impaired or reduced may be relevant to the issue of intention. See "Automatism and Intention" below.

[8] See "Dissociation" below for further information about dissociation.

[9] This verdict will only be appropriate if the requirements of the defence of mental impairment have also been met: see below.

[10] See Common Law Intoxication for further information concerning involuntary behaviour caused by drugs or alcohol.

[11] While a person who acts in a dissociative state will ordinarily act involuntarily, it appears that it is possible to act voluntarily while in a dissociative state (see, e.g., Nolan v R WA CCA 22/5/97; R v Joyce [2005] NSWDC 13). The issue is thus not simply whether or not the accused was in a state of dissociation, but whether he or she acted involuntarily as a result of the dissociation.

[12] See Voluntariness.

[13] See Mental Impairment for information concerning the requirements of the defence.

[14] As long as all the elements of the offence (other than voluntariness) have been proven.

[15] While theoretically possible, such cases are unlikely to arise in practice, as in most cases where the accused acted involuntarily due to insane automatism he or she will not have known the nature and quality of what he or she was doing, or will not have known that his or her conduct was wrong (R v Radford (1985) 42 SASR 266; R v Falconer (1990) 171 CLR 30 per Mason CJ, Brennan and McHugh JJ).

[16] Such evidence may, however, be relevant to the issue of intention: see below.

[17] See "The Evidentiary Presumption of Voluntariness" in Voluntariness for information concerning the nature of this evidentiary burden.

[18] See "Automatism and Intention" above.

Last updated: 29 June 2015

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings