8.2 – Automatism

8.2.1– Bench Notes: Automatism[1]

Table of Contents

Overview

Structure of these Notes

What is “Automatism”?

Loss of Memory

“Sane” and “Insane” Automatism

What is a “disease of the mind”?

Examples of “diseases of the mind”

Dissociation

Epilepsy

Consequences of acting in a state of sane automatism

Consequences of acting in a state of insane automatism

Onus of proof

Automatism and Intention

Judge’s Role

Is there a proper evidential foundation for the defence?

Is the case one of sane or insane automatism?

Evidence of sane automatism

Evidence of insane automatism

Evidence of sane and insane automatism

Content of the Charge

Charging the jury about sane automatism alone

Charging the jury about insane automatism alone

Charging the jury about both sane and insane automatism

Charging the jury about automatism and intention

Charging the jury about loss of memory

Charging the jury about expert evidence

Overview

  1. In some cases, itmay be alleged that the accused committedan 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[2] of automatism depend on the cause of the automatism:
  3. Where it was caused by a “disease of the mind” it is considered to be “insane automatism”, and the appropriate verdict is not guilty because of mental impairment;[3]
  4. Where it was caused by something other than a “disease of the mind” it is considered to be “sane automatism”,[4] and the appropriate verdict is an acquittal (R v Falconer (1990) 171 CLR 30; Hawkins v R (1994) 179 CLR 500).
  5. 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).
  6. In most cases, the evidence will solely point to one particular type of automatism, and charging the jury will be relatively straightforward. For example:
  7. Where the only possible cause of the state of automatism is a “disease of the mind”, the judge should direct the jury about the defence of mental impairment,[5] relating the evidence of automatism to the requirements of that defence.
  8. Where the only possible cause of the state of automatism is something other than a “disease of the mind”, the judge should direct the jury about the requirement for a voluntary act,[6] relating the evidence of automatism to that requirement.
  9. However, in rare casesthere 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 causedby something else.[7]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:
  10. Whether the accused acted in a state of automatism; and
  11. Whether that state of automatism was caused by a “disease of the mind” (R v Falconer (1990) 171 CLR 30; R v Youssef (1990) 50 A Crim R 1).
  12. 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).
  13. 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:
  14. The burden of proof that applies in cases where both ‘sane’ and ‘insane’ automatism are in issue; or
  15. The judge’s duty to direct the jury about ‘insane automatism’.

Structure of these Notes

  1. These Notes proceed in the following order:
  2. An overview of the meaning of the term “automatism”, and the difference between “sane” and “insane” automatism;
  3. The interaction between automatism and intention;
  4. The judge’s role in cases where the defence is raised; and
  5. The ways in which the jury should be charged.
  6. As the law concerning automatism is a subset of the law concerning voluntariness, these Notes should be read in conjunction with Bench Notes: Voluntariness#.

What is “Automatism”?

  1. 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).
  2. 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) 15 MVR 193; Re AG’s Reference (No.2 of 1992) [1994] QB 91; Maher v Russell Tas SC 22/11/93).[8]
  3. 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).
  4. 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).
  5. 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).
  6. 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).
  7. 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).[9]
  8. 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).
  1. Acting involuntarily due tothe 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 Intoxication: Bench Notes#.

Loss of Memory

  1. 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).
  2. 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).
  3. 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).
  4. 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

  1. The consequences of successfully raising the defence of automatism depend on the cause of the automatism:
  2. Where it was caused by a “disease of the mind” it is considered to be “insane automatism”, and the appropriate verdict is not guilty because of mental impairment;[10]
  3. Where it wascaused by something other than a “disease of the mind” it is considered to be “sane automatism”, and the appropriate verdict is an acquittal (R v Falconer (1990) 171 CLR 30; Hawkins v R (1994) 179 CLR 500).

What is a “disease of the mind”?

  1. 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).
  2. 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).
  3. Historically, the courts used two different tests to determine what mental conditions should be considered to be “diseases of the mind”:

i)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);

ii)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).

  1. 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).
  2. 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).
  3. The sound/unsound mind test incorporates aspects of both of the previous tests, but differs slightly:
  4. It is similar to the internal/external test in that a condition that is solely caused by an external stimuli will not be a “disease of the mind”. However, it differs in that it classifies an underlying infirmity that is triggered by an external stimuli as a “disease of the mind”.
  5. It is similar to the recurrence test insofar as a mental state that is prone to recur will normally be classified as a “disease of the mind” (as the likelihood of recurrence will generally indicate a mind that is diseased or infirm). However, the fact that a condition is prone to recur is not conclusive (R v Falconer (1990) 171 CLR 30 per Toohey, Gaudron, Deane and Dawson JJ; Mason CJ, Brennan and McHugh JJ dissenting. See also R v Radford (1985) 42 SASR 266; R v Youssef (1990) 50 A Crim R 1; Woodbridge v R [2010] NSWCCA 185).
  6. 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 acondition 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).
  7. 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).
  8. 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).
  9. Where drugs or alcohol are involved, the classification of the resulting state will depend on the role played by those substances:
  10. Where the accused suffers from an underlying condition (e.g., epilepsy) which was triggered by the drugs or alcohol, the resulting state of automatism will be classified as “insane” (see, e.g., R v Meddings [1966] VR 306).
  11. Where the accused’s mind is simply not working properly due to the effects of the drugs or alcohol, the resulting state of automatism will be classified as “sane” (R v Carter [1959] VR 105; R v Quick [1973] QB 910; R v Sullivan (1984) AC 156).[11]
  12. 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) 15 MVR 193).
  13. 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”

  1. Examples of conditions which have been stated to be diseases of the mind include:
  2. Major mental illnesses such as schizophrenia (R v Falconer [1990] 171 CLR 30; R v Radford [1985] 42 SASR 266);
  3. Brain injuries, tumours or disorders (R v Hughes(1989) 42 A Crim R 270; Nolan v R WA CCA 22/5/97);
  4. Hyperglycaemia (caused by excessive blood sugar levels) (R v Hennessy [1989] 1 WLR 287).
  5. Physical diseases which affect the soundness of mental faculties, such as cerebral arteriosclerosis (R v Kemp [1957] 1 QB 399; R v Radford [1985] 42 SASR 266);
  6. Some cases of dissociation and epilepsy (see below) (R v Falconer [1990] 171 CLR 30 per Deane and Dawson JJ).
  7. Examples of conditions which have been statednot to be diseases of the mind include:
  8. Concussion from a blow to the head (R v Scott [1967] VR 276; R v Wogandt(1988) 33 A Crim R 31);
  9. Hypoglycaemia (caused by excessive insulin intake) (R v Quick [1973] QB 910; August v Fingleton[1964] SASR 22);
  10. Drug-induced psychosis (R v Sebalj [2006] VSCA 106; R v Whelan [2006] VSC 319);
  11. Some cases of dissociation and epilepsy (see below) (R v Falconer [1990] 171 CLR 30 per Deane and Dawson JJ).
  1. 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

  1. 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).[12]
  2. 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).
  3. 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).
  4. 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).
  5. 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

  1. 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).
  2. 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).
  3. The appropriate classification depends on whetherthe epileptic seizure in issue falls within the definition of “disease of the mind”:
  4. If the seizure is the reaction of an unsound mind to its own delusions or external stimuli (e.g., where it is caused by brain damage due to birth trauma), any resulting automatism will be classified as “insane”;
  5. If the seizure isthe reaction of a sound mind to external stimuli (e.g., where it is directly and immediately caused by a blow to the head), any resulting automatism will be classified as “sane” (see, e.g.,R v Youssef (1990) 50 A Crim R 1; R v Meddings [1966] VR 306).
  6. 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).
  7. 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

  1. 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).
  2. 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).[13]
  3. 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

  1. 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).
  2. 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:[14]
  3. If they have been met, then the accused must be found not guilty on the basis of mental impairment;
  4. If they have not been met, then the accused must be convicted[15] despite the fact that he or she acted involuntarily (R v Falconer (1990) 171 CLR 30; R v S [1979] 2 NSWLR 1; R v Radford [1985] 42 SASR 266; Hawkins v R (1994) 179 CLR 500).[16]
  5. Evidence of insane automatism must not be considered in relation to the issue of voluntariness(Hawkins v R (1994) 179 CLR 500).[17]

Onus of proof

  1. 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).
  2. 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).
  3. 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:
  4. The jury finds that it is likely that the accused acted involuntary due to a “disease of the mind” (and, if asked, would be satisfied that the requirements of the defence of mental impairment have been proven on the balance of probabilities); but
  5. Cannot exclude beyond reasonable doubt the possibility that the state of automatism was caused by something other than a “disease of the mind”.
  6. 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.
  7. 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—