What is the defence of Automatism?
Automatism is a legal term that refers to an act committed without volition, occurring in the absence of an accused’s will. The critical issue is the absence of the accused’s will, not the absence of the accused’s consciousness or knowledge. In Victoria, the defence of automatism is available under the common law.
Automatism can be used as a defence where the accused committed the offence/s involuntarily; the accused must show they had no control over their actions, performing them without conscious thought or intention – refer to R v Falconer (1990). The term implies total rather than partial lack of control and direction by their will – refer to Milloy v R .
There are two types of automatism:
- ‘Insane Automatism’ where the automatism is caused by a ‘disease of the mind’ or mental illness, e.g. schizophrenia, brain injury or tumour.
- ‘Sane Automatism’ where the automatism is caused by something other than a ‘disease of mind’, e.g. concussion or hypoglycaemia.
- There are some circumstances where both categories can apply. The preference for defence will always be to rely upon ‘Sane Automatism’.
Insane automatism is a result of a ‘disease of the mind’ and is the reaction of an unsound mind to its delusions or external stimuli. A ‘disease of the mind’ is synonymous with mental illness.
There does not have to be physical deterioration of the cells of the brain, or an actual change in the structure of the brain, for a condition to be a ‘disease of the mind’. To meet the criteria, the accused must have been suffering from some kind of mental disease, disorder or disturbance, not simply excitability, passion, lack of self-control and impulsivity. It exists where a person’s ability to understand that their actions are wrong or harmful are thrown into derangement or disorder. It is essential to distinguish between healthy minds and those suffering from an underlying pathological infirmity. The ‘disease of the mind’ may be permanent or temporary, organic or functional, curable or incurable.
In circumstances where drugs or alcohol are involved, the classification of the resulting state will depend on the role played by those substances. For example, if the accused suffers from epilepsy triggered by drugs or alcohol, the resulting state of automatism will be classified as ‘insane’. But even then the defence is likely to be precluded unless self induced intoxication can be ruled out.
In cases where ‘insane automatism’ is raised, the onus of proving the defence lies with the party that raised the issue. It must be established on the balance of probabilities see the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s 21. If successful, the accused will be found not guilty by reason of mental impairment.
Which Court will hear the matter?
If the matter is listed in the County or Supreme Courts, a finding of not guilty in relation to insane automatism enlivens powers that can result in supervisory order being made by the Judge. These orders might involve incarceration at a psychiatric hospital or result in strict supervision in the community.
If dealt with in the Magistrates’ Court the Magistrate has the power to either discharge the accused or find the accused guilty. No supervisory orders can be made. For this reason from an accused’s perspective it is always better to hear these matters in the Magistrates’ Court where possible. Police prosecutors do not like to run these matters in the Magistrates’ Court for this exact reason, so it is always important that your lawyer is ready to argue jurisdiction in these types of cases.
Sane automatism is caused solely by external stimuli and as such does not result from a ‘disease of the mind’. An underlying infirmity triggered by external stimuli, however, will still be considered a ‘disease of the mind’ and could thus give rise to a defence of insane automatism.
For example, if the Accused has diabetes, the type of automatism will depend on the internal or external stimuli. Hypoglycaemia (low blood sugar) is caused by excessive insulin intake and will be considered ‘sane automatism’ because it came about due to external stimuli being the administering of medication. Hyperglycaemia (high blood sugar) is caused by excessive levels of sugar in the blood and is considered ‘insane automatism’ because it is caused by the body’s internal processes or underlying infirmity and results in disease of the mind.
To use another example utilising the facts of a case run by our firm, the accused had made a threat to kill. In this case there were two avenues open to the accused,
- Sane automatism by way of sleep walking, Sleepwalking is usually considered to be a form of sane automatism (see, e.g., R v Parks  2 SCR 871; R v Carter  VR 105; R v Youssef (1990) 50 A Crim R 1).
- Insane automatism by way of some dissociative state brought on by post traumatic stress disorder. There was a question mark here because the author of the report referred to some form of nightmare or night trauma that has triggered the event which also had the potential to lend itself to sane automatism.
The standard of proof
- Sane automatism requires that defence raise the evidentiary burden and then the prosecution disprove that sane automatism did not exist beyond a reasonable doubt.
- In our case, the psychiatrist suggested that “the likelihood of his having been in a state of somnambulism (sleep walking) at the material time, I would rate at the level of possibility”.
- Fortunately for us the prosecution had been served the report and had not picked up on the issue and did not challenge the findings in our report. It seemed the police prosecutor was under the misapprehension that it was incumbent upon the defence to establish on the balance of probabilities that automatism (without considering insane vs sane automatism) was the likely cause and considering the report referred to it as being only a possible cause, the prosecutor had neglected to challenge the findings of our psychiatrist, thinking we could not succeed.
- Considering the law and considering the findings of our psychiatrist, following the conclusion of evidence the Magistrate found in our client’s favour and made a finding of not guilty by way of sane automatism, as possibility was enough to raise a reasonable doubt.
In cases where ‘sane automatism’ is raised, the onus of proof lies with the prosecution to prove, beyond a reasonable doubt, that the accused acted voluntarily. If, as in our case, it is reasonably possible that the accused acted involuntarily due to a state of sane automatism, they will be acquitted.
The Sound/Unsound Mind Test
The distinction between sane and insane automatism is based on the sound/unsound mind test. This distinction has serious implications because if you, as the accused successfully meet the requirements of sane automatism, you will be wholly acquitted.
If you, as the accused, meet the requirements of insane automatism, the defence of mental impairment applies. You will then be found not guilty because of mental impairment and could be made liable to supervision and placed on a supervision order if in a superior court.
The ‘sound/unsound mind’ approach dictates that a ‘disease of the mind’ must result from an unhealthy mind reacting to extraordinary external stimuli rather than a healthy mind reacting to extraordinary external stimuli. It is not the ‘extraordinary external stimuli’ that determines whether a condition falls within the meaning of ‘disease of the mind’, but whether there is an ‘underlying pathological infirmity of the mind’. So in the above example, mere anxiety triggering a post traumatic response would be a disease of the mind and considered insane automatism, but night terrors or some form of significant shock precipitating the event would be enough to establish sane automatism. In the end, in our case, the distinction did not need to be decided as the Magistrate found that the prosecution did not rule out sleepwalking (sane automatism) beyond a reasonable doubt and subsequently found the defendant not guilty by way of sane automatism.
It is generally considered that it is neither fair nor useful to subject people to criminal punishment for unintended actions or the unforeseen consequences of an act unless these resulted from an inexcusable risk (recklessness). The criminal law has long made a distinction between intentional and unintentional conduct.
Offences for which the defence of automatism is available are those that require mens rea, a guilty mind, ‘an act does not make a person guilty of a crime unless that person’s mind be also guilty’. Criminal acts require a physical action plus a fault element such as intention, recklessness, knowledge or negligence. In other words, the accused must have been acting rationally and not under compulsion. Automatism can be difficult to prove and there has been inconsistency in how courts in different jurisdictions have dealt with cases. Therefore, it takes a skilled legal practitioner to succeed with such a defence.