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R v Falconer [1990] HCA 49; (1990) 171 CLR 30 (22 November 1990)

CATCHWORDS

HEARING

DECISION

" Subject to the express provisions of this Code
relating to negligent acts and 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.
Unless the intention to cause a particular result
is expressly declared to be an element of the offence
constituted, in whole or part, by an act or omission, the
result intended to be caused by an act or omission is
immaterial."

"I think Mrs Falconer could have panicked and that could
have been the mechanism which released the full-blown
dissociative state, so to speak.
To the point where she would act?---Where part of her
personality would be sort of segmented and not functioning
as a whole and she became disrupted in her behaviour,
without awareness of what she was doing."

"in classical major dissociative state they can be acting
normally, quietly normally, or purposefully or whatever, so
that if there had been witnesses, wherever it happens, they
would say, 'This person appears normal enough to me.'
As in the case of a person concussed but not unconscious?
---Yes.
In that situation you say the act that was done would
be, in the medical sense, involuntary?---Yes, that is
consistent.
Of course, notwithstanding all of your hearing of evidence
nor all of what you have said or spoken to Mrs Falconer,
you don't proffer any opinion as to what may have occurred
that night?---No. We weren't there ..."

"I believe it is possible to act in an automatic fashion
without any evidence of internal or external stress.
For example, somebody might be sitting listening to you
cross-examining and knitting at the same time and may not
be consciously aware of the stitches they are casting.
It's unlikely, though, that they would sit and listen to
you cross-examine and unconsciously pull the trigger of a
gun at the same time."

"I think she was faced with an intolerable dilemma at that
moment, that on the one hand it is undeniable that he is,
to use her words, 'a filthy bastard and yet I love him.
Possibly by extension that makes me filthy too.' She is
faced with what I would call a psychological conflict. I
think it is in that setting of psychological conflict
that a person is capable of losing control of the mind, of
acting - perhaps quite briefly - in an automatic way. I
think that her inability to remember what happened next is
consistent with that."

3. Both Dr Schioldann-Nielsen and Dr Finlay-Jones were of the opinion that Mrs Falconer was, at the time of their respective interviews with her, "completely sane". Dr Finlay-Jones expressly and Dr Schioldann-Nielsen by implication held the opinion that, from the psychiatric viewpoint, she was completely sane at the time of the shooting.

4. The learned Commissioner rejected the evidence, but the Court of Criminal Appeal held that the evidence was admissible on the issue of "voluntariness", that is, on the issue whether the act causing Mr Falconer's death was a willed act. The Court allowed Mrs Falconer's appeal against conviction and ordered a retrial. The Crown seeks special leave to appeal against that order, submitting that the questions of law raised by the learned Commissioner's ruling and the judgments in the Court of Criminal Appeal are of far-reaching importance in the administration of the criminal law. We agree. From the time when Sir Owen Dixon delivered his paper "A Legacy of Hadfield, M'Naghten and Maclean", (1957) 31 Australian Law Journal 255, the relationship between involuntariness and insanity has awaited consideration by this Court. In the meantime, the problem has received extensive consideration in other courts and in learned writings.

5. The present case arises under the Code which is identical in its relevant provisions with the original form in which the Queensland Criminal Code was enacted. The author of those Codes, Sir Samuel Griffith, was not conscious of any divergence between the provisions he had drafted and the common law, except in respect of incapacity to control actions in s.27. Of course, that is not conclusive of the meaning of any particular provision in the Codes, but it is an indication that the problem which arises now in a statutory context may be answered in a way which answers the corresponding problems under the common law. Though special leave is granted to the Crown only in exceptional cases, this case raises exceptionally important questions and special leave should be granted to consider them.

6. In Ryan v. The Queen [1967] HCA 2; (1967) 121 CLR 205, Barwick C.J. held that the crime of murder - in that case, murder as defined by s.18 of the Crimes Act 1900 (N.S.W.) - could be committed only by a willed act. His observations apply to the crime of wilful murder as defined by the Code. His Honour stated (at p 213) the basic proposition -

"That a crime cannot be committed except by an act or
omission of or by the accused is axiomatic."

" An act or omission which renders the person doing the
act or making the omission liable to punishment is called
an offence."

"It is basic, in my opinion, that the 'act' of the accused,
of which one or more of the various elements of the crime
of murder as defined must be predicated must be a 'willed',
a voluntary act which has caused the death charged. It is
the act which must be willed, though its consequences may
not be intended."

7. In the present case, what is the "act" to which the first limb in s.23 refers? Is it merely a muscular movement of the accused's body (the contraction of the trigger finger), or is it the discharging of the loaded gun, or is it the entirety which commences with the contraction of the trigger finger and ends with the fatal wounding of the deceased? In one sense, it can be said that the discharge of a gun is the consequence of a bodily movement of contracting the trigger finger. In our opinion, however, a consequence which the bodily movement is apt to effect and is inevitable and which occurs contemporaneously with the bodily movement is more appropriately regarded as a circumstance that identifies the character of the "act" which is done by making the bodily movement: cf. per Barwick C.J. in Timbu Kolian, at p 53. Adopting the meaning of "act" expressed by Kitto J. in Vallance, the act with which we are concerned in this case is the discharge by Mrs Falconer of the loaded gun; it is neither restricted to the mere contraction of the trigger finger nor does it extend to the fatal wounding of Mr Falconer.

8. Mrs Falconer is criminally responsible for discharging the gun only if that act were "willed", that is, if she discharged the gun "of (her) own free will and by decision" (per Kitto J. in Vallance, at p 64) or by "the making of a choice to do" so (per Barwick C.J. in Timbu Kolian, at p 53). The notion of "will" imports a consciousness in the actor of the nature of the act and a choice to do an act of that nature. In Mamote-Kulang (at p 81) and Timbu Kolian (at p 64) Windeyer J. added "some element of intention" to the notion of will but, with great respect, such an addition might cause confusion between will and intent in the Code in much the same way as voluntariness is liable to be confused with general intent in the context of the common law: see He Kaw Teh v. The Queen [1985] HCA 43; [1985] HCA 43; (1985) 157 CLR 523, at pp 569-572. Barwick C.J. was alive to the distinction between will and intent in Ryan. He noted that intent usually relates to consequences, whereas will relates to the act done (the deed, as his Honour calls it) the doing of which is ordinarily presumed to have been willed. In Ryan, immediately following the passages earlier cited from his Honour's judgment, he said (at p 213):

"The presumption to which their Lordships refer in Bratty v.
Attorney-General for Northern Ireland ((1963) AC 386)
operates sub silentio. Mostly the contest will concentrate
upon the question of the intent with which the accused
acted. Consequently, there has not been any frequent
need to express with technically expressed precision the
difference between that element of mens rea which relates
the will to act to the deed in question and that element
which relates to it the general intent with which that will
was exercised. Often, when absence of the requisite intent
as distinct from the will to act is sought to be stressed,
there is said to be an 'accident', or that the physical act
which the evidence relates to the accused was 'accidental'.
But, as I have pointed out, such language is ambiguous for
it may equally cover an unwilled act and is often so used.
Cf. Woolmington v. Director of Public Prosecutions [1935] UKHL 1; ((1935)
AC 462, at p 472). In that case, (at p 482) the
description 'unintentional' appears to be used to cover an
act which was involuntary or unwilled, descriptions of it
which for my part I would prefer. However, by whatever
adjective or adjectival phrase it is described, the deed
which was not the result of the accused's will to act
cannot, in my opinion, be made the source of criminal
responsibility in him."

9. In the absence of some contrary evidence, it is presumed - sub silentio, as Barwick C.J. said - that an act done by a person who is apparently conscious is willed or done voluntarily. That presumption accords with, and gives expression to, common experience. Because we assume that a person who is apparently conscious has the capacity to control his actions, we draw an inference that the act is done by choice. Keeping steadily in mind that the concepts of will and voluntariness relate merely to what is done, not to the consequences of what is done, it would be an exceptional case in which a person, apparently conscious, committed an act proscribed as an element in a criminal offence without choosing to do so - or, at the least, without running the risk of doing so. (We need not now consider criminal responsibility for the running of a risk of engaging in proscribed conduct.) The presumption that the acts of a person, apparently conscious, are willed or voluntary is an inference of fact and, as a matter of fact, there must be good grounds for refusing to draw the inference. Generally speaking, grounds for refusing to draw the inference appear only when there are grounds for believing that the actor is unable to control his actions. Although the prosecution bears the ultimate onus of proving beyond reasonable doubt that an act which is an element of an offence charged was a willed act or, at common law, was done voluntarily (Woolmington v. The Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462; R. v. Mullen [1938] HCA 12; (1938) 59 CLR 124), the prosecution may rely on the inference that an act done by an apparently conscious actor is willed or voluntary to discharge that onus unless there are grounds for believing that the accused was unable to control that act.

10. In Bratty v. Attorney-General for Northern Ireland [1961] UKHL 3; (1963) AC 386, Lord Denning said (at p 413):

"whilst the ultimate burden rests on the Crown of proving
every element essential in the crime, nevertheless in order
to prove that the act was a voluntary act, the Crown is
entitled to rely on the presumption that every man has
sufficient mental capacity to be responsible for his
crimes: and that if the defence wish to displace that
presumption they must give some evidence from which the
contrary may reasonably be inferred. ...
The presumption of mental capacity of which I have
spoken is a provisional presumption only. It does not
put the legal burden on the defence in the same way as the
presumption of sanity does. It leaves the legal burden on
the prosecution, but nevertheless, until it is displaced,
it enables the prosecution to discharge the ultimate burden
of proving that the act was voluntary. Not because the
presumption is evidence itself, but because it takes the
place of evidence. In order to displace the presumption of
mental capacity, the defence must give sufficient evidence
from which it may reasonably be inferred that the act was
involuntary. The evidence of the man himself will rarely
be sufficient unless it is supported by medical evidence
which points to the cause of the mental incapacity."

" It is a basic principle of the criminal law that a
person 'is not guilty of a crime if the deed which would
constitute it was not done in exercise of his will to
act': Ryan v. The Queen, per Barwick C.J. at p 216. If
the actions which would otherwise amount to a crime are
performed automatically and are not subject to the control
and direction of the will, no crime is committed. The
general onus which rests upon the prosecution in a criminal
case extends, of course, to establishing that the acts said
to constitute the crime were performed in consequence of
the exercise of the will. The law recognizes a presumption
of mental capacity which is sufficient to establish that
an accused person acted pursuant to an exercise of his
will unless the presumption is displaced by evidence which
leaves the jury in doubt as to whether or not the actions
were voluntary. The presumption does not affect the
legal burden of proof which remains on the prosecution;
it supplies, however, the place of evidence as to
voluntariness unless displaced by actual evidence raising a
reasonable doubt as to voluntariness: Bratty v.
Attorney-General for Northern Ireland, per Viscount Kilmuir L.C. at
p 407 and Lord Denning at p 413."

11. As Lord Denning pointed out in the passage quoted from Bratty, there is a difference between the presumption of mental capacity which is made as a matter of human experience and the legal presumption of sanity or sound mind. In this context, "mental capacity" means the capacity of a person to control his actions and we shall so describe it in order to distinguish more clearly between the presumption which people make as a matter of human experience that a person has that capacity and the legal presumption that a person is sane or of sound mind. Section 26 of the Code makes provision for the latter presumption in these terms:

" Every person is presumed to be of sound mind, and
to have been of sound mind at any time which comes in
question, until the contrary is proved."

12. The foundation for the inference that an act done by an apparently conscious actor is willed or voluntary can be removed by evidence that the actor was not of sound mind or was insane when the act was done, but there are some cases where an act can be shown to be unwilled when it is done by an actor of sound mind. To take some obvious examples: if the act be a reflex action following a painful stimulus or if it be a spastic movement, an inference that the act was willed or voluntary would not be drawn though the actor be of sound mind when the act is done. In Bratty, Lord Denning made the point, at p 409:

"No act is punishable if it is done involuntarily: and an
involuntary act in this context - some people nowadays
prefer to speak of it as 'automatism' - means an act which
is done by the muscles without any control by the mind,
such as a spasm, a reflex action or a convulsion; or an act
done by a person who is not conscious of what he is doing,
such as an act done whilst suffering from concussion or
whilst sleep-walking. The point was well put by Stephen J.
in 1889: 'Can anyone doubt that a man who, though he might
be perfectly sane, committed what would otherwise be a
crime in a state of somnambulism, would be entitled to be
acquitted? And why is this? Simply because he would not
know what he was doing,' see Reg. v. Tolson ((1889) 23
QBD 168, at p 187)."

13. When an act is done by an apparently conscious actor, an inference that the act is willed must be drawn - not as a matter of law but as a matter of fact - unless it be shown that the actor, being of sound mind, has been deprived of the capacity to control his actions by some extraordinary event or unless the actor, being of unsound mind, has thereby lost the capacity to control his actions. The accused bears no ultimate onus of proving that his act was not willed, but he bears the evidential onus of rebutting the inference that his act was willed, and there is no occasion for the jury to consider the possibility of an unwilled act unless that evidential onus is discharged. The inference that an act is willed is thus supported by the presumption that all persons have the capacity to control their actions unless they be of unsound mind, and an accused bears an ultimate onus of proving that he was of unsound mind if he chooses to raise that issue. The cause of any alleged loss of capacity is important, for the verdict of acquittal must be qualified if it is reached "on account of" the accused's unsoundness of mind at the time. Section 653 of the Code, in its relevant parts, provides:

" ... if on the trial of a person charged with any
indictable offence, it is alleged or appears that he was
not of sound mind at the time when the act or omission
alleged to constitute the offence occurred, the jury are
to be required to find specially if they find that he is
not guilty, whether he was of unsound mind at the time when
such act or omission took place, and to say whether he is
acquitted by them on account of such unsoundness of mind;
and if they find that he was of unsound mind, at the time
when such act or omission took place, and say that he is
acquitted by them on account of such unsoundness of mind,
the Court is required to order him to be kept in strict
custody in such place and in such manner as the Court
thinks fit, until Her Majesty's pleasure is known."

14. The placing of an onus of proof on an accused to prove unsoundness of mind as a reason for rejecting the inference of a willed act raises the question: what is the position if the accused chooses to raise an issue of automatism - that is, of an act done independently of the exercise of his will - under the first limb of s.23 but fails or refuses to prove the cause of the automatism? It might be argued that, if it be not proved that unsoundness of mind caused or contributed to the automatism alleged, the verdict should be an outright acquittal. If this argument be valid, automatism caused or contributed to by unsoundness of mind entitles an accused to an outright acquittal provided the accused abstains from proving unsoundness of mind. If that were the position, procedural tactics would work substantive error. The solution lies in giving to s.26 its full effect: until unsoundness of mind be proved, it must be presumed for all purposes, including the finding of facts, that the accused was of sound mind when the act was done. In determining whether the prosecution has discharged an onus of proving any issue, the tribunal of fact must act upon the presumption that the accused is of sound mind unless and until the contrary is proved. Treating the accused as being of sound mind precludes the existence of automatism where the automatism could have been caused only by reason of unsoundness of mind or could not have existed but for unsoundness of mind. Thus s.26 precludes the hypothesis of automatism except for an automatism which, on the evidence, might have been caused exclusively by circumstances outside the operation of s.26. By operation of s.26, the jury is precluded from returning a verdict of acquittal under s.23 if the accused raises an issue of automatism which depends to some extent on unsoundness of mind. And, if an accused proves on the balance of probabilities that his alleged automatism was caused or contributed to by unsoundness of mind, a qualified verdict under s.653 must be returned.

15. A similar view seems to have been taken by Viscount Kilmuir L.C. in Bratty (at pp 403-404):

"The jury might not accept the evidence of a defect of
reason from disease of the mind, but at the same time
accept the evidence that the prisoner did not know what
he was doing. If the jury should take that view of the
facts they would find him not guilty. But it should be
noted that the defence would only have succeeded because
the necessary foundation had been laid by positive evidence
which, properly considered, was evidence of something other
than a defect of reason from disease of the mind. In my
opinion, this analysis of the two defences (insanity and
automatism) shows that where the only cause alleged for the
unconsciousness is a defect of reason from disease of the
mind, and that cause is rejected by the jury, there can be
no room for the alternative defence of automatism. ... I
cannot therefore accept the submission that the whole
of the evidence directed to the issue of insanity should
have been left to the jury to consider whether there was
automatism due to another cause. It was conceded ...
that there was nothing to show or suggest that there was
any other pathological cause for automatism." (Emphasis
added.)

"if the involuntary act proceeds from a disease of the mind,
it gives rise to a defence of insanity, but not to a
defence of automatism. Suppose a crime is committed by
a man in a state of automatism or clouded consciousness
due to a recurrent disease of the mind. Such an act is
no doubt involuntary, but it does not give rise to an
unqualified acquittal, for that would mean that he would
be let at large to do it again. The only proper verdict
is one which ensures that the person who suffers from the
disease is kept secure in a hospital so as not to be a
danger to himself or others."

16. The references to "disease of the mind" in these speeches come, of course, from the definition of insanity in the Rules in M'Naghten's Case (1843) 10 Cl & F 200, at p 210 (8 ER 718, at p 722); 4 St Tr (N.S.) 847, at p 931:

"the jurors ought to be told in all cases that every man is
to be presumed to be sane, and to possess a sufficient
degree of reason to be responsible for his crimes, until
the contrary be proved to their satisfaction; and that to
establish a defence on the ground of insanity, it must be
clearly proved that, at the time of the committing of the
act, the party accused was labouring under such a defect of
reason, from disease of the mind, as not to know the nature
and quality of the act he was doing; or, if he did know
it, that he did not know he was doing what was wrong."
(Emphasis added.)

17. However, there are significant differences between the terms of the M'Naghten Rules and the terms employed by the Code relating to the defence of "insanity" in ss.26, 27 and 28. Section 26 is quoted above. The first paragraph of s.27 reads:

" A person is not criminally responsible for an act or
omission if at the time of doing the act or making the
omission he is in such a state of mental disease or
natural mental infirmity as to deprive him of capacity to
understand what he is doing, or of capacity to control his
actions, or of capacity to know that he ought not to do the
act or make the omission."

18. There are two aspects of apparent difference between the M'Naghten Rules and the Code. The first relates to the cause of the insanity or unsoundness of mind. The M'Naghten Rules speak only of a "disease of the mind" while the Code's umbrella term of "unsound mind" comprehends mental disease, natural mental infirmity (s.27) and a mind disordered by intoxication or stupefaction (s.28). The second, and more significant difference, relates to the effects of these respective causes. The incapacities to which s.27 refers include the incapacity to control actions whereas the M'Naghten Rules speak only of such a defect of reason "as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong." The explanation for the inclusion of the incapacity to control actions in s.27 is that it mirrors the provisions of s.23, as Sir Samuel Griffith explained in his notes to the Draft Code, (1897), p 14:

"An act to involve criminal responsibility must be
voluntary, as distinguished from involuntary (s.23) - that
is to say, it must be accompanied by volition. In order
that an action may be accompanied by volition there must
be in the first place perception, more or less accurate, of
the facts, then a determination or choice of the action to
be taken upon those facts, and finally the action. If the
person in question is incapable from mental disorder of
rightly perceiving the facts, he should be treated on the
same footing as a man who in good faith misapprehends the
facts (s.24). If he is for the same cause incapable of
exercising the power of determination or choice, he should
be treated on the same footing as a man who does an act
independently of the exercise of his will (s.23)."

19. At common law, although the defence of insanity was not expressed to cover an incapacity to control actions caused by a disease of the mind, yet the cases have held that, once disease of the mind appears to be a cause of an incapacity to control actions, an accused who relies on automatism must be acquitted, if at all, on the grounds of insanity: see, for example, Reg. v. Tsigos (1964-5) NSWR 1607, at p 1629. The rationale of that approach was stated by Devlin J. in Hill v. Baxter (1958) 1 QB 277, at pp 285-286:

"For the purposes of the criminal law there are two
categories of mental irresponsibility, one where the
disorder is due to disease and the other where it is not.
The distinction is not an arbitrary one. If disease is not
the cause, if there is some temporary loss of consciousness
arising accidentally, it is reasonable to hope that it will
not be repeated and that it is safe to let an acquitted man
go entirely free. But if disease is present, the same
thing may happen again, and therefore, since 1800 (see
The Criminal Lunatics Act 1800), the law has provided that
persons acquitted on this ground should be subject to
restraint."

" In our view there was no case to go to the jury on the
issue of automatism apart from insanity, no evidence that
is on which any reasonable jury could have had a reasonable
doubt as to whether the appellant's acts in stabbing the
girl were in the relevant sense involuntary or unconscious.
We accept the authorities which have held that where
the alleged automatism is said to be caused by some disease
of the mind the relevant law to be applied is the law of
insanity, and it is not open to the accused to escape the
onus of proof of insanity by requiring the prosecution to
negative automatism (Cottle's Case ((1958) NZLR 999);
Bratty's Case)."

"If the conduct which would otherwise be criminal is
involuntary, the accused is entitled to acquittal unless
the involuntariness results from disease of the mind. If
it results from disease of the mind, the accused is guilty
unless the evidence proves on the balance of probabilities
that the conduct resulted from a defect of reason caused by
the disease of the mind in consequence of which the accused
did not understand the nature and quality of his actions or
did not know that they were wrong."

"Although possible in theory, it is from a practical point
of view extremely difficult to conceive of a state of
things in which a person acting automatically and without
any exercise of the will would nevertheless know what he
was doing and that it was wrong."

20. Under the Code, as well as under the common law, it is necessary for the trial judge to determine what is meant by the terms used to describe the mental condition of a person who is of unsound mind or insane. The meaning of those terms is a question of law, not a question to be answered by medical witnesses. Although there is some divergence in the leading judgments, generally speaking a distinction has been drawn between an underlying mental infirmity which is productive of one of the prescribed effects and a transient non-recurrent mental malfunction caused by external forces which produces an incapacity to control actions. The former is treated as unsoundness of mind or insanity; the latter is no more than a variation within the norm. Cases under the Code, as we shall see, have been decided by reference to concepts drawn from the common law despite some variations in terminology and there is no reason to hold that the term "disease of the mind" in the M'Naghten Rules and the terms "mental disease or natural mental infirmity" in s.27 of the Code connote different mental conditions.

21. In Reg. v. Foy (1960) Qd R 225, Philp J. held that unsoundness of mind comprehended every condition which Hale (Pleas of the Crown) had called "dementia", whether the dementia were complete or partial, permanent or temporary or intermittent and whether it was "natural" or caused by physical disease, concussion, labour or any other cause. It comprehended any disorder or derangement of the understanding and any destruction of the will: see pp 241-243. In his Honour's view, the limitation imported by "a defect of reason ... from disease of the mind" in the M'Naghten Rules did no more than exclude "drunkenness, conditions of intense passion and other transient states attributable either to the fault or to the nature of man", those being the words of Sir Owen Dixon in the paper earlier mentioned adopted judicially by Owen J. in Reg. v. Connolly (1959) 76 WN (NSW) 184, at p 185. The same broad view of unsoundness of mind was taken by Wanstall J. in dissent in Cooper v. McKenna; Ex parte Cooper (1960) Qd R 406, at p 412, to cover a case of concussion from a physical blow, but Stable J. (for the majority) refused to accept the proposition that any lapse of consciousness by reason of an accident amounted to insanity: at p 419. In Reg. v. Kemp (1957) 1 QB 399, Devlin J. took a broad view of the meaning of "a defect of reason from disease of the mind". Holding that temporary insanity whether incurable or not was sufficient to satisfy the M'Naghten Rules, he said (at p 408):

"The primary thing that has to be looked for is the defect
of reason. 'Disease of the mind' is there for some
purpose, obviously, but the prime thing is to determine
what is admitted here, namely, whether or not there is a
defect of reason. In my judgment, the words 'from disease
of the mind' are not to be construed as if they were put
in for the purpose of distinguishing between diseases which
have a mental origin and diseases which have a physical
origin, a distinction which in 1843 was probably little
considered. They were put in for the purpose of limiting
the effect of the words 'defect of reason.' A defect of
reason is by itself enough to make the act irrational and
therefore normally to exclude responsibility in law. ...
The words ensure that unless the defect is due to a
diseased mind and not simply to an untrained one there is
insanity within the meaning of the Rule."

"I agree with what was said by Devlin J. in Reg. v. Kemp
(1957) 1 QB 399, 407, that 'mind' in the M'Naghten Rules
is used in the ordinary sense of the mental faculties of
reason, memory and understanding. If the effect of a
disease is to impair these faculties so severely as to have
either of the consequences referred to in the latter part
of the rules, it matters not whether the aetiology of the
impairment is organic, as in epilepsy, or functional, or
whether the impairment itself is permanent or is transient
and intermittent, provided that it subsisted at the time
of commission of the act. The purpose of the legislation
relating to the defence of insanity, ever since its origin
in 1800, has been to protect society against recurrence
of the dangerous conduct. The duration of a temporary
suspension of the mental faculties of reason, memory and
understanding, particularly if, as in Mr. Sullivan's case,
it is recurrent, cannot on any rational ground be relevant
to the application by the courts of the M'Naghten Rules,
though it may be relevant to the course adopted by the
Secretary of State, to whom the responsibility for how the
defendant is to be dealt with passes after the return of
the special verdict of 'not guilty by reason of insanity.'
To avoid misunderstanding I ought perhaps to add that
in expressing my agreement with what was said by Devlin J.
in Kemp, where the disease that caused the temporary and
intermittent impairment of the mental faculties was
arteriosclerosis, I do not regard that learned judge as
excluding the possibility of non-insane automatism (for
which the proper verdict would be a verdict of 'not
guilty') in cases where temporary impairment (not being
self-induced by consuming drink or drugs) results from some
external physical factor such as a blow on the head causing
concussion or the administration of an anaesthetic for
therapeutic purposes."

22. In Canada a broad view was taken of the meaning of insanity in s.16(2) of the Criminal Code which provided that a person is insane "when he is in a state of natural imbecility or had disease of the mind to an extent that renders him incapable of appreciating the nature and quality of an act or omission or of knowing that an act or omission is wrong". In Rabey v. The Queen (1980) 2 SCR 513, at p 519; (1980) 54 CCC (2d) 1, at pp 6-7, Ritchie J. pointed out that the question whether a particular mental state amounts to "'a disease of the mind' is a question of law for the judge" adopting the statement of principle by Martin J.A. in the Ontario Court of Appeal who said ((1977) 79 DLR (3d) 414, at p 430; 37 CCC (2d) 461, at pp 477-478):

" In general, the distinction to be drawn is between a
malfunctioning of the mind arising from some cause that
is primarily internal to the accused, having its source in
his psychological or emotional make-up, or in some organic
pathology, as opposed to a malfunctioning of the mind
which is the transient effect produced by some specific
external factor such as, for example, concussion. Any
malfunctioning of the mind, or mental disorder having its
source primarily in some subjective condition or weakness
internal to the accused (whether fully understood or not),
may be a 'disease of the mind' if it prevents the accused
from knowing what he is doing, but transient disturbances
of consciousness due to certain specific external factors
do not fall within the concept of disease of the mind."

"that, in the circumstances of this case, the dissociative
state in which the respondent was said to be, constituted
a 'disease of the mind'. I leave aside until it becomes
necessary to decide them, cases where a dissociative state
has resulted from emotional shock without physical injury,
resulting from such causes, for example, as being involved
in a serious accident although no physical injury has
resulted; being the victim of a murderous attack with an
uplifted knife, notwithstanding the victim has managed
to escape physical injury; seeing a loved one murdered
or seriously assaulted, and the like situations. Such
extraordinary external events might reasonably be presumed
to affect the average normal person without reference
to the subjective make-up of the person exposed to such
experience."

23. Sholl J. in Reg. v. Carter [1959] VicRp 19; (1959) VR 105 and in Reg. v. Meddings [1966] VicRp 42; (1966) VR 306 excluded from insanity some mental disturbances of a transient non-recurrent kind which are the consequence of external trauma. (That was the view which Stable J. formed of concussion in Cooper.) In Carter, Sholl J. said (at p 110) that it is

"quite outside the policy of the law to extend the practice
of (a qualified verdict resulting in indeterminate
detention) to cases where there is no reason to fear any
repetition of the crime and no evidence of any brain damage
or disease which is likely to give rise to any such
repetition."

"It seems to me that any mental disorder which has
manifested itself in violence and is prone to recur is a
disease of the mind. At any rate it is the sort of disease
for which a person should be detained in hospital rather
than be given an unqualified acquittal."

24. In his judgment in Radford, King C.J. (at pp 274-275) stated in summary form the effect of the authorities. In our respectful opinion, his Honour's judgment substantially states the common law and we quote the passage at length:

"if a jury is called upon to decide whether a state of
automatism is due to disease of the mind, upon conflicting
evidence or conflicting interpretations of the evidence, it
must be told what the law understands by that phrase and it
should be told that in language which a jury of laymen is
likely to grasp. The expression 'disease of the mind' is
synonymous, in my opinion, with 'mental illness'. In his
charge to the jury in The King v. Porter (at p 188)
Dixon J. used the expression 'disease disorder or
disturbance'. But the words 'disorder' and 'disturbance'
must take their colour from the word 'disease' and refer
to disorder and disturbance of the mental faculties which
can be characterized as mental illness. In one sense
automatism must always involve some disorder or disturbance
of the mental faculties, but I do not think that a
temporary disorder or disturbance of an otherwise healthy
mind caused by external factors can properly be regarded
as disease of the mind as that expression is used in the
M'Naghten rules. As Lord Denning pointed out in Bratty v.
Attorney-General for Northern Ireland (at p 412), the major
mental diseases or psychoses such as schizophrenia are
clearly diseases of the mind. Moreover, physical diseases,
such as psychomotor epilepsy, (Bratty v. Attorney-General
for Northern Ireland) and arteriosclerosis (Reg. v. Kemp),
when they affect the soundness of the mental faculties
should be regarded as diseases of the mind. Lord Denning
considered that any 'mental disorder which has manifested
itself in violence and is prone to recur is a disease of
the mind': Bratty's case (at p 412). Disease of the mind
is to be distinguished from 'mere excitability of a normal
man, passion, even stupidity, obtuseness, lack of self
control, and impulsiveness': The King v. Porter (at pp 188-
189). The essential notion appears to be that in order to
constitute insanity in the eyes of the law, the malfunction
of the mental faculties called 'defect of reason' in
the M'Naghten rules, must result from an underlying
pathological infirmity of the mind, be it of long or short
duration and be it permanent or temporary, which can
be properly termed mental illness, as distinct from the
reaction of a healthy mind to extraordinary external
stimuli. In my opinion the notion of 'disease of the mind'
should be explained to the jury in some such terms."

25. Particular difficulties are raised when a temporary mental disorder or disturbance is precipitated by psychological trauma. Psychological trauma and the strength of the individual mind to withstand it are reciprocal factors, on the balancing of which mental malfunction depends. It may be difficult for an accused who raises automatism to show that psychological trauma has not acted upon some underlying infirmity of mind to produce the automatism. In Reg. v. Hennessy [1989] EWCA Crim 1; (1989) 1 WLR 287, at p 294; [1989] EWCA Crim 1; (1989) 2 All ER 9, at p 14, Lord Lane C.J. for the Court of Appeal said:

" In our judgment, stress, anxiety and depression can no
doubt be the result of the operation of external factors,
but they are not, it seems to us, in themselves separately
or together external factors of the kind capable in law of
causing or contributing to a state of automatism. They
constitute a state of mind which is prone to recur. They
lack the feature of novelty or accident, which is the basis
of the distinction drawn by Lord Diplock in Reg. v.
Sullivan (at p 172)."

26. In Rabey, Dickson J. for the minority emphasized the externality of the precipitating "psychological blow" which caused "a loss of consciousness". His Lordship agreed (at p 549; p 29) that there should be a shock precipitating the state of automatism and that:

"Dissociation caused by a low stress threshold and surrender
to anxiety cannot fairly be said to result from a
psychological blow."

" In principle, the defence of automatism should be
available whenever there is evidence of unconsciousness
throughout the commission of the crime, that cannot
be attributed to fault or negligence of his part. Such
evidence should be supported by expert medical opinion that
the accused did not feign memory loss and that there is no
underlying pathological condition which points to a disease
requiring detention and treatment."

27. The problem of classification in a case of a transient malfunction of the mind precipitated by psychological trauma lies in the difficulty in choosing between the reciprocal factors - the trauma and the natural susceptibility of the mind to affection by psychological trauma - as the cause of the malfunction. Is one factor or the other the cause or are both to be treated as causes? To answer this problem, the law must postulate a standard of mental strength which, in the face of a given level of psychological trauma, is capable of protecting the mind from malfunction to the extent prescribed in the respective definitions of insanity. That standard must be the standard of the ordinary person: if the mind's strength is below that standard, the mind is infirm; if it is of or above that standard, the mind is sound or sane. This is an objective standard which corresponds with the objective standard imported for the purpose of determining provocation: as to which, see Radford, at p 269; Reg. v. Hill (1986) 1 SCR 313, at pp 343-344; (1986) 25 CCC (3d) 322, at p 348; Johnson v. The Queen [1976] HCA 44; (1976) 136 CLR 619, at p 636.

28. In a given case, if the psychological trauma causes a sound mind, possessed of the requisite standard of strength, to malfunction only transiently so as to produce the effects mentioned in the M'Naghten Rules or in s.27 of the Code, the malfunction cannot be attributed to mental infirmity but to "the nature of man": that is to say, a malfunction which is transient and not prone to recur and to which the mind of an ordinary person would be subject if exposed to the same psychological trauma is neither a mental disease nor a natural mental infirmity. It is neither an instance of unsoundness of mind under the Code nor an instance of insanity at common law. Having regard to the reason for distinguishing between sane and insane mental irresponsibility in Hill v. Baxter, there is no reason to require such a malfunction of the mind to attract a qualified verdict of acquittal.

29. If this be the substantive law, how does the shifting onus of proof work upon it? When an accused raises automatism and assigns some malfunction of the mind as its cause, he raises a defence of unsoundness of mind or insanity unless the malfunction of his mind was (1) transient (2) caused by trauma, whether physical or psychological, which the mind of an ordinary person would be likely not to have withstood and (3) not prone to recur. A malfunction of the mind other than a malfunction which satisfies those exempting qualifications amounts to a disease of the mind, or a mental disease or natural mental infirmity. As an accused bears no ultimate onus of proving that his act was not willed, in theory an accused may raise the issue of non-insane automatism on the evidence and claim to be acquitted outright unless the prosecution disproves the issue. But in practice an accused does not raise non-insane automatism by raising automatism based merely on mental malfunction. Prima facie, mental malfunction is the consequence of mental infirmity and, until it be proved that a particular instance of mental malfunction satisfies the exempting qualifications, mental malfunction must be treated as a consequence of mental infirmity.

30. It follows that, unless and until the automatism on which an accused relies is proved to be merely a transient mental malfunction of his otherwise sound mind caused by trauma and that the malfunction is not likely to recur, both s.26 of the Code and the common law preclude consideration of automatism for the purpose of determining whether the incriminated act was willed or voluntary. If an accused proves on the balance of probabilities that he was acting as an automaton when the act was done by reason of mental malfunction but fails to prove that his mental malfunction satisfied the exempting qualifications, he is entitled to be acquitted on account of unsoundness of mind or on the ground of insanity. However, if he proves that his mental malfunction satisfied the exempting qualifications, he is entitled to an outright acquittal. (To cast this onus on the accused does no violence to the principle in Woolmington v. The Director of Public Prosecutions, for the issue is not one of criminal responsibility but the cause of the condition which deprived the accused of criminal responsibility.) In some instances (for example, concussion caused by physical trauma), the accused may be able to prove on the balance of probabilities at the outset that, if there were any malfunction of the mind which deprived him of the capacity to know the nature and quality of his act or to control his actions, the malfunction satisfied the exempting qualifications and therefore did not flow from an underlying mental infirmity. In such a case, the onus shifts to the prosecution to prove beyond reasonable doubt that there was no malfunction or that it did not affect the accused's control of his actions. But in cases where the accused, claiming to have acted as an automaton by reason of a transient malfunction precipitated by psychological trauma, seeks to take the malfunction out of the prima facie classification of unsoundness of mind or insanity, the onus of proving the exempting qualifications can hardly be discharged before the malfunction itself is proved. Where the accused succeeds in proving that the relevant act was done in a state of automatism by reason of a malfunction of his mind, he is at risk of a qualified verdict of acquittal (under s.653 or a provision corresponding with that section) unless and until he succeeds in discharging the onus of proving the exempting qualifications on the balance of probabilities.

31. A mental malfunction which deprives an accused of the capacity to control his actions (or to know the nature and quality of his act) and which does not fulfil the exempting qualifications amounts to unsoundness of mind (under the Code) or insanity (at common law). (As the terms "unsoundness of mind" and "insanity", like the terms "willed" and "voluntary", are interchangeable we shall follow the Code terminology.) That being so, an accused cannot rely on a mental malfunction to deny that an act done by him was willed unless it be proved that the qualifying conditions are fulfilled or that the accused was labouring at the time under an unsoundness of mind. If neither fulfilment of the exempting qualifications nor unsoundness of mind be proved on the balance of probabilities to account for a supposed absence of will, the jury cannot find that there may have been a mental malfunction which might have produced that result.

32. According to the state of the evidence as to the cause of an alleged mental malfunction, a trial judge may or may not leave the possibility of an unwilled act for the jury's consideration. In deciding whether the evidence is such that the issue of an unwilled act should be left for the jury's consideration and in directing the jury on that issue, the judge must distinguish between the evidence relevant to the question whether the proscribed act was in fact accompanied by an exercise of the will and the evidence relevant to the question whether the cause of the alleged mental malfunction is of the severity which would cause the mind of an ordinary person to lose the capacity to control an action of the kind charged. The personality and the state of mind of the accused before being subjected to the physical or psychological trauma which caused the alleged mental malfunction is relevant to the first question but not to the second. If the judge does allow the issue of an unwilled act to go to the jury, the jury will be directed that they should not acquit on account of a possible absence of will attributable to a mental malfunction unless they are satisfied on the balance of probabilities that the mental malfunction either fulfils the exempting qualifications or amounts to unsoundness of mind. To that direction the judge will add that, if they are satisfied that the mental malfunction falls within one or other category but are not satisfied on the balance of probabilities that the exempting qualifications are fulfilled, they should return a verdict of not guilty on the ground of unsoundness of mind.

33. When these principles are applied to the present case, they lead to the conclusion that the learned Commissioner erred in rejecting the evidence proposed to be given by Dr Schioldann-Nielsen and Dr Finlay- Jones. That evidence was admissible for the purpose of proving that at the time of the killing Mrs Falconer was in a state of non-insane automatism. It is, of course, another question whether the evidence of those doctors in combination with the rest of the evidence would have satisfied the exempting qualifications to which we have referred.

34. In determining whether the mind of an ordinary person would have malfunctioned in the face of the physical or psychological trauma to which the accused was subjected, the psychotic, neurotic or emotional state of the accused at that time is immaterial. The ordinary person is assumed to be a person of normal temperament and self-control. Consequently, evidence that, in the week preceding the shooting, Mrs Falconer had demonstrated fear, depression, emotional disturbance and an apparently changed personality would not have been relevant in determining the reaction of an ordinary person. Likewise, evidence of the stress that she suffered on discovering that her husband had sexually assaulted their two daughters would not have been relevant in determining the reaction of the ordinary person to the incidents which took place on the day of the shooting. But evidence of the objective circumstances of the relationship between the parties would have been relevant to that issue, for only by considering the pertinent circumstances of that relationship could the jury determine whether an ordinary person would have succumbed to a state of dissociation similar to that which Mrs Falconer claims overtook her on that day. Speaking generally, the issue for the jury on this aspect of the case would be whether an ordinary woman of Mrs Falconer's age and circumstances, who had been subjected to the history of violence which she alleged, who had recently discovered that her husband had sexually assaulted their daughters, who knew that criminal charges had been laid against her husband in respect of these matters and who was separated from her husband as the result of his relationship with another woman, would have entered a state of dissociation as the result of the incidents which occurred on the day of the shooting.

35. If the trial judge had considered the evidence given on the voir dire by the two doctors in the light of the relationship between Mrs Falconer and her husband, he might have held that that evidence was insufficient to establish that the mind of an ordinary person would have reacted in the way that Mrs Falconer alleges that her mind reacted. But that issue was not addressed and it is not a question that should be answered in this application. Much depends upon the impact of the evidence in the context of the trial. Evidence which was prima facie relevant and essential to the defence of non-insane automatism was improperly rejected. Indeed, Mrs Falconer was not allowed to tender any evidence in support of that defence. In that respect the trial miscarried. In the circumstances, it is neither appropriate nor proper to examine the evidence of the doctors, given on the voir dire, for the purpose of determining whether, if admitted, it would have established a case of non-insane automatism for consideration by the jury.

36. Had Mrs Falconer, having raised the issue of automatism caused by a mental malfunction, discharged the onus of proving that the malfunction satisfied the exempting qualification, she would have been entitled to be acquitted under s.23. Accordingly, the evidence was admissible as relevant to an issue arising under s.23 and the Court of Criminal Appeal was correct in allowing the appeal and ordering a new trial. However if, on the retrial, Mrs Falconer were to prove no more than the dissociated state occasioning an incapacity to control her action in discharging the gun, she would be entitled merely to a qualified verdict of acquittal under s.653. If the accused were not to prove any of the facts referred to in this paragraph, she would not be entitled to be acquitted under either s.23 or s.653.

37. We would grant special leave to appeal but dismiss the appeal.

DEANE and DAWSON JJ. Subject to what is said below, we are in general agreement with the reasoning of Toohey J. and Gaudron J. That reasoning accords with the approach adopted by the members of the Western Australian Court of Criminal Appeal (Malcolm C.J., Wallace and Kennedy JJ.) and is in conformity with the basic principle of the criminal law in all parts of this country that, subject only to well-settled (common law) or clearly expressed (Code) exceptions, the onus lies upon the prosecution to prove the elements of an alleged criminal offence in accordance with the ordinary criminal standard of proof. It is also supported by what seem to us to be the more convincing discussions of relevant principle in the reported cases: see, for example, Rabey v. The Queen (1980) 2 SCR 513, at pp 545-552; (1980) 54 CCC (2d) 1, at pp 26-31 (per Dickson J., dissenting); Reg. v. Carter [1959] VicRp 19; (1959) VR 105, at pp 110-111 (per Sholl J.); and Reg. v. Radford (1985) 42 SASR 266, at pp 272-276 (per King C.J.). In what follows, we express in somewhat summary form our views in relation to the various questions involved in the case, including the interaction of issues of sane automatism and insanity if both arise for the consideration of the jury in a particular case. References to "the Code" are to the Western Australian Criminal Code.

2. Where an accused's acts are alleged to be involuntary by reason of mental disease or natural mental infirmity, no distinction can be drawn between the defence of automatism - the absence of will accompanying the relevant acts of the accused - and the defence of insanity under s.27 of the Code. This is necessarily so because s.27 relieves a person of criminal responsibility for an act done in "such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions ...".

3. The definition of what constitutes a mental disease or natural mental infirmity is a matter of law. Whether an accused suffered from such a disease or infirmity at the relevant time is a question of fact. Where the voluntariness of an accused's acts is to be determined by reference to a condition which, if it existed at all, must on the evidence have amounted to a state of mental disease or natural mental infirmity, the question whether the accused's acts were voluntary will be subsumed in the question whether the accused did in fact suffer from a state of insanity envisaged by the section such that it deprived him of the capacity to understand what he was doing or the capacity to control his actions. Section 27 also applies where a person is by reason of mental disease or natural mental infirmity deprived of the capacity to know that he ought not to have acted as he did. That would seem to raise a question distinct from that of voluntariness.

4. Where s.27 applies to relieve an accused of criminal responsibility, he is entitled to an acquittal but, under s.653 of the Code, the jury is required to find that he was of unsound mind at the relevant time and to say whether he was acquitted by them for that reason. The consequence of that is that an order is made that the accused be kept in custody at the Governor's pleasure.

5. If the evidence raises the question whether an accused's acts were involuntary, not because of mental disease or natural mental infirmity, but because of the operation of events upon a sound mind, it is s.23 rather than s.27 which applies. Section 23 provides that "a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will".

6. Under s.26 of the Code (and for that matter at common law) there is a presumption of law that every person is of sound mind. That means that, in order to establish mental disease or natural mental infirmity under s.27, it is necessary to rebut the presumption. That can only be done by proving the existence of one or other of those conditions on the balance of probabilities. At common law the same considerations are reflected in the exceptions to the general rule that the burden of proving guilt beyond reasonable doubt remains throughout upon the prosecution. Those exceptions are the defence of insanity and any statutory exception: Woolmington v. The Director of Public Prosecutions [1935] UKHL 1; (1935) AC 462, at p 481.

7. However, there is no such presumption to be overcome in the application of s.23. The onus of proving guilt remains with the prosecution and that onus is not discharged if an accused is able to raise a reasonable doubt. Of course, common experience teaches us that a person's will ordinarily accompanies his actions and evidence will be required to establish the extraordinary circumstance that an accused's acts occurred independently of the exercise of his will or to raise a doubt whether that was so. It is sometimes said in that situation that the accused is required to rebut an evidentiary presumption or to discharge an evidentiary burden of proof, but it is merely a requirement that there be evidence to displace ordinary human experience. And it will not be enough for an accused merely to assert that his acts were involuntary or that he suffered a loss of memory. Evidence of his condition at the time of the alleged offence supported by some expert medical opinion will be required before an issue of sane automatism can realistically be said to be raised. Moreover, those conditions which will admit of involuntariness that is not the product of disease or natural mental infirmity will be quite confined. The few suggested instances would seem to include: sleepwalking in some circumstances, some cases of epilepsy, concussion, hypoglycaemia and dissociative states. Nevertheless, given these constraints, an accused in setting up a defence under s.23 does not have to prove his condition on the balance of probabilities in order to succeed; he merely has to raise a reasonable doubt that his actions were the result of an involuntary reaction of a sane mind.

8. In this case, the evidence did not pose any question under s.27. It was not suggested at the trial that the accused suffered from any mental disease or natural mental infirmity. Conversely, in cases where the question of mental disease or of natural mental infirmity under s.27 is raised, there will often be no question - on the evidence - of involuntariness other than as the product of mental disease or natural mental infirmity. That is to say, no question will arise under s.23. But there may be cases, perhaps rare, in which the evidence allows alternative contentions, namely, that an accused's acts were involuntary either by reason of mental disease or natural mental infirmity or by reason of the operation of events upon a normal mind.

9. Where that occurs, there is the apparent incongruity identified by Dixon C.J. in his paper entitled "A Legacy of Hadfield, M'Naghten and Maclean", (1957) 31 Australian Law Journal 255. The incongruity appears to arise because of the different burdens of proof affecting, on the one hand, insanity (and, hence, involuntariness arising from insanity) and, on the other, involuntariness arising from the operation of events upon a normal mind: insane automatism and sane automatism.

10. The problem is complicated by the consideration that it is no longer entirely appropriate to speak of insanity as a defence, having regard to the fact that the consequences of successfully raising the plea go beyond negativing volition or intent. True it is that insanity operates to produce an acquittal, but it is seldom raised by an accused now that there are no capital offences, because incarceration at the Governor's pleasure may be a harsher penalty than conviction and sentence. Indeed, nowadays it is often in the interests of the prosecution (or, at all events, the community) to raise the question of insanity, rather than in the interests of the accused. It used to be said that it was for the defence to raise a plea of insanity and not for the prosecution. That is probably still the case, but we think that the position has now been reached where it is only realistic to recognize that, if there is evidence of insanity, the prosecution is entitled to rely upon it even if it is resisted by the defence. In that regard, it is relevant to note that s.653 of the Code refers to the case where "it is alleged or appears" (emphasis added) that the accused was not of sound mind. It may be anomalous for the prosecution to raise the matter initially because the prosecution should not commence proceedings if it is seeking an acquittal, even on the grounds of insanity. The responsibility for the protection of the community in those circumstances lies elsewhere than in the criminal law. But we can see no reason why, if there is evidence which would support a verdict on the grounds of insanity, the prosecution should not be able to rely upon it in asking for a qualified acquittal as an alternative to conviction.

11. The important thing is, however, that an accused is entitled to an acquittal if the prosecution fails to prove that his acts were voluntary. When, on the evidence, an accused's acts can only have been involuntary if he was suffering from a mental disease or natural mental infirmity, the prosecution is entitled to rely upon the presumption that every person is of sound mind. That means that a defence of insane automatism can only succeed if it is established on the balance of probabilities. But if on the evidence an accused's acts may have been involuntary as a result of the operation of events upon a sound mind - as a result of sane automatism - then a reasonable doubt about the voluntariness of those acts will be sufficient to entitle him to acquittal. In such a case, there will be a reasonable hypothesis consistent with both innocence and a sane mind and we do not conceive it to be the policy of the law that in that event there should be either a conviction or indefinite committal to an institution for the criminally insane. The law is possibly open to the criticism that it envisages the release of a person who may, on the balance of probabilities, be violently insane. That is, however, a matter to be dealt with by the means otherwise available for protecting the community from such persons and, if those means are thought to be inadequate, by legislative intervention.

12. It follows that, in a case where an issue of sane automatism is raised by positive evidence (including expert medical opinion), an accused will be entitled to an acquittal if the prosecution fails to disprove sane automatism beyond reasonable doubt. In that event, the jury will need to go no further. If, however, the prosecution disproves sane automatism and the evidence raises the question of insane automatism, the jury will have to ask themselves whether, on the balance of probabilities, the evidence establishes insanity under s.27. That will, as we have said, embrace insane automatism. If the evidence does establish insanity, an accused will be entitled to an acquittal, but the jury will be required to say that the acquittal is on account of unsoundness of mind. If the prosecution does disprove sane automatism and if insanity is not established on the balance of probabilities, in the absence of any other defence the jury should convict.

13. As Toohey J. and Gaudron J. demonstrate, there was evidence of sane automatism to be left to the jury in the present case. Special leave should be granted and the appeal should be dismissed.

TOOHEY J. By this application the Crown seeks special leave to appeal from a judgment of the Court of Criminal Appeal of Western Australia which quashed Mrs Falconer's conviction on a charge of wilful murder of her husband and ordered a new trial on that charge. The Crown seeks restoration of the conviction and of the sentence of life imprisonment that accompanied it.

2. The circumstances giving rise to Mrs Falconer's appeal to the Court of Criminal Appeal arose from a voir dire conducted by the Commissioner who presided at her trial. The voir dire was conducted after the Crown had concluded its case and after the defence had called evidence from several witnesses, including the accused. It was designed to test the admissibility of evidence to be adduced by the defence from two psychiatrists, Johan Andreas Schioldann-Nielsen and Robert Astley Finlay-Jones. In his ruling that the evidence was inadmissible, the Commissioner spoke of "medical evidence which the defence would propose to call to support a defence of automatism or involuntary conduct within the meaning of the first limb of section 23 of the Criminal Code". In his judgment in the Court of Criminal Appeal, Malcolm C.J. described the evidence as relating to "the issues of non-insane automatism or disassociated state and accident". The question of accident is no longer an issue.

3. It will be necessary to refer to the Commissioner's ruling and the proposed evidence of the psychiatrists in more detail. First, however, it is advisable to note three sections of the Criminal Code (W.A.) ("the Code") which are at the centre of the debate. They read:

" 23. Subject to the express provisions of this Code
relating to negligent acts and 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.
Unless the intention to cause a particular result
is expressly declared to be an element of the offence
constituted, in whole or part, by an act or omission, the
result intended to be caused by an act or omission is
immaterial.
Unless otherwise expressly declared, the motive by
which a person is induced to do or omit to do an act, or to
form an intention, is immaterial so far as regards criminal
responsibility."
" 26. Every person is presumed to be of sound mind,
and to have been of sound mind at any time which comes in
question, until the contrary is proved.
27. A person is not criminally responsible for an
act or omission if at the time of doing the act or making
the omission he is in such a state of mental disease or
natural mental infirmity as to deprive him of capacity to
understand what he is doing, or of capacity to control his
actions, or of capacity to know that he ought not to do the
act or make the omission.
A person whose mind, at the time of his doing or
omitting to do an act, is affected by delusions on some
specific matter or matters, but who is not otherwise
entitled to the benefit of the foregoing provisions of this
section, is criminally responsible for the act or omission
to the same extent as if the real state of things had been
such as he was induced by the delusions to believe to
exist."

4. Although Mrs Falconer and other witnesses gave evidence which might have had relevance to the voluntariness of her conduct at the time of the shooting of her husband, the defence did not pursue that issue once the Commissioner had made his ruling that the evidence of the psychiatrists was inadmissible. The Commissioner also directed the jury that no question of accident arose and his direction to that effect was upheld by the Court of Criminal Appeal. No appeal is brought to this Court in respect of that direction. Nothing was said about automatism in the course of defence counsel's final address and nothing was said about it in the Commissioner's charge to the jury. The matter had been approached in terms of admissibility of the psychiatric evidence and, once that evidence was excluded, the issue itself was taken to have been withdrawn from the jury. Nevertheless, the argument as to admissibility of evidence only highlighted the fact that fundamental questions of criminal responsibility under the Code were involved.

5. Before this Court, those questions were formulated by the Crown in the following way:

"(a) whether involuntary acts performed in a state of
dissociation resulting from emotional tension are
excused by virtue of the operation of s.23 of the
Criminal Code (W.A.);
(b) the relationship between ss.23, 26 and 27 of the
Criminal Code where the normal functioning of the mind
is disturbed by emotional tension; and
(c) the application to the Criminal Code of common law
decisions dealing with automatism and insanity as they
affect criminal responsibility."

6. The third of these questions is somewhat ambiguous. If what is meant is no more than the extent to which common law decisions may throw light upon the language of the Code, there is little controversy. Clearly, it is permissible to look to such decisions to throw light on the terminology of the Code, to explain expressions such as "exercise of (the) will", "accident", "mental disease" and "natural mental infirmity". If what is meant is the scope for operation in the area of criminal responsibility of common law doctrines, different considerations arise. The Code is a code and its operation is intended to be complete. In Brennan v. The King [1936] HCA 24; (1936) 55 CLR 253, at p 263, this Court said of s.8 of the Code in regard to common intention:

"But it forms part of a code intended to replace the common
law, and its language should be construed according to its
natural meaning and without any presumption that it was
intended to do no more than restate the existing law. It
is not the proper course to begin by finding how the law
stood before the Code, and then to see if the Code will
bear an interpretation which will leave the law unaltered".

7. However, in Vallance v. The Queen [1961] HCA 42; (1961) 108 CLR 56, at p 60, Dixon C.J., speaking of the plan upon which the Criminal Code (Tas.) was conceived, said:

"The plan was to provide for specific crimes but to treat
the complete definition of them as finally governed or
controlled by Ch IV (criminal responsibility). But a study
of the Code has made it apparent that the plan has not
been, indeed from the nature of the thing it could not be,
uniformly carried out."

" The Criminal Code of Queensland does not, in my
opinion, contain any sufficient expression of intention to
exclude the application of the rule thus established."

8. It is apparent from a reading of the judgment of Dixon J. and also that of Latham C.J. (at p 130) and of Starke J. (at pp 133-134) that the Court regarded the defence of accident as denying an essential element of the crime of wilful murder, hence the ready application of Woolmington's Case to such an offence under the Queensland Code. The issue with which this Court is confronted does not focus upon the elements of the crime of murder; rather it relates to questions of criminal responsibility arising from particular sections of the Code. "Criminal responsibility" is defined by s.1(1) of the Code to mean "liability to punishment as for an offence". In this context, there is no reason to conclude otherwise than that Ch.V of the Code is a comprehensive statement of that responsibility. There is no room for common law doctrines unless they are incorporated in the Code itself or, of course, if they bear upon the language of the Code. Cf. s.8 of the Criminal Code Act 1924 (Tas.) which expressly preserves justifications, defences and excuses under the common law.

9. Section 23 of the Code relieves a person from criminal responsibility for an act or omission which occurs independently of the exercise of the will. The exemption is not qualified by reference to any other section of the Code, but that is not to say that it can be read quite independently of the other sections in Ch.V. If a jury finds that the act or omission in relation to which a person is charged occurred independently of his or her will, the verdict contemplated is one of not guilty; in the words of s.653, "he is entitled to be discharged from the charge of which he is so acquitted". This is in keeping with the basic notion of the criminal law, that a person is responsible only for conscious, voluntary and deliberate acts or omissions. The proviso to s.653 of the Code provides expressly for an acquittal on account of unsoundness of mind when a jury finds an accused "of unsound mind at the time when (the) act or omission took place". The section then identifies the consequences of such an acquittal, namely, "the Court is required to order him to be kept in strict custody in such place and in such manner as the Court thinks fit, until Her Majesty's pleasure is known". The proviso to s.653 reflects the statute law of nineteenth century England, which aimed at ensuring that the dangerous criminally insane did not remain at large. The phrase "of unsound mind", which is used in s.653, does not appear elsewhere in the Code. The closest language is to be found in s.26, which presumes every person "to be of sound mind". The marginal note to s.27 reads "Insanity". Section 27 itself uses neither "of unsound mind" nor "insanity"; the section speaks of "mental disease or natural mental infirmity".

10. Section 23 is intended inter alia to give effect to the principle that a person should not be convicted of a criminal offence if, at the relevant time, he or she was not acting voluntarily. In terms of the section, the act or omission said to constitute the offence occurred "independently of the exercise of his will". The Code contains no presumption of exercise of the will comparable to the presumption of soundness of mind in s.26, though Gillies, Criminal Law, 2nd ed. (1990), p 250, observes that "the presumption of sanity ... logically incorporates a presumption that an act done by a sane person is a voluntary one, viz., in short, a presumption of voluntariness". Howard's Criminal Law, 5th ed. (1990), p 421, says of the principle of voluntariness:

"Although this rule is a foundation of criminal
responsibility it is rarely called in question because
there is usually no ground for doubting that D is as
capable as the next person of regulating the flow of motor
impulses from his brain to the rest of his body."

11. No doubt there is an evidentiary onus on an accused properly to raise the question of voluntariness for consideration by the jury. But the onus is on the Crown to satisfy the jury that the act or omission did not occur independently of the accused's will. That is not the way the question of onus was dealt with by Mansfield C.J. in The Queen v. Foy (1960) Qd R 225, at p 232, but that, it seems, was because his Honour saw such a defence as involving "temporary or permanent derangement of (the) mind". Philp J. put the matter more accurately when he said, at p 238:

" In every case it must be presumed that an act is willed
... and so it will be held in the absence of evidence
indicating the contrary.
Where there is such contrary evidence in respect of
a sane person the onus is on the Crown to show beyond
reasonable doubt that the act was willed".

"The general onus which rests upon the prosecution in a
criminal case extends, of course, to establishing that
the acts said to constitute the crime were performed in
consequence of the exercise of the will."

12. A question at the heart of this application is whether an involuntary act performed, as the Crown would have it, "in a state of dissociation resulting from emotional tension", may fall within s.23 of the Code, or whether it can only operate to evidence a state of mental disease and therefore must be dealt with in terms of s.27. So framed, the question assumes that there were no external factors at force in the present case.

13. The question is initially one of construction of the Code. To that extent, it is a legal, not a medical or psychiatric, question. States of mind are described by doctors in terms which often (perhaps necessarily) lack precision. Sometimes the terms are picked up by lawyers in ways that differ from their medical use and also suffer from a lack of precision. In this regard, Glanville Williams, Textbook of Criminal Law, 2nd ed. (1983), pp 662-663, observes:

"The term 'automatism' is used medically only in connection
with epilepsy, and in its proper medical sense it is rare
even in that disease. Although attacks of grand mal and
even petit mal very occasionally result in violence, this
is usually not because the sufferer is a complete automaton
but because of confusion or delusion or a rage response.
On the lips of lawyers, however, 'automatism' has come
to express any abnormal state of consciousness (whether
confusion, delusion or dissociation) that is regarded as
incompatible with the existence of mens rea, while not
amounting to insanity."

14. In this passage there is a salutary reminder of the confusion that may result when doctors and lawyers employ the same terminology, but in different ways. Nevertheless, it may be that the usage of the two professions is closer than Glanville Williams suggests. For instance, Blair, "The Medicolegal Aspects of Automatism", (1977) 17 Medicine, Science and The Law 167, at p 167, comments:

" In medical terms automatism refers to a syndrome of
symptoms which occurs in various conditions that involve a
disturbance of consciousness."

15. The importance of determining as a question of construction what truly is a question of construction should be emphasized. The application of the answer that is arrived at is another matter, to which medical evidence, in particular psychiatric opinion, is directly relevant. As a question of construction, there is nothing in the Code to warrant giving s.23 other than its ordinary meaning, namely, that a person is not held criminally responsible for an act which occurs independently of his or her will. Section 23 is not concerned with "insanity", to borrow the language of the marginal note to s.27. Its operation is not dependent upon an act or omission on the part of a person in a state of mental disease or natural mental infirmity having one of the consequences referred to in s.27. The language of s.23 is wide enough to include automatism though it is not confined to that condition. The context in which ss.23 and 27 appear and the need to give the components of the latter section their full operation mean that, if a person is unable to control his or her actions because of a state of mental disease or natural mental infirmity, it is s.27 which applies.

16. If an accused chooses to rely not upon the provisions of s.27 but upon the provisions of s.23, he or she may do so. However, if the evidence points to the possible operation of s.27, the trial judge may direct the jury in terms of that section, notwithstanding that it has not been raised by the defence: Bratty v. Attorney-General for Northern Ireland [1961] UKHL 3; (1963) AC 386, at p 411. This does not mean that an accused may not seek to rely upon both s.23 and s.27 as part of the defence. Although it will be an unusual case, there may be evidence to go to the jury which points both to non-insane automatism and to insanity (to use expressions somewhat loosely). It will be for the jury, properly instructed, to decide which, if either, should succeed: see Bratty, at pp 403-404. This will not make the task of the jury any easier but it is a necessary consequence of the operation of the Code, as indeed it is of the common law. The jury's task will be made more difficult still, because the burden of proof in relation to s.23 lies on the Crown and, in regard to s.27, it lies on the accused. Furthermore, the standard of proof is different - proof beyond reasonable doubt in the first case and proof on the balance of probabilities in the second. Sir Owen Dixon referred to this "incongruity" in "A Legacy of Hadfield, M'Naghten and Maclean", (1957) 31 Australian Law Journal 255, at p 256.

17. Williams v. The Queen (1978) Tas SR 98 is said to be authority for the proposition that automatism cannot be both sane and insane on the same evidence. There the defence was that, by reason of mental disorder, the accused's act was not voluntary and intentional. The trial judge directed the jury in terms of s.16 of the Tasmanian Criminal Code (the "insanity" provision) but refused to put automatism as a separate defence. This course was upheld by the Court of Criminal Appeal. But it does not follow that an accused may not raise both defences where the evidence allows. As already mentioned, although it will be an unusual case, there may be some evidence pointing to disease of the mind but there may be other evidence which points to sane automatism. That is, alternative causes are offered for the accused's actions. It is for the jury, properly instructed, to decide which "defence", if either, should succeed. Cf. The Queen v. Kemp (1957) 1 QB 399 where the accused, charged with causing grievous bodily harm to his wife, suffered from arteriosclerosis which caused a temporary lack of consciousness, in which state the attack was made. The question was whether arteriosclerosis was a disease of the mind. The question of sane automatism does not appear to have been argued.

18. It does not follow that "in every case where insanity is raised, automatism must always be left to the jury as a defence": see Bratty, at p 404. Nor does it follow that, if an accused relies upon s.23 of the Code (or its equivalent) and the trial judge is of the opinion that it is proper to put this defence to the jury, and there is evidence (upon which the accused does not rely) pointing to mental disease, he is not bound to put both issues to the jury. "Automatism may be subsumed in the defence of insanity in cases in which the unconscious action of an accused can be traced to, or rooted in, a disease of the mind. Where that is so, the defence of insanity prevails": Dickson J. in Rabey v. The Queen (1980) 2 SCR 513, at p 524. See also Gresson P in The Queen v. Cottle (1958) NZLR 999, at p 1007. Of course, insanity is not confined to involuntary action; insanity may be established even if a person has acted voluntarily, hence the need for lack of "capacity to understand what he is doing" or lack of "capacity to know that he ought not to do the act or make the omission" as components in s.27. The Crown's argument in the present case was that there was a malfunctioning of the mind from a cause primarily internal to Mrs Falconer, having its source in her psychological or emotional make-up, and that this condition could only afford a "defence" to the charge of wilful murder if it constituted a state of mental disease within s.27 of the Code.

19. Both psychiatrists who examined Mrs Falconer were of opinion that she was sane though, as Malcolm C.J. points out in his judgment, the question whether she was suffering from "mental disease" in terms of s.27 of the Code was not explored. There was nothing in their evidence which would bring her within the language of s.27, unless it be open to argument that to be deprived of capacity to control one's actions through a dissociative state produced by emotional tension is itself evidence of a state of mental disease.

20. It is against this general background that it is necessary to consider the evidence proposed to be adduced from the psychiatrists. But since "automatism", though not mentioned by name in the Code, is the defence which was sought to be raised by that evidence, it is necessary to say something about the place of automatism in criminal responsibility. In Rabey, at p 522, Dickson J. observed:

"That the defence of automatism exists as a middle ground
between criminal responsibility and legal insanity is
beyond question."

21. Undoubtedly, automatism implies conduct which is involuntary. Some examples, such as acts performed while sleepwalking or while concussed, readily enough answer the description of automatism. Thus, in The Queen v. Holmes (1960) WAR 122, Jackson S.P.J., in directing the jury in relation to a charge under s.454 of the Code, said, at p 125:

" Another case in which the will does not go with the
deed is where a man is unconscious and acts in that state.
There are numerous examples of that; for instance,
unconsciousness in sleep - sleepwalking. An act done
during that time carries no criminal responsibility."

22. But these are only examples. Professor Howard makes this comment, at p 423:

" The significance in legal theory of the recognition of
automatism is that it provides quite the best illustration
of the otherwise largely hidden importance of the principle
of voluntariness."

23. Glanville Williams, at p 672, comments:

"Dissociative states (whether or not occurring during sleep)
are medically classified as hysterical neuroses, in the
absence of organic brain disease."

"The most prominent feature is a narrowing of the field of
consciousness that seems to serve an unconscious purpose;
it is commonly accompanied or followed by selective
amnesia. There may be dramatic but essentially superficial
changes of personality sometimes taking the form of a fugue
(wandering state). Behaviour may mimic psychosis, or
rather the patient's idea of psychosis."

" This definition is well salted with suspicion; and the
scepticism with which the defence is naturally regarded is
one reason for the problem it presents in a criminal trial.
Hysterical dissociation is difficult to diagnose with
certainty because the psychiatrist can only accept the
patient's word, apart from considering what the patient now
avers in relation to his general conduct at the time."

24. There is of course much force in these comments although they tend to overlook the consideration that evidence may be forthcoming from those who observed the accused's conduct at the relevant time. That evidence may afford support for the accused's description of events. In any event, the comments go to the difficulty of raising such a defence, which must depend upon all the circumstances, in particular the credibility attached by the jury to the accused's description of events and to the strength of the psychiatric evidence.

25. Although Dickson J. was in dissent in Rabey, I respectfully adopt his Lordship's approach when he said, at p 549:

" I agree with the requirement that there be a shock
precipitating the state of automatism. Dissociation caused
by a low stress threshold and surrender to anxiety cannot
fairly be said to result from a psychological blow."

26. Before s.27 can apply to an accused, it must appear that, at the time of doing the act said to constitute the offence, the accused was in a state of mental disease (I put natural mental infirmity aside for the purposes of the present case). In this regard, it is pertinent to recall the observations of Barwick C.J. in Ryan v. The Queen [1967] HCA 2; (1967) 121 CLR 205, at p 215:

"(A) distinction must be maintained between an unwilled act
and a willed act the product of a diseased mind which knows
not the nature or quality of the willed act. To express
it with what may well be technical inexactitude, it may
be said that in the latter case the act is willed by a
diseased will in contradistinction to the act which is not
willed at all."

27. In Bratty, at p 412, Lord Denning said that "what is a 'disease of the mind' within the M'Naughten Rules ... is a question for the judge". Equally, what is a state of mental disease under the Code is a question for the judge. Whether or not the facts disclose a state of mental disease is a question for the jury. As Professor Howard observes, at p 429, "the distinction between temporary mental disease and temporary irrationality is not easily drawn". One test is that adopted in The Queen v. Quick, The Queen v. Sullivan (1984) AC 156, The Queen v. Hennessy [1989] EWCA Crim 1; (1989) 1 WLR 287; (1989) 2 All ER 9, and in Rabey. That is the "external factor" test, which excludes mental disease where the defect of reason derives from some cause originating outside the accused's body, be it consumption of alcohol or a blow. In Hennessy, Lord Lane C.J., delivering the judgment of the Court of Appeal, said, at p 294; p 14 of All ER:

" In our judgment, stress, anxiety and depression can no
doubt be the result of the operation of external factors,
but they are not, it seems to us, in themselves separately
or together external factors of the kind capable in law of
causing or contributing to a state of automatism. They
constitute a state of mind which is prone to recur. They
lack the feature of novelty or accident, which is the basis
of the distinction drawn by Lord Diplock in Reg. v Sullivan
(1984) AC 156, 172."

28. According to this test, where a temporary defect of reason is caused by an internal factor, such as epilepsy, the accused is taken to be suffering from a disease of the mind. In delivering the judgment of the Court of Appeal in Quick, Lawton L.J. said, at p 922:

"Our task has been to decide what the law means now by
the words 'disease of the mind.' In our judgment the
fundamental concept is of a malfunctioning of the mind
caused by disease. A malfunctioning of the mind of
transitory effect caused by the application to the body
of some external factor such as violence, drugs, including
anaesthetics, alcohol and hypnotic influences cannot fairly
be said to be due to disease. Such malfunctioning,
unlike that caused by a defect of reason from disease of
the mind, will not always relieve an accused from criminal
responsibility. A self-induced incapacity will not excuse
(see Reg. v. Lipman (1970) 1 QB 152), nor will one which
could have been reasonably foreseen as a result of either
doing, or omitting to do something, as, for example,
taking alcohol against medical advice after using certain
prescribed drugs, or failing to have regular meals while
taking insulin. From time to time difficult border
line cases are likely to arise. When they do, the test
suggested by the New Zealand Court of Appeal in Reg. v.
Cottle (1958) NZLR 999, 1011 is likely to give the
correct result, viz., can this mental condition be fairly
regarded as amounting to or producing a defect of reason
from disease of the mind?"

29. But there are real difficulties with the "external factor" test. Sleepwalking and the diabetic condition of hypoglycaemia stem from internal malfunctioning and yet have traditionally been treated as instances of automatism. How then does one apply the test in the case of dissociation or "psychological blow" automatism? The result of the decisions in Quick, Sullivan, Hennessy and Rabey is that a successful defence based on automatism arising from a dissociative state will ordinarily lead to a verdict of unsoundness of mind. But, as Glanville Williams points out at pp 674-675, Lawton L.J., in Quick, was concerned to place a limitation upon Lord Denning's test in Bratty, by drawing attention to those who were not held to be suffering from a mental disease. To borrow Professor Williams' comment, at p 675:

"To say that the presence of an external cause of mental
trouble saves a man from the imputation of madness, as
was held in Quick, does not imply that the absence of an
external cause necessarily means that he is mad."

30. The application of the "external factor" test is artificial and pays insufficient regard to the subtleties surrounding the notion of mental disease. As well, there is confusion in the idea of an external factor. A physical blow will readily answer that description. Indeed, in Sullivan, at p 172, Lord Diplock spoke of "external physical factor" when he said, in regard to what was said by Devlin J. in Kemp:

"I do not regard that learned judge as excluding the
possibility of non-insane automatism ... in cases where
temporary impairment ... results from some external
physical factor such as a blow on the head causing
concussion or the administration of an anaesthetic for
therapeutic purposes."

"There is no reason in principle for making a distinction
between disturbance of the mental faculties by reason of
stress caused by external factors and disturbance of the
mental faculties caused by the effects of physical trauma
or somnambulism. The significant distinction is between
the reaction of an unsound mind to its own delusions or
to external stimuli on the one hand and the reaction of a
sound mind to external stimuli, including stress producing
factors, on the other hand. I appreciate that if it is
true that a state of depersonalization or dissociation is
not itself a disease of the mind, although it may result
from mental illness, the result may be that certain cases
of unwilled acts which would formerly have been treated as
the result of temporary insanity and would have founded
verdicts of not guilty on the ground of insanity, will now
result in outright acquittals. I do not see any reason
to shrink from that consequence. The consequence of a
verdict of not guilty by reason of insanity is detention
during the Governor's pleasure. If a person was not
morally responsible for the action which is the subject of
the charge because that action was an unwilled automatic
act, he should not suffer conviction or punishment. If he
is not mentally ill and there is therefore no reason to
suppose that the act will be repeated, detention for the
protection of others is pointless and an embarrassment to
the mental health authorities."

31. In my view, the approach taken by King C.J. is the approach dictated by the relevant provisions of the Code. At the risk of repetition, a person is not criminally responsible for an act or omission which occurs independently of the will. Dissociation may warrant a conclusion that the act or omission in respect of which an accused is charged occurred independently of his or her will.

32. The question raised by this appeal is whether the act of shooting occurred independently of Mrs Falconer's will. If the act of shooting occurred independently of Mrs Falconer's will by reason of involuntary conduct not arising from insanity, she is entitled to an unqualified acquittal. There is nothing more for the jury to determine. If the evidence requires a jury to consider both non-insane automatism and insanity, the question of involuntary conduct should be put in two stages. That is because each of those states of mind is governed by a different section of the Code and the onus of proving each state of mind falls differently. The jury should first ask itself whether the Crown has disproved, beyond reasonable doubt, non-insane automatism (the onus of proof in relation to that defence being on the Crown). If the Crown has failed to do so, then the accused will be entitled to an unqualified acquittal.

33. But if the Crown has disproved non-insane automatism, it may have done so, not because the acts said to constitute the offence were voluntary, but because they were the involuntary product of an unsound mind. Thus, if the answer to the first question is in the affirmative, the jury should go on to ask a second question, namely, whether the accused has proved, on the balance of probabilities, insanity within the meaning of s.27 (the onus of proof in relation to that defence being on the accused since s.26 presumes every person to be of sound mind). If the answer to that second question is in the affirmative, the jury should acquit but with the rider that the accused was of unsound mind at the relevant time. More precisely, the jury must consider whether the acts constituting the offence were done at a time when the accused was in such a state of mental disease as to produce one of the consequences referred to in s.27. There is of course a logical difficulty, in those circumstances, in inviting the jury to consider whether the accused was unable, by reason of mental disease, to control his or her actions. However, if "it is alleged or appears that he was not of sound mind at the time when the act or omission alleged to constitute the offence occurred" (the language of s.653), the appropriate verdict is acquittal on account of unsoundness of mind. In that regard it is apposite to recall the comment of Sholl J. in The Queen v. Carter [1959] VicRp 19; (1959) VR 105, at p 110. Speaking of the section of the Crimes Act 1958 (Vic.) which provides for acquittal on the ground of insanity and its consequence of "strict custody in such place and in such manner as to the court seems fit until the Governor's pleasure is known", his Honour said:

"It is, I think, quite outside the policy of the law to
extend the practice of s.420 to cases where there is no
reason to fear any repetition of the crime and no evidence
of any brain damage or disease which is likely to give rise
to any such repetition."

34. If the jury is satisfied that the acts constituting the offence were done in the exercise of the accused's will and is not satisfied that they were done at a time when he or she was in a state of mental disease (again, this assumes that there is evidence to warrant their consideration of this aspect), it must then consider whether the other elements of the offence have been proved beyond reasonable doubt. If they have been so proved, the proper verdict is guilty.

35. The question of mental disease was not explored at Mrs Falconer's trial. As already noted, both psychiatrists considered Mrs Falconer to be "sane". The state of mental disease referred to in s.27 implies "an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli": King C.J. in Radford, at p 274, referring to the relevant authorities, though his Honour was speaking of the M'Naghten rules. The condition produced by the reactions of a sound mind to external stimuli, including stress producing factors, does not fall within s.27; it may, however, fall within s.23, as I have suggested in these reasons. It is in accordance with those principles that the evidence to be adduced on behalf of Mrs Falconer must be assessed.

36. In delivering his ruling on the voir dire, the Commissioner said:

"In my opinion, the statements in Sullivan and in Hennessy
make it clear that in the present case the accused's
dissociative state, if it existed, was a consequence of
entirely internal factors and not external factors. ...
I consider myself, then, bound by authority to rule that
automatism is not open as a defence in this case."

37. In the present case there was evidence that, on a number of occasions, Mrs Falconer had separated from her husband because of his violence towards her. Early in 1988 she learned of her husband's relationship with another woman and this caused her to become depressed. About two months before she fired the shotgun which caused her husband's death, Mrs Falconer learned from two of their daughters that their father had sexually assaulted them over a long time when they were younger. Criminal charges were preferred against Mr Falconer because of these actions, following an attendance by Mrs Falconer and the daughters at the Sexual Assault Referral Centre. These events had caused Mrs Falconer great stress and a fear of what her husband might do to her and her daughters when he learned of the charges. Indeed, on 18 August 1988 she applied for a non-molestation order. This was granted. On being shown the order, Mr Falconer had assaulted her. She was described by a witness as being "emotional and very frightened" during the days preceding the shooting. On the day of the shooting (9 October 1988), according to Mrs Falconer her husband had entered her home unexpectedly, sexually assaulted her, taunted her by saying that neither she nor her daughters would be believed in court, mentioned a nine year old girl, who had been in the family's care, in such a way as to suggest that he may have dealt with her sexually, and then reached out at her, apparently to grab her by the hair. Mrs Falconer said that she remembered nothing thereafter until she found herself "standing or crouching" against an archway, with the shotgun by her and her husband slumped on the floor nearby. The shotgun had been kept in a wardrobe; she had no recollection of picking it up or of loading it. This is but a summary of the evidence led at the trial, taken largely from the judgment of Malcolm C.J.

38. The Commissioner summarized the psychiatric evidence in the following way:

"Dr Schioldann-Nielsen gave general evidence in relation to
the state of automatism. He indicated that dissociative
automatism can occur suddenly when a normal person is
exposed to stress or to trauma.
Such a dissociative state would indicate that a person
was no longer aware of what he or she was doing. His
or her personality would be disorganised. It was the
view of this doctor that the events of the critical day of
9 October 1988 provided the mechanism which would have led
to a full blown dissociative state for the accused. She
could have then been unaware of what she was doing.
Dr Finlay-Jones gave more specific evidence. He
indicated that although Mrs Falconer was, in his opinion,
sane at the time she committed the alleged offence, he
thought she was capable of acting in an automatic way. In
his opinion it would be possible to act in an automatic
fashion without evidence of external stress. Psychological
factors are capable of being a cause for such behaviour and
he instanced the behaviour of soldiers in combat.
The doctor did not think, however, it would be enough
for there to be mere evidence of psychological stress. He
felt there must be evidence of psychological conflict and
he felt that evidence of this psychological conflict was
present in the case of the accused because of a combination
of factors. They included her husband's unfaithfulness,
her husband's sexual contact with his daughters and,
importantly, the final declaration that he (had) in some
way been involved with the child, Erin, who was in the
accused's care.
The latter factor he considered to be crucial. He saw
a real psychological conflict within the accused because
she was in an intolerable dilemma, regarding her husband as
a 'filthy bastard' on the one hand, as he said, but loving
him on the other. This psychological conflict was capable
in his view of causing the accused to lose control and act
in an automatic way."

39. In so far as the evidence of the psychiatrists supported a thesis that, at the time she discharged the shotgun that killed her husband, Mrs Falconer was in a dissociative state, that evidence was relevant to a defence that the act of killing was independent of the exercise of Mrs Falconer's will. It went further than to raise a mere possibility that, at the time of the shooting of her husband, Mrs Falconer was acting in a dissociative state. The evidence should therefore have been admitted. Whether Mrs Falconer's actions were in truth independent of the exercise of her will was a question which should have been left to the jury in accordance with the principles discussed in this judgment.

40. There is a useful warning in the judgment of Dickson J. in Rabey, at p 552:

" In principle, the defence of automatism should be
available whenever there is evidence of unconsciousness
throughout the commission of the crime, that cannot
be attributed to fault or negligence of his part. Such
evidence should be supported by expert medical opinion that
the accused did not feign memory loss and that there is no
underlying pathological condition which points to a disease
requiring detention and treatment."

41. I would grant special leave to appeal in this case but would dismiss the appeal.

GAUDRON J. The facts are set out in other judgments. The first question that arises by reference to those facts is whether evidence that Mrs Falconer may have been in a dissociative state when she discharged a loaded shotgun, thus killing her husband, raises involuntariness as an issue distinct and separate from insanity. If it does, it is necessary to consider whether insanity is or may also be in issue. And, if insanity is or may also be in issue, it will be necessary to consider what directions should be given to a jury as to the order in which the two issues should be determined and as to the onus and standard of proof applicable to them.

2. Section 23 of The Criminal Code of Western Australia ("the Code") relevantly provides that "a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will". (The act which is presently in issue is, for the reasons given by Mason C.J., Brennan and McHugh JJ., the discharging of the loaded shotgun.) In every case the prosecution must prove, beyond reasonable doubt, that the act or omission which is said to give rise to criminal responsibility was accompanied by an exercise of the will. The question whether that has been proved is referred to, in terms which reflect practical considerations rather than the onus of proof, as one of involuntariness.

3. Section 27 of the Code relevantly provides:

"A person is not criminally responsible for an act
or omission if at the time of doing the act or making the
omission he is in such a state of mental disease or natural
mental infirmity as to deprive him of capacity to understand
what he is doing, or of capacity to control his actions, or
of capacity to know that he ought not to do the act or make
the omission."

4. Like the formulation of the common law defence of insanity in M'Naghten's Case (1843) 10 Cl & F 200 (8 ER 718), the Code provisions dealing with insanity or unsoundness of mind direct a two-staged enquiry. The first question is whether the accused had a mental disease or a natural mental infirmity (s.27) or a mind disordered in one or other of the ways specified in s.28. If none of these conditions was present, no question of insanity arises. If one or other of the conditions was present, the accused is entitled to escape criminal responsibility if, but only if, the condition was such as to have one or other of the consequences specified in s.27. See, for example, R. v. Porter [1933] HCA 1; (1933) 55 CLR 182; Willgoss v. The Queen [1960] HCA 5; (1960) 105 CLR 295; R. v. Moore (1908) 10 WALR 64; Hitchens v. The Queen (No.2) (1962) Tas SR 35, at p 49. And, like the common law defence of insanity, it is for the accused to establish, on the balance of probabilities, the matters which constitute the defence. See s.26 of the Code. See also Sodeman v. The King (1936) [1936] HCA 75; 55 CLR 192; Armanasco v. The King (1951) 52 WALR 78; Reg. v. Foy (1960) Qd R 225.

5. It is clear from the terms of s.27 of the Code - "such a state of mental disease or natural mental infirmity as to deprive him ... of capacity to control his actions" - that the defence of insanity or unsoundness of mind encompasses involuntariness when it proceeds from a mental disease or natural mental infirmity. At common law, evidence postulating a mental state that involves a defect of reason due to disease of the mind (i.e. evidence raising the first limb of the common law defence of insanity) raises the defence of insanity but does not raise intent or voluntariness as an issue separate and distinct from that defence. See Hill v. Baxter (1958) 1 QB 277, at pp 285-286; Reg. v. Cottle (1958) NZLR 999, at p 1007; Bratty v. Attorney-General for Northern Ireland [1961] UKHL 3; (1963) AC 386, at pp 402-404; Reg. v. Tsigos (1964-5) NSWR 1607, at p 1629; Reg. v. Joyce (1970) SASR 184, at p 194; Williams v. The Queen (1978) Tas SR 98, at pp 102, 109-110; Reg. v. Radford (1985) 42 SASR 266, at p 273. Given that the Code adopts, albeit with those differences imported by its terms, the concepts which the common law selects as determinative of criminal responsibility, ss.27 and 28 of the Code should be approached on the same basis. Indeed, any other approach would produce results so incongruous that the law would be nonsensical. Thus, evidence postulating a mental state involving a disease of the mind, natural mental infirmity or a mind disordered in one of the ways specified in s.28 should be seen as raising a defence under s.27 or s.28 and not as raising voluntariness or intent as a separate and distinct issue.

6. It is also clear from the terms of s.23 that the Code postulates that there may be instances of involuntariness which involve no question of a mental disease, natural mental infirmity or a mind disordered in one of the ways specified in s.28. However, given that the issue of involuntariness cannot arise if it is predicated upon a mental state raising the first limb of the defence of insanity or unsoundness of mind and given the practical considerations soon to be dealt with, the circumstances in which involuntariness will arise as a separate issue are necessarily limited.

7. It should be accepted as settled that there is an evidentiary presumption that an act done by an apparently conscious person was done voluntarily. See, for example, Bratty, at pp 407 and 413; Ryan v. The Queen [1967] HCA 2; (1967) 121 CLR 205, at p 213; and Radford, at p 272. An evidentiary presumption means only that, without evidence one way or another, a particular state of affairs is accepted as fact because it is ordinary and universal experience that, save perhaps in extraordinary situations, it is always so. The practical effect of an evidentiary presumption, based as it is on ordinary and universal experience, is that it can only be displaced by credible evidence assigning a cause sufficient to explain what, if it happened at all, must be viewed as an extraordinary event.

8. The evidentiary presumption of voluntariness merely reflects ordinary and universal experience that, mental illness or other extraordinary circumstances apart, an apparently conscious person acts voluntarily. In practical terms 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. Thus, it was said by Lord Denning in Bratty (at p 413) that, "(i)n order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary", his Lordship adding that "(t)he evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity". See also Rabey v. The Queen (1980) 2 SCR. 513, at p 552. And again in practical terms, because what is postulated is, of its nature, extraordinary, the evidence must be very persuasive even to raise involuntariness as a reasonable hypothesis such that a jury could find that the prosecution had failed to prove beyond reasonable doubt that the will of the accused accompanied the act charged. These practical considerations make it improbable in the extreme that a person could escape criminal liability and avoid a verdict of acquittal on the ground of unsoundness of mind (see s.653 of the Code) merely by raising a claim of involuntariness and failing or refusing to identify its cause. Although that is a theoretical and anomalous possibility, so unlikely is it that, in my view, it can be treated as insignificant for practical purposes. Certainly, it cannot warrant a denial of the ordinary operation of the criminal onus of proof in a case where there is a real issue of non-insane involuntariness for the consideration of the jury.

9. The medical evidence in the present case was that Mrs Falconer's behaviour (both as observed and as described by her) was consistent with her having experienced a state of dissociation. Such a state, according to that evidence, can occur when a person is confronted with psychological crisis or conflict such as Mrs Falconer claimed to have experienced on the day in question and results in the segmentation of personality so that a person in that state acts independently of his or her will.

10. The evidence as to dissociation described a single and particular mental state. It is convenient to observe that a particular mental state either is or is not one that involves a disease of the mind or natural mental infirmity or a mind that is disordered in one of the ways specified in s.28 of the Code. See Williams v. The Queen. And, of course, the same is true if the consideration is that directed by the common law, namely, whether a particular mental state involves a defect of reason due to disease of the mind.

11. It is a question of fact whether Mrs Falconer experienced the mental state of dissociation described in the evidence. It is a question of law whether that evidence raised a mental state involving a disease of the mind or natural mental infirmity. It certainly raised no issue of a mind disordered in a way specified in s.28 of the Code. The question of law is to be answered by reference to those considerations that distinguish between the concept of a sound mind (s.26) and the concept of a mind that is diseased or infirm (s.27). Despite the differences directed by the language of the Code, that distinction is based on the same considerations as those that distinguish between the common law concept of a sane mind and the concept of a mind that has a defect of reason due to a disease of the mind. See Hitchens v. The Queen (1959) Tas SR 209, at pp 249-250; Hitchens v. The Queen (No.2), at p 49; Williams v. The Queen, at p 106. The distinction has sometimes been expressed in terms of mental states having an external cause and those that proceed from internal causes: Reg. v. Quick [1973] EWCA Crim 1; (1973) QB 910, at p 922. Sometimes the distinction has been expressed by reference to the transient or recurring nature of the particular mental state: Bratty, at p 412; Reg. v. Carter [1959] VicRp 19; (1959) VR 105, at p 110; Reg. v. Meddings [1966] VicRp 42; (1966) VR 306, at pp 309-310. In general terms, a recurring state which involves some abnormality will indicate a mind that is diseased or infirm, but the fundamental distinction is necessarily between those mental states which, although resulting in abnormal behaviour, are or may be experienced by normal persons (as, for example and relevant to the issue of involuntariness, a state of mind resulting from a blow to the head) and those which are never experienced by or encountered in normal persons. That point was made, although in a quite different context, by Dixon J. in Porter, at p 188, where his Honour observed that the diseased mind is to be distinguished from the "(m)ere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control, and impulsiveness". See also the reference by Sir Owen Dixon in his paper "A Legacy of Hadfield, M'Naghten and Maclean", (1957) 31 Australian Law Journal 255, at p 260, to "transient states attributable either to the fault or to the nature of man". And in Radford, King C.J. (at p 274) distinguished between "an underlying pathological infirmity of the mind, ... which can be properly termed mental illness" and "the reaction of a healthy mind to extraordinary external stimuli".

12. The evidence as to dissociation was not extensive, presumably because it was only led for the purpose of obtaining a ruling as to whether it raised involuntariness as an issue separate and distinct from insanity. Even so, the thrust of the evidence was that such a state is or may be experienced by normal persons, albeit only in situations involving intense psychological crisis or conflict. That feature gives that evidence the same quality as evidence that a person may have been concussed by a blow to the head or, to take the examples given in a different context by Dixon J. in Porter, evidence that the person was overcome by passion, lack of self-control, or impulsiveness. Such evidence, because it deals with or is premised on the experiences of normal persons, raises no question of mental disease or natural mental infirmity as provided in s.27 of the Code and, consequently, raises no question of insanity or unsoundness of mind under that section.

13. The evidence led in the present case raised no issue of insanity, but it did raise the question whether Mrs Falconer's act of discharging the loaded shotgun was done independently of her will. It should have been admitted as relevant to that issue and the jury should have been directed to consider whether, in the light of that evidence, the prosecution had proved beyond reasonable doubt that Mrs Falconer's will accompanied the act of discharging the gun. It should have been explained to the jury that the prosecution would not have proved that issue beyond reasonable doubt if it was a reasonable hypothesis that Mrs Falconer discharged the gun while experiencing that particular mental state described in the evidence as one that may be experienced by a normal or healthy mind and in which the personality is segmented so that acts are performed independently of the will. And it might conveniently have been explained that that hypothesis would be excluded by satisfaction beyond reasonable doubt either that there is no such phenomenon as the particular mental state described in the evidence or that Mrs Falconer did not experience it.

14. There must be a new trial. Although the evidence by reference to which the present application was argued does not raise any issue of insanity it does not follow that insanity will not be raised in the new trial. It may be that the prosecution will assert that, if, at the time of discharging the loaded shotgun, Mrs Falconer experienced any mental state other than one in which she had acted consciously and deliberately, it was a state (perhaps similar in effect to that as to which evidence was led at the first trial) involving a mental disease or natural mental infirmity. Or, perhaps, the defence will postulate, as an alternative to the mental state of dissociation, some other state which involves a mental disease or natural mental infirmity.

15. As already indicated, it is very difficult for an accused person to raise a reasonable hypothesis that an act was done involuntarily as a result of some mental state that is or may be experienced by a healthy mind. The practical difficulties of raising that hypothesis are no less (perhaps they are greater) if it must compete with evidence that the accused had some different mental state involving a disease of the mind or natural mental infirmity. Accordingly, in my view, even if involuntariness and insanity are raised as separate and distinct issues, there is no need to modify the ordinary rules as to the onus and standard of proof applicable to each of those issues. As between those issues, the jury should be directed to consider first whether the prosecution has proved its case beyond reasonable doubt by negativing the possibility that the accused was acting involuntarily as a result of some mental state which is or may be experienced by a healthy mind. It should then be directed that, if the first question is answered against the accused (and assuming that the other elements of the offence are established beyond reasonable doubt), it should consider whether there should be a verdict of not guilty by reason of unsoundness of mind. And, of course, it will be necessary to explain that the defence of insanity or unsoundness of mind need only be proved on the balance of probabilities but that the accused bears the onus of proving it.

16. Special leave to appeal should be granted. The appeal should be dismissed.

ORDER

Appeal dismissed.