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Sleepwalking - Insanity or Automatism

Author: Peter Ridgway
Consultant Crown Prosecutor (Queensland)
Issue: Volume 3, Number 1 (May 1996)


1. A recent murder prosecution in Queensland has put in relief the issue of sleepwalking and particularly the question whether it can form the basis for a defence of insanity (disease of the mind) or automatism. If the former, the accused should be found not guilty and detained indefinitely in a psychiatric hospital. If the latter the accused should be acquitted and go free.

2. Medical evidence in some recent cases would tend to refute the traditional assumption of common law courts that sleepwalking is the classic example of automatism; it appears that it may be more appropriate to think of it as a mental abnormality and thus forming the basis for a plea of insanity.

3. Another issue raised by the prosecution in question, and discussed here, is whether the Crown is entitled to lead evidence of insanity. In one sense it appears anomalous that the party bringing the charge should also embark on a course of conduct calculated to secure a verdict of not guilty; on the other hand, of course, where a plea of automatism may result in a complete acquittal, it is clearly in the State's interest to establish insanity and thus ensure the detention of an accused who may present a danger to the community.

Sleepwalking as Automatism

4. Violence performed while in a state of somnambulism has been referred to as a self-evident example of acts not accompanied by the will of the actor. If this were an accurate characterisation, the Criminal Code of Queensland (shared to a large extent by Western Australia) would provide a defence of automatism under the first limb of Section 23 (s23):

"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."

5. The notion is fairly pervasive. It arose, for example, in R v Tolson[1] per Stephen J:

"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."

6. Although s23 is more accurately focussed on the existence of an independent and functioning 'will', Stephen's J sentiment accords with what would seem to be the general or common sense perception of somnambulism.

7. In Bratty v A-G (Northern Ireland)[2], Lord Denning observed:

"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 while suffering from concussion or whilst sleep-walking."

8. The majority in R v Falconer[3] repeat these notions by way of illustrating the point that, "there are some cases where an act can be shown to be unwilled when it is done by an actor of sound mind."

9. Deane and Dawson JJ in R v Falconer[4] in a joint judgment comment:

"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." They do allow, however, that ".. there may be some cases, perhaps rare, in which 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."

10. Toohey J in R v Falconer[5] refers to sleepwalking in the same general way as an example of "conduct which is involuntary" referring to the Western Australian decision of R v Holmes[6] where Jackson SPJ said, in directing the jury:

"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 sleepwalking. An act done during that time carries no criminal responsibility."

11. Lord Lane, in R v Burgess[7], observed that:

"There have been several occasions when during the course of judgments in the Court of Appeal and the House of Lords observations have been made, obiter, about the criminal responsibility of sleepwalkers, where sleepwalking has been used as a self-evident example of non-insane automatism."

The Role of Medical Evidence

12. With the exception of Burgess, the cases in which this notion has been repeated have not been cases in which there has been evidence as to the nature of somnambulism its, aetiology or treatment. The remarks seem to have been obiter in each such case. The Court of Appeal's decision in Burgess predates the decision of the Canadian Court of Appeal in R v Parks[8] where Lamer CJ said:

"The crown, for its part, relied on a decision of the English Court of Appeal, R v Burgess, in which the court held that sleep-walking was a mental illness. It is worth noting here, however, that the evidence in Burgess was completely different from or even contradictory to that presented in the case at bar."

13. Lamer CJ went on to say:[9]

".. That is not to say that sleepwalking could never be a disease of the mind, in another case on different evidence." The other members of the bench (Corey, McLachlan and Iacobucce JJ) agreed with Lamer CJC, without further comment. La Forest J (with whom L'Heureux-Dube and Gonthier JJ expressly agreed without further comment) also agreed with Lamer CJC. The views therefore expressed may be said to have the unanimous support of the whole bench."

14. La Forest J said:

"As I noted at the outset, it is apparent that the medical evidence in this case is not only significant in its own right, but also has an impact at several stages of the policy inquiry. As such, I agree with the Chief Justice that in another case on different evidence sleepwalking might be found to be a disease of the mind."[10]

15. As Dickson J commented in Rabey v R[11]:

"What is disease of the mind in the mental science of today may not be so tomorrow. The court will establish the meaning of disease of the mind on the basis of scientific evidence as it unfolds from day today. The Court will find as a matter of fact in each case whether a disease of the mind, so defined, is present."

16. The contrast in the nature and quality of the evidence between Burgess and Parkes is interesting. Burgess was charged with wounding with intent. During the night, he had hit a woman on the head with a bottle, then with a video, and grasped her by the throat. She suffered some wounds. He claimed he lacked mens rea because he was sleep-walking at the time. A ruling by the trial judge had precluded him from raising a defence of automatism without involving an issue of insanity. He was found not guilty by reason of insanity.

17. In Burgess, the court had been referred to the earlier Canadian Supreme Court decision in R v Parks[12] and noted that a number of witnesses, including experts in sleep disorders, had there given evidence to the effect that sleepwalking is not regarded as a disease of the mind, mental illness or mental disorder.

"We accept of course that sleep is a normal condition, but the evidence in the instant case indicates that sleepwalking and particularly violence in sleep, is not normal ... That case apart (R v Parks), in none of the other cases where sleepwalking has been mentioned, so far as we can discover, has the court had the advantage of the sort of expert medical evidence which has been available to the judge here." per Lord Lane at 100

18. That was, in part, a reference to the evidence of Dr. Peter Fenwick, consulting neuropsychiatrist - who is, arguably without peer in the field - which had been led by the Crown in the trial. A psychiatrist called by the defence in Burgess was a Dr. d'Orban, consulting forensic psychiatrist, who said:

"On the evidence available to me, and subject to the results of the tests when they become available, I came to the same conclusion as Dr. Nicholas a consultant psychiatrist] and Dr. Eames [a consultant neuropsychiatrist whose report I have read, and that was that Mr. Burgess' actions had occurred during the course of a sleep disorder."

19. He was asked by counsel:

Q. Assuming this is a sleep associated automatism, is it an internal or external factor?

A. In this particular case, I think that one would have to see it as an internal factor.

Q. Would you go so far as to say that it was likely to recur?

A. It is possible for it to recur, yes.

20. He was asked by the judge:

Q. Is this a case of automatism associated with a pathological condition or not?

A. I think the answer would have to be yes, because it is an abnormality of the brain function, so it would be regarded as a pathological condition."

21. Dr. Fenwick's evidence was that this was not a sleep-walking episode at all but he described the features of sleepwalking as commonly including violence - although extreme violence is rare; the propensity for severe violence to recur is there. He opined that persons suffering from the disorder should be detained in hospital "because it is a treatable condition."

22. The Court of Appeal accepted that evidence (taken with the other defence psychiatrist, Dr. Eames) as properly leading to a conclusion that Burgess was:

".. suffering an abnormality or disorder, albeit transitory, due to an internal factor, whether functional or organic, which had manifested itself in violence. It was a disorder or abnormality which might recur, although the possibility of it recurring in the form of serious violence was unlikely. Therefore since this was a legal problem to be decided on legal principles, ... on those principles, the answer was as the judge found it to be."

23. Parks, on the other hand, had been charged with the murder of his wife's parents. He had, apparently, driven 23 kilometres by car to another town one night and both beaten and stabbed one of them to death and badly wounded the other in what he claimed was a somnambulistic episode. In Parkes, the defence expert was a Dr. Billings. This exchange is taken from his evidence:

Q. Do you have an opinion as to whether or not ... Mr. Parkes was suffering from any medical illness?

A. No.

Q. Dealing now with sleepwalking, from the perspective of general psychiatry, is sleepwalking viewed as a neurological disease?

A. No.

Q. Is it viewed as something that is causally related to mental illness?

A. Can cause mental illness?

Q. No, is sleepwalking .. a result of mental illness?

A. No.

Q. Is sleepwalking a part of any mental illness?

A. No.

Q. In your opinion, ..., is sleepwalking a disease of the mind?

A. No, I would not call it a disease.

24. In a further passage:

Q. Is there any evidence that a person could formulate a plan while they were awake and then in some way ensure that they carry it out in their sleep?

A. No, absolutely not. Probably the most striking feature of what we know of what goes on in the mind during sleep is that it's very independent of waking mentation in terms of its objectives and so forth. There is a lack of control of directing our minds in sleep compared to wakefulness. In the waking state, of course, we often voluntarily plan things, what we call volition - that is, we decide to do this as opposed to that - and there is no evidence that this occurs during the sleepwalking episode. There usually is - well they are precipitated. They are part of an arousal, an incomplete arousal process during which all investigators have concluded that volition is not present.

Q. And assuming he was sleepwalking at the time, would he have the capacity to intend?

A. No.

Q. Would he have appreciated what he was doing?

A. No he would not.

Q. Would he have understood the consequences of what he was doing?

A. No, I do not believe that he would. I think it would all have been an unconscious activity, uncontrolled and unmeditated."

25. The Canadian Supreme Court substantially adopted, from Dr. Billings, these findings of fact: which predicated the outcome that the defence of automatism was open to Parks:

  1. Parks was sleepwalking at the relevant time.
  2. Sleepwalking is not a neurological, psychiatric or other illness: it is asleep disorder very common in children and also found in adults.
  3. There is no medical treatment as such apart from good health practices. The contrast between the psychiatric evidence in these two cases is pronounced. Notwithstanding that difference, the Canadian court did allow of the possibility of a different outcome on different evidence.

The Internal / External Origin Test

26. In Bratty's case Lord Denning agreed with Viscount Kilmuir LC that where an involuntary act proceeds from a disease of the mind, it gives rise to a defence of insanity, but not to a defence of automatism. He added:

"... 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."[13]

27. In Quick v Paddinson[14] Lawton LJ, delivering the judgment of the Court, commented on that observation by Lord Denning, saying:

"If this opinion be right and there are no restricting qualifications which ought to have been applied to it, Quick was setting up a defence of insanity (it had been alleged he suffered hypoglycaemia)... The difficulty arises as soon as the question is asked whether he should be detained in a mental hospital? No mental hospital would admit a diabetic merely because he had a low sugar reaction; and common sense is affronted by the prospect of a diabetic being sent to such a hospital when in most cases the disordered mental condition can be rectified quickly by pushing a lump of sugar or a teaspoon of glucose into the patient's mouth."

28. Furthermore Lawton LJ returned to the subject, saying:

"In this quagmire of law, seldom entered nowadays save by those in desperate need of some kind of defence, Bratty ... provides the only firm ground. Is there any discernible path? We think there is - judges should follow in a common sense way their sense of fairness. ... In our judgment, no help can be obtained by speculating ... as to what the judges who answered the House of Lords questions in 1843 meant by disease of the mind, still less what Sir Matthew Hale meant in the second half of the 17th century. ... 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."[15]

29. Burgess highlights the "internal"/ "external" causation test - the non-exogenous origin test of the origins of the disease of the mind. The expressions "pathological" and "organic" have also been used to convey the same notion of internal origin to distinguish the cases where abnormalities are caused by factors external to the body of the accused - in which case, they are not relevant to the issue of insanity.

30. The Court of Appeal in Burgess adopted what was said by Martin J in Rabey v R:[16]

"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 ... In my view, the ordinary stresses and disappointments of life which are the common lot of mankind do not constitute an external cause constituting an explanation for a malfunctioning of the mind. To hold otherwise would deprive the concept of an external factor of any real meaning." The appearance of the added feature of a propensity to recurrence "added to the reasons for categorising the condition as a disease of the mind."[17] In the absence of more than obiter comment in Australia, the issue would seem to be open.

Falconer and Beyond

31. To the extent that R v Falconer[18] is cited as authority for the proposition that sleepwalking is a self-evident example of an automatism, it is clearly not correct. The joint judgment of Mason CJ, Brennan and McHugh JJ did not advert to the relationship between sleepwalking and ss.26, 27 and 28 of the Code. Deane and Dawson JJ in a joint judgment expressly agreed with the reasoning of Toohey J and Gaudron J in their respective judgments.

32. Deane and Dawson JJ commented:

" .. but we think that the position has now been reached where it is only realistic to recognise that, if there is evidence of insanity, the prosecution is entitled to rely upon it even if it is resisted by the defence ... 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."[19]

33. It is notable that their Honours describe it as anomalous but do recognise that it is realistic. None of the other judgments seems to have taken up the point.

34. Toohey J refers to sleepwalking as a state which "readily enough answers the description of automatism" and cites the matter of R v Holmes[20] previously discussed, in support. He later comments again on somnambulism when making a point about the difficulty of applying the '"external" factor test and in doing so, cites sleepwalking as stemming from an internal malfunctioning but as having traditionally been treated as an instance of automatism. There was, however, no medical evidence upon which this observation was actually based. He does address the possibility that on the medical evidence, sleepwalking may, in some cases, proceed from and demonstrate the existence of a mental disease. It might be said in reply that if such a finding were open on evidence in a particular case, it would be wrong to persist in the "traditional" view to which he referred.

35. Gaudron J does say that:

".. 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 raising voluntariness or intent as a separate and distinct issue."

36. The effect of all the judgments in Falconer seems to be that evidence raising some mental disease or infirmity excludes the operation of the s.23 defence. That issue has been recently revisited in Hawkins v R[21] where in a join judgment the court held that if the only evidence tendered to raise the question of the voluntariness of the incriminating act is evidence of a mental abnormality amounting to a "mental disease" under s.16 (Tasmania), the admissibility of the evidence does not depend on its relevance to the issue of voluntariness but on its relevance to the issue of insanity. And, if there be evidence of mental disease but the evidence is incapable of proving that the mental disease produced any of the consequences prescribed by pars (a) and (b) of s.16(1), that evidence is both insufficient to establish insanity and irrelevant to the issue of voluntariness.

37. One matter on which the judgments in Falconer's case do express a uniform acceptance is the proposition that the issue is initially one of law for the trial judge to resolve. The differences between the psychiatric opinions expressed in Burgess on the one hand and Parks on the other underline the dangers inherent is ever expressing any psychiatric principle in absolute terms. However, a medical opinion offered in the prosecution which gave rise to the research on which this article is based may help clarify the situation. It was the opinion of Dr. Frank Varghese, Director of the University of Queensland Psychiatric Unit at Princess Alexandra Hospital, Brisbane that:

  1. There were two distinguishable types of sleepwalking, an "organic" type and an "hysterical" type:
    1. The "organic" type is a disorder of the function of sleep and is not the result of psychological factors - hence the use of the descriptor "organic". The manifestation is quite specific to particular sleep-states.
    2. the "hysterical" type is a variant of hysterical dissociation capable of being manifested in individuals who wished to draw attention to their emotional distress - common in children and adolescents - or where there was some potential for gain as, for example, discharge from a military situation. This type of sleepwalking, according to Dr. Varghese, is not relevant to a defence against a criminal charge. Dr. Varghese was using "organic" to convey what others have described as non-exogenous or pathological.
  2. ...from a medical point of view, sleepwalking is an organic state and hence falls within the rubric of s.27."

  3. It would seem logical that if a disorder of sleep was such that it brought about behaviour in a person that was potentially a major threat to their safety, as well as the safety of others, then this constitutes an illness or disease. In other words there is a "functional" - as in implying a disorder of the function of sleep - disease of sleep. With respect to s.27 I would regard it as a 'state of mental disease' or a 'natural mental infirmity'.

38. Commenting specifically on the Burgess/Parks dichotomy, and in relation to the same case as Prof Varghese, Dr. Jill Redden, Deputy Director of Psychiatry at Royal Brisbane Hospital commented:

"My own view would be that the outcome in the Burgess case would be more akin to medical thinking and to the evidence. I was surprised to see that in Parks' case the expert had indicated that recurrence of violence during sleep walking is extremely rare. ... Both sleep apnoea (a condition common among heavy snorers in which breathing is interrupted) and sleepwalking are regarded as disorders of sleep. They are not normal phenomena found during sleep. .... The canvassing of the medical evidence appears, in my view, to have been more thorough in the Burgess case than in the Parks' case and it is my view that some of the contentions or evidence raised in Parks' case are somewhat inaccurate. The question arises as to whether any sleep disorder is a disease of the mind or a mental disorder or psychiatric illness. Sleep disorder are included in the major classificatory schemes in psychiatry and commentary on sleep disorders appears extensively in the psychiatric literature and in most standard textbooks. ... In my view, the sleep disorders we have been discussing represent... good evidence for diagnostic validity as mental disorders. Thus, in my view, a sleep disorder would fit within the meaning of mental disease or natural mental infirmity as specified in s.27".

39. Were evidence along those lines to be led in the trial, it would seem difficult in the extreme to resist the submission that as a matter of law, sleepwalking should be treated as a mental disease or natural mental infirmity within the meaning of s.27 of the present Queensland Code. As mentioned above, this would also have consequences for the defence in the limitation which would then be imposed on any defence of automatism under s.23.

Raising the Issue of Insanity - The Crown Position

40. In Bratty's case Lord Denning allowed that:

"When it is asserted that the accused did an involuntary act in a state of automatism, the defence necessarily puts in issue the state of mind of the accused man: and thereupon it is open to the prosecution to show what his true state of mind was. The old notion that only the defence can raise a defence of insanity is now gone. The prosecution are entitled to raise it and it is their duty to do so rather than allow a dangerous person to be at large."[22]

41. The Criminal Code Act 1995 (Qld) which will come into force in 1996 provides at s.52(3)(b):

"The person or the prosecution may seek a finding that the person was not of sound mind at the relevant time", which would make the resolution of the first issue of less interest in this State.

42. Until that provision operates, however, and in any event in places outside Queensland, the issue remains. The conventional position is that seen, for example, in the Victorian case of R v Starecki[23]. The appellant had shot and killed one person and then shot himself. The prosecutor sought leave to lead evidence of threats made by the appellant to persons other than the deceased, and psychiatric evidence of an examination of the appellant subsequent to arrest and the examiners opinion that Starecki's appreciation of the wrongness of his actions would have been very much impaired by schizophrenia. Scholl J had refused leave at the trial primarily on the authority of R v Casey[24] where, although the defence did raise and rely on insanity, the issue was opened through a crown medical witness. Morris J (as he then was) delivered the decision of the Court of Criminal Appeal dismissing the appeal but with critical comment on the means by which the evidence had been introduced, citing a passage from Lord Alverstone in Oliver v Smith[25]:

"The question came up seven or eight years ago, when a practice arose of the Crown calling the prison doctor to prove insanity. All the judges met and resolved that it was not proper for the Crown to call evidence of insanity, but that any evidence in the possession of the Crown should be placed at the disposal of the prisoner's counsel to be used by him if he thought fit' and noting that In the result: 'The Court stated that the only general rule that could be laid down was that insanity, if relied upon as a defence, must be established by the defendant."

43. Morris J concluded, saying:

".. it is clear, as this case shows, that it is desirable to adhere to the procedure that the defence should in the first place call any witness directed to the issue of insanity, if the defence raise that issue."

44. Expressing the sentiment which Deane and Dawson JJ would later express in Falconer, Scholl J also pointed to what he called "the apparent illogicality" of the crown charging a man with the commission of an offence and at the same time leading evidence tending to show criminal irresponsibility and expressing the view that it was a matter for the legislature to take up if it was thought that as a matter of public policy the crown ought to be at liberty to take that course. The Full Court of the Supreme Court of Victoria, on the appeal, was only concerned with the propriety of the admission of the confession and expressed no opinion on the rights or otherwise of the trial judge's ruling on the crown's application to lead the evidence of mental disorder.

45. As matters stand, in Queensland at least, it would seem to be that what Professor Varghese called "organic" sleepwalking would be held, as a matter of law, to amount to a mental disease or natural mental infirmity which might be first raised by the prosecution and which would, if raised, limit if not eliminate altogether the possibility of a defence of automatism under s.23 or an equivalent provision.


1. R v Tolsen [1889] QBD 168 at 187 per Stephen J: [return to text]

2. Bratty v A-G (Northern Ireland) [1963] AC 386 [return to text]

3. R v Falconer (1990) 171 CLR 30 at 42 [return to text]

4. ibid at 61 per Deane and Dawson JJ [return to text]

5. ibid at 72 per Toohey J [return to text]

6. R v Holmes [1960] WAR 122 at 125 [return to text]

7. R v Burgess [1991] 2 QB 92 at 99 [return to text]

8. R v Parks (1992) 75 CCC (3d) 287 per Lamer CJ at 298 (Court of Appeal) [return to text]

9. ibid at 299 [return to text]

10. ibid at 311f per Laform J [return to text]

11. Rabey v R [1980] 2 SCR 513 (Supreme Court) [return to text]

12. R v Parks [1990] 56 CCC (3d) 449 [return to text]

13. id [return to text]

14. Quick v Paddinson [1973] 57 Cr App R 722 at 727 per Lawton LJ [return to text]

15. ibid at 734 [return to text]

16. Rabey v R [1978] 37 CCC (2d) 461 (Court of Appeal) [return to text]

17. R v Burgess [1991] 2 QB 92 at 99 [return to text]

18. Falconer v R (1990) 171 CLR 30 [return to text]

19. ibid per Deane and Dawson JJ at 62 [return to text]

20. R v Holmes [1960] WAR 122 [return to text]

21. Hawkins v R [1994] 179 CLR 500 [return to text]

22. Bratty v A-G Northern Ireland [1963] AC 386 [return to text]

23. R v Starecki [1960] VR 141 [return to text]

24. R v Casey [1947] 32 Cr App R 91 [return to text]

25. Oliver v Smith [1910] 6 Cr App R 19 at 20 [return to text]

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