Criminal Law (W.A.)—Criminal responsibility—Voluntariness—Non-insane automatism—Whether mental disease or natural mental infirmity—Onus of proof—Psychiatric evidence—Relevance—Criminal Code (W.A.), ss. 23, 26, 27, 28, 653.
Decisions
MASON C.J., BRENNAN AND McHUGH JJ. Mary Sandra Falconer was convicted before the Supreme Court of Western Australia of the wilful murder of her husband Gordon Robert Falconer on 9 October 1988. The deceased was killed when Mrs Falconer fired a shotgun, the blast of which struck the deceased at close quarters. She gave evidence at her trial of the difficulties she had had with her husband during their marriage. They had separated as the result of Mrs Falconer having discovered from her adult married daughters that, in their earlier years, their father had dealt with them sexually. Just before the shooting, he taunted her in a way which suggested to her that he had had some sexual dealings with a young girl who had been in her custody. Yet, it appeared, she had continued to love him. In the Court of Criminal Appeal of Western Australia, Malcolm C.J. stated in summary the effect of the evidence:
"(a) the appellant had separated from her husband for the reason, among others, that he had a history of using violence towards her, including hitting her and grabbing her by the hair;
(b) the appellant had recently discovered that her husband had sexually assaulted two of their daughters and this had caused her great stress;
(c) criminal charges had been preferred against the appellant's husband and she had shown an increasing level of fear at what he might do to her or to her daughters;
(d) in the week preceding the shooting she had demonstrated fear, depression, emotional disturbance and an apparently changed personality;
(e) on the day of the shooting, according to the appellant, her husband had (i) entered the appellant's house unexpectedly; (ii) sexually assaulted the appellant; (iii) demonstrated dramatic changes of mood; (iv) taunted her with the suggestion that neither the daughters nor the appellant would be believed in court; and
(v) reached out at her apparently to grab her by the hair.
From that point the appellant said she remembered nothing until she found herself on the floor with her shotgun by her and her husband dead on the floor nearby."
2. At the trial, after the Crown case had closed and Mrs Falconer and other defence witnesses had given evidence, her counsel intimated that he desired to call evidence from two psychiatrists with a view to showing that Mrs Falconer's conduct was consistent with non-insane automatism, that is to say, that she was not criminally responsible for her husband's death by reason of the first limb of the first paragraph of s.23 of The Criminal Code of Western Australia (hereafter "the Code"). The material parts of that section read as follows:
" Subject to the express provisions…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Falconer [1990] HCA 49
Case
[1990] HCA 49
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal of R v Falconer, which concerned the interpretation and application of the defence of provocation in the context of a murder charge. The appellant, Falconer, had been convicted of murder following the death of his wife, and his appeal centred on the trial judge's directions to the jury regarding the defence of provocation.
The central legal issue before the High Court was whether the trial judge had adequately directed the jury on the elements of provocation, particularly concerning the requirement that the provocation must be such as to cause an ordinary person to lose self-control and act as the accused did. The court had to determine if the jury had been properly instructed on the objective and subjective components of the defence and whether the directions given were misleading or insufficient.
The High Court, in its joint judgment, clarified that the defence of provocation requires the jury to consider two questions: first, whether the deceased's conduct actually caused the accused to lose self-control; and second, whether that conduct was such as to cause an ordinary person to lose self-control and react in the way the accused did. The court emphasised that the "ordinary person" standard is an objective test, but it must be applied to the specific circumstances of the accused, including their age, sex, and any physical or mental frailties that might affect their self-control. The trial judge's directions were found to be deficient in adequately explaining this nuanced application of the objective standard.
Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.