R v Falconer

[1990] HCA 49

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.

THE QUEEN v. FALCONER

(1990) 171 CLR 30

22 November 1990

Criminal Law (W.A.)

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 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."

Objection being taken to the admissibility of the psychiatric evidence for the purpose of showing that the shooting had occurred "independently of the exercise of (the) will", the learned Commissioner received the evidence on voir dire. Dr Schioldann- Nielsen was directed to the evidence which allegedly led up to the shooting, and was then asked what effect that could have had on Mrs Falconer. He replied:

"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."

Later, he explained -

"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 ..."

Dr Finlay-Jones, when asked about automatism, said:

"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."

His opinion was that psychological stress was insufficient by itself to produce the state known as dissociation: there had to be psychological conflict as well. He found the history of the instant case to raise that possibility. He said:

"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."

Dr Finlay-Jones had examined Mrs Falconer and, from the history she had given him, he thought that the feeling that she described after the shooting was over was "consistent with the reports of people who have been in dissociated states."

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) 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."

That proposition of the common law corresponds with s.2 of the Code which reads:

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

His Honour continued:

"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."

The first limb of s.23 requires the act to be willed; the second limb relates to events consequent upon the act: it excludes from criminal responsibility consequences of the act which are not only unintended but unlikely and unforeseen: see Vallance v. The Queen (1961) 108 CLR 56; Mamote-Kulang v. The Queen (1964) 111 CLR 62. In wilful murder, the offender must have a specific intention to cause the death of the deceased or of some other person (the Code, s.278) at the time when he does the act which causes the death; death is not the "act" but the intended consequence. It follows that, under the Code as under the common law, it is the death-causing act which must be willed, not the death itself: see Timbu Kolian v. The Queen (1968) 119 CLR 47. The "act" in s.23 has been differently described in judgments delivered in this Court: see Vallance; Timbu Kolian; Kaporonovski v. The Queen (1973) 133 CLR 209. In our opinion, the true meaning of "act" in s.23 is that which Kitto J. in Vallance attributed to "act" in s.13(1) of the Tasmanian Code, namely, a bodily action which, either alone or in conjunction with some quality of the action, or consequence caused by it, or an accompanying state of mind, entails criminal responsibility: see p 64. That meaning accords with the judgment of Menzies J. in Vallance (at pp 71-72) and was adopted by Gibbs and Stephen JJ. in Kaporonovski, at pp 231 and 241, respectively. That view distinguishes between "act" and "event" in s.23, so that it is immaterial to the operation of the first limb of the section that the actor's mental state does not encompass the consequences of what he is doing.

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) 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) 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."

The language of the Code corresponds with the descriptions of the incriminated act which the Chief Justice preferred: s.23 distinguishes between a will to act and an intention to cause a result. The requirement of a willed act substantially, if not precisely, corresponds with the common law requirement that an offender's act be done with volition, or voluntarily: cf. Timbu Kolian, at pp 53,62-63. (We shall refer to the Code requirement as will and to the common law requirement as voluntariness.) The requirement of a willed act imports no intention or desire to effect a result by the doing of the act, but merely a choice, consciously made, to do an act of the kind done. In this case, a choice to discharge the gun.

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) AC 462; R. v. Mullen (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 (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."

His Lordship was not concerned to distinguish between an act and its consequence but the presumption of mental capacity of which he speaks certainly includes a capacity to control actions. In Reg. v. Radford (1985) 42 SASR 266 King C.J., in a close analysis of the relevant principles, made the same point in saying (at p 272):

" 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."

Thus the inference, grounded in human experience, that an act done by an apparently conscious person is willed is supported by a rebuttable presumption, created by statute, that the actor is of sound mind when the act is done. Section 26 supplies what might otherwise be supplied by evidence and requires the jury to determine whether the act was willed on the footing that the accused was of sound mind when the act was done unless the accused establishes on the balance of probabilities that he was not of sound mind at the time. An accused bears no ultimate onus of proving that his act was unwilled but he does bear an evidential onus of rebutting the presumption that he had the capacity to control his actions and, if he chooses to discharge that onus by showing that he was not of sound mind, he must prove that proposition on the balance of probabilities.

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."

Corresponding provisions have been enacted in jurisdictions where the common law governs criminal responsibility since 1800, when The Criminal Lunatics Act (U.K.) (39 &40 Geo III c.94) was introduced.

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.)

However, if the reason for alleged automatism is not "something other than a defect of reason from disease of the mind", the jury must not return an unqualified verdict of acquittal. In Bratty, Lord Denning said, at p 410:

"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.)

The emphasized words ensure that, under the common law, an accused who relies on a defect of reason from disease of the mind must establish that "defence" just as, under the Code, an accused who relies on any ground of defence under s.27 or s.28 must, by force of s.26, establish that ground. The presumption that all persons have the capacity to control their actions unless they be of unsound mind and the presumption of soundness of mind combine to apply to cases under the Code the common law presumption "that every man has sufficient mental capacity to be responsible for his crimes". Whether under the Code or the common law, an accused raising automatism must prove unsoundness of mind or must raise on the evidence a reasonable hypothesis of some other cause sufficient by itself to have deprived the accused of his capacity to control his actions.

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."

Section 28 applies the provisions of s.27 to a mind "disordered by intoxication or stupefaction caused without intention on (the accused's) part by drugs or intoxicating liquor, or by any other means". For present purposes, the differences between the M'Naghten Rules and the Code are to be found in the terms used to describe the relevant condition of the mind and the effects which that condition produces.

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)."

(The section numbers are altered to reflect the numbering of the draft sections as enacted.) Under the Code, the practical difference in the operation of s.23 on the one hand and ss.26, 27 and 28 on the other depends on the aetiology of the condition which deprives the accused of the capacity to control his actions: if mental disease or natural mental infirmity (under s.27) or a disorder of the mind (under s.28) are proved to have deprived the accused of the capacity to control his actions, the verdict of acquittal must be qualified under s.653; if it be a reasonable hypothesis on the evidence that some other cause, by itself, deprived the accused of that capacity, the verdict is an absolute acquittal. The dichotomy between automatism caused by unsoundness of mind and automatism otherwise caused is reflected in the verdict to be returned.

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."

A person in either category is not criminally responsible for his actions, but the law divides mental irresponsibility into two categories distinguished by the aetiology of that condition: is the mind diseased or is it not? Similarly, under ss.23 and 27 of the Code: an act may be unwilled, but the question is whether the aetiology of that condition is or is not mental disease or natural mental infirmity. In Reg. v. Joyce (1970) SASR 184, the Full Court of the Supreme Court of South Australia said (at p 194):

" 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)."

The position at common law was summed up by King C.J. in Radford, at p 273:

"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."

It seems incongruous for the common law to hold that an accused who is deprived by mental disease of his capacity to control his actions cannot be acquitted outright on the ground that his actions were involuntary, nor is he entitled to a qualified acquittal on the grounds of insanity unless he proves not only that he was deprived of his capacity to control his actions but also that he did not know the nature and quality of his act or that it was wrong. Perhaps the incongruity does not often arise in practice for, as King C.J. observes (at p 275):

"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."

(Cf. Sodeman v. The King (1936) 55 CLR 192, at p 205; Attorney-General for South Australia v. Brown (1960) AC 432.)

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."

His Lordship's view was approved by Lord Diplock in Reg. v. Sullivan (1984) AC 156, at p 172:

"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."

His Lordship's exclusion of self-induced impairment by drink or drugs mirrors the exclusion of intentional intoxication or stupefaction from the disorders of the mind covered by s.28. Cases of automatism caused in these ways do not fall for present consideration.

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."

In that case a young man had battered a young woman, with whom he was infatuated, after he had been slighted. Martin J.A. concluded (p 435; pp 482-483), and his conclusion was upheld by a majority of the Supreme Court (at p 520; p 7) -

"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."

In Reg. v. Quick (1973) QB 910 a distinction was drawn between a malfunction of the mind caused by an external factor and a malfunction caused by a bodily disorder in the nature of a disease which disturbed the working of the mind, the former type of malfunction not amounting to insanity. The view of Stable J. in Cooper was preferred to the broader view of unsoundness of mind espoused by Philp J. in Foy.

23. Sholl J. in Reg. v. Carter (1959) VR 105 and in Reg. v. Meddings (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."

Accepting that some words used by Dixon J. in R. v. Porter (1933) 55 CLR 182 and by Devlin J. in Kemp were wide enough to cover any temporary malfunction or disorder of the mind, he did not think he ought to take the words "disease of the mind" so far. He adhered to these views in Meddings. Sholl J.'s comments, to the extent that they refer to the prospect of recurrence as a discrimen for determining sanity or insanity, echo the speech of Lord Denning in Bratty, at p 412, where his Lordship said:

"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."

One may cavil at the description of a mere physical condition such as arteriosclerosis, albeit one which produces a "mental illness", as itself a disease of the mind. But the dichotomy between mental illness and a healthy mind is correctly drawn. However, we would think it necessary that a temporary mental disorder or disturbance must not be prone to recur if it is to avoid classification as a disease of the mind. That is because a malfunction of the mind which is prone to recur reveals an underlying pathological infirmity. Subject to that qualification, the law is as stated by King C.J. in the passage cited. So stated, the law in Australia may not correspond precisely with the speech of Lord Diplock in Sullivan.

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) 1 WLR 287, at p 294; (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)." However that may be, there seems to be no reason in principle why psychological trauma which produces a transient non-recurrent malfunction of an otherwise sound mind should be distinguished from a physical trauma which produces a like effect. That was the view of the minority in Rabey.

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."

To determine whether in a particular case automatism is to be judged sane or insane, his Lordship treated the likelihood of repetition of the action as a material indication. He added (at p 552; p 31):

" 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) 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) 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) 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.

" 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." But, that said, there is no reason why the shock cannot be the product of an emotional blow as much as the result of some external physical force: Radford, at pp 276, 278. Cf. The Queen v. Joyce (1970) SASR 184, where it was considered that the accused had worked himself up into an emotional frenzy. The question for the jury is whether the accused's conduct was involuntary, that is, whether it occurred independently of the exercise of the accused's will.

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) 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." Ryan involved a defence of accident so as to reduce a charge of murder to a conviction for manslaughter. And Barwick C.J. did not advert to a diseased mind producing an incapacity to control actions. But the general distinction drawn is apposite in the present case.

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) 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." But, it may be asked, why should not a psychological blow resulting from external events result in non-insane automatism? The point was well made by King C.J. in Radford when he said, at p 276:

"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) 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." That statement is understandable in the light of Sullivan and Hennessy but it is open to the criticism made in these reasons that the requirement of an external factor is apt to mislead. In placing emphasis on physical trauma, those decisions fail to meet the point made by King C.J. in Radford that an unwilled act may be "the reaction of a sound mind to external stimuli, including stress producing factors".

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."

The evidence of the psychiatrists, which was not the subject of cross-examination, is set out in greater detail in the judgment of Wallace J. in the Court of Criminal Appeal. But it is enough, for present purposes, to refer to the summary appearing in the Commissioner's ruling, noting the observation of Malcolm C.J., which was not challenged in this Court, that there is no apparent inconsistency between what Mrs Falconer told the psychiatrists and her evidence at the trial.

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."

By s.28 of the Code the provisions of s.27 apply to "a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means".

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) 55 CLR 182; Willgoss v. The Queen (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) 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 (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) 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) 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) VR 105, at p 110; Reg. v. Meddings (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.

Orders

Application for special leave to appeal granted.

Appeal dismissed.