R v James Patrick Joyce

[2005] NSWDC 13

CITATION:	R v James Patrick JOYCE [2005] NSWDC 13
HEARING DATE(S):	2 June 2004 4 June 2004 - 1 July 2004
JUDGMENT DATE:	24 June 2004
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
CATCHWORDS:	Trial - Proposed directions to the jury - Dissociative fugue - Voluntariness - Disease of the mind - Automatism - Insanity
LEGISLATION CITED:	Criminal Lunatics Act 1800 Mental Health Act Criminal Appeal Act
CASES CITED:	R v Ayoub (1984) 10 A Crim R 313 Hawkins v The Queen (1994) 177 CLR 500 R v Youssef (1990) 50 A Crim R 1 Queen v Falconer (1990) 171 CLR 30 R v Parks [1992] 2 SCR 871 Bratty v Attorney-General (Northern Ireland) [1963] AC 386 Hill v Baxter [1958] 1 QB 277 Vallance v The Queen (1961) 108 CLR 56 R v Abusafiah (1991) 24 NSWLR 531 Perka v The Queen (1985) 14 CCC 385 R v Rogers (1996) 86 A Crim R 542
PARTIES:	The Crown James Patrick Joyce
FILE NUMBER(S):	02/11/0125
COUNSEL:	N. Adams - Crown R. Bonnici - Accused
SOLICITORS:	NSWDPP

JUDGMENT

Reasons for my Proposed Directions to the Jury

What this Judgment is about

1 This is a judgment given part way through a jury trial. The accused, Dr James Joyce is charged with 2 counts of dangerous driving causing death. The ultimate issue for the jury is whether Dr Joyce was driving voluntarily at the time the car he was driving collided with a car in which Mr Robert Mason and Mrs Enid Mason were travelling.

2 This judgment deals with two issues concerning the way in which I should direct the jury. Those issues are:

• Should the verdict of not guilty on the grounds of mental illness be left to the jury. And

• Should I tell the jury that those acting in a dissociative fugue are necessarily acting voluntarily.

The Facts

3 On the morning of 4th February 2001 Dr Joyce was behind the wheel of his car, driving north along the Prince’s Highway. He was heading home, having worked overnight in the Emergency Department of Shoalhaven Hospital at Nowra. Although he did not know it, he suffered from a mental condition called bipolar disorder. This condition made it more likely that in times of stress he would enter a state of dissociative fugue. The existence of Dr Joyce’s bipolar disorder, and the possible existence of a dissociative fugue, are relevant to whether he was driving voluntarily as he headed north that morning.

4 A retired highway patrol officer, Mr Whyte, was also driving north, travelling behind Dr Joyce’s car. He watched the movement of Dr Joyce’s car for a significant period of time.

5 Shortly before they got to the township of Berry, Mr Whyte noticed the accused’s vehicle dropping off to the left hand side of the road and then swerving back onto it, towards the centre of the road. Dr Joyce then travelled through Berry with Mr Whyte noticing nothing unusual about the way Dr Joyce was driving his car. However, shortly after leaving Berry, Mr Whyte noticed some erratic movements. About 15 times Dr Joyce’s vehicle dropped off the left hand side of the road before veering back on to the carriageway. About 5 times Dr Joyce’s vehicle travelled completely to the incorrect side of the road to the extent that its left hand wheels were over the centre line. On 3 occasions when this occurred, Mr Whyte attempted to alert Dr Joyce to his dangerous manner of driving by flashing his lights and sounding his horn. Dr Joyce’s response was to raise his middle finger towards Mr Whyte.

6 Eventually the inevitable happened. For the final time Dr Joyce’s vehicle went onto the wrong side of the road at an area known as Foxground. Mr and Mrs Mason were on holidays, travelling south along the road, with Mr Mason driving. He was confronted by Dr Joyce’s vehicle directly ahead of him and the cars collided head on. Mr and Mrs Mason were severely injured. Mr Whyte, and others travelling behind him, saw the collision occur.

7 Much of the evidence in this trial in not disputed by Dr Joyce. The facts I have recited above are accepted by Dr Joyce and the Crown, although the former claims to have no relevant memory apart from a brief moment immediately before the collision.

The Issues in the Trial

8 The central issue is whether Dr Joyce was driving voluntarily at the time of the collision. He has called evidence from two psychiatrists and a psychologist to suggest that he was in a dissociative fugue at the time of the collision, this fugue resulting from a number of stresses that he was under at the time. The Crown case is that he was not in a fugue, or alternatively, even if he was in a fugue state he was nevertheless driving voluntarily. The Crown case is that Dr Joyce’s strange manner of driving is explained by him falling asleep having worked overnight as a doctor in the emergency department of Shoalhaven Hospital.

9 The Crown and Mr Bonnici, who appears for Dr Joyce, agree that Dr Joyce is entitled to have the issue of automatism put to the jury. Although there is a presumption that acts are done voluntarily, Dr Joyce has raised sufficient evidence such that the onus is now on the Crown to prove beyond reasonable doubt that Dr Joyce was acting voluntarily.

10 One of the issues which is disputed is whether I should leave what is sometimes called insane automatism to the jury. Dr Joyce resists this, preferring that the jury be given a choice only between verdicts of not guilty and guilty, whereas the Crown suggests that the state of evidence is such that a third option, namely not guilty on the grounds of mental illness should be left for the jury’s consideration.

11 The psychiatrists who have given evidence for Dr Joyce in this case, and the psychologist, are not of the same opinion. They all agree that Dr Joyce suffered from a mild form of bipolar disorder, and that this is a mental illness which makes a person more likely to enter a dissociative fugue than if he or she did not suffer from that illness. There is no evidence capable of establishing that Dr Joyce’s bipolar disorder of itself could have caused him to be acting involuntarily when behind the wheel of his car.

12 Dr Kaplan, one of the psychiatrists called by Dr Joyce, is of the opinion that Dr Joyce was in a dissociative fugue when he was observed driving strangely by Mr Whyte, but (and this is important) he would not have entered that state if he had not suffered from bipolar disorder. This, the Crown says, is evidence that Dr Joyce’s lack of voluntariness (assuming for the purpose of argument that he was driving involuntarily) was caused by his mental illness. I am therefore required says the Crown, to tell the jury that one of their possible verdicts is not guilty on the grounds of mental illness.

13 Mr Bonnici on the other hand suggests that the evidence of Dr Joyce’s mental illness being a cause his state of dissociation is not sufficient to require me to direct the jury as to that third option. I understand Mr Bonnici’s argument to be that Dr Kaplan’s evidence does not mean what it appears to say, it having to be read “in context”. Having read and re-read Dr Kaplan’s evidence I reject Mr Bonnici’s submission. Dr Kaplan, I am satisfied, meant what he said when he gave evidence that in his opinion Dr Joyce would not have entered a dissociative fugue if he had not suffered from bipolar disorder.

14 Mr Bonnici also said that the evidence in the trial was insufficient to enable the jury to conclude that Dr Joyce was suffering from a “disease of the mind”. I do not agree. There was a significant amount of evidence as to what a bipolar disorder was and its effect on those who have such a disorder. More importantly there was evidence from psychiatrists called on behalf of Dr Joyce as to the effect of the disorder on Dr Joyce himself. The definition of a “disease of the mind” or other synonymous expressions which have been used from time to time, is a question of law. It is for the jury to determine on the evidence before them, whether Dr Joyce’s condition fits the description.

15 There are two specific matters on which I was asked to rule before addresses began. The evidence has now closed and yesterday I indicated the decisions I had reached (but not the reasons) on these two issues. Following that announcement Mr Bonnici announced that he wished to seek leave to appeal to the Court of Criminal Appeal to challenge those decisions. Not without some hesitation, I adjourned the trial to allow that to occur. My hesitation did not flow from a belief that I could not be wrong. Instead, I doubted that the rulings which I made were properly the subject of an application for leave to appeal under section 5F Criminal Appeal Act. Nevertheless as Mr Bonnici indicated that the application could be heard next Monday, and as the trial could not proceed this afternoon and tomorrow (Friday) because of a reason personal to the Crown Prosecutor, I considered that not too much time would be lost if I adjourned the trial as Mr Bonnici requested – and so that is what I did.

16 This has meant that these reasons have been prepared with more haste than I would have preferred in order that they can be considered by the Court of Criminal Appeal. One thing both counsel and I do agree on is that the matters raised in this trial are not easily resolved.

17 In these reasons I will deal with the 2 specific matters which Mr Bonnici wished to challenge on application for leave to appeal to the Court of Criminal Appeal. They concern, first, the proper verdict where involuntary action results from a mental illness, and secondly whether I should tell the jury that they could still find that Dr Joyce’s actions were voluntary even if they considered it reasonably possible that he was in a dissociative fugue.

The proper verdict where involuntary action results from a mental illness

18 As I have said, there is uncontroverted evidence that Dr Joyce, at least at the time of the collision, suffered from a mild form of bipolar disorder. There is evidence in the trial as to what bipolar disorder is, and its effects on people generally (T: 182, 492, 602, 642 & 833) as well as the effect of his particular form of bipolar disorder on Dr Joyce, Dr Joyce (T: 448, 578, 642, 643, 671, 679, 708 & 711).

19 It seems to be common ground also that those with a bipolar disorder are more likely to enter a dissociative fugue than those who do not suffer from that condition. Of particular relevance is the evidence of Dr Kaplan, a psychiatrist called by Dr Joyce. At T: 601 Dr Kaplan says this:

“it’s my belief that Dr Joyce wouldn’t have had a dissociative fugue unless he had the bipolar”.

20 I have re-read Dr Kaplan’s evidence because Mr Bonnici submitted that I had to look at that expression of opinion in context. That I have done, but I can see nothing to suggest that Dr Kaplan did not mean what he said, perhaps because he was confused. To the contrary I find that there is evidence on which the jury are entitled to rely given by a psychiatrist called on behalf of Dr Joyce which suggested that Dr Joyce would not have entered a dissociative fugue unless he had bipolar disorder.

21 I am satisfied that this means that I should leave the issue of insane automatism to the jury because it raises the possibility that Dr Joyce’s involuntary behaviour (assuming that he was acting that way for the purposes of this decision) was caused by his mental illness. This is contrary to the wishes of Dr Joyce, but not that of the Crown. Dr Joyce does not want me to tell the jury that one of their possible verdicts is a verdict of not guilty on the grounds of mental illness.

22 However in Falconer v The Queen (at 63) Dean and Dawson JJ said:

“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”

23 In R v Ayoub (1984) 10 A Crim R 313, Street CJ, with whom Slattery J agreed said that:

“it is of course clear that if the state of the evidence justifies it a trial judge will put to the jury the defence of mental illness of his own motion… moreover irrespective of whether or not Dr Joyce raises or disclaims such a defence, a trial judge if he sees it as fairly open may well have a positive duty to put the defence himself.

See also Hawkins v The Queen (1994) 177 CLR 500 at 517.

24 These statements of the law are consistent with policy, which has been an important aspect in the way in which the law regarding the treatment of the mentally ill “offender” has developed. I will return to questions of policy later in these reasons.

25 Having decided that the issue of insane automatism should be left to the jury I then turned my mind to the appropriate way of telling the jury how they should approach the three available verdicts in this trial. My conclusion is represented in a document I will annexe to this judgment entitled “Questions for the Jury” (I proposed to give this document to the jury during my summing up).

26 I note immediately that it poses questions for the jury in a different order to that suggested in Falconer by Toohey J (at 77) and Gaudron J (at 86). It is closer, however to the logical way of proceeding suggested by Hunt CJ at CL in R v Youssef (1990) 50 A Crim R 1.

27 By putting the questions in the form I have an important issue has been highlighted - which is this: should an accused who is acting involuntarily due to a mental illness be entitled to an unqualified acquittal, or only a finding of not guilty on the grounds of mental illness? Judge Woods QC, who presided over an earlier trial at which the jury could not agree, directed the jury in such a way that if they were to find there was a reasonable possibility that Dr Joyce was acting involuntarily, then he would be entitled to an unqualified acquittal whatever the cause of this involuntary conduct. Dr Joyce seeks a similar approach from me, but I do not believe that that is the law. I believe that the law is that a person whose involuntary conduct is due to a mental illness is entitled only to an acquittal on the grounds of mental illness.

28 In considering the direction in this case it is important to realise that neither Dr Joyce nor the Crown suggests that his mental illness by itself could have caused his involuntary conduct. Further, the only reason Dr Joyce seeks to evade criminal responsibility is because he says his conduct was involuntary. He is not, for example, saying that because of a disease of the mind he was unable to appreciate that his conduct was wrong. In this sense there is congruence between the need for the Crown to prove voluntary conduct as an element of the offence and the effect that Dr Joyce’s mental illness had. There is evidence, as I have attempted to demonstrate, that because of his mental illness, together with the stress he was under, he entered a dissociative fugue – the effect of which was that he was unable to act voluntarily. This means that if that evidence is accepted, he fits within the M’Naghten definition.

29 My two questions as posed in the attached document may not be appropriate in every case in which insane and non-insane automatism are raised. In this case there is a congruence because voluntariness is the issue no matter what the cause - whether it be sane or insane automatism. There may be cases where it necessary to put in question 2 the full M’Naghten definition, but this is not such a case.

30 I return to the question of whether an accused is entitled to an unqualified acquittal where his involuntary conduct is due to a mental illness. I believe that the answer to this question is to be found in the Queen v Falconer. Having pointed out the correspondence between the West Australian Criminal Code and the common law on the relevant issues, Mason CJ, Brennan and McHugh JJ say, at 44:

“the jury is precluded from returning a verdict of acquittal … if Dr Joyce raises an issue of automatism which depends to some extent on unsoundness of mind”.

31 If Dr Joyce was acting in an automatic way, as I understand Dr Kaplan’s evidence, that was because of Dr Joyce’s bipolar disorder. In other words, (those words corresponding to the passage just quoted) the automatism “depends to some extent on (Dr Joyce’s) unsoundness of mind”.

32 Further confirmation that their Honours’ view is that an insane automaton does not receive an unqualified verdict of not guilty is to be found at 45:

“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”.

And finally at 47:

“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”

33 These passages confirm my understanding of their Honours’ view that if the “cause” of the automatism (or the “reason” for it) is a disease of the mind, then Dr Joyce is entitled only to a qualified acquittal. I should note of course that their Honours were in the minority as far as the result of the appeal is concerned, but their disagreement did not concern any aspect of present relevance.

34 I then turn to the judgment of Dean and Dawson JJ. Their Honours say, at page 63:

“if… 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… 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.” (the emphasis is mine)

35 As I understand that passage, it is entirely consistent with the questions I have posed to the jury on the attached document (albeit in a different order) and also entirely consistent with the opinion of Mason CJ, Brennan and McHugh JJ which to which I have just referred.

36 Still in Falconer, Toohey J, at 72 said:

“… Where criminal responsibility is at issue, the question ultimately is whether the act or omission in respect of which an accused has been charged occurred independently of the exercise of his or her will and where appropriate, whether the lack of capacity to exercise the will was due to mental disease”.

37 Again as I understand that passage it equates to the two questions I have posed for the jury’s consideration.

38 The final judgment in Falconer was that of Gaudron J. Her Honour said:

“the defence of insanity or unsoundness of mind encompasses involuntariness when it proceeds from a mental disease or natural mental infirmity.

39 The jury is entitled to conclude that that is this case in the present matter.

40 So, the various judgments in Falconer speak with one voice. There is agreement that an accused who acts involuntarily due to mental illness is not to be acquitted outright, but only to be found not guilty on the grounds of mental illness. This is contrary to what Mr Bonnici suggested was the law. It appears to be contrary to the way Judge Woods put the matter to the jury in the earlier trial. That has given me pause, and caused me to reflect, re-read and reconsider. But I remain of the view that Falconer (on this issue) can be understood only in the way I have suggested.

41 My understanding of Falconer as it relates to this issue is that it is also consistent with the way the other common law jurisdictions have approached the matter. For example in Canada there is the case of the man who drove, and killed, whilst asleep – R v Parks [1992] 2 SCR 871. (The case is discussed in Neil Levy and Tim Bayne, Doing Without Deliberation: Automatism, Automaticity, and Moral Accountability, International Review of Psychiatry, to be published November 2004 but available now on the internet at

42 In Parks, the judgment of La Forest, L’Heureux-Dube’ and Gonthier JJ contains this statement, at 896, (it being important to not stop reading after the first sentence):

“A defence that the act is involuntary entitles Dr Joyce to a complete and unqualified acquittal. That the defence of automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question. Although spoken as a defence, in the sense that it is raised by Dr Joyce, the Crown always bears the burden of proving a voluntary act.

One qualification to this statement should be noted. When the automatistic condition stems from a disease of the mind that has rendered Dr Joyce insane, then Dr Joyce is not entitled to a full acquittal, but to a verdict of insanity”.

43 So my understanding of Falconer is consistent with the way the Canadian Courts approach the same issue.

44 It is also consistent with policy which has guided this area of the law for over 200 years as I shall now demonstrate.

45 Toohey J in Falconer (at 67) said that:

“the basic notion of the criminal law (is) that a person is responsible only for conscious, voluntary and deliberate acts or omissions”.

46 In one sense it thus could be expected that the criminal law would cease to concern itself with those who act involuntarily or unconsciously and leave other parts of the law to deal with the need to protect society from future involuntary or unconscious dangerous actions. However the criminal law has, for a very long time, not washed its hands of those whose acquittal results from a mental illness. Policy considerations relating to the desire to protect society from dangerous behaviour have required that those found not guilty on the grounds of mental illness are not acquitted absolutely.

47 For a long time such people were detained at the Governor’s Pleasure but comparatively recent reforms which introduce, in this state, the concept of supervision by the Mental Health Review Tribunal, have made it clear that the policy behind an acquittal on the grounds of mental illness is that such people are detained only as long as that detention in necessary. Section 81(2) Mental Health Act provides that the Mental Health Review Tribunal must review those found not guilty on the grounds of mental illness and make a recommendation as to that person’s release from custody only where it is satisfied:

“that the safety of the person or any member of the public will not be seriously endangered by the person’s release”.

48 It is important to remember the well-accepted place of policy when the criminal law deals with those found not guilty on the grounds of mental illness. A “pure” application of the notion to which Toohey J referred might suggest that it would not matter why Dr Joyce was driving in an involuntary way, and that, whatever the cause, as soon as there is a reasonable possibility that he was acting involuntarily the criminal law should no longer be concerned with him. However the criminal law does not operate that way. The very availability of a verdict of “not guilty on the grounds of mental illness” and the legislation providing for the detention of those found not guilty on those grounds until it is safe for them to be released, demonstrate the importance of the policy that society desires to be protected from further misconduct by those who have committed offences whilst mentally ill.

49 Judges in other jurisdictions have explained why the policy of protecting society results only in a qualified acquittal to those found not guilty on the grounds of mental illness. In Bratty v Attorney – General (Northern Ireland) [1963] AC 386 Lord Denning said, at 410:

“suppose a crime in 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 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”.

50 A similar point was made by Devlin J in Hill v Baxter [1958] 1QB 277 at 285-286:

“For the purposes of the criminal law there are two categories of mental irresponsibility, one where the disorder is due to a 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 had provided that persons acquitted on this ground should be subject to restraint”.

51 Returning to the Canadian case of Parks, it seems that the Canadian approach is guided by the same policy, at 901:

“The ‘pith and substance’ of the legislative scheme dealing with individuals acquitted by reason of insanity is the protection of society from dangerous people who have engaged in conduct proscribed by the Criminal Code through the prevention of such acts in the future”.

52 In the present case all the psychiatrists and the psychologist agree that Dr Joyce’s mental disease (his mild bipolar disorder) made him more vulnerable to entering a dissociative fugue when subject to stress. One psychiatrist, Dr Kaplan, gave evidence that were it not for mental illness Dr Joyce would not have been in a dissociative fugue. This is not a case where there was some mere “temporary loss of consciousness arising accidentally”. This is a case where, on a view of the evidence which the jury may well accept, Dr Joyce entered a dissociative fugue because he was mentally ill. There is a risk that should Dr Joyce be subject to further significant stress in his life, he will again enter a dissociative fugue. If that happened whilst he was again behind the wheel of a car he may injure, or even kill, himself or others.

53 These policy considerations are important in understanding the various judgments to which I have referred. Policy considerations entirely support the conclusions I have reached.

54 It is for the reasons I have set out above that I consider that a person who is acquitted because the jury accept the reasonable possibility that the person was acting involuntarily, but where the cause of that involuntary action is found to be, on the balance of probabilities, a disease of the mind, is not entitled to a compete acquittal, but only a verdict of “not guilty on the grounds of mental illness”

Does a dissociative fugue equate to involuntariness?

55 Virtually from the beginning of this trial Mr Bonnici has been attempting to persuade me that the real issue in this trial is not whether Dr Joyce was acting involuntarily but whether Dr Joyce was in a dissociative fugue. I have corrected him on many occasions. The first such occasion was soon after his opening to the jury before any evidence was called. Mr Bonnici maintains forcefully that “by definition” a person in a dissociative fugue cannot act voluntarily. He tells me, often, that in the pervious trial the issue was left as not “was Dr Joyce acting involuntarily?”, but “was Dr Joyce in a dissociative fugue?”. (I ignore the presently irrelevant issue of onus of proof in posing those questions and in what follows).

56 Mr Bonnici therefore objects strenuously to me directing the jury that it is not enough that they decide whether Dr Joyce was in a fugue state. I have told Mr Bonnici that I proposed to tell the jury that whether or not they find that Dr Joyce was in such a state, the ultimate issue is whether Dr Joyce was acting involuntarily. Mr Bonnici does not want me to do that.

57 I should point out that the direction Mr Bonnici wants me to give is, in one important sense, most unfavourable to his client. This is because the jury might find that Dr Joyce was not in a fugue state but nevertheless acting involuntarily, this conclusion I understand to be open in the light of the evidence of Dr Woods, the psychologist called by Dr Joyce. Despite being alerted to this problem, Mr Bonnici would not be swayed – he insists that I am wrong and that to allow the jury to consider the possibility that although Dr Joyce was in a dissociative fugue he was nevertheless acting voluntarily would lead to a miscarriage of justice.

58 In my summing up I propose directing the jury in similar terms to what I said to the jury was meant by the term voluntariness when they asked for a definition of voluntary conduct early on in the trial. In particular I will tell the jury that

“a voluntary action is one which is consciously chosen, with an awareness of what the person was doing”.

Mr Bonnici agrees that this is an appropriate definition of voluntariness.

59 I am satisfied that there is evidence in this trial which enables the jury to say that even if Dr Joyce was in a fugue state he was nevertheless acting voluntarily.

60 Various terms have been used to describe the concept of voluntariness, as it is known to the law. Often used is the concept of “free will”, see for example Kitto J in Vallance v The Queen (1961) 108 CLR 56 at 64. In The Queen v Falconer (1990) 171 CLR 30 at 39, Mason CJ, Brennan and McHugh JJ explain:

“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”.

61 I find this explanation to be a helpful one and it is one which I will use when directing the jury in this matter.

62 Some judgments suggest that concept of voluntariness is much wider, see for example the draft directions suggested by Hunt CJ at CL in R v Abusafiah (1991) 24 NSWLR 531 at 544-545. In that case his Honour suggested that an act done under duress was not done voluntarily. A similar approach was taken to the defence of necessity in Perka v The Queen (1985) 14 CCC 385 at 405, although Dixon J spoke of “moral involuntariness” which may be a different concept to “voluntariness” simplicita. (I should emphasise that the law of necessity in New South Wales is to be found in R v Rogers (1996) 86 A Crim R 542 and that I have referred to the Canadian Supreme Court judgment only to illustrate that “voluntariness” can mean different things in different contexts).

63 The concept of voluntariness as Hunt CJ at CL treats it R v Abusafiah is inconsistent with the concept of voluntariness as I propose explaining it to the jury. I note criticisms of His Honour’s approach in Yeo S, “Voluntariness, Free Will and Duress” (1996) 70 ALJR 304, and while I prefer the relationship between voluntariness, duress and necessity in the Model Criminal Code it is not necessary to consider this issue further, beyond observing that it is important to recognise that the concept of voluntariness as it arises in this trial is different to the concept which arises, according to Hunt CJ at CL, in cases such as duress or according to Dixon J as regards the defence of necessity.

64 If voluntariness is an appropriate way of explaining duress and necessity (which I doubt) then that is a completely different form of voluntariness from that with which this trial is concerned.

65 It is important also to distinguish between voluntariness on the one hand and intent or desire on the other. As Mason CJ Brennan and McHugh JJ said in Falconer:

“the requirement for willed act imports no intention or desire to affect a result by the doing of the act, but merely a choice, consciously made to do an act of the kind done”.

I will have to make this clear to the jury as well.

66 In this trial there is evidence on which the jury is entitled to rely as to what those in a fugue state are capable of understanding, what their awareness is, and the amount of control they are able to exercise. That evidence was summarised by the Crown Prosecutor in ten points she made yesterday which I will not repeat. I note in particular Dr Skinner’s evidence at T: 191-193 which was to the effect that those in a dissociative fugue are capable of acting voluntarily in the sense that they know what they are doing and they are able to control their actions. Although at one stage Dr Skinner did say that those in a fugue state could not act voluntarily because they are not fully aware of what they are doing, that was before I had told the jury what I would be saying the law was. Whatever Dr Skinner meant by “voluntariness” at T:178 , when she was asked about voluntariness in the terms which I will be putting to the jury, she gave evidence from which the jury are entitled to conclude that those in a fugue state are capable of acting voluntarily in the sense that they know what they are doing and they are able to control their actions.

67 That is one of the reasons I intend to tell the jury that the real issue in this case is voluntariness not whether Dr Joyce was in a dissociative fugue. The other reason is that such a direction benefits Dr Joyce in the event that the jury conclude the possibility that he was in a dissociative state but one which did not amount to a dissociative fugue a possibility raised by Dr Woods.

Finally – The Bench Book

68 After the Crown Prosecutor referred to the Bench Book published by the Judicial Commission (it no longer being a secret document) I had occasion to look at it. Whilst I found it helpful, I did note that the Bench Book says, at 6-280, note 4, that:

“Where an issue of automatism is raised, the Crown may, however, raise mental illness and must establish it beyond reasonable doubt”

69 This is at least misleading. If the passage is intended to suggest that automatism must be negatived by the Crown beyond reasonable doubt (which is a correct statement of the law) it does not do so. If it means, as it appears to say, that where the crown raises mental illness it must establish this beyond reasonable doubt it is, I believe, wrong. It is contrary to what was said in R vYoussef and represents the argument run, and lost, in R v Ayoub. Nothing in Falconer “at 62-63” supports the statement. It requires amendment.

Annexure

R v JOYCE

QUESTIONS FOR THE JURY

70 (1) Has the Crown proved beyond reasonable doubt that Dr Joyce was driving voluntarily?

• If “yes”, (assuming all the other elements are also proved beyond reasonable doubt), then Dr Joyce is guilty.

• If “no”, Question 2 arises.

71 (2) Are you satisfied on the balance of probabilities that Dr Joyce was acting involuntarily whilst behind the wheel of his car because of his bipolar disorder AND that his bipolar disorder was a disease of the mind?

• If “yes”, Dr Joyce is not guilty on the grounds of mental illness

• If “no”, Dr Joyce is not guilty.

Definitions

Voluntariness

72 A voluntary action is one:

• which is consciously chosen

• with an awareness of what the person was doing

73 Another way of looking at the question of whether Dr Joyce’s actions were voluntary is to ask yourself: were Dr Joyce’s actions the product of his will? An action done by a person who is conscious of what the action is, and who consciously chooses to do that action, is something which is the product of his or her will and thus done voluntarily.

Disease of the mind

74 A “disease of the mind” is a disease which effected a person’s mind to the extent that his mind was disordered, leading to him suffering a defect of reason.

75 A person can have a disease of the mind without any physical sign in his or her brain. It is not necessary that the effects be permanent.

76 Mere anxiety, excitability, sadness, or feelings of stress are not diseases of the mind, they are emotions felt by a normal mind.

77 A disease of the mind involves a disorder of understanding and thinking of a serious kind, quite different from normal variations of personality, attitude or conduct.

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