R v Manly No. SCCRM 95/151 Judgment No. 5205 Number of Pages 12 Criminal Law and Procedure

[1995] SASC 5205

COURT IN THE COURT OF CRIMINAL APPEAL OF THE SUPREME COURT OF SOUTH AUSTRALIA COX(1), PRIOR(3) and LANDER(2) JJ

CWDS
Criminal law and procedure - appeal - murder - trial by Judge Alone - reasons for finding accused guilty - defence of sane automatism - whether Judge reversed onus of proof. R v Falconer (1990) 171 CLR 30, considered, R v Radford (1985) 42 SASR 266, applied.

HRNG ADELAIDE, 20 July 1995 #DATE 22:8:1995 #ADD 20:9:1995

Counsel for appellant:     Ms E Nelson QC

Solicitors for appellant:    Hannaford and Associates

Counsel for respondent:     Mr S A Milsteed

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed

JUDGE1 COX J The circumstances of this appeal are described in the reasons of Prior J which I have had the advantage of reading.

2. The appellant was tried in this Court by Judge alone on a charge of murder. His defence was that his repeated stabbing of the victim was involuntary, or unwilled, by reason of his dissociated mental state at the time. Dissociation is a known psychiatric condition which in rare cases may support a defence of sane automatism without at the same time raising an issue of insanity. The recent case of The Queen v Falconer (1990) 171 CLR 30 discusses some of the practical and legal difficulties and possible consequences that are associated with such a defence. In the present case the appellant relied on his own evidence of what he did and of what he could or could not recall of the events leading up to and immediately following the killing and on the evidence of a psychiatrist, Dr Clayer. It must be said that Dr Clayer's evidence was far from satisfactory. His answers frequently lacked precision and clarity despite their self indulgent length. The distinction between dissociation itself and its variable or invariable symptoms, and between different categories of dissociation, was not made clear. There were passages in Dr Clayer's evidence that suggested that any state of dissociation that the appellant was experiencing when he killed the victim may have been the result of mental illness, but on this and other important questions Dr Clayer did not make his position plain. Indeed, his frequent references to dissociation as a "possibility" in this case might lead one to conclude that his adoption of the diagnosis was less than wholehearted. Nevertheless the Crown had to prove voluntariness and I think that Mr Milsteed was right when he conceded that there was a case fit for the learned Judge's consideration on sane automatism. The trial and the appeal were conducted on the footing that the evidence did not raise an insanity question.

3. The learned Judge found the appellant guilty of murder. Her reasons ran to 25 pages. She said at the beginning -
    "In order to return a verdict of guilty, I remind
    myself that each of the elements of the crime must be
    proved beyond a reasonable doubt and that murder
    involves a willed act done with the intention of
    killing or inflicting grievous bodily harm and
    resulting in death."

4. Death and causation were not disputed but issues arose as to voluntariness, intent and provocation. Her Honour dealt with each of those topics at some length. When discussing the evidence of Dr Clayer the learned Judge said -
    "Dr Clayer went on to express the opinion that there
    was a possibility that at the time of stabbing
    Belinda the accused was in a dissociative state.

The defence submitted that the evidence of Dr Clayer
    raised a doubt as to whether the accused's actions
    resulted from the exercise of his will.

Miss Nelson argued that Dr Clayer's evidence as to
    dissociation raised the possibility that there had
    been an overwhelming of the conscious control of the
    will by the subconscious immediately prior to the
    stabbing and therefore the actions of the accused
    could not be considered voluntary.

In my view, however, the evidence of Dr Clayer as to
    the accused being in a state of dissociation at the
    time of the stabbing was unconvincing." (Appeal Book,
    Vol.I, 122)

5. Then, after noting certain evidence of the appellant and considering some more of Dr Clayer's evidence, her Honour said -
    "HAVING CONSIDERED ALL THE EVIDENCE AS TO THIS
    MATTER, I AM NOT PREPARED TO FIND THAT AT THE
    RELEVANT TIME THE ACCUSED WAS IN A STATE OF
    DISSOCIATION. EVEN IF HE WAS, I DO NOT BELIEVE THAT
    IT HAD ADVANCED TO A STAGE AT WHICH IT COULD RENDER
    THE ACTIONS OF THE ACCUSED INVOLUNTARY. I believe,
    however, that Dr Clayer correctly identified the
    various factors which came together to cause the
    accused to react as he did. I am satisfied that the
    accused was in a highly charged emotional state at
    the time that he stabbed Belinda but the evidence as
    to what he did and how he behaved both before and
    after the stabbing, in my view, points to an
    awareness of what he was doing. I am satisfied, and
    find therefore, that the actions of the accused were
    voluntary." (Appeal Book, Vol.I, 125-6) (emphasis
    supplied)

6. Her Honour then dealt with the evidence about intention and concluded -
    "I am satisfied and find that at the time the accused
    stabbed Belinda, he did so intentionally. I find
    that it was his intention, at the very least, to
    cause her grievous bodily harm which is evident from
    the multiplicity and severity of the wounds
    inflicted. I therefore find to the exclusion of
    reasonable doubt that the killing of Belinda was a
    willed and intentional act." (Appeal Book, Vol.I,
    127)

7. There is a real question, to my mind, whether the learned trial Judge misdirected herself on the burden of the proof in the passage set out at pp125-6 of the Appeal Book.

8. The Crown accepted, at the trial and on the appeal, that it carried the burden of proof on the issue of voluntariness. The two sentences on p125 ("Having considered all the evidence as to this matter, I am not prepared to find that at the relevant time the accused was in a state of dissociation. Even if he was, I do not believe that it had advanced to a stage at which it could render the actions of the accused involuntary."), taken at face value, appear to me to reverse the burden of proof on that issue. I do not think that the trial Judge was simply referring here to the evidential burden that rested on the appellant of introducing enough evidence of sane automatism to displace the ordinary presumption of voluntariness and make automatism a real issue in the trial. The sentences imply that it was for the appellant to prove dissociation and, if he succeeded in doing that, to prove that the dissociation was such that it could render his actions involuntary. But it was for the Crown to disprove involuntariness - to prove that the appellant's stabbing of the victim was his voluntary act and to do so beyond reasonable doubt. If there was evidence fit for a jury that dissociation as described by Dr Clayer necessarily negatived voluntariness - and, as I understand it, the Crown's concession embraced that proposition - then the Crown had also to prove that the appellant was not in a dissociated state at the time. It follows that, if dissociation and the appellant's acting involuntarily when he stabbed the victim were reasonable possibilities on the evidence, the charge of murder was not made out.

9. Mr Milsteed submitted that, when her Honour used the words "find" and "believe", she must have meant "find as a reasonable possibility" and "believe as a reasonable possibility", and he pointed to other passages in the reasons where her Honour expressly used the notion of reasonable possibility when dealing with disputed facts relied upon by the defence. It is something of a two-edged sword to show that her Honour used acceptable qualifying language elsewhere in the reasons but not here. And do Judges say that they find or believe something "as a reasonable possibility"?

10. Mr Milsteed also submitted that any appearance of onus reversal was corrected in the rest of the paragraph from which the two sentences are taken. Her Honour made a finding in terms that the actions of the accused were voluntary. However, that is not at all inconsistent with an onus reversal on the matter of dissociation. If it was for the appellant to prove that he was in a state of dissociation and he failed to do that, there could be no impediment to a positive finding that his actions were voluntary. For the same reason the passage on p127 of the Appeal Book cannot be interpreted as correcting an erroneous but mistaken impression created by the two sentences on p125.

11. So far I have been analysing the reasons as though as I were considering the effect on the minds of a jury of a direction expressed substantially in these terms. I am conscious of the possible artificiality of that approach. Obviously the summing up must be read as a whole. Her Honour acknowledged at the outset that voluntariness was one of the elements of murder that had to be proved beyond reasonable doubt, and she could not be expected to keep saying that every time she expressed an opinion about a disputed fact. Furthermore, this is not a summing up to a lay jury but the reasons for judgement of an experienced Judge. It is a nice question how much allowance may be made by reason of that last consideration.

12. I do not think that a jury's verdict of guilty could stand if passages using this language appeared in a summing up without a very clear and comprehensive corrective explanation about the burden of proof that could leave the jury in no doubt at all about the true position. While it may be that the learned Judge did not have a mistaken view as to where the burden lay on the psychiatric defence, the appellant is entitled to rely on the words that her Honour used as providing plausible evidence of error, particularly in view of the fact that, in the related area of insane automatism, the defence does carry the burden of proof. The error, if that is what it was, may have been decisive.

13. For these reasons I do not think that the Judge's verdict can stand.

14. In the circumstances it is unnecessary for me to consider Miss Nelson's other submissions.

15. I would allow the appeal, set aside the conviction and any consequent orders and order a retrial.

JUDGE2 LANDER J I agree with Cox and Prior JJ, for the reasons given, that the appeal should be allowed, the conviction set aside, and that there be an order for a retrial.

JUDGE3 PRIOR J On 19 December 1994, the appellant pleaded guilty to having murdered Belinda Jane Jacob on 30 December 1993. Two months later, a judge of this Court granted the appellant leave to withdraw that plea of guilty. He was tried by a judge alone. That judge returned a verdict of guilty of murder. In this appeal two grounds of appeal are pursued. The first is that the verdict is unsafe and unsatisfactory. The second complains that the trial judge reversed the onus of proof with respect to her finding that at the time Ms Jacob was killed by the accused he then had an intention to cause her grievous bodily harm.

2. The issues pursued at the trial related to the accused's state of mind and the question whether his acts, causing the woman's death, were voluntary. A psychiatrist was called for the defence. On the hearing of this appeal it was conceded by counsel for the Director of Public Prosecutions that the evidence of that psychiatrist raised some evidence of a dissociative state of mind which the prosecution had to exclude if the appellant's acts were to be proved voluntary.

3. The evidence of the psychiatrist, Dr Clayer, was that against what the accused told him on the day of his trial, it was possible that at the time he killed Ms Jacob his mind was in a dissociative state. He also relied upon some of the evidence given by the appellant in trial.

4. Many of the facts were not in dispute. The appellant and the deceased had a relationship which began in August 1993, soon after the deceased had broken off an engagement with another man. The relationship between the appellant and the deceased was turbulent. Between August and December, there were three break-ups of that relationship. The deceased's former fiance was still in contact with her. She saw him during the times when she had broken up with the appellant. In November 1993, she was seeing both the appellant and her former fiance. One thought the deceased's relationship with the appellant was continuing, the other had been told by the deceased that it had ended.

5. The appellant and the deceased broke up for the third time at the beginning of December 1993. The appellant lost his job two days later. He decided to return to his parents' home at Broken Hill. He sought to discuss his relationship with the deceased. She was not prepared to talk to him about it. He went to Broken Hill with a friend, transporting his belongings in a hired vehicle and returning to Adelaide the following day. He saw the deceased again. On 13 December he saw his doctor. The doctor noted that the appellant was suffering from emotional problems. He gave him some advice and prescribed Temasepan in the form of Temaze. The doctor's evidence was that he advised the appellant that his relationship with the deceased appeared to be detrimental to him. Nevertheless, the appellant was back in Adelaide within a number of days, seeing the deceased again and asking if he could stay at her place for a couple of days when he returned to Adelaide in the New Year to look for work. He spoke of going to his sister's house as well.

6. When the appellant returned to Broken Hill, his mother described him as being quiet and depressed, spending most of the time in his room for the first two to three days that he was there. The deceased telephoned him some days after his arrival to tell him that she had met another man. She telephoned some days after that to say that she was going out with him. On Christmas Eve, she telephoned the appellant again, this time telling him of losing money and that she was sleeping with another man. After Christmas, further telephone conversations with the deceased occurred. In one she told the appellant that she loved him and wanted him back; in another, that she hated him and never wanted to see him again. On the same night as she said this, she rang and apologised. The appellant said that at about this time he removed a packet of Sinequan (Doxepin), prescribed for his mother, from a kitchen cupboard, and emptied those tablets into the bottle containing the Temasepan prescribed for him. It was his evidence that he was then contemplating suicide.

7. On 29 December 1993, the deceased's former fiance told her she should not be allowing the appellant to stay with her when he came down from Broken Hill. Subsequently the deceased telephoned the appellant and told him that she did not want to see him again. She asked for her unit key to be mailed back to her. The appellant decided to return to Adelaide. He telephoned his brother some time before 12.30pm on 30 December. The brother said the appellant was crying and upset and told him that he had killed Belinda and taken fifty Sinequan. He told his brother he was at Belinda's. The police were called. They arrived at the deceased's unit at about 12.50pm to find the premises locked. They obtained entry with the assistance of the landlord at about 1.07pm. Belinda was lying on the floor dead, surrounded by a large amount of blood. She had sustained multiple stab wounds to the neck, four to her torso and one to her lower back. The accused was next to her, naked and holding her hand. A pulse was detected. The appellant was taken to the Queen Elizabeth Hospital and treated for a drug overdose. An analysis of his stomach content revealed the presence of Doxepin and Temasepan. The police officers attending the deceased's unit discovered a note book on the kitchen table. There were directions in it as to the location of the appellant's motorcycle in a nearby street. Further down, on the same page, was a note from the appellant reading, "I love you Belinda. Now we are together for ever".

8. In evidence before the trial judge, the appellant said that telephone calls from Belinda made him feel "very depressed and suicidal". He left Broken Hill to see Belinda once more before he died. He spoke of wanting the guilt of his death on her conscience. In order to commit suicide, he took with him the drugs already referred to. He also took a knife, which he had used at work. His evidence was that his plan was to take an overdose of the drugs and then slit his wrists in the shower. He said he had driven his motorcycle from Broken Hill all night, stopping only for petrol, and arriving at his sister's house at about 8 o'clock in the morning. He left his rucksack on the front porch, went to a service station for a Mars Bar and then to a motorcycle shop on the Port Road at Woodville, to order a spare part for his brother's motorcycle, before driving to a street some distance from the deceased's unit. He gave as his reason for not driving his motorcycle to the unit, that the occupier of the unit in which he had first lived when he met the deceased might endeavour to contact him at the deceased's unit if he saw his motorcycle there and thus interfere with his suicide plans. He telephoned Belinda, telling her he was very tired and asking if he could stay in her unit for a couple of hours and sleep because his sister's children were at home and on holidays. His evidence was that his real intention was then to kill himself while Belinda was out of the unit. He arrived at the unit at about 8.45am. He gave evidence of having a conversation with the deceased, before he went into the bathroom, at about 11.50am, to take a handful of tablets. His evidence was that he took somewhere between twenty and twenty-five tablets, washing them down, before going out of the bathroom and having a further conversation with Belinda. He said that some ten minutes later, he went back to the bathroom, before helping Belinda bring in some clothes from off a line outside the unit. Inside the unit reference was made to the deceased's former fiance. This prompted the deceased to "turn nasty". The appellant said she spoke of picking men up from the Casino, taking them home and having sex with them. He said he was very upset, in tears, with a dry mouth and feeling tired and dizzy. He spoke of calling the deceased a slut and being slapped by her for this. He said that she abused him, swore at him, called him names, referred to his earlier suicide attempt and said that he could not commit suicide, even if he wanted to. The next thing he remembered was the deceased going over to the stereo to turn it off, when he lost control of himself and got up and stabbed her. His evidence was that he remembered stabbing the deceased once. Belinda screamed. He covered her mouth with his hand. They both fell to the floor, he forcing his hand inside her mouth to try and stop her screaming. He said he vaguely remembered stabbing the deceased again in the torso, but he did not know how many times. He could not remember stabbing her in the neck. He said all he could remember was that the screaming would not stop. He spoke of not remembering the precise sequence of events but he recalled shutting and locking the door to the unit, closing the blinds and washing his hands. He said he removed clothes from the lower part of the deceased's body. He said he had closed the blinds so that no one would see him take his own life. He had put a note underneath the front door, as well as written the notes already referred to in the note book. He had a drink, screwed the lid back on the cordial bottle and removed his own clothes. He took the remainder of the tablets he had with him. He tried to telephone his mother. The telephone was not answered. He finally succeeded in speaking to his brother. The appellant denied any intention to kill or hurt the deceased. He spoke of having lost control of his temper. In cross-examination, he agreed that he knew when he was stabbing Belinda in the chest that he would, at the very least, cause her serious injury and knew that he would kill her.

9. In his evidence, Dr Clayer described the appellant as having developed a severe form of adjustment disorder of a depressive nature when he was in Broken Hill. Immediately before the stabbing, Dr Clayer saw five factors as having come together. The first was his predisposing personality and how it was responding to his circumstances at that time. The second, according to Dr Clayer, was that the appellant "had certainly entered into a depressive illness ... most aptly described as an adjustment depressive disorder. As a result of that, he had become suicidal in his thinking". The third factor was that the appellant had driven down from Broken Hill on a motorcycle, lacking sleep for some thirty hours, or more. The fourth, was an overdose of drugs. The fifth, the provocation provided by the deceased. It was Dr Clayer's evidence that these five factors caused "an irrational overwhelming surge of rage and aggressive behaviour quite out of character". It was also his evidence that from what the appellant had told him and from the evidence given in court, there was "a possibility that the appellant was in a state of dissociation when the deceased was stabbed". Dr Clayer first said that when he first read the appellant's statements he "sort of put aside the possibility of any dissociation" against the statements being "fairly explicit". However, Dr Clayer said that at later interviews it became quite clear that the appellant only had a vague actual memory of what actually happened. In this context, Dr Clayer was of the opinion that things described by the appellant were more based upon what he had been told by others rather than that he necessarily had an independent recollection for himself of a particular fact or circumstance. Dr Clayer was particularly impressed by answers given by the appellant in cross-examination. To the prosecutor, the appellant said he was feeling groggy, when speaking to the deceased. He spoke of "speaking more clearly" but "everything seemed slower". Dr Clayer's evidence was:-
    "Now I must say that rather took me aback. I only
    read that this morning. Here's a man who's becoming
    increasingly intoxicated by the drugs, yet he
    describes how he felt. He was speaking clearer and
    everything was going slower which does, of course,
    raise a very definite possibility that with the
    increasing stress of the situation that it's
    possible that (the appellant) was starting to enter
    into some form of dissociative state."

10. In returning her verdict, the trial judge said:-
    "The defence submitted that the evidence of Dr
    Clayer raised a doubt as to whether the accused's
    actions resulted from the exercise of his will.

(Counsel for the appellant) argued that Dr Clayer's
    evidence as to dissociation raised the possibility
    that there had been an overwhelming of the conscious
    control of the will by the subconscious immediately
    prior to the stabbing and therefore the actions of
    the accused could not be considered voluntary.

In my view, however, the evidence of Dr Clayer as to
    the accused being in a state of dissociation at the
    time of the stabbing was unconvincing. Despite the
    extensive evidence on the topic of dissociation and
    the various forms in which it manifested, Dr Clayer
    never adequately explained the form which it took in
    this case. His opinion seems primarily to have been
    based on his interview with the accused on 27
    February 1994, in which the accused said that he
    could not remember how the knife had got into his
    hand and spoke of his sparse memory as to events
    that occurred thereafter. Dr Clayer also appeared
    to place considerable weight on the response of the
    accused to a question in cross-examination in which
    he said: `I was speaking more clearly, I was
    clearer, everything seemed slower.'

This was the first (and only) occasion, however, on
    which the accused had ever described his memory of
    the events in that way.

The accused's current lack of memory is, however,
    inconsistent with his written statement (Exhibit
    P20) which was provided to Dr Clayer prior to the
    November 1993 interview. In that statement, the
    accused said (inter alia): `Then I went into a
    silent rage of anger and I lost control of my
    temper and without stopping to think about it I
    pulled a knife out of my pocket and I opened the
    blade. Belinda still had her back to me with a
    CD in her hand.

I put my hand over Belinda (sic) mouth and I
    stabbed Belinda from behind and she screamed
    "Deann" (sic)] And we both fell to the floor.
    I couldn't stop the screaming and I forced my
    hand inside her mouth then stabbed Belinda two
    more times and the screaming still didn't stop.
    Then I lost control and I don't know how many
    more times I stabbed Belinda. I just kept
    stabbing until (sic) the screaming stopped. I
    stood up in shock. I dropped the knife next to
    Belinda and started crying more. I could not
    believe I did this to the woman I loved.'

Dr Clayer agreed that the accused had confirmed the
    contents of Exhibit P20 in November 1994 but said that he
    thought that the accused had qualified his statement to
    indicate that it was a reconstruction. Dr Clayer believed
    that the reconstruction may have extended to the accused's
    description of the way in which the knife found its way
    into his hand. If the accused made the qualification at
    that time, I find it surprising that Dr Clayer did not
    make a note of it, as the accused's memory, or lack
    thereof, was clearly a significant circumstance, even
    allowing for the purpose for which the earlier reports
    were prepared. Whilst I accept that the memory of the
    accused may be less now than it was closer to these
    events, the accused virtually conceded in
cross-examination that what he had told Dr Clayer last year
    must have been based upon his memory of the incident. I
    also formed the opinion in the course of the cross
    -examination of the accused that he remembered much more
    detail of the events surrounding the stabbing than he was
    prepared to admit in the course of his evidence-in-chief.

The accused's evidence in cross-examination (transcript, 393) was as follows:
    `Q. And you told us in cross-examination yesterday that
    you do remember stabbing Belinda in the back from behind.
    A. Vaguely, yes. And in the torso, but I don't know how
    many times.

Q. So you have at least a memory of stabbing her in the
    back.
    A. Yes.

Q. And later, whilst in that kneeling position, stabbing
    her in the chest.
    A. Vaguely, but I don't know how many times.

Q. What was your intention when you put the knife in her
    back.
    A. I don't know. I just lost it. I didn't know what I
    was doing.

Q. You were intending to stab her, weren't you.
    A. I just lost control of my temper.

Q. You were intending to stab her, weren't you.
    A. I don't know. I just didn't think.'

Dr Clayer, understandably, was anxious to find some
    explanation for a hitherto submissive and non-aggressive
    person to behave in such an extraordinarily atypical
    manner. The explanation, however, may well be in his
    diagnosis of the accused's depressive adjustment disorder.
    When asked to describe the symptoms and manifestations of
    that disorder, he said: 'First of all, there would be a
    tendency to tearfulness, there would be a loss of drive,
    loss of energy, very much a sense of hopelessness. He
    would tend to withdraw. He would lose interest in
    activities. I am not too sure whether I should mention
    this, as it wasn't a feature of his illness at the time we
    are talking about, but it is described as being a
    condition in which there can suddenly be a violent
    outburst by a person in whom such an event has never
    occurred before.'

Having considered all the evidence as to this matter, I am
    not prepared to find that at the relevant time the accused
    was in a state of dissociation. Even if he was, I do not
    believe that it had advanced to a stage at which it could
    render the actions of the accused involuntary. I believe,
    however, that Dr Clayer correctly identified the various
    factors which came together to cause the accused to react
    as he did. I am satisfied that the accused was in a
    highly charged emotional state at the time that he stabbed
    Belinda but the evidence as to what he did and how he
    behaved both before and after the stabbing, in my view,
    points to an awareness of what he was doing. I am
    satisfied, and find therefore, that the actions of the
    accused were voluntary."

11. 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. The question for the trial judge, as the trier of fact, was whether the prosecution had disproved the dissociative state referred to by Dr Clayer.

12. Although not raised as a ground of appeal, a matter of immediate concern from the reasons of the trial judge just quoted, is whether in saying that she was not prepared to find the accused was in a state of dissociation, she has reversed the onus of proof. This issue was argued on appeal. It was not for the defence to establish that at the relevant time the accused was in a state of dissociation. Rather, once some evidence was before the court, the prosecution had to disprove beyond reasonable doubt the state of dissociation.

13. In R v Radford (1985) 42 SASR 266 at 272, King CJ said:-
    "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 (1967) 121 CLR 205, per Barwick CJ
    at 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 recognises 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 (Northern
Ireland), per Viscount Kilmuir LC (1963) AC 407 and Lord
Denning (1963) AC 413."

14. In the passage quoted from the trial judge's reasons, there is reference to Dr Clayer's evidence with respect to the dissociative state being unconvincing. It was open to the trial judge to say that she did not accept Dr Clayer's opinion at all. She has said things that suggest that the facts and circumstances upon which that opinion was based were themselves less than convincing, perhaps not credible at all. Her Honour spoke of the appellant virtually conceding that his own memory was the basis of what he had told Dr Clayer in 1994. That suggests a disbelief of the appellant's asserted sparse memory. However, there is no such express finding. She says that the explanation for the appellant's behaviour "may well be" Dr Clayer's diagnosis of the appellant's depressive adjustment disorder and then that she is "not prepared to find that at the relevant time the accused was in a state of dissociation". Putting the matter in that way is erroneous. To find that the appellant's acts were voluntary the trial judge had to exclude a state of dissociation as a reasonable possibility on her view of the facts.The refusal to find that the appellant was in a state of dissociation is language more appropriate for questions of mental illness where an ultimate burden of proof is exceptionally imposed upon the appellant: see Radford 42 SASR at 274-275 and R v Falconer (1990) 171 CLR 30 at 54, 63, 76 and 77, and 86.

15. The evidence before the court raising the possibility of the appellant's actions not being voluntary meant that the trial judge had to reject as a reasonable possibility that the appellant's acts were not voluntary because of any dissociative state. It was submitted that it was proper to read Her Honour's reasons as if she said that she was not prepared to find as a reasonable possibility that the appellant was in a state of dissociation. I cannot infer from the trial judge's reasons that she has done that. It is possible but it is no less possible that her reasons reveal the error of assuming an ultimate or persuasive burden of proof was on the defence with respect to voluntariness and sane automatism. It was open to the trial judge to make a positive finding adverse to the appellant about the truth of the memory loss identified and relied upon by Dr Clayer to introduce the possibility of a dissociative state. What she has said does not make that plain. This Court cannot speculate or rewrite the reasons to accord with the law reflected in the authorities already referred to. The presumption as to voluntariness could have been left to carry the trial into the questions of intention and intoxication had a positive adverse credibility finding been made against the appellant, thus destroying the basis for the possibility of a dissociative state at the relevant time.

16. I regret to have to say that the trial has miscarried. The trial judge's reasons leave one in doubt. The appellant must have the benefit of that doubt with an order allowing the appeal and a retrial. It is not appropriate to deal with the other arguments advanced on the appeal.

17. I would allow the appeal and order a retrial.