Wilson v Judges - [2025] TASSC 10

[2025] TASSC 10

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Wilson v Judges [2025] TASSC 10
PARTIES:	WILSON, Sarah Louise
v
JUDGES, Senior Sergeant Russell
FILE NO:	3240/2023
DELIVERED ON:	12 March 2025
DELIVERED AT:	Launceston
HEARING DATE:	5 February 2025
JUDGMENT OF:	Brett J
CATCHWORDS:

Criminal law – General matters – Criminal liability and capacity – Defence matters – Automatism – Applicant found guilty of being naked and masturbating next to three-year-old child – Defence raised possibility of involuntariness attributable to concussion from head injury – Forensic psychiatrist’s evidence raised reasonable doubt as to whether actions were voluntary and intentional – Magistrate misapplied onus of proof by focussing on credibility and adequacy of evidence of head injury – Onus of proof remains on prosecution to exclude possibility of involuntariness where reasonable hypothesis of automatism raised.

Aust Dig Criminal Law [2045]

Legislation:
Criminal Code 1924, s 13, s 16, s 137
Police Offences Act 1935, s 21
Community Protection (Offender Reporting) Act 2005

Acts Interpretation Act 1931, s 36

Cases:
R v Falconer [1990] HCA 49; (1990) 171 CLR 30
Snow [1962] Tas SR 271

Attorney-General's Reference No 1 of 1996 (1998) 7 Tas R 293

REPRESENTATION:

Counsel:

Applicant: K Abercromby
Respondent: A Gilliard

Solicitors:

Applicant: Tasmania Legal Aid
Respondent: Director of Public Prosecution

Judgment Number:	[2025] TASSC 10
Number of paragraphs:	33

Serial No 10/2025 File No 3240/2023

SARAH LOUISE WILSON v SENIOR SERGEANT RUSSELL JUDGES

REASONS FOR JUDGMENT

Brett J
12 March 2025

1 The applicant was charged with one count of prohibited behaviour, contrary to s 21 of the Police Offences Act 1935. The particulars of the charge were that she had, wilfully and without reasonable excuse, done an act, in particular being naked and masturbating on a bed next to a three year old child, with other guests present in the house. On 20 February 2023, after a hearing, Magistrate Edwards found the charge proved, and subsequently sentenced the applicant to eight weeks' imprisonment, wholly suspended for a period of twelve months, with a Community Corrections Order for a duration of twelve months. Her Honour also placed the applicant on the register pursuant to the Community Protection (Offender Reporting) Act 2005.
2 At hearing, the applicant did not contest the evidence upon which the prosecution relied to prove that she had committed the act in question, but claimed that the evidence established a reasonable possibility that the said act was not voluntary and intentional, because she was in a state of sane automatism at the relevant time. The applicant called a forensic psychiatrist to support this proposition. The prosecution countered this claim with evidence that the applicant was in a state of self-induced intoxication, that this explained her actions, and that self-induced intoxication cannot rebut the presumption that her acts were voluntary and intentional. However, the prosecution did not call any expert evidence to contradict that presented by the defence expert. The magistrate agreed with the prosecution, finding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wilson v Judges

Details

AGLC: Wilson v Judges [2025] TASSC 10
Case: [2025] TASSC 10
Decision Date: 12 March 2025

CaseChat Overview and Summary

Wilson was convicted for being naked and masturbating next to a three-year-old child. The respondent raised the possibility that the applicant's actions were involuntary due to a concussion from a head injury. The case reached the court, which had to determine whether the applicant’s defence of automatism was sufficient to raise a reasonable doubt. The court examined whether the applicant's actions were voluntary and intentional, considering the forensic psychiatrist's evidence. The magistrate was found to have misapplied the onus of proof by focusing on the credibility and adequacy of the evidence of the head injury, instead of assessing whether the prosecution had excluded the possibility of involuntariness. The court emphasised that the onus of proof remains on the prosecution to exclude the possibility of involuntariness where a reasonable hypothesis of automatism is raised.

The court found that the magistrate's approach to the evidence and the application of the onus of proof was flawed. The court held that once a reasonable hypothesis of automatism was raised, it was for the prosecution to prove beyond reasonable doubt that the applicant's actions were voluntary and intentional. The magistrate's focus on the credibility and adequacy of the evidence of the head injury was misplaced, as the central issue was whether the applicant's actions were voluntary and intentional, not the cause of the head injury. The court found that the magistrate’s approach led to an incorrect application of the law, resulting in an unfair trial for the applicant. The court quashed the conviction and ordered a retrial, directing that the onus of proof be correctly applied in accordance with established legal principles.

Orders