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 that there was an absence of credible evidence to raise the reasonable possibility as that the acts were performed while the applicant was in a state of automatism and concluding accordingly that the presumption that the acts were voluntary and intentional had not been displaced.

3             The applicant now seeks a review of both conviction and sentence. The sole ground in respect of conviction is that "the verdict was unreasonable and cannot be supported having regard to the evidence" and in respect of sentence that it was manifestly excessive in all of the circumstances. The sole argument presented in respect of the ground challenging conviction relates the magistrate's conclusion concerning the question of automatism.

Factual background

4             The relevant events occurred in the evening of 26 September 2020 at the applicant's house. It was the applicant's birthday and she and her partner had invited friends to join them for a celebration. Although the applicant claimed not to be a regular drinker, she did drink to excess on occasions, and on this day her plan, according to her partner was to "get drunk". Her children had recently been taken into care and this also contributed to her stated intention to become intoxicated.

5            The evidence establishes that the applicant started drinking at around lunchtime on that day. The applicant told police that she had consumed three to four cans of Woodstock, a drink with 10% alcohol by volume. In her evidence before the magistrate, she said that she can remember drinking four to five cans then opening a beer. She also consumed some cannabis, which at that time was a daily habit, as well as some prescription medication. Her partner, Mr Dare, who had also been drinking and consuming cannabis during the day, said in his evidence that she "presented as more intoxicated than" he had previously seen her. His evidence was that she consumed a full ten pack of Woodstock cans during the day, and he had not seen her drink that amount before. His comment was "I didn't even think she could drink like that".

6             Most of the guests arrived later in the day. The guests included the three year old complainant and her mother. They arrived at approximately 5.30pm. The complainant's mother, Ms Miller, a friend of the applicant, noticed that the applicant was very intoxicated, "stumbling and slurring her words". Shortly after arrival, Ms Miller put her child down on the bed in the applicant's bedroom, to watch television. Another child was also in the bedroom. At some point after this, it was noticed that the

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applicant was missing. Mr Dare found her on the toilet in an intoxicated state. His evidence was that "she was rocking all over the place nearly flying off the toilet" and she said "I am wasted. I need to go to bed". He took her to her bedroom and lay her on the bed. The children were still there, and he left the applicant in there with them.

7             Ms Miller's evidence was that she continued to check in the bedroom on her daughter, including after the applicant was left in there. The applicant was lying on top of the bed clothes, while the child was lying under it. On one occasion when she checked, she found her daughter saying "Please stop it Sarah, I do not like it". She heard the applicant, who was on the bed, say "I like it Roxy" and was "moaning and then put her … looked up and then put her head into Roxy's crutch". She said that the applicant then looked at her, making eye contact with her and then lay back down.

8             Ms Miller said that she then walked out of the room and her intention was to gather the rest of her family and leave the premises. She went back to the bedroom a short time later to collect her daughter. She saw the applicant "in the middle of the bed naked so I had to push my son back because she was masturbating". She said that the applicant was completely naked. She gathered her children and left the house.

9             Mr Dare's evidence is that he recalls the child's mother telling him that "Sarah is off her head, pretty much, playing with herself". He went into the room and observed that the applicant had passed out, with one leg in her trousers, one leg half out as if she was trying to change herself. This, of course, was inconsistent with the evidence of Ms Miller, who said that the applicant was naked. Mr Dare said that the applicant was half in and half out of the bed. He attended to her and put her to bed properly. He was asked if he saw any injury on the applicant's face as he was changing her and preparing her for bed. He said he did not see any injury at that point but he also described the applicant as "not right", slurring her words and that "she did not even know I was there".

10           While Mr Dare's evidence in chief was that he did not see an injury on the night in question, the following day he observed that she had "a bruise on the side of her face". However, in cross- examination by the prosecutor with leave, he conceded that he had previously told police that he had noticed a mark on her eye at the time that he was putting her to bed. In evidence, he said that this could simply have been where her arm had been, but also said that the next day "it was swollen and it was black". She also had an injury to her foot. The foot was swollen and she was limping.

11           In her evidence, the applicant denied any recollection of these events. Her evidence was that she can recall nothing between 5.30pm and 10.30am the next morning. She has no recollection of injuring herself that night, and no recollection of the events involving the child in the bedroom.

12 The magistrate accepted the evidence of the critical witnesses, in particular the child's mother and Mr Dare. In relation to Mr Dare, however, she noted that he was intoxicated on the night in question and accordingly indicated that she would exercise caution with his evidence. Her Honour accepted that the applicant's conduct in the bedroom was as described by Ms Miller, and that this amounted to prohibited behaviour as defined by s 21 of the Police Offences Act, in particular an act or behaviour that a reasonable person is likely to find indecent or offensive in all the circumstances. Further, the magistrate was satisfied that the applicant should have known that her conduct was being viewed by another person. These findings are not disputed on this review, and indeed were not the subject of dispute at the hearing before the magistrate.

13          Her Honour also accepted the honesty of the applicant's evidence, including her claim to have no memory of the relevant events. This also is not contentious.

Sane Automatism

14 The critical issue is the question of the applicant's criminal responsibility for the conduct. It is an element of the offence that the applicant acted or behaved in the relevant manner "wilfully and without reasonable excuse". The magistrate, correctly in my view, considered that this required the prosecution to prove that the applicant's actions were voluntary and intentional. If there were any doubt about this, it is resolved by s 36 of the Acts Interpretation Act 1931, which applies the principles of criminal responsibility applicable to a crime under the Criminal Code to a summary offence which involves a "like act or omission". It seems to me that at least s 137 of the Criminal Code satisfies this

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nexus. Hence, under s13 of the Code, the applicant will not be responsible for acts which are not
voluntary and intentional.

15           Automatism is not, strictly speaking, a legal term. It is a word used to refer to a state of mind in which a person performs acts involuntarily and/or of which the person is not conscious. This can sometimes be because of a defect or malfunctioning of the mind, which can be temporary or permanent, but does not have to be. If the defect amounts to a mental disease, and has the consequences described in s 16 of the Code, then the question of criminal responsibility will be dealt with in accordance with the provisions of that section. This is insanity, although where the consequences amount to an automatic state, it is sometimes referred to as insane automatism. However, where the effect and cause do not fall under the definition of insanity in s 16, a mental state in which acts are performed unconsciously or involuntarily is generally referred to as non-insane, or sane, automatism. As Deane and Dawson JJ noted in R v Falconer [1990] HCA 49; (1990) 171 CLR 30, "conditions which 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".

16           A claim that a defendant is not criminally responsible for their actions due to an automatic state, which does not amount to insanity, falls to be assessed under s 13. In Falconer, the High Court made clear that the usual onus and standard of proof apply to this question. In particular, the onus remains on the prosecution to prove beyond reasonable doubt that the applicant's actions were voluntary and intentional. However, in addressing this onus, the prosecution will be assisted by an evidentiary presumption that an act done by an apparently conscious person is done voluntarily. The presumption does not arise as a matter of law, it simply exists because of "ordinary human experience", per Deane and Dawson JJ in Falconer. The practical consequence is that the presumption will remain in place, and assist the prosecution to establish this element, unless there is evidence before the Court which raises involuntariness as a reasonable hypothesis. The requirement of specific evidence about this question was explained in Falconer by Gaudron J:

"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] HCA 2; (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.

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

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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."

17           Of course, if the evidence does raise the question in the manner discussed by her Honour, then the onus remains on the prosecution to satisfy the Court beyond reasonable doubt that the applicant's actions were voluntary and intentional. As Deane and Dawson JJ explained in Falconer, after discussing the reversal of the onus of proof in cases of insanity:

"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."

18           A final aspect of the question of voluntariness concerns the relevance of intoxication. There is no suggestion that the offence in this case requires proof of a specific intent. Accordingly, the law is that evidence of intoxication cannot be relied upon to deny "the voluntary and intentional quality of the act" under s 13 (1), in respect of an offence of basic intent. Snow [1962] Tas SR 271, Attorney-General's Reference No 1 of 1996 (1998) 7 Tas R 293. Of course, if the state of automatism arises from a cause other than intoxication, then the fact that the applicant is also intoxicated will not prevent the defence from raising the s 13(1) issue. It will be a matter of evidence as to whether the automatism arises from the intoxication or another cause.

Psychiatric evidence

19           At hearing, the applicant relied on the evidence of a forensic psychiatrist, Dr Michael Jordan, in respect of the question of voluntariness. Dr Jordan was the only witness to provide medical evidence concerning this question.

20           Dr Jordan's evidence was expressed in a report and by oral evidence. In the report, he opined that "it seems highly likely that she (the applicant) had no control over her actions at the time". The actions he referred to are those of masturbating on the bed next to the complainant. He concluded that "the best explanation for her mental state and level of consciousness through the hours in question is some form of intoxication by the combination of alcohol and cannabis, potentially complicated by head injuries sustained at some point earlier in the evening".

21           However, he also opined that "high levels of intoxication can rarely precipitate unusual behaviour, not under volitional control, with an associated amnesia". The high level of intoxication could have been contributed to by the combination of a significant amount of alcohol and cannabis and potentially, although there was no evidence of this, the ingestion of some other substance. Dr Jordan did not consider that underlying psychological conditions such as PTSD and ADHD, and her ingestion of prescription medication, explained her behaviour.

22           These opinions were canvassed in more detail in his oral evidence. In particular, he dealt with the proposition that the applicant's conduct, and her lack of control and volition, could be attributable to intoxication alone. He said this:

"My, my first reaction was this just straightforward intoxication, but certainly the description of her as she was found approximately 7:30 by her partner in the bathroom on the toilet, and then the subsequent interaction with the young child in the bedroom approximately 20 minutes later I think I worked it out, when she was found placing her face in the groin of the young child and then seen to be masturbating later. I wasn't convinced that could be explained by, certainly at face value what, what she said she had drunk and smoked during that day."

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23           He also observed that the reported conduct of the applicant masturbating on the bed, looking at the complainant's mother and continuing, "sounds like there was no control and no volition". He noted that there is an expectation that even a very drunk person would react differently if not in an automatic state. Dr Jordan opined that there were only two "scenarios" that could explain this level of automatism, one that she had "imbibed some other substance that she was either unaware of or she didn't admit to" and the other that "she may have sustained a head injury or a form of concussion at some point during the evening". He again made it clear that he thought that her conduct was "unlikely wholly explained by powerful intoxication".

24           In cross-examination, Dr Jordan expressed the view that for someone to be in a state of automatism as described in the evidence "is a rare occurrence. I have only had approximately a handful of cases in the last 15 years". He again resisted the suggestion that the conduct could be explained simply by intoxication. He agreed that it would be possible but "highly unlikely". The only other explanation which he offered for the conduct was "some element of sexual deviance that I was unable to unearth". He considered that her conduct which indicated to him a lack of control and volition was "pretty extreme". When it was put to him that she might have consumed more alcohol than that admitted by her, for example "10 cans of Woodstock and then beer on top of that, he said that he would "still be surprised if alcohol intoxication itself would lead to the density of the amnesia and the type of very unusual, uncharacteristic sexual type behaviour".

25   Dr Jordan was asked specifically about the possible contribution of a head injury:

"Yes, thank you. Now Dr Jordan, if there were a head injury which had contributed to the state of automatism, would it be likely that a head injury of that nature would have to be something quite significant? .....Not necessarily. I mean as we know there was some evidence of external injury, but the - even fairly mild concussive cases can lead to, you know, relatively brief periods of automatism such as you might see in an individual who's injured in a sports game etcetera. So you don't necessarily have to have sort of high impact, sort of motor vehicle accident type serious head injuries to necessarily induce an automatic state.

Would you expect though that if there was head injury substantial enough to bring on a state of automatism that there would be other further lasting effects? That the effects would be felt the next day?.....In my understanding she didn't feel particularly well the next day, but the markers of a post- concussion state can be similar to a sort of hungover state, shall we say, from intoxication just from alcohol. Nausea and fatigue."

26   Finally, Dr Jordan's opinion was summarised in this exchange with the magistrate:

"HER HONOUR: So Dr Jordan, I just want to clarify with you what I understand your opinion and evidence to be so that I'm very clear on it. My understanding is that you're saying, look there's a possibility that this is simply from imbibing cannabis and drugs and medication – that's one possibility.

WITNESS: Ah, sorry to interrupt you, your Honour. I think that's unlikely, that, that notion.

HER HONOUR: That, as I understand that you say it's more likely 20 that she has achieved a level of non-insane automatism and the reason you have that opinion is because of the degree of amnesia, the lack of history of either having sexual thoughts towards children or acting in this way previously, and because of the lack of concealment she displayed upon the mother coming in on both occasions. And that- 25

WITNESS: (Indistinct words).

HER HONOUR: Yeah, and if that's the case, the two scenarios you see of her perhaps achieving that state of non-insane automatism come 30 from either perhaps imbibing another subject – ah substance that she's not aware of or doesn't remember, or secondly sustaining a head injury.

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WITNESS: That's correct, your Honour.

HER HONOUR: Alright. So whilst the possibility remains it's just alcohol, drug related, that's not your opinion. Your opinion is that something along the way has got her into this state and your reason for believing she's in that state are those three things that I said.

WITNESS: I think there is an additional factor, but of course being definitive about that isn't easy.

HER HONOUR: The head injury, you mean?

WITNESS: Yes."

Magistrate's reasons

27   Her Honour accepted the evidence and expert opinion of Dr Jordan.

28           It was also accepted that the critical issue was whether the applicant's actions were voluntary and intentional. On this question, her Honour referred to the critical authorities, including R v Falconer. Her Honour noted that there is a presumption, as explained in Falconer, that an act done by a person who is apparently conscious is willed or done voluntarily. Her Honour then considered whether the evidence raised "a proper foundation … that displaces that presumption so that I am not satisfied beyond reasonable doubt that her act was voluntarily and intentional".

29           The magistrate noted that Dr Jordan's opinion that the applicant's loss of control beyond her intoxication depended on either her consuming another substance or suffering a head injury. Her Honour noted that there was no evidence as to the former and in respect of the latter, although there was some evidence that could potentially suggest a head injury during the course of the night, including in particular, the black eye that she woke with the following morning, no one saw her suffer such an injury. Ultimately, on this question, the magistrate concluded that "the objective evidence on whether she suffered a head injury … is speculative and not credible". Her Honour determined that the absence of credible evidence supporting automatism meant that the relevant presumption had not been displaced. Her final conclusion is summarised in the following paragraphs:

"The argument that she has likely suffered a head injury that has led her to act in an automotive state seems to be based on conjecture and speculation. There is also evidence supportive of the act being voluntary and intentional, such as saying'/ love it Roxy' shortly before the act in question. Her lack of inhibitions is explicable by her intoxication, particularly when looking at evidence of several witnesses who state that she was drunker than they had ever seen her before.

The speculative evidence of the head injury, coupled with the possibility that the cocktail of intoxicants she in fact consumed explaining her conduct and the evidence of the seemingly conscious state she was in very shortly before the act in question, leads me to reject the defence argument."

Discussion

30           With respect, I think that the magistrate has misunderstood the significance of Dr Jordan's evidence, and misapplied the requisite onus of proof. Falconer makes it clear that the onus of proof remains with the prosecution, and the onus will not be discharged if the Court is left with a reasonable doubt. The presumption referred to does not change that onus, it simply addresses the evidence by which the prosecution proves, in most circumstances, that an act was voluntary or intentional. However, where there is credible evidence which raises a reasonable hypothesis consistent with innocence, then the onus remains on the prosecution to establish that the acts were voluntary and intentional.

31           Her Honour was clearly concerned that the evidence raising sane automatism was not credible. In this regard, her Honour focussed almost exclusively on whether there was adequate evidence of a head injury. The reasoning was thus: Dr Jordan says there has to be something more than intoxication

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to account for the applicant's condition. This could be the consumption of some other substance or a head injury. There is no credible or direct evidence of a head injury, therefore there is no evidence to raise a reasonable doubt sufficient to rebut the presumption of voluntariness. The only remaining option is self-induced intoxication.

32           The magistrate's reasoning conflated the need for credible evidence to raise sane automatism with the application of the onus of proof. Dr Jordan's evidence was, in my view, sufficient to raise a reasonable doubt as to whether the applicant's actions were voluntary and intentional. His opinion was that the evidence supported the applicant being in a mental state at the time of the relevant acts in which she was not conscious of what she was doing, and she had "no control over her actions at the time". Critically, he rejected the proposition that the applicant's level of disinhibition and lack of control could be explained by intoxication, even intoxication of a very significant level. The magistrate's scepticism concerning the applicant's intoxication can be readily understood. However, this was not a case where there was an absence of expert evidence to address the question of voluntariness. The expert took into account the evidence of intoxication, but the fact remains that the only rational conclusion from his evidence was that there was another factor in play, which could have been imbibing some other substance or a head injury. He considered that even a relatively modest head injury could cause temporary automatism sufficient to explain the applicant's actions. The magistrate's focus on the absence of direct evidence of a head injury, ignored the fact that the reasonable possibility of this as an explanation for the applicant's state arose by inference from the conclusions of Dr Jordan, supported by the fact that the applicant woke the next day with a swollen black eye. It is not to the point that Dr Jordan said a number of times that he could not explain how the applicant got into that state, the absence of direct evidence of a head injury meant that he was not able to provide that explanation. However, the onus was not on the defence to prove the existence of a head injury as a positive fact. Having raised a reasonable possibility that the applicant's actions were not voluntary and intentional and that the state which led to that outcome was attributable to a concussion from a head injury, the prosecution had the onus of excluding that possibility, thereby leaving self-induced intoxication as the only reasonable explanation. The prosecution did not discharge that onus. For example, it did not call any contrary medical evidence, nor did it attempt to demonstrate the negative of the proposition concerning the head injury, that is that the bruised eye was not explained by her suffering a head injury prior to committing the relevant actions.

33           The prosecution simply did not discharge its onus of proof in this case. In my view, it was not open to the learned magistrate to conclude otherwise. It follows that the review must succeed on the ground in respect of conviction. The ground relating to sentence does not require determination. The orders I make are that the magistrate's finding of guilt be set aside, a finding that the complaint has not been proved by substituted, and the sentencing orders be quashed.