Donyadideh, A.A. v The Queen [1995] FCA 572

It was common ground at the trial that Mr Donyadideh continued to suffer both mental and physical effects of his torture. The only significant issue at the trial was whether or not these effects extended to the point of causing him to enter a state of automatism during the attack. Four psychiatrists were called at the trial, two by the Crown and two by the defence. The whole incident occupied only about 6.5 minutes. A substantial proportion of the appellant's actions during this time was recorded on the videofilm. This film constituted a major component of the foundational material of the witnesses, along with the police record of interview, and, in the case of the defence witnesses, the history they obtained from him and their impressions on examination. Mr J Purnell, counsel for Mr Donyadideh, pointed out to us that, at the trial, it was accepted by both the Crown and the presiding judge that the evidence raised issues of dissociation and automatism. He submitted that, once these issues were raised, it was incumbent on the Crown to prove beyond reasonable doubt that the appellant was not in such a condition of automatism/dissociation that his will was not controlling his actions. Counsel referred to Mr Donyadideh's history, about which there was no issue at the trial. Mr Donyadideh suffered horrifying treatment in Iran. He spent a year in solitary confinement and endured physical torture on numerous occasions. The torture caused him to lose a testicle and led to the amputation of the toes, and removal of the fatty pads, on his right foot. His fiancee was executed because of his failure, at one stage, to surrender himself to the authorities. Mr Donyadideh has constant pain in his right foot, especially when walking, and frequent abdominal pains, with vomiting, and migraine headaches. He suffered bouts of amnesia prior to 6 April 1992 and at least one incident of dissociation. Apparently, he regularly experienced sleep disturbance and major depression with melancholia. On 6 April 1992 he was on medication. He was taking four different drugs, one for each of four complaints: migraine headaches, vomiting, depression and pain. There was evidence that this "cocktail of drugs", as it was described at the trial, may dull mental functioning. Mr Donyadideh gave evidence at the trial. He said that he recalled leaving Sydney in a van, to travel to Canberra for the demonstration. He said he was not in a normal condition; he could not make any decision of his own. He could only recall being in the van "coming for a peaceful demonstration". He remembered placards being prepared, apparently by others. He said it was daylight when they arrived in Canberra. He remembered the van driving to a place where somebody said "This is the area of the Embassy". When he heard this, "a special sort of scare and fear took over me". The people in the van got out. Mr Donyadideh said he might have taken a screwdriver to defend himself. He was not sure about this. The others started to run towards the Embassy and he did too. He said he "saw the camera", apparently the television camera, "and this caused me further stimulation". As they approached the Embassy, he saw the official Iranian symbol, the symbol that had been worn by the Sepah Passdram (the secret police) who used to torture him in gaol. When he saw the symbol - "the entire events of the past came to my mind and I found myself again that I am inside a cell and the place where I was tortured. This much I remember that I made a scream."

The next thing he remembers, he said, was speaking to a journalist at a detention centre after the incident. During the course of his submissions, Mr Purnell referred us to the critical parts of each psychiatrist's evidence. He recognised that, if there were divergent opinions on the question whether Mr Donyadideh suffered a state of automatism during the attack on the Embassy, it was for the jury to choose between them; in that situation it would be extremely difficult for him to make good any of his grounds of appeal. So he undertook the task of persuading us that, when the evidence was carefully analysed, all four psychiatrists accepted at least the possibility of automatism at the critical time. His argument was that, if each of the psychiatrists accepted that possibility, whether or not it was that psychiatrist's preferred position, there was no expert opinion capable of discharging the Crown's burden to prove beyond reasonable doubt Mr Donyadideh's control of his actions.

In considering Mr Purnell's references to the evidence, we need spend little time on that of the two psychiatrists called for the defence. Each strongly supported automatism. Professor Robert Finlay-Jones, who was Professor of Forensic Psychiatry at the University of New South Wales, Director of Forensic Psychiatry for the Eastern Sydney Area Health Service and a visiting consulting psychiatrist at the Long Bay prison hospital, said he had "concluded with reasonable medical certainty" that Mr Donyadideh's "actions were not connected with his will" during the period of the attack. He gave extensive reasons, emphasising the significance of evidence given to the Court of a prior incident of dissociation. The other defence witness, Professor Derrick Silove, was Professor of Psychiatry at the University of New South Wales and Director of the Academic Mental Health unit. After referring to the material he had seen, he expressed the opinion that Mr Donyadideh "was in a dissociated state. That is the most likely explanation for his behaviour and as such I don't believe his will was controlling his actions". The evidence of the Crown witnesses requires more extensive analysis. The first witness was Dr William Barclay, a psychiatrist in private practice but with extensive hospital experience. Dr Barclay has several post-graduate awards and fellowships. He has practised psychiatry since 1957. The Crown prosecutor, Ms F Hampel, referred Dr Barclay to a diagnosis of Mr Donyadideh made at Concord Hospital before 6 April 1992 that referred to post traumatic stress disorder and depression. Dr Barclay said he thought this was "a fair and reasonable diagnosis and justified by the facts and the history that the man presented". He described post traumatic stress disorder, making it clear that, although it is a serious condition, it does not necessarily involve dissociation. But he added: "... dissociative states are also a common, well, not a common, a complication that occurs of people who have chronic post traumatic stress disorder, in particular. They use dissociation often as a mechanism of protecting themselves against the original horrific event." When asked by counsel to explain dissociation, Dr Barclay said it took a number of different forms. One of them was connected with conduct: "... when a person who is in a hysterical or dissociated fugue state, they are acting and conducting themselves and that is said to be part of the dissociative state but I think sometimes, certainly, when you see people who are traumatised say by a motor vehicle accident and people will say, 'I went into shock,' and for a period of time they maybe seemingly unresponsive to people speaking to them. Obviously, not paying attention to what is going on around them. And then afterwards they'll say, 'Well, I was just sort of doing things automatically and I wasn't taking much notice of what was happening.' That might sometimes last a few moments to a few hours. They'll say, 'Look, I don't remember much about the time. I was at the hospital', you know. 'Things were going on and I wasn't really paying attention. I didn't seem to take it all in'. So certainly people in a state of acute shock can be in that sort of state."

Dr Barclay was asked about automatism. He defined it as "a condition where the individual is said to (be) behaving automatically without his mind controlling his actions". He said there was a difference between dissociation and automatism; many dissociative states are not accompanied by automatism. Dr Barclay was taken to dissociation caused by a "trigger event such as the bringing back of the memory of the original trauma" and asked whether such a state of dissociation could lead to automatism. He replied: "Well, to me that's the major question as to what constitutes and [sic] automatism and personally I don't think that these states of psychological dissociation cause true automatism because in my opinion all that is occurring is that the individual claims an amnesia for the event but during the period of time that they say they can't remember they are often behaving, or as far as we know, but remember most of the time we only have their word for what happened but they are behaving in an organised, co-ordinated way getting on trains, buying railway tickets, travelling to other places, having a meal, talking to people, so my belief is that during this time they are in fact not in a state of automatism. All that is happening is they are saying, 'I don't remember that period of time'." Dr Barclay added that the person could be saying this genuinely, that "there can be genuine repression of memories for very traumatic events". He said repression may be conscious or unconscious. In a state of automatism, people "are not often fully aware of what is going on around them".

Dr Barclay was referred to the videofilm and asked his opinion as to whether Mr Donyadideh was in a state of dissociation or automatism at the time of the events it depicted. He replied: "I think everything points to the likelihood that he was in some form of dissociation, so far as a dissociate, if amnesia is concerned, and a dissociative anaesthesia is concerned. The evidence suggests that there as [sic] some impairment of his appreciation of pain, and he claims a lack of memory for these events, and that would be consistent with what we know of the underlying cause of his disorder. That he was dreadfully tortured, that Professor Finlay-Jones gets a history from him that after the first year of torture, he seemed to develop some resilience to the horrific experiences he was having. I think he may well have learnt to use a dissociative mechanism, to allow him to tolerate those awful experiences. So, I think from the point of view of dissociation, I would say yes, I think it is likely that there is a dissociative amnesia for a period of time, and for some lesser period of time, a dissociative anaesthesia. However, I do not believe he was in a state of automatism." Asked his reason for this opinion, Dr Barclay replied: "Because to me the straight out observation of the video tape indicates a man whose mind is controlling his actions." Dr Barclay explained: "When you think about automatism generally you can only behave automatically with respect to memories that are already recorded in your mind. You can't do anything that isn't already in your mind, so when you behave automatically you're only able to do things that are in your mind, but of course walking and running and talking and moving your limbs are already well established in your mind so you can do those things fairly automatically. We're all aware of getting in the car and driving to the city and forgetting where we're going and my wife keeps saying, 'Why didn't you take that left hand turn?' and I say, 'Well, I wasn't really think [sic] about it' so we do do things without giving them our full attention and the same applies to automatism. There are lots of things, but you don't acquire new skills, you don't suddenly start playing the piano when you've never done it before, you can't." Dr Barclay said that Mr Donyadideh's amnesia and depression were not inconsistent with this opinion. Under cross-examination, Dr Barclay said he did not think Mr Donyadideh was in a state of dissociation before he reached the Embassy gate; but it was possible he could have been. He reiterated that he did not think Mr Donyadideh's actions, as recorded on the videofilm, were consistent with automatism. But he conceded that he thought Mr Donyadideh was in a state of dissociation during the six and a half minutes attack on the Embassy with respect to impairment of memory and anaesthesia. He mentioned the fact that Mr Donyadideh apparently suffered no pain to his hands despite using them to damage objects, including the motor vehicle referred to in the first count. He also thought it possible that Mr Donyadideh was in a state of dissociation for some time after the attack. Mr Purnell put to Dr Barclay the possibility that Mr Donyadideh was in a state of dissociation before he commenced to run, that he saw the symbol and was then in a state of dissociation and automatism and, after the Embassy incident, remained in a state of dissociation. Dr Barclay replied "Yes, anything is possible, yes, but that is not, I think, what the construction of the situation is". Later, he agreed that dissociation can cause automatism that, in a state of dissociation, acts can occur independently of the will and that the wide-eyed stare exhibited by Mr Donyadideh on the videotape was consistent with both automatism and dissociation as well as anaesthesia and amnesia. The other Crown witness was Dr Bruce Westmore, a forensic psychiatrist in private practice, but also with previous hospital experience. Dr Westmore agreed that Mr Donyadideh suffered post traumatic stress disorder and depression. He said that people suffering this disorder may dissociate and that dissociation can lead to automatism, but that it did not always do so. When referred to the videofilm, Dr Westmore said he saw no evidence that Mr Donyadideh was then in a state of dissociation, although he could not exclude that hypothesis. Asked about automatism, he replied: "Well, again I think there's no real evidence for that. To me, his actions were directive, purposeful, goal specific, quite consistent with his purpose for being there, quite in unison and co-ordinated with his colleagues who were there, and I think those sorts of things make him being in a state of automatism unlikely." Dr Westmore gave reasons for that opinion, by reference to actions of Mr Donyadideh depicted on the videofilm.

During cross-examination, Mr Purnell put to Dr Westmore that he could not exclude the possibility that Mr Donyadideh was acting in a state of automatism during the Embassy incident. He replied: "I do not think anybody can exclude it". He said that anaesthesia was consistent with heightened arousal and that the events depicted on the videofilm showed a condition that was more likely to be heightened arousal than automatism, but he reiterated that automatism was possible. He agreed that anaesthesia was consistent with automatism. Mr Purnell suggested that, with Mr Donyadideh's history, it was possible he was in a state of dissociation and automatism. Dr Westmore agreed this was possible. The cross-examination went on: "Is it true to say that one of the problems that you had on making an assessment was whether you could - in relation to the embassy incident - divide it up into various parts? In other words, perhaps I put that a little unclearly. Were you of the view that there may be times when dissociation and automatism were there, and other times that they weren't? Have I put to you fairly?---Yes, you have. That was your view, was it not, when you committed your view on paper?---Yes, it was. And is that still your view?---Yes, it is. Although if I may, in fairness to all involved, explain it perhaps a little more fully. In the absence of that history - in the absence of the history that we have of him, his experience at the hands of the foreign government, there - and if we just saw the video - there would be nothing in that video which would make me believe he was at any time dissociated or in state of automatism. My opinion is based on knowledge of that past experience as he had and the possibility that such a terrible experience may result in a state of dissociation. But there is no evidence that I have seen on the video or during the records of interview that would support the presence of either a state of dissociation, in a strong way, or automatism. But you don't exclude it though?---No, and that's based on the history." Against this background Mr Purnell submitted that, its duty being to find a verdict according to the evidence, the jury was not entitled to reject unanimous medical evidence unless there was other evidence that could displace or throw doubt on it. He referred to the words of Smithers J in Taylor v The Queen (1978) 22 ALR 599 at 607-608: "... indeed, in respect of a charge of murder where the accused has pleaded diminished responsibility, there is authority for the proposition that where the medical evidence is unchallenged and there is no evidence to the contrary a verdict of murder cannot stand and a verdict of manslaughter must be substituted ... It is clear, therefore, that in a case such as the present the jury should understand that the medical opinions are central to the case for the accused, that they may be sufficient of themselves to prove as a fact what the state of mind of the accused was at the critical time, and that, where they are accepted as honest and competent and are unchallenged, then unless the facts on which the medical witnesses have relied to form their opinions are not satisfactorily established or are contradicted by other acceptable evidence, or the jury are not persuaded that steps of reasoning in the formation of those opinions were soundly taken, or there is some other factor before them reflecting on the validity of the opinions expressed, the jury should not reject or ignore those opinions." Mr Purnell said these words applied to the present case; putting the matter at its lowest, all four psychiatric witnesses agreed that there was a possibility that Mr Donyadideh was in a state of automatism at the relevant time. In her submissions to us, Ms Hampel, counsel for the respondent, accepted that there was considerable common ground between the four experts. She summarised it in this way: ". The Appellant was suffering at the time from Post Traumatic Stress Disorder and depression; . Dissociative States are a common complication in persons suffering post traumatic stress disorder; . A person can dissociate without going into a state of automatism; . A state of dissociation can be triggered by a later event that brings back the memory of the original trauma; . It is possible for a person who suffers a combination of Post Traumatic Stress Disorder and depression to dissociate; . A person who goes into a state of dissociation would be expected to have amnesia for the period of dissociation; . A person who goes into a state of automatism would also be expected to suffer amnesia for the period of automatic behaviour; . Anaesthesia, or imperviousness to pain is consistent with both dissociation and automatism; . Automatism, or automatic behaviour occurs where the mind is not controlling or willing the acts of the person. For behaviour to be automatic it must be repetitious, unconnected with the surroundings, different to normal behaviour; . Behaviour is not automatic if the person's mind is controlling his/her actions; . The Appellant was (or was accepted as likely to be) in a dissociated state at the time his actions were recorded by SBS, namely immediately before his entry into the Embassy grounds, during the time he was in the Embassy grounds, and when he left." She argued, rightly we think, that the divergence between the experts was on the ultimate issue: whether Mr Donyadideh was in a state of automatism or not at the relevant time. She said that Drs Barclay and Westmore were of the opinion that he was not in a state of automatism, Professors Finlay-Jones and Silove that he was. She submitted that the jury was entitled to accept the evidence of Drs Barclay and Westmore and to reject that of Professors Finlay-Jones and Silove: "The test for this court is not whether it would have come to the same conclusion as the jury, but whether, on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty."

If the issue of automatism had to be determined on a balance of probabilities, Ms Hampel's approach would certainly be correct. It is clear that Professors Finlay-Jones and Silove thought it probable that Mr Donyadideh was in a state of automatism at the relevant time and that Drs Barclay and Westmore thought the opposite. Each witness gave reasons for his opinion. If the issue had to be determined on a balance of probabilities, it would have been for the jury to determine which view it preferred; each view was clearly open. The same situation would apply if Drs Barclay and Westmore had gone so far as to deny the possibility that Mr Donyadideh was in a state of automatism at the relevant time. If there had been such evidence, and the jury had accepted it, the Crown would have discharged its duty to prove beyond reasonable doubt that Mr Donyadideh's will controlled his actions. But Mr Purnell's point is that neither witness was prepared to go that far. He says that, without abandoning his personal view that automatism was unlikely, each of the Crown experts accepted the possibility of automatism; and that is enough, because acceptance of the possibility of automatism is inconsistent with proof beyond reasonable doubt that Mr Donyadideh's will controlled his actions. It seems to us that Mr Purnell's submission is sound. Although Drs Barclay and Westmore certainly maintained their opinion that Mr Donyadideh was not in a state of automatism, each conceded the possibility that he was. Dr Westmore did so more readily than Dr Barclay. It will be remembered that, when he first committed his view to writing, Dr Westmore thought there might have been times during the attack "when dissociation and automatism were there" and other times when they were not. That was still his view at the trial. And, although he could not see evidence of automatism on the videofilm or in the records of interview, he agreed that he could not exclude it, because of Mr Donyadideh's history. His position is clearly inconsistent with establishment beyond reasonable doubt of a controlling will; that is, non-automatism. Dr Barclay's evidence presents a greater difficulty for Mr Purnell. He was less forthcoming than Dr Westmore. Clearly, he thought automatism unlikely; even highly unlikely. But he was not prepared to deny the possibility of automatism; understandably so, because he was of the opinion that Mr Donyadideh was in a state of dissociation during the attack and dissociation can cause acts independently of the will, that is automatism. Moreover, Mr Donyadideh's wide-eyed stare, anaesthesia and amnesia were all consistent with automatism, although not probative of it. Our analysis of the psychiatric evidence leads us to the conclusion that all four witnesses accepted the possibility, at least, of automatism. That possibility is inconsistent with proof beyond reasonable doubt that Mr Donyadideh intended to perform the actions the subject of the charges. That being so, there was no expert opinion capable of satisfactorily sustaining the jury's verdict. The jury's verdict is, at least, unsafe and unsatisfactory. It ought to be set aside on that ground. The order of the Court will be that the appeal be allowed, the convictions on counts 1, 3 and 5 of the indictment quashed and the sentence pronounced by the trial judge set aside. In lieu thereof we will order the entry of a verdict of not guilty in respect of each of the three counts. I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment of the Court. Associate: Dated: APPEARANCES Counsel for the Appellant: J Purnell Solicitor for the Appellant: Maliganis Edwards Johnson Counsel for the Respondent: F Hampel Solicitor for the Respondent: Commonwealth Director of Public Prosecutions Dates of hearing: 12 April 1995