R v Eriksen (No 6)

Category: Procedural rulings

Parties: The King (Crown)
Anthony Eriksen (Accused)

Representation: Counsel:
D Boyle & P Mulvihill (Crown)
Self-Represented (Accused)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Self-Represented (Accused)

File Number(s): 2023/00113797

JUDGMENT

1. On 9 April 2023 Lisa Fenwick (“the deceased”) died as a result of numerous stab wounds. Anthony Eriksen (“the accused”) is charged with her murder.

2. The accused entered a plea of not guilty. He elected to be self-represented during the proceedings. On 28 April 2025, the accused indicated that he intended to rely on the defence of “sane automatism by dissociation”. That is, he said his defence to the charge of murder was that at the time of stabbing the deceased, he was sleepwalking. [1] The accused accepted he stabbed the deceased. He denied it was a voluntary or wilful act. He also denied that at the time he stabbed the deceased he had the intention to kill the deceased or cause grievous bodily harm.

Relevant principles

3. The defence of sane automatism entitles the accused to acquittal simpliciter or outright acquittal, if the charged act occurred independently of their will by reason of involuntary conduct not arising from a disease of the mind*: R v DB* [2022] NSWCCA 87 at [19] citing R v Falconer [1990] HCA 49; (1990) 171 CLR 30 (“Falconer”).

4. In R v Radford (1985) 42 SASR 266 at 276 King CJ explained the difference between sane automatism and insane automatism as follows:

“The significant distinction is between the reaction of an unsound mind to its own delusions or to external stimuli on the one hand and the reaction of a sound mind to external stimuli, including stress producing factors, on the other hand.”

5. ‘Sleepwalking’ is a “paradigm case of sane automatism”: R v DB at [33].

6. In Falconer Deane and Dawson JJ at 61 characterised the evidentiary requirements of the defence of sane automatism as follows:

“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.”

7. In Woodbridge v R [2010] NSWCCA 185 at [73] Davies J said with respect to the evidential onus of sane automatism:

“73 All that needs to be shown, therefore, for the matter of sane automatism to be left to the jury is that there should be some evidence from which it can be inferred that there is a reasonable possibility that the act of the Accused was not voluntary. The matter to be determined is whether there was any evidence from which it could be inferred that there was the reasonable possibility of an involuntary act. The determination of that issue turned on the evidence of the psychiatrists.”

8. It is clearly established that the evidence required for a jury to make a reasonable inference as to the voluntariness requires evidence more than the assertion of the accused: R v Tsigos [1964-1965] NSWR 1607 at 1630; Falconer at 61.

9. In R v Tsigos Moffit J said at 1630:

“Before such a condition can be considered by a jury as a reasonable hypothesis of innocence, a proper foundation for such an inference must appear. A mere assertion by the accused, such as that “I had a black out” will provide no such foundation…”

10. The availability of medical evidence which substantiates any question of voluntariness has been held to be a paramount factor in deciding whether the evidential onus has been met by the defence: R v DB at [28] and Dragan v R [2010] NSWCCA 329 at [137] both citing Falconer at 61.

11. In Falconer Deane and Dawson JJ said at 61 (emphasis added):

“And it will not be enough for an accused merely to assert that his acts were involuntary or that he suffered a loss of memory. Evidence of his condition at the time of the alleged offence supported by some expert medical opinion will be required before an issue of sane automatism can realistically be said to be raised.”

12. On the same issue of medical evidence Gaudron J said at 83 (emphasis added):

“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.”

The course of events pre-trial

13. After the accused had indicated he was to rely on automatism, he was advised on several occasions that in accordance with the principles I have referred to above, if the issue of sane automatism was to be left to the jury the law required that there must be some evidence, usually expert medical evidence, about sleepwalking and its effects from which a reasonable inference could be drawn that there was a possibility his actions at the time of stabbing the deceased were not wilful or voluntary. [2] The accused was told that it was not enough for him to give evidence that he was sleepwalking at the time he stabbed the deceased. He was told that whilst the Crown at all times bore the onus to prove the elements of the offence of murder beyond reasonable doubt, in circumstances where there was no other evidence from which it could reasonably be inferred that he was not acting voluntarily when he stabbed the deceased, he had an evidential onus in that regard.

14. It was conveyed to the accused that, in the circumstances where there was no other evidence from which the relevant inference could be drawn, for this issue to be left to the jury, he would require some kind of independent evidence which went to the fact that he was sleepwalking at the time of him stabbing the deceased and the possible effects of such a condition on his actions and behaviour. [3]

15. The trial was scheduled to start on 5 May 2025. The start of the trial was deferred, for reasons including to give the accused time to seek to engage an expert to assess him and provide evidence which would go towards his defence. This involved the court adjourning on eight occasions from the scheduled start date.

16. Allowance was made for the fact that the accused was self-represented, in custody and the attendant difficulties he faced in contacting potential expert witnesses. The Crown collated and copied material and sent it on the accused’s behalf to one potential expert, Dr Anup Desai from the Sydney Sleep Clinic to facilitate a prospective assessment of the accused. [4] Dr Desai ultimately declined to provide an assessment. That was, the accused said, because Dr Desai said there was no evidence provided to him that the accused had been asleep. [5] The accused was also allowed to appear via AVL on several occasions in order to maximise his access to facilities available to him at the prison to allow time to research and contact prospective experts.

17. In total, six full days were vacated from the scheduled start of the trial on 5 May. On 22 May the trial was adjourned to commence on 10 June 2025 to allow time for the accused to prepare, fully review the material disclosed by the Crown in the brief of evidence and attempt to contact expert witnesses.

The course of the trial

18. A jury was empanelled on Tuesday 10 June 2025.

19. On Tuesday 17 June 2025, towards the end of the Crown Case, I directed that a voire-dire be held where the accused was to identify any fact or matter in the pre-trial material disclosed by the Crown and from the evidence it had led and intended to lead, from which an inference could be reasonably drawn that it was possible when he stabbed the deceased he was not acting voluntarily. This exercise was necessarily limited given the Crown Case was not closed, and the accused was under no obligation to point to the evidence, if any, he intended to lead.

20. The accused identified the following from the evidence tendered in the Crown Case to that point:

(a) Photos 50 and 51 from exhibit O. The first photo is of a blood-stained light switch and the second is a close up of the blood stain. The accused submitted that given he slept naked the photos would allow a jury to draw an inference that he was naked before entering the door and putting his bathrobe on which hung on the back of the door. The difficulty for the accused with this submission is that there was at that time no evidence that he slept naked either generally, or on the day of the alleged murder. (b) Photos 58 and 59 from exhibit O. Again, the first photo is of a blood-stained light switch and the second a close up of the blood stain, this time in the accused’s study. The accused submitted that this allowed the inference that he entered the study to get his phone to call triple-zero. Whilst that may be true, even if that inference was accepted, it leads nowhere with respect to him sleepwalking or otherwise acting in an involuntary way when he stabbed the deceased. (c) The body worn footage of Constable Jake Soutter. Relying on the transcript of the exhibit (MFI 28) the accused pointed to the fact he responded to several of the constable’s questions immediately with “I don’t know”, “it just happened” and “I don’t know, it just happened”. When asked whether he remembered it “getting physical” he responded with “no”. Additionally, when queried as to whether any weapons were used he said “no”. He submitted that this evidence supported the inference that he had memory loss or amnesia of the incident. He submitted this went to his state of consciousness and thus whether his actions in stabbing the deceased were wilful and voluntary and his intention (or lack of) at the time. (d) The body worn footage of Constable Stokes. Relying on the transcript of the exhibit (MFI 29), the accused pointed to the fact that when asked whether he was wearing his bathrobe when the stabbing occurred he responded, “I don’t remember what I was wearing”. When queried again as to whether, when he was having the argument with the deceased, he was wearing the bathrobe he responded, “I don’t recall, I just don’t remember”. He submitted these answers also enabled an inference to be drawn that that he had memory loss or amnesia of the incident.

21. I formed the view that none of the evidence in the Crown case identified by the accused would allow the inference to be drawn that there was a reasonable possibility that the accused was not acting voluntarily when he stabbed the deceased. As I said to the parties at the time, my decision then was necessarily preliminary. [6]

The close of the Crown case

22. Subsequently, after the close of the Crown Case the accused elected, as was his right, not to lead any evidence. Given this decision, in following with my preliminary view, and with no other evidence in the Crown case being identified, I confirmed as final my preliminary view that there was no evidence from which an inference could be drawn that that there is a reasonable possibility his actions at the time of him stabbing the deceased were not wilful or voluntary. [7]

23. As to the matters in [20]:

(a) There was no evidence that the accused slept naked. Even if there was, the photos he referred to showed no more than a blood-stained light switch. These photos could not support an inference that he slept naked and that he got out of bed whilst sleeping and put on a robe after stabbing the deceased. There is nothing in the photos which would enable an inference to be drawn that a robe was hung on the back of the door. Even if the photos supported the submissions of the accused, they could not support an inference that it was reasonably possible he was not acting voluntarily when he stabbed the deceased; (b) For the reasons stated in [20](b) above, these photos did not allow the relevant inference to be drawn; (c) Absent other independent evidence as to the link, or possible link, between the accused not having a recollection of why the argument happened or whether he was armed with a knife and some condition effecting the voluntariness of the accused’s actions, the evidence he referred to does not enable the relevant inference to be drawn. Taking the evidence at its highest, it could only support a finding that he did not remember those things, not that he was acting as an automaton at the time he stabbed the deceased; and (d) Similarly to (c), evidence that he did not remember if he was wearing his bathrobe when arguing with, or when he stabbed, the deceased even taken at its highest, without more, does not support the relevant inference.

24. It was for these reasons that I refused to allow the issue of whether the accused was not acting voluntarily or wilfully at the time he stabbed the deceased to be left to the jury.

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Endnotes

Tcpt, 28 April 2025, 3.9

Tcpt, 5 May 2025 4.16, Tcpt, 9 May 2025 76.42, Tcpt, 14 May 2025, Tcpt 91.37 and 94.2.

Tcpt, 15 May 2025 111.25-45.

Tcpt, 7 May, 56.40-65.45.

Tcpt, 9 May 2025 T69.30, Tcpt, 14 May 2025, 88.5

Tcpt, 17 June 2025, 420.1-10.

Tcpt, 19 June 2025, 570.1-10.