R v Falconer

[1990] HCA 49

High Court of Australia|1988-10-09|Before: McHugh JJ

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Court

High Court of Australia

Decision date

1988-10-09

Before

McHugh JJ

Source

Original judgment source is linked above.

Judgment (43 paragraphs)

[1]

The application of the "external factor" test is artificial and pays insufficient regard to the subtleties surrounding the notion of mental disease. As well, there is confusion in the idea of an external factor. A physical blow will readily answer that description. Indeed, in Sullivan [16] , Lord Diplock spoke of "external physical factor" when he said, in regard to what was said by Devlin J. in Kemp:

[2]

I do not regard that learned judge as excluding the possibility of non-insane automatism in cases where temporary impairment results from some external physical factor such as a blow on the head causing concussion or the administration of an anaesthetic for therapeutic purposes. But, it may be asked, why should not a psychological blow resulting from external events result in non-insane automatism? The point was well made by King C.J. in Radford [17] when he said: There is no reason in principle for making a distinction between disturbance of the mental faculties by reason of stress caused by external factors and disturbance of the mental faculties caused by the effects of physical trauma or somnambulism. 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. I appreciate that if it is true that a state of depersonalization or dissociation is not itself a disease of the mind, although it may result from mental illness, the result may be that certain cases of unwilled acts which would formerly have been treated as the result of temporary insanity and would have founded verdicts of not guilty on the ground of insanity, will now result in outright acquittals. I do not see any reason to shrink from that consequence. The consequence of a verdict of not guilty by reason of insanity is detention during the Governor's pleasure. If a person was not morally responsible for the action which is the subject of the charge because that action was an unwilled automatic act, he should not suffer conviction or punishment. If he is not mentally ill and there is therefore no reason to suppose that the act will be repeated, detention for the protection of others is pointless and an embarrassment to the mental health authorities. 1. [1984] A.C., at p. 172. 2. (1985) 42 S.A.S.R., at p. 276.

[33]

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 [41] 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 [42] . 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 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.

[37]

It is a question of fact whether Mrs. Falconer experienced the mental state of dissociation described in the evidence. It is a question of law whether that evidence raised a mental state involving a disease of the mind or natural mental infirmity. It certainly raised no issue of a mind disordered in a way specified in s. 28 of the Code. The question of law is to be answered by reference to those considerations that distinguish between the concept of a sound mind (s. 26) and the concept of a mind that is diseased or infirm (s. 27). Despite the differences directed by the language of the Code, that distinction is based on the same considerations as those that distinguish between the common law concept of a sane mind and the concept of a mind that has a defect of reason due to a disease of the mind: see Hitchens v. The Queen [43] ; Hitchens v. The Queen [No. 2] [44] ; Williams v. The Queen [45] . The distinction has sometimes been expressed in terms of mental states having an external cause and those that proceed from internal causes: Reg. v. Quick [46] . Sometimes the distinction has been expressed by reference to the transient or recurring nature of the particular mental state: Bratty [47] ; Reg. v. Carter [48] ;Reg. v. Meddings [49] . In general terms, a recurring state which involves some abnormality will indicate a mind that is diseased or infirm, but the fundamental distinction is necessarily between those mental states which, although resulting in abnormal behaviour, are or may be experienced by normal persons (as, for example and relevant to the issue of involuntariness, a state of mind resulting from a blow to the head) and those which are never experienced by or encountered in normal persons. That point was made, although in a quite different context, by Dixon J. in Porter [50] , where his Honour observed that the diseased mind is to be distinguished from the "[m]ere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control, and impulsiveness". See also the reference by Sir Owen Dixon in his paper "A Legacy of Hadfield, M'Naghten and Maclean", Australian Law Journal, vol. 31 (1957) 255, at p. 260, to "transient states attributable either to the fault or to the nature of man". And in Radford [51] , King C.J. distinguished between "an underlying pathological infirmity of the mind, which can be properly termed mental illness" and "the reaction of a healthy mind to extraordinary external stimuli".