R v Falconer

In my view, the approach taken by King C.J. is the approach dictated by the relevant provisions of the Code. At the risk of repetition, a person is not criminally responsible for an act or omission which occurs independently of the will. Dissociation may warrant a conclusion that the act or omission in respect of which an accused is charged occurred independently of his or her will.

The question raised by this appeal is whether the act of shooting occurred independently of Mrs. Falconer's will. If the act of shooting occurred independently of Mrs. Falconer's will by reason of involuntary conduct not arising from insanity, she is entitled to an unqualified acquittal. There is nothing more for the jury to determine. If the evidence requires a jury to consider both non-insane automatism and insanity, the question of involuntary conduct should be put in two stages. That is because each of those states of mind is governed by a different section of the Code and the onus of proving each state of mind falls differently. The jury should first ask itself whether the Crown has disproved, beyond reasonable doubt, non-insane automatism (the onus of proof in relation to that defence being on the Crown). If the Crown has failed to do so, then the accused will be entitled to an unqualified acquittal.

But if the Crown has disproved non-insane automatism, it may have done so, not because the acts said to constitute the offence were voluntary, but because they were the involuntary product of an unsound mind. Thus, if the answer to the first question is in the affirmative, the jury should go on to ask a second question, namely, whether the accused has proved, on the balance of probabilities, insanity within the meaning of s. 27 (the onus of proof in relation to that defence being on the accused since s. 26 presumes every person to be of sound mind). If the answer to that second question is in the affirmative, the jury should acquit but with the rider that the accused was of unsound mind at the relevant time. More precisely, the jury must consider whether the acts constituting the offence were done at a time when the accused was in such a state of mental disease as to produce one of the consequences referred to in s. 27. There is of course a logical difficulty, in those circumstances, in inviting the jury to consider whether the accused was unable, by reason of mental disease, to control his or her actions. However, if "it is alleged or appears that he was not of sound mind at the time when the act or omission alleged to constitute the offence occurred" (the language of s. 653), the appropriate verdict is acquittal on account of unsoundness of mind. In that regard it is apposite to recall the comment of Sholl J. in Reg. v. Carter [18] . Speaking of the section of the Crimes Act 1958 Vict. which provides for acquittal on the ground of insanity and its consequence of "strict custody in such place and in such manner as to the court seems fit until the Governor's pleasure is known", his Honour said:

It is, I think, quite outside the policy of the law to extend the practice of s. 420 to cases where there is no reason to fear any repetition of the crime and no evidence of any brain damage or disease which is likely to give rise to any such repetition. 1. [1959] V.R. 105, at p. 110.

If the jury is satisfied that the acts constituting the offence were done in the exercise of the accused's will and is not satisfied that they were done at a time when he or she was in a state of mental disease (again, this assumes that there is evidence to warrant their consideration of this aspect), it must then consider whether the other elements of the offence have been proved beyond reasonable doubt. If they have been so proved, the proper verdict is guilty.

The question of mental disease was not explored at Mrs. Falconer's trial. As already noted, both psychiatrists considered Mrs. Falconer to be "sane". The state of mental disease referred to in s. 27 implies "an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli": King C.J. in Radford [19] , referring to the relevant authorities, though his Honour was speaking of the M'Naghten Rules. The condition produced by the reactions of a sound mind to external stimuli, including stress producing factors, does not fall within s. 27; it may, however, fall within s. 23, as I have suggested in these reasons. It is in accordance with those principles that the evidence to be adduced on behalf of Mrs. Falconer must be assessed.

In delivering his ruling on the voir dire, the Commissioner said:

In my opinion, the statements in Sullivan [20] and in Hennessy [21] make it clear that in the present case the accused's dissociative state, if it existed, was a consequence of entirely internal factors and not external factors I consider myself, then, bound by authority to rule that automatism is not open as a defence in this case. That statement is understandable in the light of Sullivan and Hennessy but it is open to the criticism made in these reasons that the requirement of an external factor is apt to mislead. In placing emphasis on physical trauma, those decisions fail to meet the point made by King C.J. in Radford that an unwilled act may be "the reaction of a sound mind to external stimuli, including stress producing factors". 1. [1984] A.C. 156. 2. [1989] 1 W.L.R. 287; [1989] 2 All E.R. 9.

In the present case there was evidence that, on a number of occasions, Mrs. Falconer had separated from her husband because of his violence towards her. Early in 1988 she learned of her husband's relationship with another woman and this caused her to become depressed. About two months before she fired the shotgun which caused her husband's death, Mrs. Falconer learned from two of their daughters that their father had sexually assaulted them over a long time when they were younger. Criminal charges were preferred against Mr. Falconer because of these actions, following an attendance by Mrs. Falconer and the daughters at the Sexual Assault Referral Centre. These events had caused Mrs. Falconer great stress and a fear of what her husband might do to her and her daughters when he learned of the charges. Indeed, on 18 August 1988 she applied for a non-molestation order. This was granted. On being shown the order, Mr. Falconer had assaulted her. She was described by a witness as being "emotional and very frightened" during the days preceding the shooting. On the day of the shooting (9 October 1988), according to Mrs. Falconer her husband had entered her home unexpectedly, sexually assaulted her, taunted her by saying that neither she nor her daughters would be believed in court, mentioned a nine year old girl, who had been in the family's care, in such a way as to suggest that he may have dealt with her sexually, and then reached out at her, apparently to grab her by the hair. Mrs. Falconer said that she remembered nothing thereafter until she found herself "standing or crouching" against an archway, with the shotgun by her and her husband slumped on the floor nearby. The shotgun had been kept in a wardrobe; she had no recollection of picking it up or of loading it. This is but a summary of the evidence led at the trial, taken largely from the judgment of Malcolm C.J.

The Commissioner summarized the psychiatric evidence in the following way:

Dr. Schioldann-Nielsen gave general evidence in relation to the state of automatism. He indicated that dissociative automatism can occur suddenly when a normal person is exposed to stress or to trauma.

Such a dissociative state would indicate that a person was no longer aware of what he or she was doing. His or her personality would be disorganized. It was the view of this doctor that the events of the critical day of 9 October 1988 provided the mechanism which would have led to a full blown dissociative state for the accused. She could have then been unaware of what she was doing.

Dr. Finlay-Jones gave more specific evidence. He indicated that although Mrs. Falconer was, in his opinion, sane at the time she committed the alleged offence, he thought she was capable of acting in an automatic way. In his opinion it would be possible to act in an automatic fashion without evidence of external stress. Psychological factors are capable of being a cause for such behaviour and he instanced the behaviour of soldiers in combat.

The doctor did not think, however, it would be enough for there to be mere evidence of psychological stress. He felt there must be evidence of psychological conflict and he felt that evidence of this psychological conflict was present in the case of the accused because of a combination of factors. They included her husband's unfaithfulness, her husband's sexual contact with his daughters and, importantly, the final declaration that he [had] in some way been involved with the child, Erin, who was in the accused's care.

The latter factor he considered to be crucial. He saw a real psychological conflict within the accused because she was in an intolerable dilemma, regarding her husband as a "filthy bastard" on the one hand, as he said, but loving him on the other. This psychological conflict was capable in his view of causing the accused to lose control and act in an automatic way.

The evidence of the psychiatrists, which was not the subject of cross-examination, is set out in greater detail in the judgment of Wallace J. in the Court of Criminal Appeal. But it is enough, for present purposes, to refer to the summary appearing in the Commissioner's ruling, noting the observation of Malcolm C.J., which was not challenged in this Court, that there is no apparent inconsistency between what Mrs. Falconer told the psychiatrists and her evidence at the trial.

In so far as the evidence of the psychiatrists supported a thesis that, at the time she discharged the shotgun that killed her husband, Mrs. Falconer was in a dissociative state, that evidence was relevant to a defence that the act of killing was independent of the exercise of Mrs. Falconer's will. It went further than to raise a mere possibility that, at the time of the shooting of her husband, Mrs. Falconer was acting in a dissociative state. The evidence should therefore have been admitted. Whether Mrs. Falconer's actions were in truth independent of the exercise of her will was a question which should have been left to the jury in accordance with the principles discussed in this judgment.

There is a useful warning in the judgment of Dickson J. in Rabey [22] :

In principle, the defence of automatism should be available whenever there is evidence of unconsciousness throughout the commission of the crime, that cannot be attributed to fault or negligence of his part. Such evidence should be supported by expert medical opinion that the accused did not feign memory loss and that there is no underlying pathological condition which points to a disease requiring detention and treatment. 1. [1980] 2 S.C.R., at p. 552.

I would grant special leave to appeal in this case but would dismiss the appeal.

The facts are set out in other judgments. The first question that arises by reference to those facts is whether evidence that Mrs. Falconer may have been in a dissociative state when she discharged a loaded shotgun, thus killing her husband, raises involuntariness as an issue distinct and separate from insanity. If it does, it is necessary to consider whether insanity is or may also be in issue. And, if insanity is or may also be in issue, it will be necessary to consider what directions should be given to a jury as to the order in which the two issues should be determined and as to the onus and standard of proof applicable to them.

Section 23 of the Criminal Code W.A. ("the Code") relevantly provides that "a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will". (The act which is presently in issue is, for the reasons given by Mason C.J., Brennan and McHugh JJ., the discharging of the loaded shotgun.) In every case the prosecution must prove, beyond reasonable doubt, that the act or omission which is said to give rise to criminal responsibility was accompanied by an exercise of the will. The question whether that has been proved is referred to, in terms which reflect practical considerations rather than the onus of proof, as one of involuntariness.

A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission. By s. 28 of the Code the provisions of s. 27 apply to "a person whose mind is disordered by intoxication or stupefaction caused without intention on his part by drugs or intoxicating liquor, or by any other means".

Like the formulation of the common law defence of insanity in M'Naghten's Case [23] , the Code provisions dealing with insanity or unsoundness of mind direct a two-staged inquiry. The first question is whether the accused had a mental disease or a natural mental infirmity (s. 27) or a mind disordered in one or other of the ways specified in s. 28. If none of these conditions was present, no question of insanity arises. If one or other of the conditions was present, the accused is entitled to escape criminal responsibility if, but only if, the condition was such as to have one or other of the consequences specified in s. 27: see, for example, R. v. Porter [24] ; Willgoss v. The Queen [25] ; R. v. Moore [26] ; Hitchens v. The Queen [No. 2] [27] . And, like the common law defence of insanity, it is for the accused to establish, on the balance of probabilities, the matters which constitute the defence: see s. 26 of the Code. See also Sodeman v. The King [28] ; Armanasco v. The King [29] ; Reg. v. Foy [30] .

1. (1843) 10 Cl. & F. 200 [8 E.R. 718]. 2. (1933) 55 C.L.R. 182. 3. (1960) 105 C.L.R. 295. 4. (1908) 10 W.A.L.R. 64. 5. [1962] Tas. S.R. 35, at p. 49. 6. (1936) 55 C.L.R. 192. 7. (1951) 52 W.A.L.R. 78. 8. [1960] Qd R. 225.

It is clear from the terms of s. 27 of the Code - "such a state of mental disease or natural mental infirmity as to deprive him of capacity to control his actions" - that the defence of insanity or unsoundness of mind encompasses involuntariness when it proceeds from a mental disease or natural mental infirmity. At common law, evidence postulating a mental state that involves a defect of reason due to disease of the mind (i.e. evidence raising the first limb of the common law defence of insanity) raises the defence of insanity but does not raise intent or voluntariness as an issue separate and distinct from that defence: see Hill v. Baxter [31] ; Reg. v. Cottle [32] ; Bratty v. Attorney-General (Northern Ireland) [33] ; Reg. v. Tsigos [34] ; Reg. v. Joyce [35] ; Williams v. The Queen [36] ; Reg. v. Radford [37] . Given that the Code adopts, albeit with those differences imported by its terms, the concepts which the common law selects as determinative of criminal responsibility, ss. 27 and 28 of the Code should be approached on the same basis. Indeed, any other approach would produce results so incongruous that the law would be nonsensical. Thus, evidence postulating a mental state involving a disease of the mind, natural mental infirmity or a mind disordered in one of the ways specified in s. 28 should be seen as raising a defence under s. 27 or s. 28 and not as raising voluntariness or intent as a separate and distinct issue.

1. [1958] 1 Q.B. 277, at pp. 285-286. 2. [1958] N.Z.L.R. 999, at p. 1007. 3. [1963] A.C. 386, at pp. 402-404. 4. [1964-5] N.S.W.R. 1607, at p. 1629. 5. [1970] S.A.S.R. 184, at p. 194. 6. [1978] Tas. S.R. 98, at pp. 102, 109-110. 7. (1985) 42 S.A.S.R. 266, at p. 273.

It is also clear from the terms of s. 23 that the Code postulates that there may be instances of involuntariness which involve no question of a mental disease, natural mental infirmity or a mind disordered in one of the ways specified in s. 28. However, given that the issue of involuntariness cannot arise if it is predicated upon a mental state raising the first limb of the defence of insanity or unsoundness of mind and given the practical considerations soon to be dealt with, the circumstances in which involuntariness will arise as a separate issue are necessarily limited.

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, e.g., Bratty [38] ; Ryan v. The Queen [39] ; and Radford [40] . 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.

1. [1963] A.C., at pp. 407, 413. 2. (1967) 121 C.L.R. 205, at p. 213. 3. (1985) 42 S.A.S.R., at p. 272.

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.

1. [1963] A.C., at p. 413. 2. [1980] 2 S.C.R. 513, at p. 552.

The medical evidence in the present case was that Mrs. Falconer's behaviour (both as observed and as described by her) was consistent with her having experienced a state of dissociation. Such a state, according to that evidence, can occur when a person is confronted with psychological crisis or conflict such as Mrs. Falconer claimed to have experienced on the day in question and results in the segmentation of personality so that a person in that state acts independently of his or her will.

The evidence as to dissociation described a single and particular mental state. It is convenient to observe that a particular mental state either is or is not one that involves a disease of the mind or natural mental infirmity or a mind that is disordered in one of the ways specified in s. 28 of the Code: see Williams v. The Queen. And, of course, the same is true if the consideration is that directed by the common law, namely, whether a particular mental state involves a defect of reason due to disease of the mind.

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".

1. [1959] Tas. S.R. 209, at pp. 249-250. 2. [1962] Tas. S.R., at p. 49. 3. [1978] Tas. S.R., at p. 106. 4. [1973] Q.B. 910, at p. 922. 5. [1963] A.C., at p. 412. 6. [1959] V.R. 105, at p. 110. 7. [1966] V.R. 306, at pp. 309-310. 8. (1933) 55 C.L.R., at p. 188. 9. (1985) 42 S.A.S.R., at p. 274.

The evidence as to dissociation was not extensive, presumably because it was only led for the purpose of obtaining a ruling as to whether it raised involuntariness as an issue separate and distinct from insanity. Even so, the thrust of the evidence was that such a state is or may be experienced by normal persons, albeit only in situations involving intense psychological crisis or conflict. That feature gives that evidence the same quality as evidence that a person may have been concussed by a blow to the head or, to take the examples given in a different context by Dixon J. in Porter , evidence that the person was overcome by passion, lack of self-control, or impulsiveness. Such evidence, because it deals with or is premised on the experiences of normal persons, raises no question of mental disease or natural mental infirmity as provided in s. 27 of the Code and, consequently, raises no question of insanity or unsoundness of mind under that section.

The evidence led in the present case raised no issue of insanity, but it did raise the question whether Mrs. Falconer's act of discharging the loaded shotgun was done independently of her will. It should have been admitted as relevant to that issue and the jury should have been directed to consider whether, in the light of that evidence, the prosecution had proved beyond reasonable doubt that Mrs. Falconer's will accompanied the act of discharging the gun. It should have been explained to the jury that the prosecution would not have proved that issue beyond reasonable doubt if it was a reasonable hypothesis that Mrs. Falconer discharged the gun while experiencing that particular mental state described in the evidence as one that may be experienced by a normal or healthy mind and in which the personality is segmented so that acts are performed independently of the will. And it might conveniently have been explained that that hypothesis would be excluded by satisfaction beyond reasonable doubt either that there is no such phenomenon as the particular mental state described in the evidence or that Mrs. Falconer did not experience it.

There must be a new trial. Although the evidence by reference to which the present application was argued does not raise any issue of insanity it does not follow that insanity will not be raised in the new trial. It may be that the prosecution will assert that, if, at the time of discharging the loaded shotgun, Mrs. Falconer experienced any mental state other than one in which she had acted consciously and deliberately, it was a state (perhaps similar in effect to that as to which evidence was led at the first trial) involving a mental disease or natural mental infirmity. Or, perhaps, the defence will postulate, as an alternative to the mental state of dissociation, some other state which involves a mental disease or natural mental infirmity.

As already indicated, it is very difficult for an accused person to raise a reasonable hypothesis that an act was done involuntarily as a result of some mental state that is or may be experienced by a healthy mind. The practical difficulties of raising that hypothesis are no less (perhaps they are greater) if it must compete with evidence that the accused had some different mental state involving a disease of the mind or natural mental infirmity. Accordingly, in my view, even if involuntariness and insanity are raised as separate and distinct issues, there is no need to modify the ordinary rules as to the onus and standard of proof applicable to each of those issues. As between those issues, the jury should be directed to consider first whether the prosecution has proved its case beyond reasonable doubt by negativing the possibility that the accused was acting involuntarily as a result of some mental state which is or may be experienced by a healthy mind. It should then be directed that, if the first question is answered against the accused (and assuming that the other elements of the offence are established beyond reasonable doubt), it should consider whether there should be a verdict of not guilty by reason of unsoundness of mind. And, of course, it will be necessary to explain that the defence of insanity or unsoundness of mind need only be proved on the balance of probabilities but that the accused bears the onus of proving it.

Special leave to appeal should be granted. The appeal should be dismissed.