R v King [2004] ACTSC 82

Bail Act 1992 (ACT), s 30

Supreme Court Act 1933 (ACT), s 68

Maurice Dixon King by his Litigation Guardian Susan Ann Randall v Mental Health Tribunal and Director of Public Prosecutions [2004] ACTSC 1, 12 January 2004

Maurice Dixon King by his Litigation Guardian Heather McGregor v Mental Health Tribunal and Director of Public Prosecutions [2003] ACTSC 83, 17 October 2003

Lawrence v The King [1933] AC 699

Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444

Lipohar v The Queen (1999) 200 CLR 485

R v Jones [2002] EWCA Crim 2949; [2002] 2 WLR 524

R v Abrahams [1895] VicLawRp 73; (1895) 21 VLR 343

R v Hallocoglu (1992) 29 NSWLR 67

R v Rigney (1988) 48 SASR 72

R v Tran [2003] ACTSC 53

R v Ardler [2004] ACTCA 4, 30 March 2004, Higgins CJ, Gray & Whitlam JJ

R v Falconer [1990] HCA 49; (1990) 171 CLR 30

R v Joyce [1970] SASR 184

R v Radford (1985) 42 SASR 266

Hill v Baxter [1958] 1 All ER 193

R v Cottle [1958] NZLR 999

Rabey v R [1980] 2 SCR 513

Bronnitt & McSherry, Principles of Criminal Law, LBC 2001

Professor Yeo, Power of Self-Control in Provocation and Automatism, 14 Sydney Law Review, March 1992

R v Carter [1959] VicRp 19; [1959] VR 105

H M Advocate v Ritchie [1926] SC (J) 45

Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192

Paul Fairall, Irresistible Impulse, Automatism, and Mental Disease [1981] 5 Crim L J 136

R v Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85

Arrowsmith v The Queen [1994] FCA 1586; (1994) 55 FCR 130

R v Whitmore unreported [1999] NSWCCA 75

R v Elphick [2002] NSWCCA 273

THE COURT is satisfied beyond reasonable doubt that the accused committed the acts which constitute the offence charged, namely that on the 10th day of October 2001 at Canberra he murdered Pamela Ann King.

THE COURT orders that the accused be detained in custody until the Mental Health Tribunal orders otherwise.

THE COURT indicates that if the special hearing had been normal criminal proceedings against a person who was fit to be tried for and convicted of the offence with which the accused is charged, it would have imposed a sentence of imprisonment.

THE COURT nominates a term of 12 years 10 months in respect of the offence charged, namely that on the 10th day of October 2001 at Canberra Maurice Dixon King murdered Pamela Ann King.

1. The accused, Maurice Dixon King, is charged that on 10 October 2001 at Canberra in the Australian Capital Territory he murdered Pamela Ann King, his wife.

2. Mr King was committed to this court for trial and the date of 19 May 2003 was set for the trial to commence. On 4 May 2003 there was an incident where Mr King attempted suicide and was hospitalised. A question arose as to Mr King's fitness to plead and a reference was made to the Mental Health Tribunal for a determination of that issue. The Mental Health Tribunal determined that Mr King was not fit to plead but was likely to become fit within 12 months after the determination. That finding was the subject of challenge and, on appeal to this court, on 12 January 2004 it was determined that Mr King was not fit to plead and was unlikely to become fit to plead within 12 months after 2 June 2003 (see Maurice Dixon King by his Litigation Guardian Susan Ann Randall v Mental Health Tribunal and Director of Public Prosecutions [2004] ACTSC 1, 12 January 2004; Maurice Dixon King by his Litigation Guardian Heather McGregor v Mental Health Tribunal and Director of Public Prosecutions [2003] ACTSC 83, 17 October 2003).

3. The effect of that order is that the court is to deal with this matter pursuant to the provisions of Division 13 of the Crimes Act 1900 (ACT). Section 315 of that Act requires that the court conduct a special hearing. Section 316 provides that a special hearing is to be conducted as nearly as possible as if it were an ordinary criminal proceeding. That section also permits an election to be made by an accused person for trial by judge alone. In the present case, consequent upon a report dated 29 April 2004 by Dr William E Lucas, Consultant Forensic Psychiatrist, I was satisfied that Mr King was capable of making an election to have a special hearing by a single judge without a jury and on 23 April 2004, such an election was made.

4. The purpose of the special hearing is to ensure that, despite the unfitness of the accused to plead in accordance with ordinary criminal procedures, the accused should be acquitted unless it can be proved beyond reasonable doubt that, on the evidence available, the accused engaged in the conduct required for the offence charged (or an alternative offence).

5. The Act provides that, on a special hearing, if I am not satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence if not satisfied in relation to the offence charged), I am to find the accused not guilty of the offence charged and the accused is to be dealt with as if he had been found not guilty at an ordinary trial. On the other hand, if I am satisfied beyond reasonable doubt that the accused engaged in the conduct required, I am to make a finding to that effect. Such a finding does not expose the accused to punishment for the offence in question but it may invoke the provisions of s 319 (2) of the Crimes Act 1900. That sub-section requires the court to order an accused be detained in custody until the Mental Health Tribunal orders otherwise unless, having regard to the criteria in s 308 of the Act, the court is satisfied that it would be more appropriate to order that the accused submit to the jurisdiction of the Tribunal to enable a Mental Health Order pursuant to the Mental Health (Treatment and Care) Act 1994 (ACT) be made.

6. Unless the court otherwise orders, an accused is to have legal representation at the hearing and the determination of fitness to plead is not to be taken as an impediment to such representation. In this case, the accused was represented by Ms Morrish QC and Ms Saunders. The determination of unfitness to plead is not to be taken as an impediment to such representation and the accused is to be taken to have pleaded not guilty in respect of the offence charged.

7. A preliminary question arose as to Mr King's presence during the course of the hearing. Dr Lucas, the psychiatrist appointed by the Mental Health Tribunal in relation to the question of Mr King's fitness to plead, had diagnosed Mr King to be suffering from a major depressive episode amounting to a mental illness. His treating psychiatrist, Dr Stephen Rosenman, was also of the view that Mr King was consistently overwhelmed by psychological stresses particularly in relation to these legal proceedings. These circumstances became exacerbated by the proximity of the proceedings. In Dr Lucas' opinion -

Mr King's mental state makes him unfit to attend the special hearing commencing on 21 June 2004. If he attended I have no doubt that his condition would worsen during the hearing and would remain so for a considerable time afterwards. The risk of another suicide attempt would be heightened and not only in the short term. It is my strong belief that from the psychiatric point of view his attendance at the special hearing would entail unacceptable risks to his mental health and welfare.

Accordingly, application was made for Mr King to be excused from attending the special hearing (s 30 Bail Act 1992 (ACT)). It is to be noted that Dr Lucas' view was predicated on Mr King being present over the whole course of the hearing.

8. The principle that a trial for an indictable offence should be conducted in the presence of an accused was described an essential principle by Lord Atkin in Lawrence v The King [1933] AC 699 at 708. The principle has been referred to with apparent approval by the High Court in Ebatarinja v Deland [1998] HCA 62; (1998) 194 CLR 444 at 454 and Lipohar v The Queen (1999) 200 CLR 485 at 514. In R v Jones [2002] EWCA Crim 2949; [2002] 2 WLR 524 at 527, Lord Bingham of Cornhill said -

For very many years the law of England and Wales has recognised the right of a defendant to attend his trial and, in trials on indictment, has imposed an obligation on him to do so. The presence of the defendant has been treated as a very important feature of an effective jury trial.

9. Whilst the present proceedings are in the nature of what the Crimes Act describes as a special hearing, as such they are to be conducted as nearly as possible as if the special hearing were an ordinary criminal proceeding.

10. Exceptions, however, have been allowed to the principle where, for example, an accused has been unable to be present during the whole of the trial through illness (R v Abrahams [1895] VicLawRp 73; (1895) 21 VLR 343) or where the accused has absconded (R v Hallocoglu (1992) 29 NSWLR 67, R v Rigney (1988) 48 SASR 72). Although R v Jones (supra) considered, without resolving, the question of a court beginning a trial in the absence of an accused, in that case the accused had been arraigned (R v Jones at 526). No case was cited where the accused had not been present on arraignment.

11. It seemed to me that after a consideration of these and other authorities, that as a fundamental principle, in an ordinary criminal trial, an accused person had both a right and an obligation to be present at least at the commencement of that trial. I regarded it as a duty upon a court to ensure that a person knows specifically what is alleged against that person and an obligation to ensure that proper opportunity is given for that person to exercise the right to make answer to those allegations.

12. In light of this, I proposed that Mr King be present at the formal reading of the charge, although not required to plead to it as the legislation deemed his plea to be one of not guilty. I also proposed that Mr King be present for the prosecution to outline in detail what was going to be alleged against him. I proposed to then give him time to raise with his legal advisors such matters as he might be minded to raise with respect to the charge. I was also concerned that he understood his right to be further present during the course of the hearing and be able to exercise that right. On this basis I would then be prepared to excuse his attendance from the rest of the hearing.

13. Whilst Dr Lucas considered that the course that I proposed would affect Mr King deeply, I took it that its effect would not have the adverse consequences that he predicted if the attendance were for the whole of the hearing. At the time that this matter was being argued, Mr King, who had previously been treated as an outpatient at the psychiatric unit of the Canberra Hospital on a daily basis under his bail conditions, was admitted as an inpatient. I was then satisfied on the evidence of Dr Rosenman, Mr King's treating psychiatrist, that the implementation of the proposals that I had suggested could be managed by Dr Rosenman so as to minimise, to the extent possible in the circumstances, the risk to Mr King.

14. The procedure I proposed was followed and the special hearing then proceeded without Mr King being present for other than the reading of the charge and the prosecution opening.

15. In a trial by judge alone, s 68 C (2) of the Supreme Court Act 1933 (ACT) requires that the judgment include the principles of law applied and the findings of fact on which the judge relied. I propose to conduct this trial in accordance with the following general principles -

I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit. (See R v Tran [2003] ACTSC 53 at [4] and [5], R v Collins [2004] 48.)

16. Mr Refshauge SC, the Director of Public Prosecutions, by way of opening said -

[The] accused Maurice Dixon King, who was born on 21 November 1933, is charged in the indictment of murdering his wife Pamela Ann King on 10 October 2001 by hitting her over the head with a metal pipe.

The accused and the deceased have known each other since about 1977 and were married in 1990, each had been married previously and the deceased had five children by her previous marriage. The accused and the deceased moved into the house at 8 Cobby Street, Campbell in the mid-1980s.

In about 1998, the accused retired from full-time employment. At some time in 2001 the accused and the deceased, who were by then living on their own, discussed selling the Campbell home and moving to the Gold Coast in Queensland. The house was put on the market and an agreement to sell concluded in September 2001.

The deceased was severely affected by arthritis in her knees and had limited mobility. She used a chair lift to get to the first floor of the Cobby Street residence.

At around lunch time on 10 October 2001 the accused collected the mail and opened a letter from the couple's stockbroker. In it was a letter from the stockbroker to the accused but also a letter to the deceased which was, in fact, addressed to the deceased's daughter's post office box in Woden. This letter showed that the deceased no longer owned the considerable number of Woolworths shares which she formerly had.

The accused confronted the deceased and an argument developed. The deceased told the accused that she was not moving to the Gold Coast with him. The accused shook the deceased by the shoulders and then left the room. The accused went to the garage on the ground floor of the house. He said to police that he was going to go for a drive. When in the garage he saw some galvanised iron pipe which he'd used to hold up the roses in the front garden. He picked up the piece of the pipe and returned upstairs where he confronted his wife again. He then hit her on the shoulder and on the head a number of times as she ran away from him and continued to hit her after she fell down.

At 1.58 pm, Richard Forshaw, a police communications operator, received a triple zero telephone call from the accused in which he said that he thought he had killed his wife. Police attended at 8 Cobby Street Campbell, the first police officer, Constable Adam McCormack, arriving at 2.05 pm. He found the deceased lying in the lounge room floor face down in a pool of blood, nearby lay the galvanised iron pipe. The deceased had a pulse and was breathing.

Constable McCormack contacted Police Communications with a view to expediting the arrival of an ambulance. The ambulance arrived at 2.08 pm and the paramedics commenced lifesaving procedures. Despite this, the deceased lost her pulse and resuscitation was ceased at 2.46 pm. Life was pronounced extinct at 4.34 pm.

An autopsy on the deceased showed extensive irregular skull fractures and extensive haemorrhaging in the brain. Emeritus Professor Peter Herdson concluded that the head injuries to the deceased caused her death. The accused was arrested, he was briefly interviewed at Cobby Street and the accused admitted hitting the deceased with the iron pipe he had obtained from the garage. The accused was taken to the City Police Station. After being examined by a medical practitioner he was interviewed and again admitted to hitting the deceased with the iron pipe. Later that evening the accused returned with police to 8 Cobby Street and re-enacted the events of the afternoon and this was recorded on video.

Availability of intent, provocation and diminished responsibility

17. After the prosecution opening was completed, Ms Morrish made an opening response which raised three issues, they being intent to kill, provocation and diminished responsibility.

18. In R v Ardler [2004] ACTCA 4, 30 March 2004, the Full Court of Higgins CJ, Gray and Whitlam JJ answered a question of law arising on a special hearing under Division 13 of the Crimes Act 1900. That question was -

What has to be proved when a special hearing is embarked upon under Division 13.2 of the Crimes Act 1900 to determine whether the accused "committed the acts that constitute the offence charged'?

When a Special Hearing is embarked upon under Div 13.2 of the Crimes Act 1900, the prosecution is required to prove beyond reasonable doubt the physical acts of the offence charged which would constitute an offence if done intentionally and voluntarily and with any particular intent or knowledge specified as an element of the offence but is not required to negative lack of mental capacity to act intentionally or voluntarily or to have the specific knowledge or intention specified as an element of the offence unless there is objective evidence which raises such an issue including mistake, accident, lack of any specific intent or knowledge of the particularity necessary to constitute the offence that is an element of the offence or self-defence in which case the prosecution must negative that issue beyond reasonable doubt.

Pleas of mental impairment, provocation, or diminished responsibility are not able to be relied upon at a Special Hearing.

19. Notwithstanding that decision, Ms Morrish submitted that, by reason of the amendments to the legislation that had been made just before the decision was given, but not taken into account in the decision itself, the question of intent and the pleas of mental impairment, provocation or diminished responsibility referred to in the answer given by the Full Court were available under the legislation.

20. Prior to the decision in R v Ardler (supra), amendments to Division 13 of the Crimes Act 1900 were made by the Crimes Amendment Act 2004. That Amendment Act took effect on 17 March 2004. The amendments were expressed to apply in relation to special hearings that took place after the commencement of the section and regardless of when an accused was found unfit to plead.

21. The expression in the legislation requiring a court to consider whether an accused "committed the acts which constitute the offence charged" were replaced by the words "engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged)". The revised explanatory statement which accompanied the Bill explained -

[The substitution of] the term "engaged in the conduct required for the offence charged (or an offence available as an alternative to the offence charged)" for the current phrase "committed the acts that constitute the offence". This amendment clarifies that proof of intentional elements is not required at a special hearing. That is to say, it is only the physical elements of the offence that must be established at a special hearing. The Prosecution is not required to establish intent, or any mental element, of any offence. In the Outline at the commencement of the Revised Explanatory Statement it is said that "[t]he Bill is silent as to what, if any, and the circumstances in which, defences may be raised at a special hearing".

It is quite clear from the Revised Explanatory Statement that there was no intent on the part of the Legislature to, in some way, redress the matters that subsequently were the subject of decision in R v Ardler.

22. New definitions were inserted into s 300 of the Crimes Act 1900:

Alternative Offence, for an offence means an offence available as an alternative to the offence.

The Criminal Code 2002 (ACT) defines conduct and engage in conduct in s 13 -

In this Act:

conduct means an act, an omission to do an act or a state of affairs. engage in conduct means -

(a) do an act; or

(b) omit to do an act.

23. In the Code, the purpose of defining "conduct" and "engage in conduct" is for the purposes of the concept of "physical elements of an offence". Section 14 of the Code provides -

A physical element of an offence may be -

(a) conduct; or

(b) a result of conduct; or

(c) a circumstance in which conduct, or a result of conduct, happens

24. The Code then goes on to provide that conduct can only be a physical element if it is voluntary and what is constituted by voluntariness is described in s 15 of the Code. It may be a matter for debate as to whether this concept of voluntariness applies to the definition of "conduct" insofar as that definition applies to Division 13 of the Crimes Act 1900 or whether what the common law has developed as that concept is to be applied.

25. It is curious that the Legislature did not replace the concept in Division 13 of the Crimes Act 1900 of "committed the acts that constitute the offence" with the concept of "the physical elements of the offence". That may be of some significance in this case as an example given in s 15(2) of the Code that conduct that is not voluntary is "an act done during impaired consciousness depriving the person of the will to act". There is a problem in a special hearing where, in the particular case, impaired consciousness is a result of mental dysfunction or mental illness. In a special hearing, a verdict of acquittal on the ground of mental impairment is not open. Where mental dysfunction or mental illness impairs consciousness so as to deprive a person of the will to act in the context of a special hearing, it may be that the only verdict open is that of not guilty whereas such a circumstance in the criminal trial of a person would bring a verdict of acquittal on the ground of mental impairment rather than an outright acquittal where the impaired consciousness is not as a result of mental dysfunction or mental illness (see R v Falconer [1990] HCA 49; (1990) 171 CLR 30 discussed later in these reasons). A special hearing is limited to determining whether the accused engaged in the conduct required for the offence charged. The inquiry in such a hearing is not into the question of whether an accused is entitled to an acquittal on the grounds of mental impairment. As far as the Code is concerned, the problem does not arise as s 29(1) of the Code provides -

A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility.

In the case of the amendments to the Crimes Act which import only the definitions of "conduct", and "engage in conduct" from the Code, the effect of the elaboration by the Code of voluntariness is uncertain but if it does apply it would seem to achieve the common law position.

The accused's submission on the effect of the amendments

26. However, as I understand the submission put by Ms Morrish, it is the provision in the amending Act that enables the court to consider whether the conduct engaged in could amount to an offence available as an alternative to the offence charged that may cause the court to have to consider the mental elements that comprise the offence. The Crimes Act 1900, in s 49, provides for a series of offences alternative to more serious offences. Of these offences, manslaughter is regarded as the alternative to the offence of murder. Other alternative offences to murder are aiding and abetting suicide, citing or counselling the commission of suicide, child destruction and concealment of birth. The engagement in conduct required for the offence of murder constitutes an act which causes death. The same conduct is required to make out the offence of manslaughter. In the case of the other offences which the legislation regards as alternative offences, conduct different from that which would constitute murder may be made out. That is so also with respect to each of the other alternative offences set out in s 49. In other words, it is only where the conduct engaged in would provide a different physical element of what is said to be an alternative offence that consideration can be given to that circumstance. That result seems clear from the provision.

27. Unfortunately, the revised explanatory statement contains this explanation -

This provision also clarifies the defences available as an alternative to the offence charge [sic] in an ordinary criminal proceeding are also available in a special hearing. Alternate verdicts are listed in s 49 of the Crimes Act 1900. For example, on a charge of murder if the Judge or Jury is firstly not satisfied that the accused engaged in conduct required for the offence but is satisfied that the accused engaged in the conduct required for an alternate offence, such as manslaughter then the alternative verdict of manslaughter would be available.

28. The example given is just not apt. The conduct required for either offence is the same and if the court is satisfied of that conduct, and the charge of murder is that preferred, then that is the only available charge to be considered. The example given in the explanatory statement cannot create an ambiguity in what I regard as the clear words of the provision which will apply to those offences regarded as alternative offences where the alternative is made out on different conduct disregarding the intent required to make out the full offence.

29. It was for these reasons that I ruled that the question of intent and the pleas of provocation and diminished responsibility were not available as matters to be considered on the special hearing.

30. The prosecution case relied upon the admissions made and detailed description of the incident given by the accused to police officers.

31. The first of these admissions was made to Constable Breiner less than 30 minutes after the incident and before the accused was taken to the police station. They were to this effect -

Q Okay Maurie the tape's back on we just let you speak to your neighbour to organise something or other. Maurie, we've attended the scene here. What can you tell me about ah, why we were called here?

A Ah, well the essence is that my wife and I had a very big argument ah and ah, I grabbed an iron bar that was in the garage and whacked her a few times and ah, as she was falling down I continued to hit her and then I ah, I ah, grabbed - ran around the house for a moment and then I grabbed the phone and rang triple 0 and triple 0 asked what suburb - what state it was in for a start and then I - I told them ACT and they said, "What suburb?" I told them the suburb and then the policeman came on the motorbike.

Q Okay. Um what was the argument about, Maurie?

A Well it - it is a very long story but essentially it was that for - for ah, some six months now she has been er deceiving me by siphoning money off and giving money and stuff off to her - her daughter ah and here in Canberra and a daughter in - in Melbourne and a son [who is] in Melbourne and- and ah, then ah, ah we were - I decided to sell because I could see that there was something going on that I didn't know what was going on and we decided to sell, so the house was put up for sale and the house was sold ah - and ah, we were arranging to move to go to the Gold Coast to live which she wanted to do. She's got relatives there and she was very reluctant to organise some of the things up there and I thought there was something afoot - something not quite right and today, a letter came from the stockbroker that says she's sold all of the shares and things ah, and ah, bought a house for her daughter and I said to her, "What else are you doing that I don't know of?" And she said, "Well, I'm packing up and I'm moving out," and ah so ah, that was when the argument started. She was not going to come with me to the Gold Coast, she was not going to pack up - um that was what the argument was all about and ah - so it just got worse and worse. [My emphasis]

The accused at no point suggests that he did not remember what he had done. Nor is there any uncertainty, almost immediately after the incident, as to his description of his actions or his recollection of the events leading up to them.

32. At the police station, on each occasion that he described the incident, there was a consistency of explanation and no deficiency apparent in the accused's recollection. Thus -

Q45 Mr KING, just going back to - to the allegation about two pm on - on Wednesday, the tenth of October, two thousand and one, you assaulted your wife, Pamela Ann KING at eight Cobby Street, in Campbell, in the Australian Capital Territory which resulted in the death of Pamela Ann KING, what can you tell me about that allegation?

A Um, well, we were arguing for quite a while and, ah, she - well, as I said earlier we were moving up to the Gold Coast and the reason why we were moving up to the Gold Coast was I sold the house, um, because there was too many arguments with her children around here in Canberra, um and she - she was passing money over and things all to the children here, her children, a lot of the money which I gave her and not just small amounts but at least a hundred and fifty thousand dollars I'd passed over to her over some years. And she was passing it and then - so, I decided we'd - I more or less decided when she said, yeah, the house - well she'd been wanting for me to move out of the house for the last ten years at least, and she'd been wanting to go to the Gold Coast, so, I said, "Well, we'll pack up and go to the Gold Coast", and she's agreed on that, and sell the house. But what I didn't know was that one of her daughters had sort of convinced her that, you know, she shouldn't leave Canberra but she should leave me and go and live with her, so, she got - sold shares and got all - some money that she had around the place and put - and between those two they went and bought a house, I think it's in Queanbeyan, I've never seen it. But anyhow, this all went on and I suspected there was something really going on because, um, she didn't want to start organising a house in the Gold Coast but she was very keen on me to sell the present house, so, something didn't add up. Anyhow, there was some mail come today, we were getting on reasonably well, yeah, quite well, and the mail came today which showed me quite clearly that she had sold shares that she didn't tell me about or anything, and we hadn't sort of discussed. And she didn't have to tell me on it but - and as well as that, it showed that she had changed her mailing address to her daughter's mailing address - this house or a post box or something, so, I showed her and she said to me, "Well, I'm not going up to the Gold Coast with you, I'm going to", live over with this daughter, this daughter's name was Joanne, "I'm going to go and live with her", so, she - she arranged virtually for me to sell the house and arrange a flight to go to the Gold Coast to look for a house and, and she had already organised with the remainder of her family that she was going to stop in Canberra and go and live with her daughter. Well, I suppose that would be all right too, it didn't upset me a hell of a lot at the time but then I said, well, you know, "What do we do about the house?", and she said, "Well, I want some of the money", and I said, I think I said to her, "Well, I'm not giving you half", and she said something like, "I'll see about that, it's in the hands of solicitors and you'd better get a solicitor too", and I said, "Well, you're not coming with me?", and she said, "No, I'm definitely not coming with you", and with that I sort of grabbed her by the shoulders and shook her and pushed her. It was in the kitchen at this stage. And - and - and I think I said well, "You bastard", or something like that, I'm not certain, anyhow - and after pushing and shoving her a couple of times I thought bugger it, I'll go for a drive in the car. And I raced downstairs to get in the car and she's been working out - cleaning up in the garden a bit this morning and we had steel posts for tying up some of the - some of the roses, and I thought, now, if I grab that and wave it at her I'll - I'll probably frighten her and she'll probably change her mind a bit - I don't know what I was going to do - scare her, you know. But when I raced upstairs she went to race down past me and with that I hit her a couple of times with the - with the post and she started yelling and screaming, and, of course, and I sort of, I don't know, I just sort of kept hitting her, and - and that was about it. And she sort of stumbled around, I kept hitting, and then when she fell down, I think as she was falling I think I hit her again and then I thought Jesus, what have I - bloody hell've I doing? So, I ran round the house a bit and my old cat was there and I nearly fell over the cat and he was meowing, so, I ran round a bit and I didn't know what to do so I - then I grabbed the phone and dialled triple 0 and that's about all there is to it.

Q86 And whereabouts did you hit - - -

A Well, I think when I made a hit at her, I hit - don't think I hit her the first time but I made a couple more hits because she sort of ran straight away from me towards the other side of the lounge room and I think I hit her across the back and then on the head and then I don't know, I just - as she sort of fell over the lounge, she sort of hit the lounge and fell down and I just kept hitting. I don't know.

Q87 How many times do you think you hit Pamela?

A Oh I don't know, probably five or six times. I don't know. I've got no idea, I really don't know, I'd tell you if I remembered but I don't know.

Q103 Did you continue to strike Pamela when she was on the ground?

A Yes, I think I did, as she sort of tumbled down onto the ground, I think I did hit her there, yeah.

Q104 How hard do you think you hit Pamela?

A I think it would've been hard, I just [went] berserk on her, I don't know, it was just maddening, yeah. Yeah.

Q158 When you grabbed the metal bar downstairs in the garage, what was your intent at that point?

A Well, I think - I think I was going to frighten her, I was going to frighten her, I thought I'd, you know, I'd, I'll say well you know something, I can't really remember, I was going to frighten her, I was only - change your mind and come with me or do something like that, you know, yeah. Frighten her, come with me, and then we bumped into one another on the steps and that was when I sort of made a whack at her and I think I missed her the first time, I don't know.

Q159 What was your intention when you continued to strike Pamela?

A I don't know, it was just absolutely berserk, it was made and stupid, I don't know, I couldn't really tell you what the intention was, I don't know**, it was just, just hit, you know, just hit**.

Q250 What was your intent when you, when you swung the pole at your wife at that point?

A Oh, my intent was to hit her, yeah, something like, you know, "You can't do this to me, you can't", you know, all this sort of - what would you call it, scheming and plotting had been going on for months and they'd just been tricking me and - otherwise I'd have been quite happy to stop where I was.

Q251 Was your intent to hurt your wife when you swung the pole at your wife?

A Oh, I think so, yeah, I think that was the intent, you know, "You can't do this to me", I really couldn't say what the intent was, you know, you're just - you're asking me the intent, I mean, I find it hard to say, it was, you know, a spur of the moment sort of stupidity, I don't know. [My emphasis]

I find it impossible to regard these statements as indicating that the accused was not conscious of his actions and their effect, or that they give any cause to suggest that his actions were unwilled acts. It was put by Ms Morrish that the description of the acts was often qualified by `I think' and that indicates a defect in the accused's recollection. I do not accept that proposition. I am satisfied that the accused was recalling what he was aware of at the time of the event. Nor can I draw from these descriptions a fundamental lack of awareness of the events being described.

33. The extent of the accused's recall of the events was underlined by his subsequent re-enactment of the events, shown on the video, the transcript of which records -

Q57 Okay

A And I went up the stairs ...

Q58 Okay. Whereabouts did you meet your wife?

A And when I got to about here ...

Q59 Yep?

A She tried to barge past me there.

Q60 Okay.

A And - and I think I gave her a shove and a push here.

Q61 Yep.

A And then she ...

Q62 What did you do with - with the pole then?

A I still held it like that.

Q63 Yep and what did your wife do?

A And then - and she dashed off round there somewhere.

Q64 Okay, yep - yep.

A And I made some sort of a hit like that I think probably one handed.

Q65 Yep.

A And missed and she went off again down here, somewhere about here, I think I hit her again.

Q66 Was that with one hand or two hands?

A Two hands I think.

Q67 And how - can you demonstrate for the video how you raised the pipe?

A I think like that.

Q68 And whereabouts did you hit her?

A Probably on the back and the should[er] and the part of the head I think like that on the back ...

Q69 How many times did you hit her at that stage?

A I think there was two then.

Q70 So was that two in a row or was that two ...

A No I missed the first time.

Q71 Okay so that's just one hit at this stage?

A One hit.

Q72 Okay.

A And then she stumbled to here.

Q73 Just ...

A ... being pushed back a bit.

Q74 ... don't, just don't touch - no just don't ...

A No I won't touch that.

Q75 ... touch that area there.

A But as she stumbled to here she grabbed that.

Q76 Yep?

A And she grabbed that, I whacked her and whacked her and I don't know how many times I hit her and that pushed back that way and she fell down here ...

Q77 How - how did she grab it there?

A With a left hand.

Q78 And what was she doing?

A She was falling slowly.

Q79 Okay.

A As she was falling slowly I hit her.

Q80 And whereabouts did you hit her?

A Oh it would have been on the shoulders and the head, the back of the head I think as she ...

Q81 And how many times did you hit her there?

A I've got no idea.

Q82 Okay.

A It would be anything up to five times - mate oh no[t] just then, but all together about five times.

Q83 So you - and you - your wife Pamela, she fell to the ground?

A She fell to the ground, feet out this way.

Q84 Yep?

A Head there ...

Q85 And ...

A And then I thought, Jesus Christ, what have I done?

Q86 Did - did you strike her again ...

A No

Q87 ... at that stage?

A I - I hit her when she was - as she was falling down onto the ground there. Yeah and then - I don't know how many times - and then I ...

Q88 So you repeatedly hit her at that stage?

A um ...

Q89 ... (indistinct) ...

A I think I hit her once or twice as she was falling down onto the ground. Anyhow then I put me hand on her and she was moving and so I raced over here - I was gonna get the phone and then I thought Christ, what do I do? I went round and round there and then I fell over the cat over there, the poor old cat was over there and I thought I'll put him out and Jesus, what do I do? And I - so I grabbed the phone. The phones not there. Somebody's got the phone. [My emphasis]

34. The defence called one witness, Dr William Knox, a psychiatrist who interviewed the accused on 15 November 2002. After the first interview he saw the accused again on 15 April 2003 "to clarify my view about the degree of depression that [the accused] had in 2001". Dr Knox obtained a medical degree in about 1966, obtained a Diploma in Psychological Medicine and has been a registered psychiatrist since 1980. He has no formal qualifications as a forensic psychiatrist but says that in the last 10 or 15 years that he has been very active in the forensic medico-legal side of his practice.

35. Dr Knox provided an initial report to the accused's solicitors on 15 November 2002. That report dealt with Dr Knox's views as to the accused's state of mind at the time of the incident -

While Mr King in his reports to the police, and his re-enactment of the assault, was able to reconstruct the actions he believes he undertook, I judge that he had very minimal appraisal of his acts, with him for example telling me "I don't remember the blows connecting," in regard to him hitting his wife with the length of pipe.

Given Mr King's normally very organised, engineering mind, as it were, and his seemingly full attempts to cooperate with police in reporting his behaviour, I believe it possible that Mr King has described his actions with more definiteness than was probably the case, with his logical mind tending to fill in the gaps so that he presented a full and plausible description, which was not necessarily the case at the time of his actions.

But as it is apparent from his protestations to the police from time to time, that he "did not know," much of what he thought and did, and was unable to easily satisfy the repeated request by the questioning police officer concerning his `intent,' I am strongly of the view that Mr King behaved, in striking his wife, compulsively driven by strong emotional arousal, with effectively no rational input.

I do not however believe that Mr King was experiencing any frank dissociation at the time. He is not amnestic for his behaviour in the main.

As noted earlier in this report, while I do not find evidence to support any finding of dissociation and automatism, I have absolutely no doubt as a psychiatrist that Mr King did suffer a very powerful "psychological" blow of the intensity which has been accepted as causing automatism in others. In Mr King's case I judge that he was absolutely overwhelmed by the flood of distressing emotions at the time of the revelations from his wife that she would not be accompanying him to the Gold Coast, that matters were in the hands of lawyers, was a devastating blow to his psychological identity.

However, in his evidence before me, Dr Knox said that his view had "developed". He said -

My view at the moment is that - my original view was that there was what I might say is a limited form for automatism. But I've looked at things again and I believe I can say that I believe that there is in - this is the legal term, that I believe there is - there was automatism operating at that time, as I better appreciate now that that is defined.

36. In giving his evidence Dr Knox made a number of points -

(a) He diagnosed that Mr King had a major depressive order that had developed over a number of months leaving up to October 2001. He also was suffering a dysthymia, a low grade form of depression. The effect of that, in Dr Knox's view, is to change the brain's functioning in particular to affect the functioning of the cerebral cortex such as to be more subject to an overactive frontal part of the brain. In his view, the level of consciousness is reduced in such circumstances.

(b) From Dr Knox's forensic reading, he considered that the idea of a psychological blow is important, particularly in its capacity to create conflict in a man of the accused's personality. He saw the accused's situation as creating "a very powerful, virtually insoluble conflict for a man of Mr King's personality ... not dissimilar to some of the cases that [he'd] read about in the law to do with automatism and dissociation".

So I believe that that was a likely - the likely scenario for what was happening psychologically with Mr King. I believe there was a form of dissociation happening, disconnection of component parts of the brain, but not - this is why I had my doubts, or at least qualified my use of the term "automatism" initially to say that I - it wasn't a classic dissociative automatism. I believe that there was a - a form [o]f dissociation but not such much - I think it's both - two things, I think it's a psychological dissociation which is the classical type of dissociation with conflict. But what - the main thrust I believe of my understanding of this, as I explained this morning, is that powerful emotional arousal went via the short route to the amygdala [according to Dr Knox, "one of the more primitive fundamental animal parts of the brain"] and back into a form of action by Mr King, before it went - ahead of it going up to the cortex [which I take to be the cerebral cortex] where he could consider voluntarily and more consciously to make judgments and foresee the outcomes from what might be the result of how he came to act. So I believe that's a very important matter, that there was a dissociation I believe between the emotional pathway to action and the cortical pathway to action in Mr King's brain.

(d) In light of those things, Dr Knox believed that the accused's behaviour was "fundamentally involuntary". He went on to say -

So I believe that that fundamentally explains in my mind how his behaviour was likely involuntary, and that the cerebral cortex where one is able to have conscious awareness of one's behaviour, think to stop the behaviour if one's judgment is that that behaviour is inappropriate by virtue of seeing the consequences of such behaviour. I believe that that part of Mr King's brain was either not acting at all or it was markedly diminished in its capacity to serve its usual function, to the degree that I believe, effectively, his behaviour was involuntary.

(e) He then said that he believed that this state of affairs "happened over a relatively short period of time, probably just seconds". He referred to the physical collision at the top of the stairs and concluded that -

[I]t's my judgment that in his very aroused, disinhibited state that Mr King, in bumping into his wife, then behaved over a number of seconds without voluntary control to hit his wife a number of times with this metal pipe.

37. In his reference to "classic dissociative automatism" (referred to in [35] at (c)), it seems that Dr Knox was referring to the lack of consciousness of the actions that the accused engaged in. Dr Knox refers to the fact that the accused told him that he does not remember the blows connecting but makes the point that the accused had "certain knowledge of what was going on because he made that remark". However, if the accused was conscious of what was going on he could not have had the "classic dissociative automatism" as Dr Knox understood that concept. It seems to me fundamental to Dr Knox's reasoning that the accused had to be in fact not conscious of his actions notwithstanding that he recalled them. However, to counter this paradox, Dr Knox advanced the view that the accused's description of his actions was "possibly a reconstruction of what he envisaged must have happened inevitably under those circumstances ...". He later said, "But it may not be true that indeed he was directly recalling". In other words, notwithstanding the clear indication from the accused of what he had done, that was not a recollection that the accused in fact had. I must say that I am quite unable to accept Dr Knox's observations as anything other than a fanciful possibility having regard to what the accused said immediately after the event, what the accused said in the video-taped record of interview and having regard to the video of the reconstruction of the events in which the accused participated.

38. After Dr Knox had concluded his evidence, Mr Refshauge sought to reopen the prosecution case or to adduce evidence in reply. He proposed to call expert evidence to challenge the opinions proffered by Dr Knox on the question of automatism. Ms Morrish opposed the application, submitting that to do so would amount to the prosecution splitting its case and that the exceptional circumstances that might permit that course did not arise in this case. After hearing full argument on this point, it became apparent to me that I should hear submissions on whether Dr Knox's evidence was sufficient to put the issue of automatism based on that evidence to the tribunal of fact. If it was not, then the question of the prosecution calling evidence in reply would not arise.

39. The evidence given by Dr Knox purported to follow closely the concept of a psychological blow precipitating the state of automatism considered and propounded in the High Court decision of R v Falconer (supra). In Falconer, the appellant was convicted of the wilful murder of her husband by shooting. She gave evidence of the deceased's violence to her during their marriage, of her discovery that he had sexually interfered with her daughters, and of her eventual separation from her husband. She said that on the day of his death, her husband had entered her house unexpectedly, had sexually assaulted her and had reached out as if to grab her by the hair. From that point she remembered nothing until she found herself on the floor with the gun beside her and her husband dead on the floor. The trial judge rejected the evidence of two psychiatrists, received on the voir dire. The evidence of the psychiatrists was directed to the question of voluntariness, in particular s 23 of the Criminal Code (WA) which provides that "a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will". The psychiatrists gave evidence to the effect that the circumstances leading up to and surrounding the shooting and the conflict that she experienced could have produced a dissociative state, where she became disrupted in her behaviour without awareness of what she was doing. The High Court dismissed the appeal from the Court of Criminal Appeal Western Australia which had held that the trial judge had wrongly rejected the evidence. In Falconer, Mason CJ, Brennan and McHugh JJ referred to a decision of King CJ in R v Radford (1985) 42 SASR 266 at 272 in which King CJ said -

It is a basic principle of the criminal law that a person "is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act": Ryan v The Queen [1967] HCA 2; (1967) 121 CLR 205, per Barwick CJ at 216. If the actions which would otherwise amount to a crime are performed automatically and are not subject to the control and direction of the will, no crime is committed. The general onus which rests upon the prosecution in a criminal case extends, of course, to establishing that the acts said to constitute the crime were performed in consequence of the exercise of the will. The law recognizes a presumption of mental capacity which is sufficient to establish that an accused person acted pursuant to an exercise of his will unless the presumption is displaced by evidence which leaves the jury in doubt as to whether or not the actions were voluntary. The presumption does not affect the legal burden of proof which remains on the prosecution; it supplies, however, the place of evidence as to voluntariness unless displaced by actual evidence raising a reasonable doubt as to voluntariness: Bratty v Attorney-General for Northern Ireland [1963] AC 386, per Viscount Kilmuir LC at 407 and Lord Denning at 413.

40. The difference between the views of the majority in Falconer (Deane, Dawson, Toohey and Gaudron JJ) and the minority (Mason CJ, Brennan and McHugh JJ) was a difference as to whether the onus of proof lay on an accused to prove that any claimed malfunction of that person's mind was transient, caused by physical or psychological trauma which the mind of an ordinary person would be likely not to have withstood and was not prone to recur (see Mason CJ, Brennan and McHugh JJ at 56). The concept is often referred to as sane automatism. The majority required the prosecution to disprove sane automatism beyond reasonable doubt (Deane, Dawson JJ at 63, Toohey J at 77 and Gaudron J at 87).

41. In the case where automatism involved a mental state involving a mental disease or natural mutual infirmity, then the court unanimously held that the acts would be the involuntary product of an unsound mind and it would be for an accused to prove an entitlement to acquittal on the ground of insanity or its equivalent in the particular jurisdiction.

42. Automatism is not a medical term. It is derived from the concept in law that a person's action can be said to be involuntary when his will does not govern the movement of his limbs. It is a term applied to a person performing acts in a state of unconsciousness (Hill v Baxter [1958] 1 All ER 193 at 195 per Lord Goddard CJ). The fact that it may or may not be involved in a disease of the mind or whatever the local statute defines as such (in the ACT `Mental Dysfunction or Mental Illness' - see s 320 Crimes Act 1900). A description of the term `automatism', which seems to have attracted a degree of support, is that of Gresson P in R v Cottle [1958] NZLR 999 at 1,007 where he said -

It would appear that automatism raised as a defence to a criminal charge may be something quite different and distinct from insanity. In a particular case, it may be that the automatism relied on is due to some `disease of the mind' but it is not necessarily so. Automatism, which strictly means action without conscious volition, has been adopted in criminal law as a term to denote conduct of which the doer is not conscious - in short doing something without knowledge of it, and without memory afterwards of having done it - a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements. In such a case, the action is one in which the mind in its normal functioning does not control. This may be due to some `disease of the mind' or it may not; it may happen with a perfectly healthy mind (eg in somnambulism which may be unaccompanied by any abnormality of mind), or it may occur where the mind is temporarily affected as the result of a blow, or by the influence of a drug or other intoxication. It may on the other hand be caused by an abnormal condition of the mind capable of being designated a mental disease. What are known as the M'Naghten Rules can have no application unless there is some form of `disease of the mind', which is not necessarily present in all cases of automatism.

43. That passage was cited with approval by Dickson J in dissent in the Canadian Supreme Court decision, Rabey v R [1980] 2 SCR 513 at 524. This view, expressed by the minority in Rabey, attracted the approval of Mason CJ, Brennan and McHugh JJ in Falconer at 54-55 and that of Deane and Dawson JJ at 60. In Falconer, Toohey J at 72, said -

It is important to keep in mind, as Fox J observed in Reg v Pantelic (1973) 1 ACTR 1 at 3, that `the issue is not simply whether there was "automatism" but whether the acts of the accused were voluntary in the sense that they were the result of his conscious volition.'.

44. The formulations to which I have referred place emphasis on the consciousness of the act in determining its voluntary nature. In Radford (supra), King CJ observed, at 275 -

... that although the expression `unconscious' is used with the word `involuntary' in many of the cases, the critical point, as Barwick CJ pointed out in Ryan's case [1967] HCA 2; (1967) 121 CLR 205, is that the conduct was not subject to the control and direction of the will, not the accused's consciousness or awareness of his conduct.

It is of paramount importance that the jury understand that in contemplation of law an act is involuntary only if it occurs automatically in the sense of independently of any exercise of the will so that it is not subject to the control or direction of the will.

45. It may be observed that independence of an act from the will of a person can generally only be judged from the actor's own description. It is in cases where the actor is unable to describe the actions that an hypothesis that the will did not accompany those actions may be formulated. It is for this reason that it is recognised that a condition of amnesia concerning the event may be indicative of acts performed whilst the person was unconscious. It is in this sense that amnesia may be said to be a predominant symptom of a person acting in a state of automatism. The fact that amnesia exists, however, does not inevitably lead to the conclusion that the actor was unconscious at the time. There may be other explanations for the amnesia, the most common of which is the post traumatic effect resulting from the occurrence of the particular incident and which causes the blocking of the memory of it. Absent amnesia, however, the actor may claim a state of dissociation or indicate other symptoms of dissociation. In Bronnitt & McSherry, Principles of Criminal Law, LBC 2001, 227-228, the authors make the following observations -

In recent years, `dissociative states' have clinically come to the fore, particularly in the context of individuals recovering from traumatic events such as physical and sexual abuse. Dissociation is defined in the Diagnostic and Statistical Manual of Mental Disorders as `a disruption in the usually integrated functions of consciousness, memory, identity, or perception of the environment': American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed, Washington, DC:APA, 1994), p 477. Steinberg has categorised five core symptoms of dissociation: amnesia, depersonalisation, derealization, identity confusion and identity alteration: Handbook for the Assessment of Dissociation: A Clinical Guid_e (Washington: American Psychiatric Press, 1995), pp 8-13. She argues that all of these symptoms must be present before a diagnosis of dissociation can be made. She has also invented the_ Structured Clinical Interview for DSM-IV Dissociative Disorders which may be useful in diagnosing and assessing the presence and severity of these dissociative symptoms: Structured Clinical Interview for DSM-IV Dissociative Disorders (Revised ed, Washington: American Psychiatric Press, 1994).

Steinberg writes that "[d]uring a dissociative episode, the mental contents that are dissociated from full consciousness remain on some peripheral level of awareness; from this perspective dissociation can also be defined as a fragmentation of consciousness": Handbook for the Assessment of Dissociation: A Clinical Guide (Washington: American Psychiatric Press, 1995), p 23. Michael Coles and S Armstrong agree that goal-directed behaviour can occur in states of impaired consciousness where some partial awareness exists. In their view only reflex movements or well learned "habits" such as those explored in experimental psychology under the term "automaticity" can truly be considered involuntary in the sense that they are not goal-directed behaviours: "Hughlings Jackson on Automatism as Disinhibition" (1998) 6 Journal of Law and Medicine 73.

46. In the present case, there is no assertion of symptoms of dissociation by the accused. There is no foundation for the theory advanced by Dr Knox that can be derived from the accused's description of the physical events which led to his wife's death. I am not able to accept the reasoning that Dr Knox employs which seems to work back from the conclusion that Dr Knox wants to assign to the accused's behaviour. As I understand the reasoning, it is this: the accused, because of his depressive disorder, was particularly vulnerable to a psychological blow of the type he sustained which would possibly have created such a state of conflict that he may well have become dissociated to the extent that his acts were not voluntary. But, as the accused did not exhibit a classic symptom of dissociation, namely that of amnesia, Dr Knox reasons that therefore the accused must have only reconstructed the events, or was suffering at least from some degree of amnesia because a number of his descriptions of the events were qualified by `I think' indicating that he `did not know' and although he described the blows, he could not remember their sounds. The reasoning seems to be that this then is a sufficient symptom to indicate a dissociated state. The circularity of the reasoning is obvious.

47. Even if it were permissible to reason in this way, it is fundamental to Dr Knox's opinion that the legal concept of automatism is not confined to fully unconscious states, but extends to conduct which is performed semi-consciously with involuntariness depending upon the extent to which the actor has been overtaken by unconscious forces. The proposition that I have just cited, and upon which Dr Knox relies, is a paraphrase of a passage in an article by Professor Yeo, Power of Self-Control in Provocation and Automatism, 14 Sydney Law Review, March 1992, page 3.

48. That reliance is plain from Dr Knox's response to a question in cross-examination (transcript 223-224) -

So you are saying that dissociation is only now your view a part of the automatism that you say Mr King suffered on 10 October. There's something else isn't there? - - - Yes. Using dissociation in that more strictly psychological fragmentation. That was my initial difficulty that I didn't see a classic dissociative amnesia in Mr King's case, and indeed I still don't see that. I was influenced, and to answer your question, by a concept of automatism, quoting a paper, `the concept of automatism is not confined to fully unconscious states, but extends to conduct which is performed semi-consciously and involuntarily with involuntariness depending on the extent to which the actor has been overtaken by unconscious forces'.

Dr Knox then acknowledged that that quote was from the article to which I have referred. At a later stage, in re-examination, Dr Knox affirms that his understanding of automatism is consistent with what he describes as `that definition of it'.

49. The difficulty that I see in accepting Dr Knox is that the passage in Professor Yeo's article is not attempting a definition of automatism. It is primarily a comment on the extent of dissociation required for the act to be involuntary. It is worthwhile quoting the full passage at 14 of the article -

_The High Court was first prepared to recognised a state of dissociation as constituting automatism. Such a state was described by one judge as `the segmentation of personality so that a person in that state acts independently of his or her will' (_Falconer [1990] HCA 49; [1990] 65 ALJR 20 at 43 per Gaudron J). Hence, the concept of automatism is not confined to fully unconscious states, but extends to conduct which is performed semi-consciously and involuntarily, with involuntariness depending on the extent to which the actor has been overtaken by unconscious forces (see Elliott, I D, `Regina v Jekyl sub nom Hyde: metaphors of the divide itself in criminal responsibility' [1984] MelbULawRw 2; (1984) 14 MULR 368 at 394-396). [My emphasis]

50. Properly understood, the passage from Professor Yeo's article does not entitle Dr Knox to arrive at the conclusions that he forms. In Falconer, at 84, Gaudron J said -

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 as his or her will.

51. The comment made by Gaudron J may be traced to a portion of the psychiatric evidence given in the proceedings in the Western Australian Supreme Court. A portion of the evidence of Dr Johan Andreas Schioldann-Nielsen is set out in the judgment of Wallace J in the Court of Criminal Appeal proceedings reported in (1989) 46 A Crim R 83 at 109. That evidence referred to the effect on Mrs Falconer of the various events that she deposed to concerning her husband's physical attack on her, the sexual aspects, her husband's taunts and references and the effect that that might have on her. The doctor's answer was, `I think Mrs Falconer could have panicked and that could have been the mechanism which released the full-blown disassociative [sic] state, so to speak'. He was then asked the question, `To the point where she would act?', and he answered, `Where part of her personality would be sort of segmented and not functioning as a whole and she became disrupted in her behaviour, without awareness of what she was doing' (my emphasis). Professor Yeo's conclusion based on Gaudron J's description of the evidence must be understood in the light of the evidence that prompted the comment. I do not consider that it holds good in a case where the person concerned has professed an unqualified awareness of the conduct. I add that the reference to Mr I D Elliott's article is also not authority for the proposition as Dr Knox seems to understand it. That article contains an interesting discussion of criminal responsibility in the cases where intoxication is said to change the personal identity of the actor and contrasts that circumstance with the view held by the South Australian Full Court in R v Joyce [1970] SASR 184 at 192-3 where the court said -

In our view, if the personality is divided and one of the divided parts was conscious of the act and wills it the actor is responsible for it and the defence of automatism is not open.

Primarily, Mr I D Elliott's article is concerned with intention and the capacity to perform acts without intention. It is not directed generally to whether the will accompanies the act. The article particularly discusses the observations of John Locke in An Essay concerning Human Understanding, 2nd ed, 1694 and the view that intention is a result of a person's perception of intention. In dealing with this theory of action and personal identity derived from Locke, Mr Elliott observed that in one of his postulated cases of Dr Jekyl and Mr Hyde in the circumstance where they have a shared memory that Dr Jekyl could `hardly deny that they were conscious at the time', he then discusses his other case scenario where Dr Jekyl has no memory of Mr Hyde's actions. He then says -

The recognised examples of automatism in the sense of unconscious action, seem all to involve natural processes, organic disorders or the use of drugs which are capable of producing states of complete unconsciousness. States, that is to say, in which even `apparently purposive' action cannot occur. In the usual place where automatism is pleaded, however, the individual has manifestly not reached this state. He may have advanced some way along the continuum. The capacity for alert discrimination, or restraint, is characteristically diminished. He is far from being completely unconscious, however. Alcohol, for example, can produce a state of immobile stupor if it is consumed in sufficient quantities, yet ambulatory and sometimes very vocal drunks can plead, admittedly with variable success, that they were not conscious at the relevant time. There is a corresponding unwillingness on the part of courts to allow a plea of unconscious action in cases where the evidence merely indicates that the individual was subjected to great psychological stress which resulted in the commission of an offence which he cannot remember (Parker [1963] HCA 14; (1963) 111 CLR 610; Tsigos [1964-65] NSWR 1607).

52. It follows from this discussion that the statement made by Professor Yeo must be understood in the context of the references which frame it. The `semi-consciousness' to which Professor Yeo refers is only referable to a dissociated state instanced by amnesia, depersonalisation, derealization, identity confusion or identity alteration of some degree. None of those characteristics of a dissociated state are said to be present in this case. On the contrary, the accused's accounts of the incident show his complete awareness of it and do not claim any inability to control it. The fact is that Dr Knox's evidence is predicated almost entirely upon an observation in an article as to what the law might regard as constituting automatism which I am satisfied that he has misunderstood and misapplied. In re-examination, when he was referred specifically to this article, he said -

I am virtually dependent I would say on this material for my forensic knowledge of this area of psychiatry, because it is not something that appears in the psychiatric textbooks.

53. Ms Morrish submitted that there were authorities which supported the semiconscious proposition expounded by Professor Yeo and that further, those authorities would permit of a situation where there was some recollection of events prior to and after the act. She referred to R v Carter [1959] VicRp 19; [1959] VR 105 and His Majesty's Advocate v Ritchie [1926] SC (J) 45.

54. In neither of the cases referred to does there appear to be a recollection of the actual act which constitutes the offence. The facts in Carter (supra) are not described in detail but involved, inter alia, an offence of malicious wounding with intent to murder by driving a vehicle at a person known to the accused. Sholl J referred to medical evidence in the case of `post-traumatic automatism' and said, at 108 -

... I have evidence that if this state did exist in this accused, there was a partial loss of consciousness. In one Scottish case, His Majesty's Advocate v Ritchie_, [1926] SC (J) 45, a somewhat similar state has been called by medical experts `dissociation'. In that case, it was alleged that the accused had driven in a dangerous or reckless manner through carbon monoxide poisoning occasioned by exhaust gases._

55. In H M Advocate v Ritchie (cited in Carter), the accused was charged with driving in a culpable and reckless manner in running down a pedestrian and killing him. It was common ground that he had carbon monoxide poisoning and the effect was to cause a state of dissociation at least after the pedestrian was struck. The question was whether that condition existed at the time the pedestrian was struck. In his evidence, that accused did not recall either swerving or hitting the pedestrian. The medical evidence was described in this way (at 47) -

A number of medical men gave evidence on the subject of `dissociation'. It appeared that the term was applied to a well-known morbid condition, of longer or shorter duration, in which the patient might continue to carry on the operations in which he was engaged without being conscious, or with only a partial consciousness, of what he was doing; and that, on recovery, he might either have no recollection, or only a vague or obscure recollection of his actions. This condition apparently could be induced by a variety of causes, one of them, undoubtedly, being the absorption of poison into the blood.

56. However, the cases cited contain no analysis of the degree of impairment of consciousness required and, in particular, do not address the extent to which the will might accompany the act. It is of importance that in determining whether an act is willed, the mental state does not have to encompass the consequences of the act. In Falconer, Mason CJ, Brennan and McHugh JJ, at 39, described the act for which a person is not criminally liable in the context of a fatal shooting in this way -

Is it merely a muscular movement of the accused's body (the contraction of the trigger finger), or is it the discharging of the loaded gun, or is it the entirety which commences with the contraction of the trigger finger and ends with the fatal wounding of the deceased? In one sense, it can be said that the discharge of a gun is the consequence of a bodily movement of contracting the trigger finger. In our opinion, however, a consequence which the bodily movement is apt to effect and is inevitable and which occurs contemporaneously with the bodily movement is more appropriately regarded as a circumstance that identifies the character of the `act' which is done by making the bodily movement: cf per Barwick CJ in Timbu Kolian (1968) 119 CLR at 53. Adopting the meaning of `act' expressed by Kitto J in Vallance [v The Queen [1961] HCA 42; (1961) 108 CLR 56], the act with which we are concerned in this case is the discharge by Mrs Falconer of the loaded gun; it is neither restricted to the mere contraction of the trigger finger nor does it extend to the fatal wounding of Mr Falconer.

Similarly, in this case, in constituting the act, the blows which were struck by the accused do not extend to the fatal consequences to the accused's wife occasioned by the accused's acts.

57. In his dealing with `impairment of consciousness', Dr Knox's evidence does not take account of the importance of the mental state not having to encompass the consequences of the act. By relying upon the comment by Professor Yeo, he allows for a partial dissociative state without addressing its effect on the will. Thus Dr Knox's evidence was -

And so your position now is that there is some dissociation, but you're not able to identify how much, is that the position?- - - Yes.

And that that dissociation impairs consciousness, but you're not able to say how much? - - - Yes.

And your view is that any impairment of consciousness renders the actions of the person involuntary? - - - No, it needs a significant degree of that. And whether we use the term `dissociation' or not, I am arguing, which I think is an additional line, and I admit a different newer use of the term `dissociation' for the direct route of emotional arousal through the amygdala into behaviour, as another form of - another type of fragmentation of the brain, which is what fundamentally dissociation means. That there is not a full integration of the brain's processes.

But you're not able to say with any precision what degree of impairment there was in respect of Mr King on this occasion? - - - We don't have any tools to measure quantitatively any of those things, but putting it [all together] my view is that there was sufficient dissociation of Mr King's brain that he was not effectively, wilfully - intended carrying out acts to intend the consequences that happened. And so to a significant degree his behaviour was impulsive, directly driven by his emotion and not therefore voluntary with conscious control over his behaviour. [My emphasis]

58. The language used by Dr Knox in the evidence quoted above is closer to what is described in the law, compendiously and perhaps somewhat misleadingly, as irresistible impulse. Unless the loss of self-control falls within the legal concept of insanity, then the law does not allow such a defence (Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192). The formulation adopted by Dr Knox does not make the important distinction between automatism and irresistible impulse. That distinction is discussed by Paul Fairall, Irresistible Impulse, Automatism, and Mental Disease [1981] 5 Crim L J 136 at 145 -

It is important to distinguish automatism, howsoever produced, from irresistible impulse. On one view the difference lies solely in the degree of awareness accompanying the relevant behaviour; a complete lack of awareness being indicative of automatism, unaffected cognition being indicative of irresistible impulse. However, this approach does not accurately reflect the legal basis for exculpation based on automatism, which is lack of volition, rather than lack of cognition [citing Ryan [1967] HCA 2; (1967) 121 CLR 205, 214]. As against this it may be said that both irresistible impulse and automatism involve defects of volition, and therefore something else (such as cognition) must be looked for as a basis for distinguishing the two. Little support can be gained from the medical conception of automatism, because this tends to emphasise the disordered state of consciousness of the subject, and contrary to the legal conception of automatism, does not appear to require a complete loss of consciousness for a diagnosis of automatism, but is satisfied with `clouded' or `altered' states of consciousness. This may be consistent with some degree of awareness of behaviour and therefore fatal to a defence of automatism. Once it is assumed that in automatism the subject may be aware of what he is doing, and suffering only from an inability to control his conduct, then indeed it is hard to see what difference there can be between such a state and irresistible impulse.

In automatism volition is entirely absent, for the means by which the mind controls the body (at present ill-understood) are disrupted, and movements of the body are produced by some foreign agency; interaction between the conscious mind and behaviour is minimal, indeed consciousness is either grossly impaired or entirely eclipsed.

Automatism is a possible defence because the accused may in such a state by wholly unconscious of his actions. However, it is wrong to relate automatism solely to the question of impaired cognition; to do so is to ignore the aspect of involuntariness which is fundamental to the legal understanding of automatism.

59. It follows from the foregoing discussion that I do not regard the opinions expressed by Dr Knox as having a sufficient foundation in law to enable his evidence to be left for my consideration on the issue of automatism.

Whether Dr Knox's evidence addresses sane automatism

60. That conclusion makes it unnecessary to determine the question of whether Dr Knox's evidence properly addresses the concept of sane automatism. It was common ground that, having regard to the ruling based on R v Ardler (see [17] above), that pleas of mental impairment, provocation and diminished responsibility are not able to be relied upon at a special hearing. Automatism as a consequence of mental dysfunction or mental illness falls within the ambit of a plea of mental impairment. Dr Knox's evidence was never particularly clear as to the role that the depression suffered by the accused at the time played in the view he took. However, generally his evidence must be read as putting the proposition that the accused's depression, which he had diagnosed as being present at the time of the offence with which he was charged, was a contributing factor to the automatism. He also seemed to be of the view that the depression was a mental dysfunction or illness such as to invoke s 320 of the Crimes Act although he did not say so expressly. After asserting that he had described a state of automatism from his deduction from the facts he had, he was further cross-examined to this effect -

All right. But that's separate from your diagnosis of major depressive disorder, it that correct? - - - It occurs in the same brain, in the same mind, but yes, I think descriptively it's separate, even though I believe that the depression to some degree contributed a base, a pre-existing state of mind which likely contributed to the automatism, for example, and some other states on that day.

Are you comfortable with the notion that depression in that circumstance would be a disease of the mind? - - - Yes.

So that the relationship between that additional matter that you've used the label `automatism' for was caused by the disease of the mind? - - - It was contributed to by the cause - by the disease of the mind, but not in the majority, I wouldn't think. I think that in this matter that we're dealing with, I believe that the automatism might well have occurred without the disease of the mind. But given there was a disease of the mind I believe it did predispose to the automatism.

Now, the automatism you say is not a diagnosis. How do you describe your assertion of that state of mind? - - - It's a - it's a legal term to describe breakdowns in the mind where, I believe some of the legal terminology in articles on automatism, a discontinuation of the psychic identity I believe is one term that has been used. It is a fragmentation of the mind. [My emphasis]

61. This passage is the closest, in Dr Knox's evidence, to addressing the issue of whether the accused's actions meet the objective standard of a reaction of a sound mind to external stimuli required for sane automatism (see Radford at 276). In Falconer at 55 per Mason CJ, Brennan and McHugh JJ, it was said -

[T]he law must postulate a standard of mental strength which, in the face of a given level of psychological trauma, is capable of protecting the mind from malfunction to the extent prescribed in the respective definitions of insanity. That standard must be the standard of the ordinary person: if the mind's strength is below that standard, the mind is infirm; if it is of or above that standard, the mind is sound or sane. This is an objective standard which corresponds with the objective standard important for the purpose of determining provocation.

62. As evidence of the objective standard set by Falconer, Dr Knox's evidence leaves a lot to be desired. It certainly does not direct attention to the similar test proposed by Gaudron J in Falconer (supra at 85) when she said -

[T]he 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.

63. Dr Knox's evidence is of little weight in addressing this fundamental issue as to the existence of sane automatism. It is of little assistance and were this a jury trial, I would probably direct a jury accordingly. As I have said, the issue does not arise as the foundation for Dr Knox's view that automatism is available in the circumstances of this case is, in my view, fatally flawed.

64. I am satisfied that the evidence supports the facts relied upon in the prosecution opening and having regard to the evidence before me, which establishes that the accused's acts of striking his wife with the iron pipe caused her death, I am satisfied beyond reasonable doubt that he engaged in the conduct required for the act charged in the terms of s 319 (1)(b)(i) of the Crimes Act.

65. Pursuant to s 319 (2) of the Crimes Act, that finding requires that I order that Mr King be detained in custody until the Mental Health Tribunal orders otherwise unless I am satisfied that it is more appropriate to order that he submit to the jurisdiction of the Mental Health Tribunal to make a mental health order.

66. A referral to the Tribunal to make a mental health order invokes various sections of the Mental Health (Treatment and Care) Act 1994 (ACT). Those orders permit an involuntary psychiatric treatment order (s 26 (1) of that Act) or a community care order (s 28(2)). In addition, a restriction order may be made (s 27 (1)). There are various criteria set for the making of these orders which must be satisfied and they are subject to limiting terms and review requirements. In other words, it places the subject of such an order in the same position as an ordinary member of the community suffering from mental illness and requires the Tribunal to act accordingly.

67. Section 319 (2) of the Crimes Act requires that I consider the criteria for detention set out in s 308 of the Act. That section provides -

For this part, other than division 13.5 (except section 335), in making a decision which could include an order for detention, the Supreme Court or Magistrates Court shall consider the following criteria:

(a) the nature and extent of the accused's mental dysfunction or mental illness, including the effect it is likely to have on the person's behaviour in the future;

(b) whether or not, if released -

(i) the accused's health and safety is likely to be substantially impaired; or

(ii) the accused is likely to be a danger to the community;

(c) the nature and circumstances of the offence with which the accused is charged;

(d) the principle that a person should not be detained in prison unless no other reasonable option is available;

(e) any recommendation made by the tribunal as to how the accused should be dealt with.

68. In considering the nature and extent of Mr King's mental dysfunction or mental illness, including the effect it is likely to have on the person's behaviour or future, I have the evidence and reports of Drs Lucas, Rosenman and Knox, all eminent and respected psychiatrists. In particular, Dr Knox is of the view that Mr King has been suffering from a long term depressive condition. The material from Dr Lucas and his treating psychiatrist is more directed to the present and stresses the short and longer term suicidal risk that Mr King's condition poses. Having regard to their opinions, it does not appear that an involuntary psychiatric order, or a community care order under the Mental Health Act, is particularly appropriate.

69. As to whether or not, if released, Mr King's health and safety is likely to be substantially impaired or he is likely to be a danger to the community, it must be said that the latter circumstance would not appear to be applicable. Detention is not called for on account of that factor. However, the fact that Mr King is a high suicide risk is a significant factor in considering this criterion insofar as it impacts on his own health and safety.

70. The nature and circumstances of the offence, of themselves call for detention to be imposed. The preceding criteria have directed attention to the circumstances of the offender and the protection of the community. By directing attention to the offence itself, I take the provision as requiring effect to be given to the seriousness of the result of the conduct; that conduct, in this case, resulted in the offence of murder.

71. The principle that a person should not be detained in prison unless no reasonable option is available is very much affected by the nature and circumstances of the offence. Having regard to Dr Knox's views on the underlying mental condition suffered by Mr King at the time of the offence and its contribution to his conduct, there would seem to be no reasonable option but that it be treated in a secure and compulsory environment.

72. In this case, no recommendation has been made by the Mental Health Tribunal as to how Mr King should be dealt with. As Dr Rosenman observes in his most recent report -

I do not think that his `best medical interest' can be used to decide whether Mr King should be in custody or on bail.

That observation is equally pertinent to the determination I must make under s 319 of the Crimes Act.

73. In all the circumstances, and having regard to the criteria in s 308 of the Crimes Act, I am not satisfied that it is appropriate to order that Mr King submit to the jurisdiction of the Mental Health Tribunal to enable the Tribunal to make a mental health order.

74. Once I order that an accused be detained in custody until the Mental Health Tribunal orders otherwise, I am to indicate -

... whether, if the special hearing had been normal criminal proceedings against a person who was fit to be tried for and convicted of the offence with which the accused is charged, it would have imposed a sentence of imprisonment. (s 301 (1) Crimes Act)

75. Taking an overview of the matters before me in this case, the circumstances giving rise to the offence of murder and the nature of the crime itself, would result in no sentence other than a term of imprisonment being appropriate if the proceedings had been normal criminal proceedings (cf s 345 Crimes Act).

76. Accordingly, s 301 (2) Crimes Act then requires the court to -

... nominate a term in respect of the offence that is the best estimate of the sentence it would have considered appropriate if the special hearing had been normal criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence.

The term in respect of the offence to which the accused would have been sentenced I take to refer to the sentence that would have been fixed as the term of imprisonment. It does not require the fixing of a non-parole period.

77. The exercise that I am undertaking in this regard is quite artificial as the findings on the special hearing do not include any findings of the fault elements of the offence. In the present case there is evidence from Dr Knox which could perhaps have founded a case for a verdict of manslaughter on the basis of diminished responsibility. In his report of 15 November 1992, Dr Knox said -

... I judge that Mr King suffered major psychological provocation by the words and behaviour of his wife on 10 October 2001; suffered from a depressive condition which constituted an `abnormality of mind, a mental disease, that substantially impaired his mental responsibility,' such that his `berserk' emotional over-arousal led him to act without the capacity to form rational intent to harm or kill his wife.

Ms Morrish submitted also that a verdict of manslaughter on the basis of provocation would have also been open. I consider this problematic but no finding is required on this aspect in the context of the special hearing.

78. In any event, the offence for which I am imposing a notional sentence is that of murder. I am of the view that I may take into account those subjective features related to the offence relevant to factors which make out the offence. In the present case, the offence is made out by the causing of the death with, at least, reckless indifference to the probability of causing that death (s 12 (1)(b) Crimes Act). The fact that Mr King returned from downstairs, having armed himself with the iron piping, and savagely beat his wife causing her death are important aspects of the seriousness of the offence. The loss of control that might be said to have occurred during this incident cannot be regarded as sufficient to reduce the crime to manslaughter on the basis of diminished responsibility or provocation but it can mitigate the seriousness within that parameter. For this reason, the cases cited by Ms Morrish on sentences for manslaughter brought about by findings of diminished responsibility or provocation can have little relevance.

79. Although by reason of s 316 (8) of the Crimes Act, the accused is to be taken to have pleaded not guilty in respect of the offence charged, that factor does not give rise to any presumption that for these purposes he should have the benefit of a guilty plea (see R v Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85). Ms Morrish referred to the accused's instructions, presumably before he became unfit to plead, to plead guilty to manslaughter. That circumstance I take as some indication of remorse, as do I have regard to Mr King's behaviour and attitude after the event and when he was detained in police custody. I also have regard to Mr King's age and the impact imprisonment will have in respect of his remaining prospective lifespan. His previously blameless life and service in the army are also important matters to take into account.

80. I was referred to Arrowsmith v The Queen [1994] FCA 1586; (1994) 55 FCR 130, the sentencing remarks of Spender J in R v Parsons SCC 1 of 1995, 2 June 1995, R v Whitmore unreported [1999] NSWCCA 75 and R v Elphick [2002] NSWCCA 273. These cases offer me general guidance in respect of the varying aspects that I must consider in the particular circumstances of this case. They also indicate the appropriate range of sentences for an offence having similar characteristics to the present.

81. Having regard to all the matters that have been put to me, I consider that the term that would have been fixed, had this been a normal criminal trial, would have been a term of thirteen years imprisonment. Mr King had, in fact, been in custody for two months after his arrest and before release to bail. Section 360 of the Crimes Act requires the court to count that period of custody. Accordingly, I nominate the term of 12 years 10 months as the term for the purposes of s 301 (2) of the Crimes Act.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the Crown: Director of Public Prosecutions

Counsel for the Accused: Ms J Morrish, QC with Ms J Saunders

Date of hearing: 22, 23, 24, 29 June, 1 July, 5, 6, 31 August 2004