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Click here to get the details of the case Automatism section 23 and 27: The case of Mary and Bob and the staging of the Falconer case 1990. Darragh Scully Criminal Law Jus 2204 Ba: Justice Studies/Psychology Assignment number 3 Edith Cowan University Western Australia |
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The present case describes Mary killing her husband by shooting him in the head as he slept. Mary has made statements to the police that state she does not recall murdering her husband. The gun that belonged to Mary was recovered from the crime scene. According to a neighbor who first discovered Mary at the crime scene Mary was holding the gun while crying ‘what have I done’.
Mary’s statement implies that the gun was usually locked in the gun safe. Mary does not recall how the gun was removed form the safe. In brief Mary has pleaded that she cannot remember any acts that would have been necessary to have killed her husband. It is suggested that the Gun was locked up in a safe. It is not mentioned how the gun was removed form the safe or if the gun was loaded or not. Presumably fingerprints would be on the safe and on the ammunition cases that would prove if Mary had in-fact removed it or not. The prosecutoin would most likely make an issue out of Rob getting shot in his sleep. It may be explained as an anger motivated murder and the amnesia may be an effort to stage the crime scene. The difficulty may be that for the purpose of section 23 and acts done involuntary there is the element of the provocation that caused the final dissociation. This is present in the Falconer case though in the present case there is less of a immediate psychological blow and more of a late onset. For the present case those facts may be important to the prosecution to prove that Mary had the necessary intent to cause the death of Rob. The difficulty with this type of case is that the prosecution has to prove that the accused had the necessary intent for the crime of willful murder subject to the section 271 of the code (WA). Mary is claiming she was in a dissociative state and that she can not remember anything after dinner time on the 2nd of April 1995. For the defence of automatism the relevant section of the code is s. 23. The question then might be how might the prosecution establish the necessary intent element were the person has made no admission and admits to having no recollection as to why they were at the scent or the crime with the murder weapon in hand? In Falconer (1990) there are some important differences in
the facts of the case and the present case thought the cases are similar in
respect to involuntary acts. Gordon Falconer was having an affair with
another woman though this was not a fact in the present case. Gordon Falconer
had abused other children as well as his own two daughters. Gordon Falconer
had separated from Sandra Falconer on account of having an affair. The day of
Gordon’s Murder Gordon had done the following acts as outlined by Malcolm J
in Falconer (1990)
I. Entered the
home unexpectedly II.
Sexually assaulted Sandra Falconer III.
Demonstrated dramatic mood changes IV.
Taunted her with suggestions that neither the
daughters or the appellant (Sandra Falconer) would be believed in court, V. Gordon Falconer reached out and Grabbed Sandra falconer by the Hair.
Mary has claimed that at the time of the death of Rob she was in a dissociative state. The prosecution must disprove evidence that Mary will present to justify that that was the case. Mary is pleading that her actions are the result of dissociation and will be attempting to rely on section 23 of the criminal code (WA) in order to establish a defense of Automatism. In this paper it will be suggested that the correct form of automatism, which applies to Mary, is insane automatism however it will also be shown that because Mary is not suffering from insanity as in section 27 the plea of sane automatism will be most appropriate to the present case. In order to clarify this discussed herein is the similarities and differences between a similar case of Sandra Falconer in Falconer (1990) HCA. Post Traumatic Stress Disorder is discussed according to Thompson (1991) in relation to R v Radford (1985) who suffered from what Thompson (1991) has termed delayed response to chronic PTSD and has classed this type of disorder along side epilepsy, both of which relates to an internal disease of the mind however does not amount to an insanity. This case is very similar to the case of Falconer (1990) HCA however there are some important differences. The matter of PTSD in determining the empirical basis of non insane automatism has been accounted for by Thompson (1991) Thompson has suggested that were PTSD is the reason for the dissociation the cause can be a delayed response rather than a immediate psychological blow, in which case it should be considered as insane automatism as the cause it the result of an internal disease of the mind though the mind was, before extraordinary psychological blow, sane. Thompson (1991) states that sane automatism is the result of an immediate response to PTSD (Thompson p. 300, 1991) and that the cause is something external acting on a healthy mind. According to Thompson (1991) with delayed response to chronic PTSD a person becomes sensitized to the biochemical response in the brain to high level trauma which results in high levels of anxiety as it forms a extremely sturdy memory trace that results in flash backs to the traumatic experience. Thompson (1991) goes on to state that before the psychological disorder had occurred as a result of some extreme level of trauma the person had a normal mind. Thompson has related this to the case of R v Radford (1985). Radford was a war veteran who killed his wife in a dissociative state while expressing a delusional to his wife. Thompson (1991) has suggested that Roger Radford was once sane and through his war trauma had manifested a “pathological infirmity so that any dissociation should have been categorized as insane”(Thompson p. 303, 1991). The key to this comes form the immoral quotes of King CJ in Radford (1985) at 396 who had stated that insanity of any duration is different from the reaction of a healthy mind suffering from “extraordinary external stimuli”. Clearly it can be seen that when delayed response to chronic PTSD is present with evidence it should be consider only for insane automatism as long as the mind before the onset of the disorder was sane with reference to section 26 of the criminal code (WA). In Falconer and the present case the murder victims have both subjected the murderers to a string of traumatic events in the form of physical assaults that needed hospital attention on occasion. The major difference in the Falconer case however is that on the day of Gordon Falconers death he had been acting in an intimidating fashion and committed further acts of physical violence against the accused Sandra Falconer (see table 1 sub note **). This can imply that an overlap has occurred between the potential causes of Automatism. Sandra had suffered from a traumatic relationship in this sense her anxiety would be a mental disorder of a pathological nature were her mind was once sane. I that sense Thompson (1991) would say that Sandra might plead insane automatism. Further more on the day of Gordon Falconers murder, Sandra Falconer fell victim of further physical and sexual abuse, and was also the victim of an intense psychological blow from the deceased. Gordon had admitted to her that nobody would believe the thing he had allegedly done in a taunting and provocative manner. In that sense the psychological blow caused dissociation and is immediate and can be classified as sane automatism. The difficulty lies in the fact that evidence of insane automatism and sane automatism were present though this is not the case in the present case as before robs death it is believed that he was asleep any provocation was not recent. This becomes less of an issue when the definition of act is taken into account if one is relying on section 23 of the code (WA). The act is the act that resulted in death in the case of Falconer (1990) it was decided that the act was the finger pulling the trigger. This act was involuntary if it can be proven that it was done in a state of dissociation. The reasons for the dissociation are also relevant to the question of sane or insane automatism. A person is believed to be sane until evidence is raised to prove other wise as outlined in section 26 of the criminal code (WA). Therefore automatism is subject to rules of evidence. The accused must show proof of the dissociative state. This may pose a threat to a defense of sane automatism as it could possibly be used to prove insanity or insane automatism. Evidence of that nature may be relied upon by the prosecution to disprove sane automatism however the High Court did state in the Falconer (1990) that evidence of insanity could not be relied on for a qualified acquittal in place of a conviction. It is not clear if that is relevant to the issue of double jeopardy though there may be some hint in the obiter of the Falconer case however that is not in the scope of this paper. The following statement was made in the Falconer case that sums up the procedure for Automatism. It follows that, in a case where an issue of sane automatism is raised by positive evidence (including expert medical opinion), an accused will be entitled to an acquittal if the prosecution fails to disprove sane automatism beyond a reasonable doubt. IN that event, the jury will need to go no further. If, however, the prosecution disproves sane automatism and the evidence raise the question of insane automatism, the jury will have to ask themselves whether, on the balance of probabilities, the evidence establishes insanity under s 27. That will, as we have said, embrace insane automatism. If the prosecution does disprove sane automatism and if insanity is not established on the balance of probabilities, in the absence of any other defense the jury should convict. Deane and Dawson JJ in Falconer (1990)
The insane automatism defense is related to internal disease of the middle. Epilepsy for example has been found to amount to insane automatism as reasons for criminal acts committed involuntarily. The cause however does not amount to insanity subject to s 27 of the code (WA). The cause relates to section 23 of the code (WA) for acts that occur independently of the will or voluntarily. Section 23 of the code (WA) can be referred to for willful murder as the fault element has a specific intention element. O’Connor and Fairall (1996) state that ‘a successful plea of insane automatism leads not to a complete acquittal but to a special verdict (O’Connor and Fairall, p 284, 1996). The ultimate verdict for insane automatism would go to the jury. The jury would need to decide if an ordinary person would dissociate if they were to experience PTSD and then a final insult that caused dissociation. If so then Mary would be entitled to a special verdict. As outlined by Thompson (1991) PTSD can be a recurring problem. This was held in Falconer (1990) at 54 per Mason CJ. Brennan & McHugh JJ to be an underlying pathological infirmity. In R v Kemp (1957), at 407 per Develin J the mind is classified as the ‘mental factual ties of reason memory and understanding’ and that is distinctly different from the brain as an organ. For a disease of the mind the problem must be first internal to the accused however if the problem has arisen from an external cause as it the case in PTSD then that will not amount to a disease of the mind for the purpose of s. 27 of the code (Clough and Mulhern, 1999). In Quick and Paddison Lord Justice Lawton stated at 734-735 “Automatism of the mind of transitory effect caused by the application to the body of some external factor such as violence… cannot be fairly said to be due to disease (Quick and Paddison 1973). Sane automatism can be established only were Automatism was transient, caused by trauma subject to the reasonable person test and not prone to recur. The case for Mary is then difficult as the type of automatism that is presented on the evidence is delayed response to chronic PTSD and this has a tendency to recur as it is based on recurring memories that cause reactive depression and is likely to re emerge in situations of stress. However if the major cause can be resolved by hypnosis then the person may begin to live a normal life and the mind may be healed. In Falconer it was suggested that the accused find treatment though not through the courts as that is not the function of the courts. If the jury is satisfied that the accused was in a dissociative state stemming from matters that any reasonable person if they to had faced the same trauma and would have the same experience then the jury should be directed to acquit. Thompson (1991) who stated that insane automatism and delayed response to chronic PTSD is synonymous with internal disease of the mind and should be treated accordingly. Here the categorization of epilepsy as a mental disorder along side non-insane automatism in the form of delayed response to chronic PTSD has been wrongly accounted for by Thompson (1991) in the legal sense of section 23 and section 27 of the code (WA). In essence there has always been a problem in distinguishing between automatism caused by insanity or other factors (Colvin and Linden-Laufer, 1994). Colvin and Linden-Laufer clarify this in the following statement (1) Automatism
caused by the ingestion of alcohol or any other intoxicating substance is
governed by the rules on intoxication and section 29 of the criminal code
(WA). (2) Automatism
caused by mental disease is governed by the rules on insanity subject to
section 27 of the code (WA) (3) Automatism
caused by a physical blow or by any factor other than insanity or
intoxication is governed by ordinary principles of criminal responsibility
subject to section 23 of the criminal code providing that there is no
criminal responsibility for conduct occurring independently of the exercise
of the will. (Colvin and Linden Laufer, p. 494, 1994) To properly make the distinction between insane and non-insane automatism the test is to distinguish between the internal or external cause. As Thompson (1991) says however the fact is that and delayed response to chronic PTSD is caused by external causes but it does not always manifest itself in that way and delayed response to chronic PTSD is more synonymous with insanity and should be subject to section 27 of the code. Colvin and Linden-Laufer (1994) however have stated that if the cause is external in the case of a psychological blow then it is simply sane automatism. In contrast Colvin and Linden Laufer have stated that insane automatism is characterized by some abnormal function of the mind that is internal to the individual. Ligertwood (1998) has said that the judge presiding on the case is to direct the jury as the characterization of the state of automatism and it is for the jury to decide upon whether or not the condition is present in the defendant subject to the reasonable persons test. The ultimate outcome relies upon the evidence that is presented and the manner in which the prosecution attempts to disprove sane automatism. It is suggested then that Mary plead that she suffers from sane automatism as a result of a psychological blow and let the judge decide how to direct the jury with the evidence that is presented for that. The Jury would then have to decide what with the reasonable person test if that was the case or not. As to the position on insanity it is suggested that the best option is for the defense to let the Crown try to disprove automatism as it is not likely that they would be raising the issue of insanity as it leads to an acquittal though if the defense raises evidence that points to that then it may be acted upon by the defense and the Judge may direct the jury of what to do in that case.
References Colvin, E. & Linden- Laufer, S. (1994) Criminal law in Queensland and Western Australia. Australia: Butterworths.
Clough, J. & Mulhern, C., (1999) Criminal Law, Australia: Butterworths
Thompson, J., (1991) Post Truamatic Stress Disorder and criminal defences. University of Western Australia. 21-279
Ligertwood, A (1998), Australian Evidence 5th ed Australia : Butterworths.
Oconnor, D., & Fairall, P.A., (1996) Criminal defences. Australia Butterworths.
Thompson, J., (1991) Post Truamatic Stress Disorder and criminal defences. University of Western Australia. 21-279
Cases R v Falconer (1990) 65 ALJR 20
R v Radford (1985) 20 A Crim R 388 Quick and Paddison 1973 57 Crim App R 722
R v Kemp (1957), QB 399 at 407 |
