Obiter

R v Falconer (1990) 171 CLR 30

In R v Falconer,¹ the High Court determined that evidence for a sane automatism defence was improperly excluded at trial, allowing Falconer’s appeal for the wilful murder conviction of her husband.

COURT: High Court of Australia (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).

PROCEDURAL HISTORY: Appeal from the Court of Criminal Appeal (WA). The Crown sought to reinstate the original conviction and sentence.

• In the Supreme Court of Western Australia, Falconer was convicted of the wilful murder of her husband, under the Criminal Code (WA).
• Appeal to the Court of Criminal Appeal (WA), Falconer succeeded. The trial judge excluded psychiatric evidence supporting a sane automatism defence. The Court overturned the conviction and ordered a retrial.

FACTS:

1. Falconer was convicted of the wilful murder of her husband.² Falconer had separated due to his history of violence and allegations of SA against their daughters. ³
2. On the day of the incident, the husband entered Falconer’s house, sexually assaulted her, and taunted her.⁴
3. The husband reached out to grab Falconer’s hair, and from that point, she claimed to have no memory until she found herself with a shotgun and her husband dead.⁵

GROUNDS FOR APPEAL:

The appellant appeals their conviction on the grounds the trial judge erred in excluding psychiatric evidence at trial that supported the defence of sane automatism.

ISSUES:

1. The primary issue was whether the appellant’s actions could be considered as occurring in a state of automatism and whether this state was ‘sane’ or ‘insane’ automatism?
2. Whether the appellant’s actions were voluntary, therefore criminally responsible?
3. Whether the trial judge erred in not admitting psychiatric evidence at trial?

APPLICABLE LAW:

Criminal Code (WA) s 23 — Unwilled Acts

Section 23 of the Criminal Code (WA) relevantly provides that ‘a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will’.⁶ Gaudron J stated at [2]:

… The act which is presently in issue is, for the reasons given by Mason C.J., Brennan and McHugh JJ., the discharging of the loaded shotgun. … In every case the prosecution must prove, beyond reasonable doubt, that the act or omission which is said to give rise to criminal responsibility was accompanied by an exercise of the will. The question whether that has been proved is referred to, in terms which reflect practical considerations rather than the onus of proof, as one of involuntariness.⁷ 

Principle of Voluntariness: This principle is fundamental in criminal law. According to Toohey J at [10], section 23 is intended, inter alia, to give effect to the principle that a person should not be convicted of a criminal offence if, at the relevant time, he or she was not acting voluntarily.⁸

Involuntary Acts: Acts that occur independently of the person’s will, such as reflex actions or movements made while unconscious, are not considered voluntary and do not constitute an offence (e.g. seizure, hypoglycemia, sleepwalking), thus, are not punishable under s 23. 

Automatism: Applicable under s 23. Toohey J referred to automatism as involuntary conduct, exemplified by actions performed while sleepwalking or under concussion, both of which fit the definition of automatism (at [21]).⁹

Criminal Code (WA) s 27 — Insanity

Section 27 of the Criminal Code (WA) serves as the insanity defence, relevant to automatism caused by mental disease (e.g. schizophrenia) or mental infirmity:

A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission.¹⁰

Toohey J noted at [17], that the case of Williams v The Queen,¹¹ is said to be the authority for the proposition that automatism cannot be both sane and insane on the same evidence.¹² 

Criminal Code (WA) s 26 — Sound Mind

Deane and Dawson JJ, at [6], under s 26 of the Criminal Code (WA) (and at common law) there is a presumption of law that every person is of sound mind.¹³ Therefore, in order to establish mental disease or natural mental infirmity under s 27, it is necessary to rebut the presumption.¹⁴

COURT’S REASONING:

Willed act and voluntariness:

Mason CJ, Brennan and McHugh JJ stated in joint judgement at [8]:

[T]he appellant is criminally responsible for discharging the gun only if that act were “willed”, that is, if she discharged the gun “of (her) own free will and by decision” (per Kitto J in Vallance,¹⁵ at 64) or by “the making of a choice to do” so (per Barwick CJ in Timbu Kolian,¹⁶ at 53).¹⁷ The notion of “will” imports a consciousness in the actor of the nature of the act and a choice to do an act of that nature.¹⁸

Gaudron J, at [7], it should be accepted as settled that there is an evidentiary presumption that an act done by an apparently conscious person was done voluntarily,¹⁹ citing Bratty²⁰ at 407 and 413; Ryan v The Queen²¹ at 213; and Radford²² at 272.²³

Evidence of a dissociative state:

Gaudron J considered Falconer’s mental state, particularly whether her dissociative state (a mental condition where a person acts without awareness),²⁴ could be classified as sane automatism. 

Her Honour determined at [9], that the medical evidence was that Falconer’s behaviour (both as observed and as described by her) was consistent with her having experienced a state of dissociation.²⁵

Such a state, according to the evidence, can occur when a person is confronted with psychological crisis or conflict such as Falconer claimed to have experienced on the day in question and results in the segmentation of personality so that a person in that state acts independently of his or her will.²⁶

Distinction between ‘sane’ and ‘insane’ automatism:

In distinguishing non-insane automatism under s 23 from insanity under s 27, the Court considered cases outlining an internal/external test, to determine whether the cause of automatism was internal (e.g. mental illness) or external (e.g. a physical blow).

Toohey and Gaudron JJ, Mason CJ, Brennan and McHugh JJ referred to the test at [25]–[26] set out by Martin J in the Canadian case Rabey:²⁷

In general, the distinction to be drawn is between a malfunctioning of the mind arising from some cause that is primarily internal to the accused, having its source in his psychological or emotional make-up, or in some organic pathology, as opposed to a malfunctioning of the mind which is the transient effect produced by some specific external factor such as, for example, concussion.²⁸

Gaudron J noted at [11], that this distinction also depends on whether the condition is transient or recurring.²⁹ Recurring states with abnormalities suggest a diseased or infirm mind, unlike temporary reactions to external stimuli experienced by otherwise normal individuals.³⁰ The Court referred to such cases: Porter,³¹ Hitchens,³² and Radford.³³

‘Dissociative state’ relevant test:

A further test was considered in Radford,³⁴ where King CJ outlined a test for determining whether mental conditions stemming from “psychological” blows should be considered to be sane or insane automatism:³⁵

The significant distinction is between the reaction of an unsound mind to its own delusions or to external stimuli on the one hand and the reaction of a sound mind to external stimuli, including stress producing factors, on the other hand.³⁶

Mason CJ, Brennan and McHugh JJ, at [26], considered the supporting ‘dissociative state’ case of Rabey:³⁷ ‘The externality of the precipitating “psychological blow” which caused “a loss of consciousness”‘ per Dickson J.³⁸ His Honour agreed at 549, that there should be a shock precipitating the state of automatism and that:

Dissociation caused by a low stress threshold and surrender to anxiety cannot fairly be said to result from a psychological blow.³⁹

Their Honours further stated at 552 that: ‘[t]o determine whether in a particular case automatism is to be judged sane or insane, his Lordship [Dickson J] treated the likelihood of repetition of the action as a material indication’.⁴⁰ Their Honours said that:

In principle, the defence of automatism should be available whenever there is evidence of unconsciousness throughout the commission of the crime, that cannot be attributed to fault or negligence of his part. Such evidence should be supported by expert medical opinion that the accused did not feign memory loss and that there is no underlying pathological condition which points to a disease requiring detention and treatment.⁴¹

Gaudron J considered the cases of Reg v Quick (epilepsy);⁴² Bratty (psychomotor epilepsy);⁴³ Reg v Carter (post-traumatic automatism);⁴⁴ Meddings (insanity);⁴⁵ and Radford (automatism distinction). At 84–85:

The distinction has sometimes been expressed in terms of mental states having an external cause and those that proceed from internal causes: Reg v Quick. Sometimes the distinction has been expressed by reference to the transient or recurring nature of the particular mental state: Bratty; Reg v Carter; Reg v Meddings. … And in Radford, King CJ distinguished between ‘an underlying pathological infirmity of the mind … which can be properly termed mental illness’ and ‘the reaction of a healthy mind to extraordinary external stimuli’.⁴⁶ [citations omitted]

In conclusion, Gaudron J stated at [13]:

The evidence led in the present case raised no issue of insanity, but it did raise the question whether Mrs Falconer’s act of discharging the loaded shotgun was done independently of her will. It should have been admitted as relevant to that issue and the jury should have been directed to consider whether, in the light of that evidence, the prosecution had proved beyond reasonable doubt that Mrs Falconer’s will accompanied the act of discharging the gun. It should have been explained to the jury that the prosecution would not have proved that issue beyond reasonable doubt if it was a reasonable hypothesis that Mrs Falconer discharged the gun while experiencing that particular mental state described in the evidence as one that may be experienced by a normal or healthy mind and in which the personality is segmented so that acts are performed independently of the will.⁴⁷ 

DECISION:

The High Court unanimously agreed that the psychiatric evidence should have been admitted at trial: Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.⁴⁸ A ‘dissociative state’ resulting from stress and “psychological” shock may amount to a ‘sane’ automatism defence under s 23 of the Criminal Code (WA).⁴⁹

The evidence did not raise an issue of insanity under s 27 but the Court questioned whether Falconer’s act of discharging the shotgun was independent of her will.⁵⁰ Evidence should have been admitted as relevant, and the jury directed to assess whether the prosecution proved beyond reasonable doubt that Falconer’s will accompanied the act.⁵¹

ORDER:

Appeal allowed. The case was remitted to the Supreme Court of Western Australia for a retrial.

LEGAL IMPACT:

R v Falconer (1990) 171 CLR 30 established a significant precedent in criminal law recognising the defence of sane automatism where the presence of a “psychological” shock or blow may arise. Sane automatism is typically a temporary reaction to external stimuli experienced by otherwise normal individuals. This case distinguishes involuntary actions caused by external factors (sane automatism) and those acts resulting from an underlying mental disorder (insane automatism).

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FOOTNOTES:

1. R v Falconer (1990) 171 CLR 30 (‘Falconer‘). ↩︎
2. Ibid [1]. ↩︎
3. Ibid. ↩︎
4. Ibid. ↩︎
5. Ibid. ↩︎
6. Criminal Code Act Compilation Act 1913 (WA) s 23 (‘Criminal Code‘). ↩︎
7. Ibid; Falconer (n 1) [3] (Gaudron J). ↩︎
8. Falconer (n 1) [10]. ↩︎
9. Ibid [21]. ↩︎
10. Criminal Code (n 6) s 27. ↩︎
11. Williams v The Queen (1978) Tas SR 98. ↩︎
12. Falconer (n 1) [17]; Williams v The Queen (1978) Tas SR 98. The term “automatism” implies the total absence of control and direction by the accused’s will. Impaired, reduced or partial control is not sufficient. ↩︎
13. Criminal Code (n 6) s 26; Falconer (n 1) [6]. ↩︎
14. Falconer (n 1) [6]. ↩︎
15. Vallance v The Queen [1961] HCA 42; 108 CLR 56, 64. ↩︎
16. Timbu Kolian v The Queen [1968] HCA 66; 119 CLR 47, 53. ↩︎
17. Falconer (n 1) [8]. ↩︎
18. Ibid. ↩︎
19. Ibid [7]. ↩︎
20. Bratty v Attorney-General for Northern Ireland [1963] AC 386, [1961] 3 All ER 523, 407. ↩︎
21. Ryan v The Queen (1967) 121 CLR 205, 213, 215. ↩︎
22. Reg v Radford (1985) 42 SASR 266 (‘Radford‘). ↩︎
23. Falconer (n 1) [7]. ↩︎
24. Ibid. ↩︎
25. Ibid [9]. ↩︎
26. Ibid. ↩︎
27. Ibid [22]; Rabey v The Queen (1977) 37 CCC (2d) 461 (‘Rabey‘). ↩︎
28. See Rabey (n 27). ↩︎
29. Falconer (n 1) [11]. ↩︎
30. Ibid. ↩︎
31. R v Porter (1933) 55 CLR 182.  ↩︎
32. Hitchens v The Queen (No.2) (1962) Tas SR 35, 49. ↩︎
33. See Radford (n 22). ↩︎
34. Ibid. ↩︎
35. Bernadette McSherry ‘The Queen v Falconer’ (1991) 18 Melbourne University Law Review 476. ↩︎
36. See Radford (n 22). ↩︎
37. R v Rabey (1980) 114 DLR (3d) 193, 519, 524, 545–552, 552. ↩︎
38. Ibid; Falconer (n 1) [26]. ↩︎
39. Rabey v The Queen (1980) 2 SCR 513, 549, 29. ↩︎
40. Falconer (n 1) [26]. ↩︎
41. Ibid (n 39) 553, 31. ↩︎
42. Reg v Quick (1973) QB 910.  ↩︎
43. Bratty v Attorney-General for Northern Ireland (1963) AC 386. ↩︎
44. Reg v Carter (1959) VR 105 (Sholl J). ↩︎
45. Reg v Meddings (1966) VR 306.  ↩︎
46. Radford (n 22). ↩︎
47. Falconer (n 1) [13]. ↩︎
48. McSherry (n 35). ↩︎
49. See Falconer (n 1). ↩︎
50. Ibid. ↩︎
51. Ibid. ↩︎