Defences: Voluntariness, Automatism, and Intoxication

Voluntariness

• Definition: The requirement that the accused's act was a willed, deliberate action. This means the act must be a product of conscious choice and control.

• Fundamental principle: One is only responsible for actions that one intends to perform knowingly and willingly. This principle underscores the importance of free will and conscious decision-making in determining criminal liability.

• If an act was not done knowingly and willingly, the person should not be held responsible. This ensures that individuals are not punished for actions they did not consciously choose or control.

• Related to mental health: If an accused acted as an automaton due to a disease of the mind, it raises the question of mental illness as a defense. This connection acknowledges that certain mental conditions can impair an individual's ability to act voluntarily.

• Cases:

  • Ryan: Accused committed armed robbery; the gun discharged while tying up the attendant. Ryan claimed no intention to pull the trigger. The case questioned whether the act of the gun firing was voluntary, even if the initial actions were.

  • Katasinski: Accused presented a firearm to frighten the victim, who lunged, causing the gun to discharge during a flinch. The court held that the actions leading up to the pulling of the trigger were all voluntary. This case highlights that voluntary actions leading to an involuntary outcome can still establish responsibility.

  • The court considered the procuring, loading, and presenting of the loaded weapon as a whole, with the discharge being a natural consequence. It shows that the entire sequence of events, not just the final act, can be considered in determining voluntariness.

  • Murray: Similar to Ryan and Katasinski, reinforcing the principle that initial voluntary actions leading to an unintended result do not necessarily negate responsibility.

Automatism

• Acting in an automaton state: A dissociative episode where the person is unaware of their actions. This state involves a lack of conscious control and awareness.

• Causes: Sudden illness, PTSD, concussion, sleepwalking, mental illness, medications, etc. Various factors can trigger a state of automatism, leading to involuntary actions.

• Related to voluntariness and mental illness: Automatism directly challenges the element of voluntariness and often overlaps with considerations of mental health.

• Two types:

  • Sane automatism: Automaton state not caused by an underlying mental illness. This type arises from temporary conditions or external factors.

  • Insane automatism: Automaton state caused by an underlying mental illness. This type is linked to chronic or recurring mental health issues.

• Quote from Youssef:

  • Automatism may be relevant to whether the Crown has established that the actions of the accused were voluntary (sane automatism). This highlights the role of sane automatism in disputing the voluntariness of actions.

  • Automatism may also be relevant to the defense of mental illness (insane automatism). This emphasizes that insane automatism is closely tied to the defense of mental illness.

Sane vs. Insane Automatism

• Insane automatism: Person is in an automaton state because of an underlying mental illness. The mental illness directly causes the state of automatism.

• Sane automatism: Automaton state is not caused by an underlying mental illness (e.g., concussion). This type arises from temporary factors unrelated to mental illness.

• Sane automatism relates only to the voluntariness element of an offense. It specifically challenges whether the act was voluntary.

• Insane automatism can be relevant for either the physical elements or the fault elements. It can affect both the act itself and the required mental state.

• If insane automatism is raised, it becomes a question of mental illness or mental health/cognitive impairment. The focus shifts to assessing the accused's mental state.

Outcomes

• Sane automatism proven: Verdict will be not guilty. If the defense successfully proves sane automatism, the accused is acquitted.

• Insane automatism proven: Special verdict of Act proven but not criminally responsible. The accused is found to have committed the act but is not held criminally liable due to mental illness.

• Example of sane automatism: A person holding a baby has an epileptic fit and drops the baby, causing death. The person is not criminally responsible because the act was involuntary due to a sudden medical condition.

• Overlap with the defense of insanity: Automatism, especially insane automatism, shares similarities with the insanity defense.

• Insane automatism must be proven on the balance of probabilities after the jury is satisfied the accused committed all other elements of the offense beyond a reasonable doubt. The burden of proof lies on the party raising the defense, and it must be shown that it is more likely than not that the accused was in a state of insane automatism.

R and Falconer (1990)

• Important case in relation to automatism. It provides foundational principles for understanding automatism in criminal law.

• Outlined what needs to be proven to establish sane automatism, and the question arose of who has the burden of proof. The case clarified the criteria for establishing sane automatism and addressed the evidentiary burden.

• Accused killed her abusive husband and claimed not to remember doing it. Evidence of sane automatism was rejected at trial. This case examines the complexities of applying automatism in situations involving trauma and abuse.

• The court was asked to answer: Was it trauma that led to her conduct, or was it her natural susceptibility to that trauma because of her psychological state? This question highlights the critical distinction between automatism caused by external trauma and automatism resulting from an underlying psychological condition.

• Justices Mason, Brennan, and McHugh (minority judgment) provided a distinction between sane and insane automatism:

• Automatism is presumed to be mental illness unless the accused can bring evidence that it falls within the Falconer category. The accused must provide evidence to demonstrate that the automatism was due to a temporary condition caused by significant trauma.

• The malfunction of the mind was not transient and not caused by trauma and prone to recur, then the accused will be assigned to a defensive mental health or cognitive impairment. If the automatism is linked to a recurring condition or mental health issue, it falls under the defense of mental illness or cognitive impairment.

Sexsomnia

• A disorder that can cause the sufferer to engage in sexual behavior while unconscious. This condition involves engaging in sexual acts during sleep without conscious awareness.

• Australian courts have recognised sexsomnia as a form of sane automatism because episodes don't necessarily recur. The courts have classified sexsomnia as sane automatism due to its episodic and non-recurring nature.

• Courts have decided that it better fits into the category of sane automatism because the sufferer is essentially asleep and unconscious when it occurs. The unconscious state during sexsomnia supports its classification as sane automatism.

Decision-Making Path (Justices Dean and Dawson in Falconer)

• If the issue of sane automatism is raised and the prosecution fails to disprove it, the accused should be acquitted. If the prosecution cannot disprove sane automatism beyond a reasonable doubt, the accused is acquitted.

• If the prosecution disproves sane automatism and the evidence raises insane automatism, and the jury is satisfied on the balance of probabilities that the evidence establishes insanity, the accused should be acquitted on the basis of insanity. If sane automatism is disproven but insane automatism is established on the balance of probabilities, the accused is acquitted due to insanity.

• If the prosecution disproves sane automatism and insanity is not established, then the accused should be convicted. If neither sane nor insane automatism is proven, the accused is convicted.

Summary: Sane Automatism

• The automaton state was transient, caused by some kind of external trauma which the mind of an ordinary person is unlikely to have withstood, and is not prone to recur. The automatism is temporary, results from significant external trauma, and is unlikely to happen again.

• Negates the voluntariness of the physical act (actus reus). It removes the element of voluntariness required for criminal liability.

• The evidential burden is on the defendant, and the prosecution must prove the act was voluntary beyond a reasonable doubt; if they cannot, the accused is acquitted. The defendant must present evidence of sane automatism, and the prosecution must prove voluntariness beyond a reasonable doubt to secure a conviction.

Summary: Insane Automatism

• The automaton state was due to a mental health impairment or cognitive impairment. The automatism results from an underlying mental health or cognitive issue.

• May negate either the voluntariness of the physical act or the fault elements of the offence (intention usually). It can affect both the physical act and the required mental state for the offense.

• Standard of proof is on the balance of probabilities, and either the defendant or the prosecution may raise it and take on that burden of proof. The party raising the defense must prove it is more likely than not that the accused was in a state of insane automatism.

• It must be proven that the effect of the impairment was that the accused did not know the nature or quality of the act or that what he or she was doing was wrong. The accused must demonstrate that the mental impairment prevented them from understanding the nature or wrongfulness of their actions.

• If proven, the accused is subject to the special verdict of Act proven but not criminally responsible. The accused is found to have committed the act but is not criminally liable due to their mental state.

Intoxication

• Not really a defense, but a rule of evidence. Intoxication is considered a rule of evidence that can affect the assessment of mens rea, rather than a substantive defense.

• Permits evidence of the intoxication of the accused to be taken into account in assessing whether the accused could form the necessary mens rea for some offenses. Evidence of intoxication can be considered when determining whether the accused had the required mental state for the crime.

• Relates to the accused's ability to form the relevant intention. Intoxication is relevant to the accused's capacity to form the necessary intent for the offense.

• Legislation now guides the defense. Statutory provisions now govern the application of intoxication in criminal law.

• DPP and Majewski: Self-induced intoxication is not relevant for crimes of basic intent. This case established that voluntary intoxication is not a defense for crimes requiring only basic intent.

• O'Connor: The High Court disagreed and found no basis for presuming that the acts of a self-intoxicated accused were voluntary. This case challenged the presumption that actions by a self-intoxicated person are inherently voluntary.

• NSW Parliament introduced Part 11a, restoring the Majewski position. The NSW Parliament enacted legislation to reinstate the principle that self-induced intoxication is not a defense for basic intent crimes.

• Section 428h of the Crimes Act explicitly states that the common law relating to the effect of intoxication on criminal liability is abolished. This section clarifies that statutory law supersedes common law regarding the impact of intoxication on criminal liability.

Crimes of Basic vs. Specific Intent

• Section 428b gives what seems to be a somewhat circular definition but it is fairly straightforward. This section defines basic and specific intent in a manner that, while seemingly repetitive, is relatively clear.

• An offense of specific intent is an offense of which an intention to cause a specific result is an element; anything else is a crime of basic intent. Specific intent requires a specific outcome, while basic intent does not.

Crimes of Basic Intent

• Example: Crimes Act section 59, assault occasioning actual bodily harm.

  • States whosoever assaults any person and thereby occasions actual bodily harm shall be liable to imprisonment for five years. This section exemplifies a crime of basic intent.

  • There needn't be any intention at all so it is simply whosoever assaults a person and thereby occasions actual bodily harm so irrelevant what the person's state of mind was it doesn't require there to be an intention to cause any result. The offense does not require the intent to cause the specific harm, only the act of assault.

  • No intention to produce a specific result. The focus is on the act, not the intended outcome.

• Another example would be section 25a: assault causing death

  • A person is guilty of an offence under this subsection if the person assaults another person by intentionally hitting the other person with any part of the person's body or with an object held by the accused. This section provides another instance of a basic intent crime.

  • No element of intention, fault element at all. The offense does not require a specific mental state or intent regarding the outcome.

Crimes of Specific Intent

• Section 428b provides a non-exhaustive list of offenses within the Act that are crimes of specific intent. This section lists several crimes that require a specific intent.

• With crimes of specific intent, you're not just intending the conduct, you're intending the result that will come from the conduct. The accused must intend a specific outcome from their actions.

• Examples listed in section 428b:

  • Wounding or GBH with intent. This requires the intent to cause serious harm.

  • Reckless but with intention to cause actual bodily harm. A reckless act done with the intent to cause harm is a specific intent crime.

  • Intention to defraud by false or misleading statement. The act of making a false statement must be done with the intent to deceive.

  • Murder. Requires the intention to kill or cause grievous bodily harm.

• Look at the elements of the offense to really know whether it is or isn't an offense of specific intent; but if it's listed in four twenty eight then it definitely is there's no guesswork. The specific elements of the crime dictate whether it is classified as specific intent, and section 428 provides a definitive list.

• With murder: intention to kill or intention to cause GBH; also reckless indifference to human life and constructive murder. Various mental states can satisfy the intent requirement for murder.

• The court states that if Parliament had intended the fault element for reckless indifference to human life to be excluded from the list in section four twenty eight it would have done so. The inclusion of reckless indifference indicates that Parliament intended it to be considered a fault element.

Section 428a

• Definitions. This section provides key definitions relevant to the intoxication provisions.

• Drug includes and it's got a meaning of the word drug and it's also got a meaning of the word intoxication. This section defines both "drug" and "intoxication" for legal purposes.

• Intoxication is because of the influence of alcohol, a drug or any other substance. This provides a broad definition of intoxication.

• Self-induced intoxication: Any intoxication except intoxication that is involuntary or results from fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force, or results from the administration of a drug for which a prescription is required. This definition clarifies what constitutes voluntary intoxication.

• The difference between self-induced and not self-induced is a moral and public policy distinction, distinguishing the culpability of those intoxicated. This distinction is based on ethical and societal considerations, affecting legal responsibility.

Section 428c

• Intoxication is relevant to whether an accused has formed a specific intent for an offence of specific intention, but that it cannot be taken into account where the intention was formed before the intoxication was done, or the intoxication was used to strengthen resolve. Intoxication can be considered when determining specific intent, unless the intent was pre-existing or the intoxication was used to reinforce it.

428D

• Intoxication in relation to other offenses (basic intent offenses). This section addresses the relevance of intoxication for crimes of basic intent.

• Evidence that the person was intoxicated at the time of the relevant conduct, if self-induced, cannot be taken into account; if not self-induced, it may be taken into account. Voluntary intoxication is not a consideration for basic intent crimes, while involuntary intoxication may be.

428E

• Intoxication in relation to murder, manslaughter, and assault causing death (section 25A, which is not an offense of specific intent). This section deals with how intoxication affects specific homicide offenses.

• If evidence of intoxication results in a person being acquitted of murder, that intoxication cannot then be considered again to negate fault for manslaughter (limited to self-induced intoxication). If voluntary intoxication leads to an acquittal for murder, it cannot then be used to argue a lack of fault for manslaughter.

428F

• Intoxication in relation to the reasonable person test. This section discusses how intoxication impacts the objective standard of a "reasonable person."

• The comparison is to be made between the conduct or state of mind of the person and that of a reasonable person who is not intoxicated. The actions of the accused are compared to those of a sober, reasonable person.

Section 428GS

• Relates to intoxication and the actus reus (physical elements of an offense). This section examines the effect of intoxication on the physical act of the crime.

• Evidence of self-induced intoxication cannot be taken into account in determining whether the relevant conduct was voluntary. Voluntary intoxication cannot be used to argue that the act was involuntary.

• If it is not self induced intoxication then the person is not criminally responsible so it is relevant then to voluntariness it is no longer a voluntary act. Involuntary intoxication can negate criminal responsibility by affecting the voluntariness of the act.

Additional Points

• If a person was so intoxicated as to be rendered incapable of forming an intent, then clearly the specific intent cannot be there. Extreme intoxication can prevent the formation of specific intent.

• The jury should not be directed to consider whether the accused had the capacity to form the intent; it is simply a question of whether the accused did form the intent or not, and intoxication may be factored in for this purpose. The focus is on whether the intent was actually formed, not on the capacity to form it, and intoxication can be considered in this determination.