Automatism

The defence of automatism is based on the principle that a person should not be held criminally responsible for actions they did not willfully commit.

The defence of Automatism under section 23A(2) of the Criminal Code Act Compilation Act 1913 (WA) (“the Code”) operates as a legal defence for any person charged with an offence under the criminal law in WA. The defence applies when a person commits an act involuntarily and without conscious control. The defence is based on the principle that an individual should not be held criminally responsible for actions over which they did not consciously will.

The following paragraphs outline what automatism is, the distinction between sane and insane automatism, and limitations in raising this defence.

What is Automatism?

Automatism refers to a state in which a person performs actions without conscious awareness or control, such as during a seizure, sleepwalking, or while experiencing a dissociative state. Under this defence a person is not criminally responsible for an act or omission that occurs without the exercise of their will.

This defence can apply to a wide range of offences, from minor assaults to more serious crimes, provided that the accused can demonstrate that the act was carried out involuntarily. Automatism, however, is divided into two main categories: sane automatism and insane automatism. The classification determines whether the defence will result in acquittal or an insanity verdict.

Sane Automatism

Sane automatism refers to involuntary actions caused by external factors, such as physical or environmental conditions, and not by mental or cognitive impairments. Some examples of situations that may give rise to sane automatism include:

• Concussion following a head injury.
• Drug-induced psychosis caused by substances such as alcohol or drugs.
• Emotional trauma leading to a temporary dissociative state.
• Hypoglycemia, or low blood sugar, caused by taking insulin medication (although notably not hyperglycemia, see R v Hennessy [1989] 2 All ER 9)

While sane automatism is often associated with external factors, this distinction is not always clear-cut. For example, conditions such as sleepwalking (as in R v Tolson (1889) 23 QBD 168) and epilepsy (as in R v Youssef (1990) 50 A Crim R 1) have been recognised as sane automatism, even though they relate to the individual’s physiology. The line between external and internal causes can become blurred.

If an accused were to raise the defence of automatism it would almost certainly be required to be backed and foreshadowed by expert reports and expert evidence.

However, once automatism is raised, it is for the prosecution to prove (beyond a reasonable doubt) that the accused’s actions did not occur independently of the exercise of the accused will. If that is not established by the prosecution the accused will be found not guilty and will be afforded an acquittal because their actions were involuntary, and therefore, an essential element of the charged offence, voluntariness, cannot be proven.

Insane Automatism

Insane automatism refers to involuntary actions caused by an "infirmity of the mind". When the defence of insane automatism is raised, the case becomes one of establishing a defence of insanity under section 27 of the Code.

The defence of insanity arises if at the time of doing the act or making the omission constituting the offence, a person is in such a state of mental impairment as to deprive them of the capacity to understand what he or she is doing, or of capacity to control their actions, or of capacity to know that they ought not to do the act or make the omission.

It is for the accused to prove (on the balance of probabilities) the defence of insanity. That is because under section 26 of the Criminal Code it says that every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.

In cases where insane automatism is established, the defendant is not acquitted outright. Instead, they may be found not guilty by reason of insanity, which can lead to special verdicts, including hospitalisation or treatment orders.

Limitations on Raising The Defence

Raising the defence of automatism requires strong evidence, particularly in distinguishing between sane and insane automatism. The courts often scrutinise the cause of the involuntary action and assess whether it was due to an external or internal factor.

Medical evidence is typically required to support claims of automatism, and the prosecution may challenge the defence by arguing that the defendant had control over their actions or that the actions were foreseeable.

Finally, the defence of automatism does not apply to strict or absolute liability offences, where intent or control is not required to establish guilt.

What's Next?

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Author Andrew Williams