LAW EXTENSION COMMITTEE
CRIMINAL LAW AND PROCEDURE
THE DEFENCE OF AUTOMATISM; THE ISSUE OF INTOXICATION; AND
THE ISSUE OF STATUTORY OFFENCES
AUTOMATISM
Defence of automatism goes to whether the conduct of the Defendant was voluntary.
2 Types of automatism
1. Insane Automatism (i.e. the defence of Insanity-the M’Naughten Rules; Porter
(1933) 55 CLR 182).
A disease of the mind, temporary or long standing, which prevents the defendant
knowing the physical nature of the acts being performed; or knowing that what he or
she was doing was wrong. Onus on the Defence to prove on the balance of
probabilities.
2. Non Insane Automatism (i.e. the defence of Automatism)
Prosecution bears onus of proving beyond a reasonable doubt that actions of
Defendant were voluntary. If sufficient evidence to raise the defence of non insane
automatism, Prosecution must disprove beyond a reasonable doubt.
Bratty v A-G of Northern Ireland (1963) AC 386 (psychomotor epilepsy)

Insane and Non Insane automatism are separate defences, but both can be put
to the jury in appropriate circumstances.
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
Presumption that acts are voluntary, unless Defendant raises “sufficient
evidence” of non insane automatism.

External stimulus on a defective mental condition raises insanity, not non
insane automatism.
Radford (1985) 42 SASR 266 (dissociated state)

If involuntary conduct is due exclusively to disease of the mind, applicable
defence is insanity, not non insane automatism.

Definition of disease of the mind is “underlying pathological infirmity of the
mind”

“Dissociated state” of Defendant was “the reaction of a sound mind to
extraordinary stress produced by external factors” and raised non insane
automatism. Trial judge erred by not allowing both defences of insanity and
automatism to be considered by the jury.
Falconer (1990) 171 CLR 30 (dissociated state/disorder)
Mason C.J. Brennan and McHugh JJ

Presumption should be that when Defendant raises a defence based on
unsoundness of the mind, he or she raises the defence of insanity unless there
are the following “exempting factors” which make insane automatism non
insane automatism:
1. Transient;
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2. Caused by trauma, whether physical or psychological, which the mind
of an ordinary person would not have been able to withstand;
3. Not prone to recur.

Defence bears onus of proving both insane and non insane automatism on
balance of probabilities (majority disagreed that Defendant should bear onus
of proving the defence of automatism).
Toohey J (Deane J, Dawson J and Gaudron J agreeing in separate judgements)

Instructions to be given to jury when evidence of insane and non insane
automatism

If non inane automatism raised, Prosecution bears the onus of disproving
beyond a reasonable doubt.

Adopts the test of Radford. Distinction between “disease of the mind”
(insanity) and reaction of a sound mind to external stimuli.
The importance of mental condition being prone to recur: Woodbridge [2010]
NSWCCA 185 per Davies J (with whom McClellan CJ at CL and Hulme J agreed at
[92]-[93] :
“These passages make clear that the expression “disease of the mind is not to be
narrowly construed and is not restricted to the psychotic disturbances of which Dr
Quadrio spoke. The expression encompasses a temporary mental disorder or
disturbance prone to recur. The dichotomy is not between a mind affected by
psychotic disturbances and a mind affected by less serious ailments, but between
those minds which are health and those suffering from an underlying pathological
infirmity.
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Once that is recognised, the basis that both Doctors identified as the cause of any
automatism which the appellant suffered viz a dissociative disorder that had recurred
on a number of occasions (and which was capable of leading to the extensive period
of automatism which Dr Quadrio spoke) seems to lead inevitably to the conclusion
that the appellant had a disease of the mind. Her mind was unsound rather than
sound, and any automatism was insane rather than sane.”
INTOXICATION
Common Law position
England
DPP v Majewski (1976) 2 All ER 142
Self induced intoxication is relevant to crimes of “specific intent” (where the mens rea
of the crime extends to intention/recklessness to bring about the consequences of an
act), but not crimes of “basic intent” (where the mens rea of the crime is merely the
intention/recklessness to perform an act).
Australia
O’Connor (1980) 29 ALR 449
No distinction between crimes of basic intent and specific intent. Self induced
intoxication is relevant to both actus reus and mens rea of all crimes. Barwick CJ
analysed in detail the relationship between intoxication; voluntariness; intention; and
recklessness.
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NSW Statutory Position (Part 11A Crimes Act)-When can intoxication be
considered?
Part 11A of Crimes Act introduced in 1996 (Sections 428A to 428I) to enshrine
distinction between self induced intoxication in respect of crimes of specific intent
(where self-induced intoxication can be taken into account in respect of mens rea) and
crimes of basic intent (where self-induced intoxication cannot be taken into account in
respect of mens rea). Crimes of specific intent listed in Section 428B (murder, assault
with intent to have sexual intercourse, obtaining property by false pretences etc).
Crime of specific intent defined in Section 428B “an offence which an intention to
cause a specific result is an element”.
Self induced intoxication CANNOT be taken into account for ANY CRIME in respect
of whether the action of the Defendant was voluntary (Section 428G (1)).
Non self induced intoxication (e.g. drink spiked by another) can be taken into account
in respect of whether the actions of the Defendant were voluntary (Section 428G (2))
Self-induced intoxication CAN be taken into account in respect of the mens rea of
offences of specific intent (unless became intoxicated to strengthen resolve to commit
offence), but CANNOT be taken into account for the mens rea of other offences.
(Section 428C)
The defence of insanity and the issue of self-induced intoxication: Derbin [2000]
NSWCCA 361,
STATUTORY OFFENCES OF STRICT LIABILITY AND DEFENCE OF
HONEST AND REASONABLE MISTAKE OF FACT
3 types of offences:
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
Requires proof of mens rea. Presumption is that offence requires proof of
mens rea, unless displaced by the words of the statute.

Absolute liability (only requires actus reus, and no defence of honest and
reasonable mistake of fact)

Strict liability (defence of honest and reasonable mistake of fact applies)
He Kaw Teh (1985) 60 ALR 449 (importing drugs)
Test of statutory interpretation as to whether statutory offence requires proof of mens
rea, is absolute liability, or strict liability.
Indicia include:

Words of the statute

Subject matter of the statute

Will putting D under strict liability assist in the enforcement of the regulations

Potential consequences for D if convicted.
Jiminez (1992) 106 ALR 162 (dangerous driving occasioning death)

Offence is one of strict liability, and defence of honest and reasonable mistake
of fact applies

Time whether driver’s mistake was honest and reasonable is just before he or
she fell asleep. What is the evidence of tiredness?
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Allen v United Carpet Mills Pty Limited (1989) VR 323 (environmental
pollution)
After applying test in He Kaw Teh Court found that offence was one of absolute
liability.
In respect of offences of strict liability, major defence is the defence of ‘honest and
reasonable mistake of fact’, known as the Proudman v Dayman defence.
Mayer v Marchant (1973) 5 SASR 567
Acts of a stranger over which D has no control is a defence to offences of strict
liability.
The distinction between mistakes of law and mistakes of fact: Ostrowski v Palmer
(2003) 219 CLR 493.
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