Legal Defences

Automatism

The Legal Defence of Automatism in Victoria

Automatism refers to an offence committed by the accused without conscious volition. It may be used as a defence to any criminal charge that requires an element of voluntariness to be proven.

automatism defence | automatism defence in civil cases | sane automatism defence

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What is the Legal Defence of Automatism?

Automatism is a well-established legal defence that arises out of common law. In Victoria, it is a valid defence to all criminal offences that require an element of ‘voluntariness’ to be proven by the prosecution.

The defence of automatism refers to an act committed by the accused ‘without conscious volition’. That is, the accused cannot be held criminally liable for an offence that was committed involuntarily and unwillingly. To prove automatism, the accused must demonstrate that they had a total lack of control over the movement of their body and their actions, not just a partial lack of control (R v Falconer (1990); R v Cottle [1958]).

It is important to note that the critical issue is the lack of the exercise of will, not the lack of consciousness, awareness of knowledge. Therefore, even if the accused has some degree of awareness or cognition, they may still be able to rely on the defence of automatism if there was an absence of all deliberative functions of the mind. For example, if the accused was aware of events occurring as if they were in a dream but could not control their conduct, they may be able to exercise the defence of automatism.

As such, two types of automatism are recognised in Victoria:

Insane Automatism:

In circumstances where a ‘disease of the mind’ or mental illness causes the accused to lose total control and direction of their will (e.g. schizophrenia, brain injury, tumour or cerebral arteriosclerosis).

Sane Automatism:

In circumstances where something other than a ‘disease of the mind’ causes the accused to lose total control and direction of their will (e.g. concussion, sleepwalking or drug-induced psychosis). 

Where it is alleged that the accused acted in a state of automatism, the judge must determine which type of automatism is relevant based on the evidence. In rare circumstances, both types of automatism may apply. Under these circumstances, the judge must explain the concept of ‘disease of the mind’ to the jury and let them decide.

Insane Automatism

Insane automatism arises in circumstances where the accused suffers from a ‘disease of the mind’. This term is synonymous with ‘mental illness’ and encompasses mental disease, disorder and disturbance. Such terminology distinguishes a ‘disease of the mind’ from those mental states experienced by ‘normal people with healthy minds’ that might result in abnormal behaviour (e.g. concussion) (R v Falconer (1990)).

To determine if a mental condition should be considered as a ‘disease of the mind’, Victorian courts apply the sound/unsound mind test. Under the test, a ‘disease of the mind’ is recognised as a mental condition which causes a person’s unsound mind to react to its own delusions or external stimuli (R v Falconer (1990)). Generally, a person is deemed to have a ‘disease of the mind’ if:

  • An underlying pathological infirmity is triggered by external stimuli (this is different to a mental condition that is solely caused by external stimuli, such as a blow to the head) (R v Radford (1985)); and
  • The mental state is prone to recur.

A mental condition does not have to involve physical deterioration of the brain cells or an actual change in the structure of the brain to be considered a ‘disease of the mind’. The condition may be permanent or temporary, organic or functional, curable or incurable. However, mere excitability, passion, lack of self-control or impulsivity do not amount to a ‘disease of the mind’ (R v Porter (1933)).

In cases where drugs or alcohol are involved, the resulting state of automatism is classified depending on the role played by those substances. If the accused suffers from an underlying condition (e.g. epilepsy) which is triggered by drugs or alcohol, the resulting state of automatism will be classified as insane (R v Meddings [1966]). However, if the accused self-induced themselves into a state of insane automatism through drugs and alcohol, it is unlikely that the legal defence can be relied upon.

Section 21 of the Crimes (Mental Impairments and Unfitness to be Tried) Act 1997 (Vic) states that a person is presumed not to suffer from mental impairment until the contrary is proven. Whichever party raises the issue of insane automatism carries the onus of proving the defence. The defence must be proven as a matter of fact and determined by a jury on the balance of probabilities.

The defence of insane automatism can be heard in all Victorian criminal courts. However, it is only applicable to charges that require an element of ‘voluntariness’ to be proven.

If the defence of automatism is proven, the accused must be found not guilty by reason of mental impairment. However, different courts have different powers when making orders in relation to cases of insane automatism. Should the County or Supreme Court find a person not guilty due to insane automatism, the Judge maintains the power to make a supervisory order. This might mean that the accused is incarcerated at a psychiatric hospital or put under strict supervision in the community. Contrastingly, should the Magistrates’ Court find a person not guilty due to insane automatism, the Magistrate does not have the power to make supervisory orders. Thus, from a defence perspective, it is always preferable to have these matters heard in the Magistrates’ Court where possible.

Sane Automatism

Sane automatism arises in circumstances where the accused is of healthy mind but their mental condition at the time of offending is solely caused by external stimuli (e.g. alcohol or concussion).

It is important to note the difference between sane automatism and insane automatism. Insane automatism requires an underlying pathological infirmity to be triggered by external stimuli. An underlying pathological infirmity is internal to the accused. It can be triggered by external stimuli, but not caused. Contrastingly, sane automatism means that external stimuli solely caused a person of healthy mind to enter a mental state of automatism.

For example, imagine the accused is a diabetic. If the accused entered a state of automatism because their hyperglycaemia was triggered by excessive blood sugar levels, this would be considered insane automatism. In this case, the underlying infirmity (hyperglycemia) was triggered by an internal process of the body (blood sugar levels). But if the accused entered a state of automatism because they self-induced themselves into hypoglycaemia through excessive insulin intake, this would be considered ‘sane automatism’. In this case, the accused’s automatism has been solely caused by external stimuli (excessive insulin intake).

In cases where drugs or alcohol are involved, the resulting state of automatism is classified depending on the role played by those substances. If the accused’s mind is simply not functioning properly due to the effect of drugs or alcohol, the resulting state of automatism will be classified as sane (R v Carter [1959]). However, if the accused’s intoxication from drugs or alcohol is self-induced, Crimes Act 1958 s 322T provides that it is unlikely that the legal defence can be relied upon.

In cases where sane automatism is to be relied upon as a legal defence, the defendant carries the burden of adducing or identifying sufficient evidence to raise it. It is then up to the prosecution to disprove beyond a reasonable doubt that sane automatism did not exist. In other words, the prosecution must prove that the accused acted voluntarily.

In any Victorian criminal court, the accused must be acquitted if it can be proven beyond a reasonable doubt that they committed the offence involuntarily due to a state of sane automatism.

Obtaining Legal Advice

Automatism is a highly complex legal defence and requires professional consideration. If you have been charged or are under investigation for allegedly committing a criminal offence, please contact our team at Sher Criminal Lawyers. We will help you achieve the best possible outcome by applying our extensive legal experience and expertise. One of our criminal law specialists will assess whether automatism or any other defence is relevant to your case before planning a unique and calculated legal strategy. We are available 24/7 and offer free consultations by way of Zoom, Facetime or in person at our Melbourne and Moorabbin offices.

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