Elements. Automatism and Voluntariness

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1 Elements Automatism and Voluntariness There is a general presumption of voluntariness which can be displaced by the defendant. Then the Pros must prove it was voluntary beyond reasonable doubt (Falconer) Passive holding of a knife (but taking it to V s house) Ugle v The Queen (2002) 189 ALR 22 Accused took knife to V s house. Appellant tried for wilful murder in Sup Crt WA after victim died of a knife wound to the chest. Appellant argued that deceased was attacking him with a cricket bat and that he was trying to fend off the victim when he was stabbed Argued self defence and that he did not realise victim had been stabbed. Section 23 WA Crim Code: Subject to the express provisions of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independent of the exercise of his will, or for an event which occurs by accident. Trial: no direction to jury about unwilled acts. Appellant convicted of murder. Unsuccessful appeal to Sup Crt WA, appeal to HCA High Court: Gummow and Hayne JJ (Gaudron, Kirby and Callinan JJ delivered separate judgements to the same effect) Was the insertion of the knife into the body of the victim a voluntary act, one that was willed by the defendant? This should have been put to the jury to decide. Did the appellant put the knife in the body of the victim or did the victim impale himself on the knife being held by the appellant? The jury should have been directed about this. Authority for: the requirement of a willed act or omission on behalf of the defendant in order to establish guilt. The presumption; Automatism in family violence R v Falconer (1990) 171 CLR 30 Accused convicted in Sup Crt WA for wilful murder of husband by shooting. She gave evidence of the victims violence to her during marriage, that he had sexually abused their daughters and of their separation. Said on day of his death he had entered her house unexpectedly, sexually assaulted her and reached out to grab her by the hair then remembers nothing til she found herself on the floor with the gun beside her and his body on the floor. Trial judge rejected evidence of 2 psychiatrists from voir dire so no defence under s 23 Crim code. Both said she was sane at time of shooting.

2 One said she may have panicked and this could have triggered a dissociative state in which she acted without awareness. The other said that she was in a state of psychological conflict in which she was capable of acting in an automatic way. Full court allowed an appeal, ordered a retrial. On appeal by Crown. High Court: Mason CJ, Brennan and McHugh JJ (A)n inference that the act is willed must be drawn- not as a matter of law but as a matter of fact- unless it be shown that the actor, being of sound mind, has been deprived of the capacity to control his actions by some extraordinary event or unless the actor, being of unsound mind, has thereby lost the capability to control his actions Accused does not need to prove ultimately that act was unwilled, but bears the evidential onus of rebutting the inference that his act was willed and that there is no occasion for the jury to consider the possibility of an unwilled act unless the defendant succeeds in discharging that onus. Appeal dismissed. Retrial ordered Stands for: presumption of voluntariness of acts Involuntary conduct/accidental/reflex R v Ryan (1967) D had his finger on trigger of a loaded, cocked gun pointed at V s back. While D tried to find a cord in his pocket, V made a sudden movement. D stepped back and the gun discharged, killing V. High Court of Australia: Although the firing of the gun was involuntary the act causing death, the pointing of a loaded gun, was voluntary. It is open to the jury to choose the act causing death from a list presented by the judge. The appeal was dismissed. Causation (Result Crimes) SOC & NATURAL FORCES AS NAI Need only be a substantial or operating cause- not necessarily the only cause R v Hallett [1969] SASR 141 Hallett convicted of murdering Whiting for beating him unconscious and leaving him on the beach, and went to go cool off Pathologist concluded that he was knocked unconscious, had been choked at some point and then drowned in shallow water (sand in trachea), from when the tide came in or from rolling down the slope due to his movements whilst unconscious Whiting s body was discovered buried in the sand, penis and testicles removed and small intestine extracted from a wound in his abdomenall inflicted after death.

3 Hallett argued did not drown Whiting so did not cause death but admitted being so shaken up that he mutilated the body in distress He had hit Whiting for making homosexual advances and both had been drinking Hallett stated that he had left Whiting near the water s edge. Sup Crt SA: Bray CJ, Bright and Mitchell JJ Defendant was in a position to know the tides and the high tide the previous night was further up the beach than the location in which he left the victim but the foresight of the accused has nothing to do with the question of causation. Irrelevant for causation whether tide came to him, he rolled toward the sea in an unconscious state or even in a state of insufficient consciousness he staggered further into the water. Only if he consciously entered the water would it in our view be even arguable that the chain of causation had been broken. Victim did not commit suicide as suggested by defendant. He would have done so in deeper water if that were true. The sea didn t break the chain of causation: in exposure cases the ordinary operation of natural causes has never been regarded as preventing the death from being caused by the accused (putting infant in pigsty, leaving it in orchard to be killed by kite) In these cases, the actus reus is the exposure of the victim: here the bashing and leaving exposed the victim to the sea Extraodinary as opposed to the ordinary operation of natural forces might break the chain of causation. If the victim had been placed in a safe position on the beach and later engulfed by a tidal wave due to an earthquake in the ocean, it would be the act of that earthquake which would cause the drowning. The question to be asked is whether an act or series of acts (or omission/s) consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event. Was the original beating, at the time of death, still an operating and a substantial cause of death, even if some other cause, such as the action of the water, was still operating and that only if it could be said that the original violence was merely the setting in which the action of the sea operated could it be said that the death did not result from that violence. Appeal fails on this question of causation. The relevant act is the violence, not the leaving on the beach. Prosecution must prove that the act of the accused was: 1. A cause of death, not necessary the cause of death; 2. A substantial cause of death (substantial is left to the jury to interpret); 3. Still operating at the time of death (the act subsisted up to the happening of the event subsist = exist, remain, continue); and

4 4. Not interrupted by a novus actus interveniens so that the original violence was merely the setting in which the action of the [novus actus] operated. ACT OF THIRD PARTY- NAI An act of a third party can only affect causation if it was voluntary in the sense of being free, deliberate and informed R v Pagett (1983) 76 Cr App R 279 * Accused held a girl as a shield in front of him in a stand off with police * He fired shots at the police and the police fired back, killing the girl Court of Appeal: although an act of the accused constitutes a causa sine qua non of (or necessary condition for) the death of the victim, nevertheless the intervention of a third person may be regarded as the sole cause of the victim s death, thereby relieving the accused of criminal responsibility. Such intervention, if it has such an effect, has often been described by lawyers as an actus novus interveniens. * it is broadly correct to say that the intervention of a third person, not acting in concert with the accused, had the effect of relieving the accused of criminal responsibility if the intervention was voluntary in the sense that it was free, deliberate and informed Prosecution will argue--- i.e. because the act of the policeman was not free, deliberate and informed due to it being a reasonable act performed for the purpose of self-preservation and done in the performance of a legal duty so it did not act as a NAI to prevent the accused s act causing the death. * There is no doubt that a reasonable act performed for the purpose of self-preservation does not operate as an actus novus interveniens if that act is caused by the accused s act * Consequently, the act of the police officers did not constitute an NAI severing the chain of causation between the accused s unlawful act in using the girl as a shield and her death * Conviction of manslaughter upheld MEDICAL TREATMENT- NAI Original wound must be merely a part of the history for medical treatment to be NAI R v Smith [1959] 2 QB 36 D, a private in the King s Regiment, convicted of murder of V, a soldier in the Gloucestershire Regiment. In a fight in barracks, D stabbed V with bayonet in arm and in back, puncturing a lung and causing haemorrhage, this was not known to anyone. V dropped twice being carried, unsuccessful saline transfusion, given oxygen, subjected to artificial respiration treatment but died 2.5 hrs later. Medical evidence: 75% chance of survival if give blood transfusion and the treatment he received was thoroughly bad. Medical staff were already dealing with two other serious stabbings and didn t realise the extend of V s injuries.

5 D convicted of murder and this was maintained on appeal. Court: Essence of causation test is that if at the time of death, the wound is still an operating and substantial cause, then death is caused by the wound, even though another operating cause may be present. Treatment would have to be palpably bad to break chain of causation Lord Parker CJ Only if the second cause [medical treatment] is so overwhelming as to make the original wound merely part of history can it be said that death does not flow from the wound. No jury, properly directed, would find that the death occurred because of any other cause than the original wound R v Evans & Gardiner (No 2) [1976] VR 523 Two defendants and victim prisoners at Pentridge. D1 stabbed V in stomach and D2 aided and abetted the commission of this crime. A bowel resection operation saved his life and V resumed normal life. 11 months after stabbing, V developed pain, vomiting and worsened, dying the following week. Autopsy showed a stricture at site of operation. This was not an uncommon complication. None of the doctors who examined V prior to death diagnosed this. It could have been treated. Jury to decide if should have. D1 and D2 found guilty of manslaughter by way of diminished responsibility. Appeal to Sup Crt Vic- convictions affirmed. Sup Crt Vic: Followed R v Smith, distinguished R v Jordan A positive act of commission or an act of omission will serve to break the chain of causation only if it can be shown that the act or omission accelerated the death, so that it can be said to have caused the death and thus to have prevented the felonious act which would have caused the death from actually doing so However we have seen no criminal case in which an omission to give or undergo treatment has been held to break the chain of causation between the felonious act and the death. It is not the role of the jury to evaluate competing causes of death so long as the acts of D were a substantial and operating cause of the death. Here- was the bowel blockage that killed V due to the stabbing? Yes Turned on own facts: medical treatment palpably bad broke causation R v Jordan (1956) 40 Cr App The appellant stabbed the victim, Beaumont, in the abdomen. Beaumont died eight days later. The stab wound had penetrated the intestine in two places but, by the time of death, both injuries had mainly healed. In the meantime, the medical staff administered an antibiotic, Terramycin, to Beaumont with a view to preventing infection. Beaumont s intolerance to the drug was discovered after the initial doses, at which time administration of the drug was stopped; however, another doctor ordered its resumption the following day.

6 Evidence of two doctors called by the appellant was to the effect that the treatment of the patient in this way was palpably wrong,!as was the intravenous introduction of wholly abnormal quantities of liquid,!which led to pulmonary oedema then broncho-pneumonia, from which Beaumont died. Court of Criminal Appeal: Hallett J It is sufficient to point out here that this was not normal treatment. Not only one feature, but two separate and independent features, of treatment were, in the opinion of the doctors, palpably wrong and these produced the symptoms discovered at the post-mortem examination which were the direct and immediate cause of death, namely, the pneumonia resulting from the condition of oedema which was found. The original wound had essentially healed at the time of death. On that basis, the Court was of the opinion that, if such evidence had been before the jury, the jury would have felt unable to be satisfied that the death was caused by the stab wound. In other words, Jordan s act did not cause Beaumont s death. ***Cases since this (Evans & Gardiner) have said that this case turns on its own facts and doesn t change the common law causation test*** Removing someone from life support does not interfere with causation R v Malcharek; R v Steel [1981] 2 All Er 422 Facts (R v Malcharek): * D stabbed wife causing a deep wound in her abdomen which made hospital treatment necessary * Wife appeared to be recovering after treatment but few days later collapsed in hospital and shortly after, her heart stopped * Surgery to remove the blood clot from her pulmonary artery and heart started beating again * Placed on life support due to 30 mins without heart beating but appeared to suffer irreparable brain damage; tests confirmed, life support removed; died Facts (R v Steel): * A attacked a girl causing grave head injuries, she was taken to hospital and put on life support machine on same day. Two days later, concluded she was brain dead; machine disconnected; death Medical treatment in both cases was of the usual standard. D and A both charged with murder. Both convicted. Appeal: * Both appealed that the jury should decide causation because of the evidence that switching off the life support machines actually caused the death. * Appeals dismissed * Where competent and careful medical treatment given to a victim for an injury sustained from an assailant includes placement on a life support machine, a bona fide decision by the doctors to remove that patient (1) because of generally accepted medial criteria interpreted to mean that the victim is dead (2), could not exonerate the assailant from responsibility for the death if, at the time of the death, the original injury was a continuing or operating cause of the death; for then the disconnection of

7 the machine did not break the chain of causation between the inflicting of the original injury and the death. * In both cases, no evidence was brought forward that the original injuries were no longer operating causes of death following disconnection of the life support machines. Natural consequences test, reasonable foreseeability test Royall v R (1991) 172 CLR 378 Royall was charged with murder after his girlfriend, Kelly Healey, fell from the window of a sixth-floor flat. far from serene relationship V left him and returned for clothes, Violent quarrel, D punched her, pulled her hair, cuts to eyes & lips, blood splatter, Bathroom door forced open and signs of struggle, Gouge in bathroom wall. Body of V found in street, under 3rd floor window. He admitted assaulting V during the course of a violent argument but said she then locked herself in the bathroom and that she jumped out of the bathroom window when he broke the door down to check on her. The prosecution relied upon three scenarios in arguing Royall was guilty of murder: he pushed Healey or she fell in the course of avoiding his attack or that she jumped because of a fear of lifethreatening violence from him. The case was left to the jury to decide whether Royall had caused Healey s death by any of the three means alleged by the prosecution. High Court Mason CJ Natural consequences test: where the conduct of the accused induces in the victim a well-founded apprehension of physical harm (1) such as to make it a natural consequence (or reasonable) that the victim would seek to escape (2) and the victim is injured in the course of escaping (3), the injury is caused by the accused s conduct. Objective test if a reasonable person would have foreseen the result; DEFENCE: if V s act is so unexpected that no reasonable person could be expected to foresee it then it is a voluntary act (by V- so not caused by D) McHugh J * Regarding Mason J s statement: remember that persons subjected to violence or the threat of violence do not always think rationally or act reasonably. If a person committed suicide to avoid torture and eventual death, I do not see why the causal chain should be broken * Causation is a question of fact 1) Operating and substantial cause test 2) Natural consequences test 3) Reasonable foresight of the consequences test****mchugh s preference** Healey s death was a reasonably foreseeable consequence of banging down the bathroom door ** 4) The novus actus interveniens test (often used alongside one of the other tests)