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6. [s23(1)(a)] Act Independent of Will

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Queensland University of Technology

Automatism Bodily movements not controlled by the brain: Radford v The Queen; Falconer  As a result of a substance consumed → intoxication: s28  Internal causes (mental illness)—insane automatism → insanity: s27  External causes—sane automatism → act independent of will: s23(1)(a) (Epileptic fit | Dissociative state | physical or psychological trauma, etc) Psychological Blow Causing Trauma: Falconer • Categorisation o Ordinary person likely to have succumbed—accused same level of fortitude → sane automatism: s23 o Ordinary person would not have succumbed—accused lower level of fortitude → insane automatism: s27 • If both open on the facts—both left open in jury direction: Falconer (separated from husband after violent marriage—just before separation found out that husband had sexually abused children—wife suffering fear, depression, psychological conflict—husband sexually assaulted her—shot husband— gave evidence that remembered nothing from him pulling her hair to after his death—psychiatrists on voir dire said she was sane | but that was an act of will → s23(1)(a) not put to jury  psychiatric evidence wrongly excluded); Milloy Andrew Trotter LWB239 Criminal Responsibility Act Independent of Will: s23(1)(a) Automatism Act Independent of Will (external causes) ↔ Insanity (internal causes) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for— … (b) an act or omission that occurs independently of the exercise of the person’s will. Onus—excuse—the accused to raise some evidence | R to negative BRD • Some evidence from which the jury might reasonably conclude that it is reasonably possible that the result could not have been foreseen: Bojovic [2000] • Judges do not have to search their mind for fanciful versions in order to put to jury: Paine → Although judge may offer the excuse if not put forward by counsel: Paine → Particularly where not suggested by counsel • Test—Attempting to conduct a sensible direction: R v Skerritt Effect—Acquittal: s646 1. Act of the accused Some physical action which when added to a state of mind or consequence attracts criminal responsibility: Falconer  Wide view—includes act & consequence: R v Vallance per Dixon CJ & Windeyer J (shooting  act includes shooting of gun & wounding of girl || criticised as removes distinction between act (23(1) (a)) and event (23(1)(b)))  Intermediate View—totality of the act including striking of blow on head: R v Timbu Kolian per Barwick CJ (domestic dispute—in the dark—hits wife with stick based on source of voice— accidentally kills baby she was holding  act relates to all external ingredients of the crime: Windeyer & McTiernan | means more than physical wielding of the stick: Barwick CJ || Kitto, Menzies, Owen JJ did not discuss)  Narrow View—act encompasses only physical act & consequences which will inevitably and contemporaneously follow: R v Vallance per Kitto, Menzies & Taylor JJ (firing a weapon  act includes physical movement of the finger & discharge of the gun—but not fatal wounding of the victim); confirmed by Kaporonovski per Gibbs J; Falconer • Consider physical actions | series of actions apart from eventual consequences: R v Murray (2002); Kaporonovski (glassing  act = pushing glass into eye—not GBH) • If the act is comprised of several acts, look at the act as a whole: R v Murray (2002) (murder— pointing gun at victim—victim throws something at M, causing gun to fire  firing = load, cock, present, discharge → willed act)  Sequence of acts → difficult & artificial to separate—must look at as a whole: R v
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