14 / 1 / 2025

AUTOMATISM (WA)

As a matter of logic and common sense, the law recognises that criminal liability should not apply to an act done in a complete absence of a person’s control or will. The term ‘automatism’ encompasses those actions performed by the body’s muscles without conscious control of the mind, such as those acts resulting from muscle spasms, reflexes or convulsions (R v Falconer (1990) 171 CLR 30). Automatism may be raised to rebut the presumption that a criminal act was done voluntarily.

Sane Automatism

Where evidence of automatism originates from force other than that of intoxication or mental impairment, but a ‘temporary disorder of the mind’, the relevant act is defined as ‘sane automatism’. The Western Australian Criminal Code provides a defence under section 23A(2) being ‘Lack of Will’ for instances an act has come to fruition via sane automatism. Automatism of this nature may arise from:

  • Concussion (R v Wogandt (1988) 33 A Crim R 31, R v Scott [1967] VR 276, Cooper v McKenna [1960] Qd R 406.);
  • Epilepsy (R v Quick [1973] 3 All ER 347, R v Youssef (1990) 50 A Crim R 1);
  • The act of sleepwalking (R v Holmes [1960] WAR 122; R v Scarth [1945] St R Qd 38, R v Burgess[1991] 2 QB 92);
  • The presence of psychological shock or blow (R v Falconer (1990) 171 CLR 30; Cooper v McKenna [1960] Qd R 406).

The defence provides that a person is not criminally responsible for an act exercised independently of the person’s will. An assertion of the ‘lack of will’ defence will operate as a complete defence where raised successfully.

Insane Automatism (Insanity)

But what about those acts undertaken in a state of extreme intoxication or during a psychotic episode? In such cases, the law also recognises these as forms of automatism, regarding them as “insane automatism.”  For an act to be classed as originating from an unsoundness of mind, an accused must discharge the presumption of ‘sanity’ and raise prima facie evidence to suggest the accused was acting out of insanity at the time of commissioning the offence.

The defence of insane automatism also invokes the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (‘CL(MIA)’). If an accused successfully raises that they were suffering from a mental impairment at the time of the offence, which made them incapable of understanding what they were doing or knowing that their actions were wrong, they may be found not guilty due to unsoundness of mind. This is often referred to as the “M’Naghten Rules” test.

In practice, where someone commits a crime while in a state of insane automatism, such as during a psychotic episode, they might be acquitted on the basis of unsoundness of mind, but they will likely have their fate determined by a separate entity of the State. In Western Australia an accused will be dealt with under section 22 of the CL(MIA) and may be granted any type of order at the discretion of the Governor.

The key difference between sane and insane automatism lies in the lasting impact of the condition. Sane automatism is typically a temporary and often one-off condition, resulting from a specific incident like a concussion or shock, and once that condition is resolved, the person is no longer at risk of repeating the behaviour. Insane automatism is linked to a chronic or ongoing mental condition, meaning there may be a risk of recurrence if the underlying issue is not treated.

This distinction is crucial in determining the appropriate legal response and the protection of both the individual and the public. In cases where insane automatism is established, the focus shifts from punishment to ensuring that the person receives appropriate mental health care and that measures are in place to prevent future incidents.

Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.

Danielle Coombe

Hugo Law Group

Perth