This is an appeal from the Court of Criminal Appeal in Northern Ireland, the judgment having been delivered by Lord MacDermott, L.C.J. On the 4th May, 1961, the Petitioner was convicted at the Downpatrick Assizes of the murder of Josephine Fitzsimmons on the 22nd December, 1960. The Petitioner appealed to the Court of Criminal Appeal and by Order dated 18th July, 1961, his appeal was dismissed. On the 27th July, 1961, counsel on behalf of the Petitioner applied, pursuant to the provisions of subsections (1) and (2) of section 1 and subsection (1) of section 2 of the Administration of Justice Act, 1960, for a certificate that a point of law of general public importance was involved in the decision of the Court of Criminal Appeal, and for leave to appeal to the House of Lords. The Court certified that the decision involved two points of law of general public importance, namely:
1. Whether, his plea of insanity having been rejected by the jury, it was open to the accused to rely upon a defence of automatism: and
2. If the answer to (1) be in the affirmative, whether, on the evidence, the defence of automatism should have been left to the jury.
Further it appeared to the Court that the points of law so certified ought to be considered by the House of Lords, and the Court granted leave to appeal to this House.
Josephine Fitzsimmons, who was eighteen years old, lived with her widowed mother near Hillsborough in the Monument Road—a road which has been described as lonely and quiet. Her mother had a cousin, Miss Morrow, who resided with her brother at 44 Irwin Place, Donacloney, a village six or seven miles from Hillsborough. With them there lived the Petitioner, George Bratty, a young man of about twenty-six. He had been living with the Morrows for about twenty years. On the 22nd December, 1960, the Petitioner asked Miss Morrow if she would come with him in the car to visit the Fitzsimmons in order to deliver Christmas boxes for Mrs. Fitzsimmons and Josephine. The families were in the habit of seeing each other regularly and often. He had a black Ford Popular car in which he and Miss Morrow left Donacloney about 8.20 p.m. and arrived at Mrs. Fitzsimmons' house about 8.40. Miss Morrow went into the house and after the Petitioner had turned the car and got out Josephine came out and asked him to drive her into Hillsborough to deliver a message and get some sweets. She was seen in Hillsborough but neither she nor the Petitioner reached her home again. At 11.15 p.m. her dead body was found in Grove Road on the grass verge. She had been strangled by a stocking from her left leg. She had not been sexually assaulted but her underpants had been removed and were found with her left boot a short distance from the body on the grass verge. The Petitioner did not call back to take Miss Morrow home, but drove his car in the direction of Donacloney. When some two or three miles from Donacloney the car broke down and was left at the side of the road, an offer of a tow having been refused. He arrived at Donacloney on foot about 4 a.m. He was found by the police nearly an hour later in a garage at the bottom of the Morrows' garden and taken to the Police Station.
Shortly after 1 p.m. on the 23rd December the Petitioner was seen by Detective Head Constable Russell, Dr. Howard of the Forensic Science Laboratory being present. Russell asked what was the cause of two scratches on his neck. The Petitioner said: It was a young girl did it. He was then cautioned and made the following statement: —
Something terrible came over me. When I went up last night to the young girl's house—turned the car. I had the engine stopped and got out of her. I noticed her coming running out. She asked me to take her down to Hillsborough to get some sweets and deliver a message. I done so. and coming back again, just about halfways up the road from her house, I had some terrible feeling, and then a sort of a blackness. Just with that, I took one look at her, caught her, threw her right over the back of the seat into the back. I caught her with my two hands. When I caught her with my two hands I took one of her stockings and put it round her neck. I tightened the stocking. Afterwards I went down the road a piece—down the road to the left of her house—took her out of the car, and left her on the side of the road ; drove on towards home. Halfways " down the Ballygowan Road, the battery gave up on me. I got help later on to try and get her started. Couldn't get her started. Then we pushed her into side of a field gateway. I walked home after-wards. I saw a policeman. I went into the garage, and the police came. I didn't mean to do what really happened. Many's the time I took her down to Hillsborough at week-ends, and nothing like that happened until last night. I apologise for what happened. I don't think it would have happened only that terrible feeling came over me at the time. I don't know really what caused it at all. I think that's about all I can say.
In evidence the Petitioner later described the terrible feeling that came over him as a feeling that he wanted to put his arms round the girl. Without setting out any further evidence in detail, but having in mind particularly this description of the terrible feeling the scratches on the Petitioner's neck, and the removal of the underpants, I agree with the Court of Criminal Appeal when they say—
That the Appellant killed Miss Fitzsimmons is not in dispute. On the evidence there can be no doubt at all that he made some sort of advance which was resisted, and that he attacked the girl, breaking a small bone in her neck and then caused her death by taking off one of her stockings and tying it tightly round her neck. It is also beyond question that, at some stage, the Appellant got the girl from the front passenger seat to the back of the car, and that it was he who removed the body from the car and dumped it on the grass verge.
In the opening speech for the defence at the trial the jury were asked to rind "one of three separate and completely independent verdicts"—
1. The primary verdict requested which it was submitted was the proper one was that of Not Guilty on the basis that the Petitioner was not master of the situation but that he was in a state of automatism ". (The only cause suggested for his being in such a state was psychomotor epilepsy.)
2. Secondly, if the jury rejected the first defence, then it was submitted that the Petitioner was incapable of forming the particular intent to constitute murder, that is, an intent to kill or cause grievous bodily harm, on the ground that his mental condition was so impaired and confused and he was so deficient in reason that he was not capable of forming this intent, and that the verdict should be manslaughter.
(3) Thirdly, it was submitted that, if the jury were unable to come to either the first or second verdict, at the material time the accused may be guilty but he was insane on the ground that he did not know the nature and quality of his acts, or if he did, that he did not know that they were wrong.
On the first and second of these submissions it was claimed that the Petitioner should get the benefit of any doubt, the implication being that the Crown must prove that the acts of the Petitioner were conscious and voluntary acts.
The learned trial judge left the defence of insanity to the jury. The insanity alleged was that the Petitioner was suffering from an attack of psychomotor epilepsy and as a result had such a defect of reason as not to know the nature and quality of his acts or, if he did, not to know that they were wrong. As respects that defence the Court of Criminal Appeal said—
There is now no complaint of the summing up as respects this defence, and it is no longer disputed that, on the material before them, the jury were fully entitled to reject it as in fact they did.
The learned judge refused to leave the first and second defences to the jury and it was from this refusal that the main grounds of the appeal to the Court of Criminal Appeal and ultimately to this House arise.
In his notice of appeal to the Court of Criminal Appeal the Petitioner's first ground was stated in these words—
The learned trial judge was wrong in law in failing to leave to the jury the issue as to whether the killing was committed by the Appellant in a state of automatism and whether his actions resulting in the said killing were voluntary or conscious.
Automatism was defined by the Court of Criminal Appeal in this case as connoting the state of a person who, though capable of action, is not conscious of what he is doing ... It means unconscious involuntary action, and it is a defence because the mind does not go with what is being done.
This is very like the words of the learned President of the Court of Appeal of New Zealand in R. v. Cottle ( N.Z.L.R. 999 at p. 1020) when he said—
With respect, I would myself prefer to explain automatism simply as action without any knowledge of acting, or action without any consciousness of what is being done.
The first portion of the argument before them that automatism should have been left to the jury was summarised by the Court of Criminal Appeal as being that the whole of the evidence on the issue of insanity was relevant on the issue whether automatism itself existed however it was caused ; in view of the onus being on the defence to show on a preponderance of probability that the necessary constituents of the M'Naghten formula were present, it was therefore submitted that, although the evidence might have failed to prove some constituent of insanity, the lack of consciousness itself might have seemed a genuine possibility to the jury, and the jury might at least have had a reasonable doubt as to whether the Appellant was conscious of his acts so as to be guilty of murder.
Before your Lordships the argument was advanced in this way—
1. The ultimate burden on the Crown is to prove that the crime was a conscious and voluntary act.
2. There was a volume of evidence showing that the act was not conscious and voluntary.
3. The jury should be told to examine this evidence with a view to answering the following questions : —
A. Are you satisfied that the acts resulting in the death were involuntary or unconscious conduct?
B. If this is so you must go on to consider whether this was due to a defect of reason from disease of the mind of such a kind that the defendant did not know the nature and quality of his act, in which case the form of acquittal would be guilty of the acts charged but insane at the time.
C. If you are satisfied that the acts were not conscious and voluntary but not satisfied that they are due to a defect of reason from disease of the mind, then the verdict should be not guilty because the prosecution have failed to satisfy you that the acts were conscious and voluntary.
D. If you are left in doubt as to whether the acts were conscious or voluntary then, if the acts were not within the M'Naghten Rules, the proper verdict would still be not guilty.
The Court of Criminal Appeal rejected that first portion of the argument on the ground that the learned judge was right in not leaving to the jury the defence of automatism in so far as it purported to be founded on a defect of reason from disease of the mind within the M'Naghten Rules. In this I think that they were right. To establish the defence of insanity within the M'Naghten Rules the accused must prove on the preponderance of probabilities first a defect of reason from a disease of the mind, and, secondly, as a consequence of such a defect, ignorance of the nature and quality (or the wrongfulness) of the acts. We have to consider a case in which it is sought to do so by medical evidence to the effect that the conduct of the accused might be compatible with psychomotor epilepsy, which is a disease of the mind affecting the reason, and that psychomotor epilepsy could cause ignorance of the nature and quality of the acts done, but in which the medical witness can assign no other cause for that ignorance. Where the possibility of an unconscious act depends on, and only on. The existence of a defect of reason from disease of the mind within the M'Naghten Rules, a rejection by the jury of this defence of insanity necessarily implies that they reject the possibility.
The Court of Criminal Appeal also took the view that where the alleged automatism is based solely on a disease of the mind within the M'Naghten Rules, the same burden of proof rests on the defence whether the plea is given the name of insanity or automatism. I do not think that statement goes further than saying that when you rely on insanity as defined by the Rules you cannot by a difference of nomenclature avoid the road so often and authoritatively laid down by the Courts.
What I have said does not mean that, if a defence of insanity is raised unsuccessfully, there can never, in any conceivable circumstances, be room for an alternative defence based on automatism. For example, it may be alleged that the accused had a blow on the head after which he acted without being conscious of what he was doing or was a sleep-walker. There might be a divergence of view as to whether there was a defect of reason from disease of the mind (compare the curious position which arose in Reginav. Kemp  1 Q.B. 399). The jury might not accept the evidence of a defect of reason from disease of the mind, but at the same time accept the evidence that the prisoner did not know what he was doing. If the jury should take that view of the facts they would find him not guilty. But it should be noted that the defence would only have succeeded because the necessary foundation had been laid by positive evidence which, properly considered, was evidence of something other than a defect of reason from disease of the mind. In my opinion, this analysis of the two defences (insanity and automatism) shows that where the only cause alleged for the unconsciousness is a defect of reason from disease of the mind, and that cause is rejected by the jury, there can be no room for the alternative defence cf automatism. Like the Court of Criminal Appeal, I cannot therefore accept the submission that the whole of the evidence directed to the issue of insanity should have been left to the jury to consider whether there was automatism due to another cause. It was conceded before this House, and this is stated in the judgment of the Court of Criminal Appeal, that there was nothing to show or suggest that there was any other pathological cause for automatism.
I next consider the submission that even so the question of automatism ought to have been left to the jury.
Great reliance was placed on a passage in the judgment of North, J. in the New Zealand case to which I have already referred (R. v. Cottle  N.Z.L.R. at 1029). Strictly this passage was obiter in view of the findings on the first two grounds of appeal but its importance is none-the-less obvious.
For the reasons I have earlier mentioned, however, as the authorities at present stand he (the judge) would not treat a plea of automatism as something akin to insanity, and therefore subject to the same rule as to the burden of proof for this would be an unwarranted extension of the rule laid down so positively in Woolmington's case (1935 A.C. p. 462) ... On the other hand in cases like the present one, where the form of the plea is that the prisoner acted unconsciously —in a state of automatism—the rejection of the evidence that he was suffering from a disease of the mind does not wholly dispose of the defence, for it is still possible, though perhaps unlikely, that the jury may not be completely satisfied that the act was the conscious and intended act of the prisoner. In my opinion the presiding judge must anticipate this possible situation. He must be careful to tell the jury that—apart from the plea of insanity—the onus of proving all the facts necessary to establish guilt rests on the Crown. Consequently, if the jury is of opinion that it has not been made out that the prisoner was suffering from a disease of the mind, it must remember that it is the responsibility of the Crown to satisfy it that the prisoner had known and understood the nature of the act he committed. If by this passage in his judgment North, J. meant to imply that in every case where insanity is raised, automatism must always be left to the jury as a defence, I should, with respect, be unable to accept what he says as a correct statement of the law. But what North, J. said must be considered in the light of the view expressed by the whole court (and set out in the headnote to the report) that not only must automatism be expressly put forward as a defence but also that a proper foundation must be laid for it. In my view the learned judge was only considering the situation where there was positive evidence which would justify a finding by the jury that the accused acted in a state of automatism. This is in accordance with the view taken by this House in Mancini v. Director of Public Prosecutions  A.C.1, in which it was pointed out that the decision in Woolmington's case (supra) did not mean that the judge must deal in his summing-up with the issues of accident and provocation merely because these defences were raised. There must be some evidence of accident or provocation on which a reasonable jury could act. I think that this provides the synthesis between the reasoning of the Court of Criminal Appeal in the present case and the passage just quoted from North, J. It is necessary that a proper foundation be laid before a judge can leave "automatism" to the jury. That foundation, in my view, is not forthcoming merely from unaccepted evidence of a defect of reason from disease of the mind. There would need to be other evidence on which a jury could find non-insane automatism. What the Court of Criminal Appeal say about the onus of proof must be read in the context of evidence directed simultaneously to defences of insanity and automatism.
Certain very relevant problems were discussed in Hill v. Baxter  1 Q.B. 277, where the Court (Lord Goddard, C.J., Devlin and Pearson, JJ. (as they then were)) held that, in spite of the justices accepting the defendant's evidence that he became unconscious while driving, there was no evidence which justified the justices in finding that the defendant was not fully responsible in law for his actions. Lord Goddard expressed the view that the onus of proving that the defendant was in a state of automatism was on him because automatism is akin to insanity and further is a fact exclusively within his own knowledge. The other members of the Court reserved this point. Nevertheless Devlin, J. at pp. 284/5 used these words, with which I respectfully agree and which are relevant to the present case—
It would be quite unreasonable to allow the defence to submit at the end of the prosecution's case that the Crown had not proved affirmatively and beyond a reasonable doubt that the accused was at the time of the crime sober, or not sleepwalking or not in a trance or blackout.
Later on p. 285 he continued—
In my judgment there is not to be found in the case stated evidence of automatism of a character which would be fit to leave to a jury ... he was not saying that he was a victim of any disease of the mind. Unless there was evidence that his irrationality was due to some cause other than disease of the mind, the justices were not entitled simply to acquit.
I have also read with great interest and profit the Victorian case of Regina v. Carter [1959 V.R. 105] and the Queensland cases of The Queen v. Foy (Queensland Vol. LIII, Part III 225) and Cooper v. McKenna (in Part IV. at p. 406). I do not think that this is the occasion to pursue the particular facts or the effect of particular statutes but it seems to me that none of the learned judges would question the proposition that, for a defence of automatism to be genuinely raised in a genuine fashion ", there must be evidence on which a jury could find that a state of automatism exists. By this I mean that the defence must be able to point to some evidence, whether it emanates from their own or the Crown's witnesses, from which the jury could reasonably infer that the accused acted in a state of automatism. Whether or no: there is such evidence is a matter of law for the judge to decide. In the case before your Lordships, in my opinion. McVeigh, J. was right in ruling that there was no evidence on this point fit to be left to the jury. I have already dealt with the unsuccessful attempt to prove psychomotor epilepsy and the concession before us that there was nothing in the evidence to show or suggest that there was any other pathological cause. If one subtracts the medical evidence directed to the establishment of psychomotor epilepsy. I am of opinion that there was not any evidence on which a jury could properly have considered the existence of automatism. Counsel for the Petitioner directed our attention to the Petitioner's statement, to his evidence and to his previous conduct. In my view they do not provide evidence fit to be left to a jury on this question. They could not form the basis of reasonable doubt.
McVeigh, J. did not, therefore, have to consider what direction he would have given to the jury if he had felt that there was evidence fit for them to consider. It is not, strictly speaking, necessary for the decision of this appeal for this House to consider what this direction should have been, but in view of the mention of onus in the judgment of the Court of Criminal Appeal and the argument addressed to us, I think that it is right for me to deal with it.
Where the defence succeeds in surmounting the initial hurdle (see Mancini v. Director of Public Prosecutions, supra), and satisfies the judge that there is evidence tit for the jury to consider, the question remains whether the proper direction is—
1. that the jury will acquit if, and only if, they are satisfied on the balance of probabilities that the accused acted in a state of automatism, or
2. that they should acquit if they are left in reasonable doubt on this point.
In favour of the former direction it might be argued that, since a defence of automatism is (as Lord Goddard said in Hill v. Baxter (supra)) very near a defence of insanity, it would be anomalous if there were any distinction between the onus in the one case and in the other. If this argument were to prevail it would follow that the defence would fail unless they established on a balance of probabilities that the prisoner's act was unconscious and involuntary in the same way as, under the M'Naghten Rules, they must establish on a balance of probabilities that the necessary requirements are satisfied.
Nevertheless, one must not lose sight of the overriding principle, laid down by this House in Woolmington's case (supra), that it is for the prosecution to prove every element of the offence charged. One of these elements is the accused's state of mind ; normally the presumption of mental capacity is sufficient to prove that he acted consciously and voluntarily and the prosecution need go no further. But, if, after considering evidence properly left to them by the judge, the jury are left in real doubt whether or not the accused acted in a state of automatism, it seems to me that on principle they should acquit because the necessary mens rea—if indeed the actus reus —has not been proved beyond reasonable doubt.
I find support for this view in the direction given by Barry, J. to the jury in Reg. v. Charlson  1 W.L.R. 317. In that case the prisoner was charged on three counts, namely, causing grievous bodily harm with intent to murder, causing grievous bodily harm with intent to cause grievous bodily harm, and unlawful wounding. The defence raised the issue of automatism and called medical evidence in support of it. The learned judge, on the basis—which has aroused some discussion—that insanity did not come into the case, after directing the jury that on each of the first two charges the prosecution must prove the specific intent, went on to deal with the third charge, that is, unlawful wounding, in these words:
Therefore, in considering this third charge, you will have to ask yourselves whether the accused knowingly struck his son, or whether he was acting as an automaton without any knowledge of, or control over, his acts ... If you are left in any doubt about the matter, and you think that he may well have been acting as an automaton without any real knowledge of what he was doing, then the proper verdict would be ' not guilty' . . . ''
I am also supported by the words of Scholl, J. in Reginav. Carter (supra) at p. 111 when he said:
It must be for the defence in the first instance genuinely to raise the issue, but if the defence does raise the issue in a genuine fashion then the Crown which, of course, may call rebutting evidence on the matter, is bound in the long run to carry the ultimate onus of proving all the elements of the crime including the conscious perpetration thereof."
My conclusion is, therefore, that once the defence have surmounted the initial hurdle to which I have referred and have satisfied the judge that there is evidence fit for the jury's consideration, the proper direction is that, if that evidence leaves them in a real state of doubt, the jury should acquit. On the second ground of appeal, that the learned judge was wrong in failing to leave the issue of manslaughter to the jury, I find myself in entire agreement with the words of Lord MacDermott in giving the judgment of the Court of Criminal Appeal on this point and respectfully adopt his reasoning.
I think that this appeal should be dismissed.
I agree. I also desire to express my agreement with the Opinion to be delivered by my noble and learned friend, Lord Morris of Borth-y-Gest. which I have had the advantage of reading in print.
In the case of Woolmington v. The Director of Public Prosecutions  A.C. 462 at p. 482 Viscount Sankey, L.C., said that when dealing with a murder case the Crown must prove (a) death as the result of a voluntary act of the accused and (b) malice of the accused. The requirement that it should be a voluntary act is essential, not only in a murder case, but also in every criminal case. No act is punishable if it is done involuntarily: and an involuntary act in this context—some people nowadays prefer to speak of it as " automatism "-—means an act which is done by the muscles without any control by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done whilst suffering from concussion or whilst sleep-walking. The point was well put by Stephen J. in 1889: Can anyone doubt that a man who, though he might be perfectly sane, committed what would otherwise be a crime in a state of somnambulism, would be entitled to be acquitted? And why is this? Simply because he would not know what he was doing, see The Queen v. Tolson (1889) 23 Q.B.D. 168, at page 187. The term involuntary act is, however, capable of wider connotations: and to prevent confusion it is to be observed that in the criminal law an act is not to be regarded as an involuntary act simply because the doer does not remember it. When a man is charged with dangerous driving, it is no defence to him to say I don't know what happened. I cannot remember a thing, see Hill v. Baxter  1 Q.B. 277. Loss of memory afterwards is never a defence in itself, so long as he was conscious at the time, see Russell v. H.M. Advocate, 1946 S.C. (J) 37. Reginav. Podola [I960] 1 Q.B. 325. Nor is an act to be regarded as an involuntary act simply because the doer could not control his impulse to do it. When a man is charged with murder, and it appears that he knew what he was doing, but he could not resist it, then his assertion. "I couldn't help myself", is no defence in itself, see Attorney-General for South Australia v. Brown  A.C. 432: though it may go towards a defence of diminished responsibility, in places where that defence is available, see Regina v. Byrne (19601 2 Q.B. 396: but it does not render his act involuntary so as to entitle him to an unqualified acquittal. Nor is an act to be regarded as an involuntary act simply because it is unintentional or its consequences are unforeseen. When a man is charged with dangerous driving, it is no defence for him to say, however truly, I did not mean to drive dangerously. There is an absolute prohibition against that offence, whether he had a guilty mind or not. see Hill v. Baxter  1 Q.B. 277 at p. 282 by Lord Goddard C.J. But even though it is absolutely prohibited, nevertheless he has a defence if he can show that it was an involuntary act in the sense that he was unconscious at the time and did not know what he was doing, see H.M. Advocate v. Ritchie 1926 S.C. (J) 45, Regina v. Minor (1955) 15 W.L.R. (N.S.) 443 and Cooper v. McKenna, 1960 Queensland Reports 406.
Another thing to be observed is that it is not every involuntary act which leads to a complete acquittal. Take first an involuntary act which proceeds from a state of drunkenness. If the drunken man is so drunk that he does not know what he is doing, he has a defence to any charge, such as murder or wounding with intent, in which a specific intent is essential, but he is still liable to be convicted of manslaughter or unlawful wounding for which no specific intent is necessary, see Director of Public Prosecutions v. Beard  A.C. 479 at pages 494, 498. 504. Again, if the involuntary act proceeds from a disease of the mind, it gives rise to a defence of insanity, but not to a defence of automatism. Suppose a crime is committed by a man in a state of automatism or clouded consciousness due to a recurrent disease of the mind. Such an act is no doubt involuntary, but it does not give rise to an unqualified acquittal, for that would mean that he would be let at large to do it again. The only proper verdict is one which ensures that the person who suffers from the disease is kept secure in a hospital so as not to be a danger to himself or others. That is, a verdict of guilty but insane.
Once you exclude all the cases I have mentioned, it is apparent that the category of involuntary acts is very limited. So limited indeed that until recently there was hardly any reference in the English books to this so-called defence of automatism. There was a passing reference to it in 1951 in Regina v. Harrison-Owen  2 A.E.R. 726, where a burglar, who broke into houses, said he did not know what he was doing. I should have thought that, in order to rebut this defence, he could have been cross-examined about his previous burglaries: but the Court of Criminal Appeal ruled otherwise. I venture to doubt that decision. The next is the singular case of Reginav. Charlson  1 W.L.R. 317. Stanley Charlson, a devoted husband and father, hit his ten-year old son on the head with a hammer and threw him into the river and so injured him. There was not the slightest cause for the attack. He was charged with causing grievous bodily harm with intent, and with unlawful wounding. The evidence pointed to the possibility that Charlson was suffering from a cerebral tumour, in which case he would be liable to a motiveless outburst of impulsive violence over which he would have no control at all. Now comes the important point—no plea of insanity was raised, but only the defence of automatism. Barry J. directed the jury in these words: " If he did not know what he was doing, if his actions were purely automatic and his mind had no control over the movement of his limbs, if he was in the same position as a person in an epileptic fit, then no responsibility rests upon him at all, and the proper verdict is ' Not Guilty'. On that direction the jury found him Not Guilty. In striking contrast to Charlson's case is Reginav. Kemp  1 Q.B. 399. A devoted husband of excellent character made an entirely motiveless and irrational attack upon his wife. He struck her violently with a hammer. He was charged with causing her grievous bodily harm. It was found that he suffered from hardening of the arteries which might lead to a congestion of blood in the brain. As a result of such congestion, he suffered a temporary lack of consciousness, so that he was not conscious that he picked up the hammer or that he was striking his wife with it. It was therefore an involuntary act. Note again the important point—no plea of insanity was raised but only the defence of automatism. Nevertheless, Devlin J. put insanity to the jury. He held that hardening of the arteries was a " disease of the mind within the M'Naghten Rules and he directed the jury they ought so to find. They accordingly found Kemp guilty but insane.
My Lords, I think that Devlin J. was quite right in Kemp's Case in putting the question of insanity to the jury, even though it had not been raised by the defence. When it is asserted that the accused did an involuntary act in a state of automatism, the defence necessarily puts in issue the state of mind of the accused man: and thereupon it is open to the prosecution to show what his true state of mind was. The old notion that only the defence can raise a defence of insanity is now gone. The prosecution are entitled to raise it and it is their duty to do so rather than allow a dangerous person to be at large. The Trial of Lunatics Act, 1883, says that where it is given in evidence that the person was insane, the jury shall return a verdict of guilty but insane. It does not say that the defence alone can give such evidence. The prosecution can give it. And in either case inasmuch as the verdict is one of acquittal, see Felstead v. The King  A.C. 534, it should be decided on the balance of probabilities. So it has been held in England that where a man sets up a defence of diminished responsibility, the prosecution are entitled to show that he was insane,see Regina v. Bastion  1 W.L.R. 413: and conversely when a man sets up insanity, the prosecution are entitled to give evidence of diminished responsibility, see Regina v. Nott (1958) 43 Cr. Ap. R. 8.
Upon the other point discussed by Devlin J. namely, what is a disease of the mind " within the M'Naghten Rules, I would agree with him that this is a question for the Judge. The major mental diseases, which the doctors call psychoses, such as schizophrenia, are clearly diseases of the mind. But in Charlson's case, Barry J. seems to have assumed that other diseases such as epilepsy or cerebral tumour are not diseases of the mind, even when they are such as to manifest themselves in violence. I do not agree with this. It seems to me that any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal.
It is to be noticed that in Charlson's case and Kemp's case the defence raised only automatism, not insanity. In the present case the defence raised both automatism and insanity. And herein lies the difficulty because of the burden of proof. If the accused says he did not know what he was doing, then, so far as the defence of automatism is concerned, the Crown must prove that the act was a voluntary act, see Woolmington's case  A.C. 462 at p. 482. But so far as the defence of insanity is concerned, the defence must prove that the act was an involuntary act due to disease of the mind, see M'Naghten's case (1843) Cl. and F. at p. 210. This apparent incongruity was noticed by Sir Owen Dixon, the Chief Justice of Australia, in an address which is to be found in 31 Australian Law Journal 255 and it needs to be resolved. The defence here say: Even though we have not proved that the act was involuntary, yet the Crown have not proved that it was a voluntary act: and that point at least should have been put to the jury.
My Lords, I think that the difficulty is to be resolved by remembering that, whilst the ultimate burden rests on the Crown of proving every element essential in the crime, nevertheless in order to prove that the act was a voluntary act, the Crown is entitled to rely on the presumption that every man has sufficient mental capacity to be responsible for his crimes: and that if the defence wish to displace that presumption they must give some evidence from which the contrary may reasonably be inferred. Thus a drunken man is presumed to have the capacity to form the specific intent necessary to constitute the crime, unless evidence is given from which it can reasonably be inferred that he was incapable of forming it, see the valuable judgment of the Court of Session in Kennedy v. H.M. Advocate, 1944 S.C. (J.) 171 at p. 177 which was delivered by Lord Normand. So also it seems to me that a man's act is presumed to be a voluntary act unless there is evidence from which it can reasonably be inferred that it was involuntary To use the words of Devlin J. the defence of automatism "ought" not to be considered at all until the defence has produced at least prima "facie evidence." see Hill v. Baxter  1 Q.B. 277 at p. 285; and the words of North J. in New Zealand " unless a proper foundation is laid, see Regina v. Cattle, 1958 N.Z. L.R. at p. 1025. The necessity of laying this proper foundation is on the defence: and if it is not so laid, the defence of automatism need no; be left to the jury, any more than the defence of drunkenness, (Kennedy v. H.M. Advocate, supra) provocation (R. v. Gauthier. 21 Cr. Ap. R. 113) or self-defence (Regina v. Lobell  1 Q.B. 547) need be.
What then is a proper foundation? The presumption of mental capacity of which I have spoken is a provisional presumption only. It does not put the legal burden on the defence in the same way as the presumption of sanity does. It leaves the legal burden on the prosecution, but nevertheless, until it is displaced, it enables the prosecution to discharge the ultimate burden of proving that the act was voluntary. Not because the presumption is evidence itself, but because it takes the place of evidence. In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary. The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity. It is not sufficient for a man to say "I had a blackout": for "Black-out" as Stable J said in Cooper v. McKenna, 1960 Queensland Reports at p. 419, "is one of the first refuges of a guilty conscience and a popular excuse". The words of Devlin J in Hill v. Baxter  1 Q.B. at p. 285 should be remembered: "I do not doubt that there are genuine cases "of automatism and the like, but I do not see how the layman can safely" attempt without the help of some medical or scientific evidence to distinguish "the genuine from the fraudulent". When the only cause that is assigned for an involuntary act is drunkenness, then it is only necessary to leave drunkenness to the jury, with the consequential directions, and not to leave automatism at all. When the only cause that is assigned for it is a disease of the mind, then it is only necessary to leave insanity to the jury, and not automatism. When the cause assigned is concussion or sleep-walking, there should be some evidence from which it can reasonably be inferred before it should be left to the jury. If it is said to be due to concussion, there should be evidence of a severe blow shortly beforehand. If it is said to be sleep-walking, there should be some credible support for it. His mere assertion that he was asleep will not suffice.
Once a proper foundation is thus laid for automatism, the matter becomes at large and must be left to the jury. As the case proceeds, the evidence may weigh first to one side and then to the other: and so the burden may appear to shift to and fro. But at the end of the day the legal burden comes into play and requires that the jury should be satisfied beyond reasonable doubt that the act was a voluntary act.
This brings me to the root question in the present case: Was a proper foundation laid here for the defence of automatism apart from the plea of insanity? There was the evidence of George Bratty himself that he could not remember anything because this blackness was over me. He said: I did not realise exactly what I was doing, and added afterwards: I didn't know what I was doing. I didn't realise anything. He said he had 4 or 5 times previously had feelings of blackness and frequently headaches. There was evidence, too, of his odd behaviour at times, his mental backwardness and his religious leanings. Added to this there was the medical evidence. Dr. Sax, who was called on his behalf, said there was a possibility that he was suffering from psychomotor epilepsy. It was, he said, practically the only possibility that occurred to him. Dr. Walker, his general practitioner, said you could not leave the possibility out of account. Dr. Robinson, a specialist, who gave evidence on behalf of the Crown, said he thought it was extremely unlikely that it was an epileptic attack, but one could not rule it out. All the doctors agreed that psychomotor epilepsy, if it exists, is a defect of reason due to disease of the mind : and the Judge accepted this view. No other cause was canvassed.
In those circumstances, I am clearly of opinion that, if the act of George Bratty was an involuntary act, as the defence suggested, the evidence attributed it solely to a disease of the mind and the only defence open was the defence of insanity. There was no evidence of automatism apart from insanity. There was, therefore, no need for the Judge to put it to the jury. And when the jury rejected the defence of insanity, they rejected the only defence disclosed by the evidence.
I think that McVeigh J. was right in the course he took at the trial, and I find myself in entire agreement with the judgment of Lord MacDermott. C.J., in the Court of Criminal Appeal. I would, therefore, dismiss the appeal.
Lord Morris of Borth-y-Gest
The Court of Criminal Appeal certified that their decision in dismissing the Appellant's appeal involved two points of law of general public importance. The first was whether, his plea of insanity having been rejected by the jury, it was open to the accused to rely upon a defence of automatism. This raises the question whether a person who by legal tests and standards is sane and who is charged with a criminal offence could be held to be non-accountable for his actions so as to be not guilty of the offence charged against him on the basis that his actions had been unconscious ones and in that sense involuntary. My Lords, I can conceive that this could be so though the cases where such a situation could arise must be very rare. Each set of facts must require a careful investigation of its own circumstances but if, by way of taking an illustration, it were considered possible for a person to walk in his sleep and to commit a violent act while genuinely unconscious, then such a person would not be criminally liable for that act. Apart altogether from any question as to whether some particular criminal charge requires proof of some particular intent, in the possible case that I have postulated there would be immunity from any conviction for the reason that the act in question could not really be considered to be the act of the person concerned at all.
The "golden" rule of the English criminal law that it is the duty of the prosecution to prove an accused person's guilt (subject to any statutory exception and subject to the special position which arises where it is given in evidence that an accused person is insane) does not involve that the prosecution must speculate as to and specifically anticipate every conceivable explanation that an accused person might offer. The evidence of the commission of certain acts may suffice to prove that they were intentional. In a charge of murder malice may by implication be proved where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given an accused person may, however, either by adducing evidence or by examining the circumstances adduced by the Crown, show that his actions were either unintentional or provoked. In such a situation the continuing and constant obligation of the prosecution to satisfy the jury beyond any reasonable doubt is in no way abated (see Woolmington v. Director of Public Prosecutions  A.C. 462). In the conceivably possible case that I have postulated (of a violent act committed by a sleep-walker) it would not necessarily be the duty of the prosecution in leading their evidence as to the commission of the act specifically to direct such evidence to negativing the possibility of the act having been committed while sleep-walking. If, however, during the trial the suggested explanation of the act was advanced and if such explanation was so supported that it had sufficient substance to merit consideration by the jury, then the onus which is upon the prosecution would not be discharged unless the jury, having considered the explanation, were sure that guilt in regard to the particular crime charged was established so that they were left in no reasonable doubt. The position would be analogous to that which arises where a defence of self-defence is raised. Though the onus is upon the prosecution to negative that defence, the obligation to do so only arises effectively when there is a suggestion of such defence (see Regina v. Lobell  1 Q.B. 547).
Before an explanation of any conduct is worthy of consideration such explanation must be warranted by the established facts or be supported by same evidence that has been given by some witness. Though questions as to whcthcr evidence should or should not be accepted or as to the weight to be attached to it are for the determination of the jury, it is a province of the judge to rule whether a theory or a submission has the support of evidence so that it can properly be passed to the jury for their consideration. As human behaviour may manifest itself in infinite varieties of circumstances it is perilous to generalise, but it is not every facile mouthing of some easy phrase of excuse that can amount to an explanation. It is for a judge to decide whether there is evidence fit to be left to a jury which could be the basis for some suggested verdict.
My Lords, the fact that a plea of insanity was advanced on behalf of the accused did not of itself prevent the raising of alternative or additional matters, and in regard to the first point of law presented by the Court of Criminal Appeal I consider that though the Appellant's plea of insanity was rejected by the jury it was open to him to rely upon the suggested defence which is denoted by the word automatism.
On this basis the second point of law certified by the Court of Criminal Appeal calls for consideration. It was expressed in these words: If the answer to (1) be in the affirmative, whether, on the evidence, the defence of automatism should have been left to the jury. This raises the question whether there was any evidence of automatism which was fit to be left to the jury. The argument on behalf of the Appellant involved consideration both of the medical evidence and of the non-medical evidence. In his statement made on the 23rd December, 1960, the Appellant had spoken of a sort of blackness and in his evidence in Court he had spoken of a blackness having come over him and of previous occasions when he had had feelings of blackness. There were three medical witnesses called (either by the prosecution or by the defence) during the trial. In questions that were put to them and in the course of 'their evidence the only pathological explanation of what the Appellant might have been suffering from that was suggested or in any way canvassed was the 'possibility that he might have been suffering from psychomotor epilepsy. Psychomotor epilepsy was said to toe a functional disorder amounting to defect of reason due to disease of the mind. There was some evidence that during an attack of psycho-motor epilepsy a person might commit a violent act unconsciously. There was no medical evidence which was directed to the suggestion of "automatism" other than automatism of an epileptic character. It was, however, urged that in spite of this and notwithstanding that the plea of insanity was rejected the jury should have been told that the medical evidence could still support the view that the Appellant though sane had acted unconsciously. It was urged that the jury on a balance of probabilities might not have considered that the Appellant was insane but might have had reasonable doubts as to whether his actions were conscious ones and accordingly had this possible view of the matter been left to them might have returned a verdict of not guilty. The only medical evidence, however, which could lend any support at all to the suggestion that the Appellant had acted unconsciously was such evidence as could tend to show that he might have suffered from psychomotor epilepsy—which was a disease of the mind. When the plea of insanity failed the presumption of sanity remained and no medical evidence was adduced which was at all directed to the question whether on the assumption that the Appellant was sane he might yet for some reason have acted unconsciously. The submission on behalf of the Appellant that the medical evidence could support a plea of automatism so that the jury might have 'had reasonable doubt whether the actions of the Appellant which caused the death were conscious and voluntary involved in effect a repetition of the plea of insanity while endeavouring to avoid the well-established rules as to how insanity must be established.
The non-medical evidence which was relied upon as supporting the suggestion that the Appellant had acted in a state of automatism was the evidence of the Appellant himself and all the evidence as to his general behaviour and backwardness and his characteristics and all the evidence relating to the circumstances attending the death of the deceased. The argument for the Appellant was that there was evidence upon which the jury would have been warranted in finding that the Appellant acted unconsciously because he was in a state of automatism which was not due to a disease of the mind and that either on this basis or on the basis of having reasonable doubts as to whether the actions of the Appellant were conscious and voluntary ones the jury would have been warranted in returning a verdict of not guilty. In his statement on the 23rd December, 1960, the Appellant gave an account of what he had done. The Appellant said in the witness box that he did not at the time know what he was doing or did not realise exactly what he was doing or realise at the time what he had done or did not remember what he had done. He also said that he had not meant to do any harm. A consideration of his evidence and of the other evidence in the case leads me to the view that it did not provide a proper foundation for a submission that (apart from any question of insanity) the actions of the Appellant had been unconscious and involuntary. There was no sufficient evidence, fit to be left to a jury, on which a jury might conclude that the Appellant had acted unconsciously and involuntarily or which might leave a jury in reasonable doubt whether this might be so. There was much evidence which showed that the Appellant had been and was in many respects backward. He had, however, always been well-behaved and ordinarily he was quiet and kindly: his actions on the 22nd December, 1960, seemed out of keeping with his character. The evidence amply warranted the learned judge in saying to the jury that they might think he was an odd fish, an odd fish, this boy—indeed not only as a boy but when he grew up later he was an odd sort of a being, not just quite normal, and that he behaved in these, perhaps minor, ways of abnormality. However relevant all the evidence so referred to might have been if a different defence than insanity had been available and however relevant it may be in considering questions which are not for your Lordships' determination, such evidence does not tend to support a plea that the actions of the Appellant were unconscious ones. Accordingly I consider that the learned judge at the trial was right in the course that he took.
I am in agreement with the reasons given by the Court of Criminal Appeal for concluding that the learned judge was right in not leaving the issue of manslaughter to the jury.
I would dismiss the appeal.
I agree with the speech which has been delivered by my noble and learned friend on the Woolsack, and also with that which has just been delivered by my noble and learned friend, Lord Morris of Borth-y-Gest.