R. v. Mohammad Hussain

CACC000197/1991

Criminal law - attempted rape - defence that accused was in a state of non-insane automatism due to hypoglycaemia - whether proper foundation laid for defence to be left to the jury.

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Coram: Sir Derek Cons, V.-P., Fuad, V.-P. & Rhind, J.

Date of Hearing: 21 August 1992

Date of Judgment: 21 August 1992

Date of Reasons handed down: 28 August 1992

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the court):

1. The applicant, Mohammad Hussain, was convicted of attempted rape on 17th April 1991 in the High Court, before Deputy Judge Leonard (as he then was) and a jury and sentenced to four years' imprisonment. From that conviction and sentence he sought leave to appeal. We dismissed his application for leave to appeal against conviction at the conclusion of the hearing and we now give our reasons. By leave, he withdrew his application regarding sentence.

2. The complainant is a woman in her 70s. The case for the prosecution was that about 10 a.m. on 10th June 1990 she left her home on her way to inspect the premises into which she planned to move. In Texaco Road, Kwai Chung, she was suddenly confronted by the applicant who was a stranger to her. He had a can of beer in one hand and carried others in a plastic bag. He offered her a drink more than once which she refused. He then caught hold of her. He pulled, pushed and dragged her against her will for a distance of between 800 and 1,000 metres despite her resistance and protests all the way. He took her to a place under the flyover near the Chung Shing Industrial Building. He threw her to the ground over some railings which he then jumped to join her. He then pulled down her trousers and underwear, as well as his own, and lay on top of her.

3. The complainant told the jury that she was so frightened that she lost her strength. While she tried to push him away, he was trying to insert his penis into her, although it was not erect. This went on for a few minutes. She felt his penis come into contact with her body near her vagina. He also tried to kiss her. During this assault, he tried to give her money (she thought it was $10 or $20) and said "How much? How much?" more than once. She then related how she had been rescued by two young men, and how they overpowered him and prevented his escape until the police came and took over.

4. The complainant's evidence was not challenged in cross-examination by Mr. Spicer (who also represents the applicant before this court). In answer to him, she agreed that she could smell alcohol "a little bit" on his breath. She added: "He was not drunk." There was then the following exchange between her and counsel:

"Q. Nobody has ever done this to you before, have they?

A. Never. I am seventy-odd years old. Never.

Q. You must admit that he appeared to be behaving in a most unreasonable fashion, would you not?

A. Of course it is wrong for him to do that. I think it is for you, you people here, to say whether he is doing the right thing.

Q. No, I am not saying whether it was right or wrong, madam. Would you agree that it was - he appeared to you to be behaving unreasonably, without any reason for his actions?

A. Right."

5. Mr. Lau Kin Yip (PW2) and Mr. Sin Kin Shing (PW3), two friends, testified that they were travelling in a car driven by the latter when they saw the complainant being pushed along step by step. The woman fell to the ground from time to time. They stopped the car and, under the flyover, they saw a man (whom they identified as the applicant) lying on top of the woman, moving as if they were making love. They shouted at the man but he took no notice. Mr. Sin threw a piece of wood which missed the assailant who then got to his feet and pulled up his trousers. The applicant pointed to the woman and said "Friends". When she was asked if this was true, the woman told her rescuers that she did not know the man. Mr. Lau went off to report to the police. The applicant tried to run away but Mr. Sin stopped him. The applicant picked up a piece of rock and made as if to throw it at Mr. Sin. On seeing this. Mr. Sin seized a bamboo pole. The applicant dashed forward and managed to take the pole away from him.

6. Mr. Ng Fuk Chuen (Pw4) who was working nearby, was called to the scene. He saw Mr. Sin and the applicant wrestling with each other and went up to the applicant, grabbed hold of him and pinned him to the ground. The applicant was struggling all the time but after about 5-10 minutes, with the help of some co-workers, Mr. Ng managed to tie the applicant up. He was eventually handed over to the police.

7. Mr. Sin smelled alcohol on the applicant's breath, but he did not think he was drunk "because he was able to zip up his trousers, to button his trousers." Moreover, he could stand "firmly". He helped Mr. Ng to subdue the applicant because Mr. Ng was having "great difficulties to overpower him". Mr. Ng also smelled alcohol on the applicant's breath.

8. The witness also said that once the applicant had been tied up, he closed his eyes and lay still. He had to be picked up and carried to the police vehicle.

9. There was evidence from one of the police officers (Pw12) who arrived at the scene some 10 minutes later and arrested the applicant, that his eyes were closed and that the police had to get help from the civilian witnesses to carry him to the police vehicle. This witness told the jury that on arrival at the police station he had to help the applicant to sit up on the bench in the detention room and this needed considerable strength since the applicant's body was relaxed. He did not appear to be using his muscles to resist. He said that when the applicant was sitting on the bench he banged his head 5 or 6 times against the wall behind him. His eyes were turned up. He was murmuring something. The police officer tried to prevent him injuring himself by putting his hand first, and then a telephone directory, between the applicant's head and the wall. He eventually managed to stop him. The police officer was willing to accept this description of the applicant put to him by his counsel: "His eyes appeared to be glazed as if there wasn't a conscious spirit acting, working behind them."

10. At about 12.45 p.m. the applicant was taken to hospital by ambulance. He had walked to the ambulance with the help of two ambulance men. When a Medical Officer sought to examine the applicant at about 1.00 p.m. on the same day, he did not respond when asked whether he would allow himself to be medically examined and so the doctor thought it right not to examine him. From what he saw, the doctor did not think that the applicant was under the influence of alcohol. His face was not flushed and he did not smell alcohol on him.

11. The doctor who examined the complainant gave evidence which was wholly consistent with the account she had given of the nature of the sexual assault upon her.

12. The applicant gave evidence before the jury. He was about 33 years of age in June 1990. He was born in Pakistan. He has never been to school and is illiterate. He arrived in Hong Kong about 19 years ago. His wife lived in Pakistan and two of his sons lived with him in Hong Kong, in a hostel. At the relevant time, he was working as a watchman for a security firm. He had not been in trouble before.

13. He testified that on 9th June 1990, the day before the incident, he got up at 6.00 a.m. and went to work at 7.00 a.m. He had a meal at noon. He stopped work that day at 7.00 p.m. and had a meal in the early evening. He went to bed at 11:00 p.m. and got up at 6.00 a.m. on the following morning. While he was on duty he went to Tsuen wan to buy some beer - 7 cans. He was not supposed to leave his work, or drink on duty. This was the first time he had done this. It was a hot day. He started to drink the beer at about 7.30 a.m., not having eaten anything that morning. He remembered drinking about 4 cans of beer. He began to feel dizzy but started to walk, still drinking his beer. He remembered nothing after this until he found himself in hospital and had to ask a police officer why he was there.

14. His examination-in-chief, concluded with these questions and answers:

"Q. Do you accept that on 10th June your body attacked this woman, that is to say you were seen attacking the first witness?

A. I don't remember.

Q. Does it worry you that you can't remember what happened?

A. How can I worry when I even don't remember.

Q. You are obviously in a lot of trouble today, aren't you?

A. Yes.

A. Yes, now I realise I'm in trouble but at that time I didn't know.

Q. Now you have got a chance to think about the consequences, haven't you?

A. Yes, I'm very sorry now.

Q. What are you going to do to stop this happening again?

A. I regret drinking and I have now decided never to drink again.

....."

15. In cross-examination he said that he usually drank only one can of beer a week. He had drunk one can on the evening before, at home. Drinking was against his religion. The transcript of the cross-examination ends as follows:

"Q. Did you on other occasions feel craving to drink?

A. Not particularly. I'm not a habitual drinker occasionally I have a can of beer.

Q. well, I suggest to you that on this day on 10th June you were intoxicated.

A. Yes, intoxicated.

Q. And whilst in a state of intoxication you approached this elderly lady and behaved towards her in a manner which she described in her evidence.

A. That I don't remember.

Q. Do you remember fighting with the men who came to rescue the lady of which you have heard evidence.

A. No, I don't remember.

Q. When you eventually remembered, your memory returned and you were told perhaps what had happened on the morning of 10th June, how did you feel about it?

A. I got shocked. I felt very ashamed when I came to know that the lady I touched is much older than my own mother.

Q. I suggest that the shock and the shame which you felt manifested itself after you were arrested in the form of your behaviour at the police station.

A. No and in the police station I was told nothing."

16. The only complaint made about the summing up in the grounds of appeal relates to the way in which the judge dealt with the defence of automatism. By the first ground of appeal it is contended that the judge erred in law in ruling that "no [such defence] could arise in law as a result of the evidence led" and "that even if such a defence could arise, that the evidence led did not raise an issue of automatism which could be left to the jury."

17. The next ground of appeal states that the judge erred in law "in that when he directed the jury that:

'... it is no excuse that because of drink which an accused has taken knowingly and willingly, he has deprived himself of the ability to exercise self-control ...'

he failed to address the possibility that had the appellant taken food at the same time as the alcohol he might not have lost his self-control."

18. It is then said that the judge erred in law, (as a result of his ruling) by withdrawing the defence of automatism from the jury. This was a material irregularity which deprived the complainant of an opportunity of being acquitted according to law.

19. It is now necessary to refer briefly to expert evidence which was given about the medical condition known as hypoglycaemia. Put shortly, this condition (a deficiency of blood-sugar) is known to impair consciousness and induce aggressive behaviour. It can arise from fasting and then drinking alcohol, and can lead to automatism.

20. Dr. William Green (PW16) a well-known psychiatrist with particular experience in the field of alcoholism, gave evidence on the matter, as did Dr. Julian Critchley for the defence (DW2). Neither doctor had examined the applicant. We will return to their evidence later.

21. At the conclusion of the evidence called in the case counsel agreed with the judge that in the absence of the jury they should discuss whether there was sufficient evidence on the issue of automatism to be left to the jury. Counsel for the Crown cited passages from a number of authorities which, he submitted, clearly established that it was necessary for the defence to lay a proper foundation for a defence of automatism before it could properly be left to the jury. He contended that in order to do so, the defence was required, at least, to raise a prima facie case that automatism existed. He argued that this had not been done. He maintained that the possibility that the defendant was suffering from a state of automatism had been effectively eliminated by Dr. Green's testimony and, counsel suggested, Dr. Critchley's evidence was not sufficient to establish a prima facie case of automatism.

22. Mr. Spicer, for the defendant, referred to a number of authorities and contended that a proper foundation for the defence raised had indeed been laid and that the issue should therefore be left to the jury.

23. The discussion between the judge and counsel continued until it was time for the court to rise. The judge reserved his ruling until the next morning. when the court re-convened, still in the absence of the jury, the learned judge raised a new point with counsel: whether the defence of automatism caused by the voluntary ingestion of alcohol was available to a person charged with attempted rape. After the judge had referred to a number of authorities, Crown counsel submitted that the offence of rape and the offence of attempted rape were offences of "basic intent" and that self-induced intoxication could not therefore avail the accused as a defence. He agreed with a tentative proposition which had been put forward by the judge during argument that the authorities, properly understood, intended to encompass any effect (including hypoglycaemia) upon the mental capacity if produced by the voluntary ingestion of alcohol.

24. Mr. Spicer submitted, inter alia, that only if the Crown could prove that the defendant drank the beer, being reckless as to the consequences, could the case fall within the principles laid down in D.P.P. v. Majewski (1976) 62 Cr App R 262 and in such cases it was the knowledge of the person running the risk of committing a crime by his conduct that was relevant. He maintained that only if the Crown was able to prove the requisite mens rea could the accused be convicted. It is not necessary to go any further into Mr. Spicer's submissions because a different stand is now being taken on behalf of the applicant in the notice of appeal.

25. The learned judge then gave his ruling in which he noted that it was "common ground that an offence of attempted rape is not one where a specific intent requires to be proved and in that sense it might be described as an offence of basic intent." He referred to some of the leading authorities and cited from them. He then said this:

"    Now, in fact it is generally recognized that the principle there stated [the passage of the speech of Lord Elywn-Jones, L.C. in DPP v. Majewski (1976) 62 Cr App R 262, at p.271] is applicable to any offence which is not an offence where specific intent has to be proved and I note in particular that it contemplates not only the deprivation by a person of his ability to exercise self-control and to realize the possible consequence as to what he was doing, but it also recognizes the possibility that a person may not even be conscious of what he was doing.

Now if the accused said simply, 'As a result of the voluntary ingestion of alcohol, I did not know what I was doing there is no doubt that there would be no issue to be left to the jury. But the suggestion is that if, instead of that, he says, 'As a result of the voluntary ingestion of drink or drugs, I didn't know what my body was doing.', then he is entitled for an issue to go before the jury.

To my mind, in the context of a criminal trial for attempted rape, that is a distinction without a difference and a defence of automatism, as the courts understand that word, based solely upon the effects of the voluntary ingestion of alcohol is no more than what one could call a drunkenness defence in disguise. The reasons of policy which have refused to permit defendants to pray in aid in their defence of the voluntary ingestion of alcohol apply equally, it seems to me, to a defence of self-induced automatism as they would to what would be called self-induced drunkenness.

For those reasons, it seems to me that the case of Majewski is authority for the proposition that the defence which the accused seeks to rely upon is not available to him in a case of this nature and I so rule."

26. The judge then went on to consider, if he were wrong in his view of the law, whether a proper foundation for the defence of automatism had been laid by the evidence:

"    Having so ruled, it is, strictly speaking, unnecessary for me to form an opinion as to whether the state of the evidence is such that the defence of automatism ought to be left to the jury. However, if I had come to a different conclusion in relation to the first issue, I would have held that the state of the evidence was such that the issue of automatism should not be left to the jury in this case, having regard to the overwhelming uncontested evidence of a series of activities which bore all the hallmarks of conscious activity and having regard to the medical evidence because whereas Dr Green, if I may respectfully paraphrase what he was saying, took the view that automatism in this case was as likely as pigs flying in Tuen Mun, the expert witness called for the defence, when I asked him whether he thought that this series of activities could have been carried out by a person in a situation where the conscious mind was not involved, said that he could not say that that could be the case."

27. When the hearing of the application opened, we invited counsel to address us first upon the question whether the judge had been right to rule that a proper foundation for the defence of automatism had not been laid, taking into account all the evidence led before the jury. An affirmative answer would, of course, be determinative of the application.

28. It is well settled that where the defence put forward arises not from "a disease of the mind" but is based upon what is sometimes called "non-insane automatism", no burden is assumed by the defendant to establish automatism; rather the burden is on the prosecution to negative such a defence. But there is an evidential burden on the defendant in that he must lay a proper foundation for that defence (see, for example, Hill v. Baxter (1958) 42 Cr App R 51 and Broome v. Perkins (1987) 85 Cr App R 321) and thus be able to point to evidence from which it may reasonably be inferred that his act was not voluntary. The question whether such a foundation has been laid is a question of law for the judge.

29. One of the leading authorities on this area of the law is Bratty v. A.G. for Northern Ireland [1963] AC 386, HL. It was cited to the judge and relied upon by the Crown. There three defences were raised: (a) that the defendant was not guilty of the murder charged because at the material time he was in a state of automatism due to psychomotor epilepsy; (b) that he was guilty of only manslaughter because in his mental condition at the time he was incapable of forming the necessary intent for murder and (c) that he was insane.

30. Mr. Bruce, for the Crown (he did not appear at the trial) drew our attention to two definitions of automatism which we agree must be taken to have had the tacit approval of Viscount Kilmuir, L.C., for at pp. 401-402 he said this (without further comment):

"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 (Gresson P.) in Reg. v. Cottle [1958] NZLR 999, 1020, where he said: 'With respect, I would myself prefer to explain automatism simply as action without any knowledge of acting, or action with no consciousness of doing what was being done.'"

At p.405, the Lord Chancellor observed: "It is necessary for a proper foundation to be laid before a judge can leave 'automatism' to the jury." Then, at p.406 he said:

"I have also read with great interest and profit the Victorian case of Reg. v. Carter and the Queensland cases of Reg. v. Foy and Copper v. McKenna, Ex parte Cooper. 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 not there is such evidence is a matter of law for the judge to decide."

And then, at p.407:

"Nevertheless, one must not lose sight of the overriding principle, laid down by this House in Woolmington's case, 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."

Lord Denning, at p.413, said this:

"... 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 ... 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. ... The necessity of laying the proper foundation is on the defence: and if it is not so laid, the defence of automatism need not be left to the jury ...

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."

At p.414, Lord Denning had this to say:

"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."

31. Lord Morris of Borth-y-Gest said this during his speech, at pp. 416-417:

"Before an explanation of any conduct is worthy of consideration such explanation must be warranted by the established facts or be supported by some evidence that has been given by some witness. Though questions as to whether 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."

32. Another case cited to the judge where the principles laid down in Bratty were applied was R. v. Stripp (1979) 69 Cr App R 318. There, the defendant was found asleep in a bus. When he was woken up he climbed into the driver's seat and drove the bus for about half a mile. He crashed into and damaged other vehicles on the way. The defence of automatism raised was based on the assertion that the defendant had struck his head in the bus before the incident. He had been drinking from about 6.00 or 6.30 p.m. until 11.00 p.m.; he said he had drunk 4 pints of beer. Ormrod, L.J. giving the judgment of the court said this at pp.323-324:

"    The defence called a Dr. Stamp, who is a registrar in psychological medicine at Kings College Hospital. He did not examine the appellant until some two months or so after the events and the appellant in fact had been referred to him for investigation of what he called an amnesiac episode. He gave the best evidence that he could, entirely hypothetically based. It is not very easy to know quite what Dr. Stamp was saying. He was talking about concussion in a very general way, saying that some people concussed very easily and others were quite resistant. His evidence was inevitably unspecific and not particularly helpful.

We think it is fair to summarise it by saying that he was not excluding the possibility of concussion arising from the kind of injury which the appellant said he suffered' in the first bus. It is not necessary to take it any further than that.

On the first point this Court has reached the view that the defence of automatism should never have been left to the jury, because the foundation for it had not properly been laid. It is therefore not necessary to consider at length the main basis of this appeal, which is that the learned judge misdirected the jury on the law on this point."

33. We do not find it necessary to refer to all the authorities relied upon by the Crown before the judge and before us. However, we will mention R. v. Isitt (1978) 67 Cr App R 44, another driving case. There the defendant was seen to drive erratically and was involved in a collision with another vehicle when he got out of his van he staggered across the road. His breath smelled of drink and his speech was slurred. When told to stay where he was until the police came, he drove off at speed. He was chased by the police. He slowed down and then accelerated. He managed to evade a road block. When he drove into a cul-de-sac he got out of the van and disappeared. He said he could remember nothing at all about the incident. His defence was based on a psychiatrist's evidence that as a result of the collision he was suffering from hysterical fugue causing his memory to cease to function. When his subconscious mind then took over, he did not appreciate what he was doing while driving and was totally unaware of legal restrictions and moral concerns.

34. After reviewing the facts and the psychiatrist's evidence, Lawton, L.J., for the court, said at p.48:

"It is against the background of fact and those answers that we come to consider the legal position. As we understand the law the position is that, in general, certainly with offences like dangerous driving, the Crown have to prove that the conduct which is alleged to be criminal was voluntary conduct, in the sense that the accused's mind went with the acts alleged to be criminal. If his mind for any reason did not go with the acts alleged to be criminal, then he cannot in law commit an offence."

and then, at p.49:

"In our judgment on the psychiatrist's evidence, it is clear that he was accepting that the appellant's mind was working to some extent. The driving was purposeful driving, which was to get away from the scene of the accident. It may well be that, because of panic or stress or alcohol, the appellant's mind was shut to the moral inhibitions which control the lives of most of us. But the fact that his moral inhibitions were not working properly, in our judgment, does not mean that the mind was not working at all."

35. We now turn to review, what we will call for convenience, the psychiatric evidence, led before the jury.

36. Dr. Critchley (Dw2) gave evidence about the medical condition known as hypoglycaemia, its cause and effects. He said that when someone became hypoglycaemic, what happened depended on a number of factors including his intellect and cultural background. As the blood glucose level fell and the brain ceased to function the individual became drowsy, irrational in behaviour and confused - to a degree which varied between individuals. Quite a small amount of alcohol would block the body's mechanisms to compensate by making glucose sugar. The condition of a degree of fasting, some exercise and a small amount of alcohol was very damaging to the brain because the blood sugar began to fall and there was no reserve or mechanisms to keep it up. In rare cases hypoglycaemia could induce aggressive behaviour. He said (and this, we feel, should be emphasised) that he saw the issue he had to address in this way: did the defendant have sufficient hypoglycaemia to affect his mental function so that he behaved in an irrational manner? Part of his testimony was:

"The key things in that story are: his total amnesia, I don't know if that has changed with the evidence that has been presented this morning, but from what I was told, he claims to have no memory of the events of what was going on. From the amount of alcohol he's alleged to have consumed, I would not expect that amount of alcohol to give you total amnesia. You do get amnesic with the injection of a very large amount of alcohol, I think it is unlikely that the amount of alcohol he alleged to have consumed could give him total amnesia, so if it is genuine that he can have total amnesia, and I cannot comment on whether it is genuine or not, if you tell me it is a fact that he had total amnesia, that is suspicious and makes me think there was something else impairing his mental function. The other phenomenon is the fact that once the struggling stops and he's held down, he goes what is described by the police as asleep, unconscious. To me, that is an inappropriate response after he's apprehended, and if he was generally unconscious, and I would expect the police and the doctor to recognize unconsciousness and would be able to differentiate that between somebody who's play-acting. Also in my experience of play-acting, and I have seen a lot of patients play-acting, they do not normally murmur as he's alleged to have done when they're play-acting, but patients who are unconscious from hypoglycaemia and drugs do mumble while they're unconscious, that is a level of unconsciousness. If those facts are genuine and I can only take it as a doctor from what I have heard that they are genuine, then one can entertain the possibility that hypoglycaemia was compounding the effects of alcohol on his brain."

37. In cross-examination, the doctor agreed that a person in a state of automatism was not acting with full consciousness. He conceded that the applicant could have been fully conscious and that his sleepiness [the word "sleepnessness" in the transcript is obviously a mistake] could be an act. "On the other hand" he said "there is an irrational element to his behaviour ... He is raping a lady of 74. He is making a feeble attempt to rape her ... [and] is not sexually aroused. He could, of course, be fully conscious when all this was going on. When he was asked what he meant by "irrational", the doctor replied: "I don't think it's rational behaviour to rape somebody." Later the doctor said: "I am saying that he could well be hypoglycaemic because I didn't think he had drunk enough alcohol to be drunk. I think his behaviour is irrational." Then came this question and answer:

"Q. Would you agree that his conduct was entirely consistent with intoxication?

.....

A. Yes, he could have been."

38. Dr. Critchley's cross-examination ended in the following way:

"Q. Would you agree that the defendant's conduct upon his apprehension was entirely inconsistent with his being in a state of automatism? That is, that when challenged, he stood up, pulled up and buttoned up his trousers, picked up a rock, tried to run away, took away a pole that was being used to try to restrain him and then grappled for a period of ten minutes with those trying to rescue the woman and introduced the woman to them as his friend.

A. If all that happened as it is described, it is certainly compatible with someone who isn't behaving from the effects of automatism, but it's not all that compatible with somebody who is intoxicated either.

Q. I am asking you if it is consistent with someone behaving in a state of automatism.

A. No.

Q. Thank you! The conduct which has been - was displayed by the defendant from the time that he approached the woman to the time that he was apprehended which includes that period of apprehension that I have just referred to demands consciousness. Would you not agree in your professional opinion?

A. It demands a degree of consciousness."

39. The trial judge then asked the doctor a number of questions. He acknowledged that it was unlikely that anyone could have done all that the evidence showed the defendant had done if his conscious mind were not involved in any way, but it was possible. There then followed this exchange between the judge and the witness:

"COURT: Yes. You have described the situation where someone is reacting to questions by somebody else. I am asking you about somebody who approaches someone and apparently takes the initiative of inviting them to take a drink.

A.    I have to agree with your Lordship on that that it's very unlikely there isn't a conscious element in that.

COURT: And then what if the person lifts someone over a barrier in order to push them to a deserted location, what would you say about that? Do you think it's possible that someone could do that if his conscious mind was not engaged?

A.    I don't think so.

COURT: And then what if he pushes that person to a secluded place and there removes her clothing and his clothing so far as it will be necessary to have sexual intercourse and then goes through the motions of apparently attempting sexual intercourse, do you think that series of acts could be carried out without a conscious mind being engaged?

A.    I think again there have to be a conscious element in there.

COURT: And then if he is interrupted and he gets up and dresses himself and offers an explanation, namely, the lady is a friend of his, would that be possible if his conscious mind were not to some extent engaged?

A.`    Yes, I mean, putting it like that, I have to agree with your Lordship. There must be a degree of consciousness in that."

In his final answer to the court, the doctor said:

"Can I just say one thing, your Lordship? I mean, you ask me the question about sleep-walking first. Regarding an individual's having a fit and thrashing around, that is completely purposeless behaviour and that clearly there is no consciousness in that at all as far as we know, though it is strange individuals having fits often protect themselves. The sleep-walker who does quite complicated actions like going downstairs, drinking something from the fridge, there must be a conscious element in that. So if you allow sleep-walking, there will be - there must be consciousness in sleep-walking. That is all I can say, your Lordship."

40. Mr. Spicer, with his customary fairness, readily acknowledged that when Dr. Critchley's evidence is read as a whole and properly understood, it is clear that it was his opinion, on the facts presented to him, that the applicant was not in a state of automatism at the material time.

41. With regard to Dr. Green's evidence, to which we will presently turn, counsel submitted that while it was obvious that the doctor shared his colleague's opinion, when his testimony was coupled with that of the other witnesses, there was sufficient evidence to put before the jury on the issue of automatism.

42. Moreover, Mr. Spicer contended that the opinions of expert witnesses were irrelevant and, strictly speaking, inadmissible in criminal proceedings where the opinions concern the very issue the jury had to decide. On this point, we need only say that the common law rule is not applied with the rigidity once insisted upon and, particularly in a case such as the present, an expert may quite properly express an opinion on the ultimate issue: see Cross on Evidence (7th ed.) pp.501-2 and Phipson on Evidence, (14th ed.) p.807, and Reg. v. Smith (Stanley) [1979] 1 WLR 1445, CA.

43. After Dr. William Green (PW16) had spoken of his qualifications and experience the unchallenged facts of the case as recounted by the witnesses were, as Mr. Spicer accepts, very fairly summarised and related to him by prosecuting counsel. He was then asked:

"Q.      It is, doctor, suggested that the defendant might have been suffering from a condition of hypoglycaemia causing him to be in a state of automatism. Can I, please, doctor, ask you your view - for your view on that? Perhaps I should make it clear. I am referring specifically to the time of the offence."

He replied:

"A.      I understand, my Lord. I simply do not believe that a diagnosis of hypoglycaemia or automatism resulting from that hypoglycaemia is a credible medical issue in this case."

44. He explained what hypoglycaemia and automatism were and that, as a rule of thumb, when in an automatic state a person's behaviour was classifiable into simple and complex behaviour - but that in either case the person has no awareness of what he is doing. He gave examples of such simple and complex behaviour. He went on to say:

"I do not believe in this particular instance that the description of the events is that of automatic behaviour. In my view, it was motivated behaviour. It was accompanied, on more than one occasion as reported in the evidence, by speech relevant to the situation. The offering of money, the claim at the end of the event that the victim was his friend, the fact that he went in a specific direction, in a particular direction was not half-hearted. Needed force, there was no weakness, needed considerable force, I would suggest, to lift the lady, although she may well be old and frail and I haven't seen her, but a lot of force to lift her over the fence. And then appropriate to those circumstances with, to my mind, a clear sexual motive, he undressed her and undressed himself. He, apparently, to my view, knew what he was doing and he knew what he was doing was wrong because when challenged by the passers-by, he defended himself against them and defended himself, as I said earlier, by logically verbally claiming that she was his friend. That is my view of the behaviour leading to that event."

45. Then came the following exchange between Crown counsel and Dr. Green:

"Q. And if in your view he was not suffering from automatism as a result of hypoglycaemia at the time that he approached the woman and did what he did how do you explain his behaviour?

A.    There is a principle in medicine, in diagnostic medicine, which says that commonest things are commonest. It says that if you see a bird flaying past in the middle of Central, it is more likely to be a sparrow than a canary. The principle says diagnostically that one approaches medical symptoms and signs in the same common sense way. We know that this man had been drinking. We know that all that behaviour is commoner in an alcohol-induced state. Alcohol is used by all of us to disinhibit, that is its function in society, disinhibits us, allows us to do things which normal constraints placed upon us do not permit us to do in public and I would submit that the obvious and very obvious answer is that he was drunk and that liberated him to do something which at other times he would not do.

Q.    Another way of asking what I have already asked. Considered from the outline of the circumstances that you have heard, that he was conscious, having control of his movements and actions at the time that he took the woman to this place and did what, has been outlined to you?

A.    I think that was purposeful, motivated behaviour consistent with disinhibition due to a taking of alcohol and I also note that that was taken before ten o'clock in the morning which gives rise to other suspicions in my mind, but I do not believe that that behaviour, complex as it was, which lasted a very long time, occurred over a long distance for someone on foot, particularly, when propelling or carrying a resistant victim, ending in a perfectly obvious attempt at sexual intercourse - sexual interference' at least - I do not believe that that represents a case of automatism."

46. In cross-examination by Mr. Spicer, Dr. Green agreed that automatism could give rise to purposeful behaviour but that it was extremely rare. Then came the following questions and answers:

"Q.    ... Would you also agree that the sexual actions that you heard described could also be a type of behaviour which is consistent with automatism?

A.    The actions as described - purely the sexual actions taken out of the context of what had gone previously of course could. Well, I have no hesitation in saying that they were automatic behaviour if it happened in Queens Road Central during the day time. If it is the end-product of an apparently planned and executed decision, then I believe that that is stretching credibility too far.

Q.    It is, however, a purposeful action, isn't it - these actions ...

A.    Yes.

Q.    ... leading up to this alleged - this incident are purposeful.

A.    Yes.

Q.    And so therefore you cannot exclude automatism on the basis of medical knowledge available today for that reason.

A.    I have to say that all things are possible, and I suppose that pigs might fly, but they are very, very rare occurrences in Tsuen Wan. I simply do not believe that unique event was an example of automatism, not radically.

Q.    You appreciate, of course, Dr. Green, that the question of what is believed at the end of the day is of course for the jury.

A    Indeed."

A little later:

"Q.    You have also encountered examples of a person while suffering from automatism responding in an apparently logical fashion to external stimuli, haven't you?

A.    Yes.

Q.    "And the actions of the defendant as described to you are in fact apparently logical responses to external stimuli, aren't they?

A.    Yes.

Q.    And so it is possible ... that he was suffering from automatism at that time?

A.    I do not believe that he was.

Q.    You may not believe it, doctor, but it is possible, isn't it?

A.    In the sense that all things are possible, yes."

47. In later answers, Dr. Green accepted that although, if the defendant had been drinking on an empty stomach there was a reasonable chance that he would become hypoglycaemic, it did not follow that he would have gone into automatism. He added:

"A.    ... Many, many people at their lunch time all over Hong Kong have been drinking with an empty stomach and we wouldn't expect to see one individual in a state of automatism.

Q.    As you say, it is a very rare occurrence.

A.    Yes."

48. When Mr. Spicer was asking Dr. Green about the incident in the detention room at the police station, when the applicant was banging his head on the wall while sitting on the bench, the following exchange took place - and Mr. Spicer places particular reliance on Dr. Green's answers:

"Q.    ... Have you ever seen a patient suffering from hypoglycaemia - sorry - you have seen a patient suffering from hypoglycaemia performed repetitive actions subconsciously, is that not right?

A.    Yes.

Q.    Yes, have you seen a patient suffering from hypoglycaemia rocking forwards and backwards repetitively?

A.    Yes.

Q.    Is that no consistent with the evidence of him banging his head on the back of a station wall while sitting on a narrow bench, knocking his head against the wall?

A.    I am limited to the evidence as it is presented to me. It seems to me that the police witness was quite insistent that the defendant banged his head in such a way that one would not expect him to receive more than a hurting blow. It seems to me that the man was banging his head on the wall.

Q.    ... you would agree that a rocking motion forward and backward like this is consistent with a hypoglycaemic, automatism condition.

A.    It is consistent with hypoglycaemia.

Q.    But not with automatism.

A.    ... It is consistent with automatism, but with the very simple rocking motion it can be simple automatism.

Q.    Yes, simple automatism. And that in those conditions you would not expect the patient to respond to the stimulus of being hit on the back of the head. I mean the natural thing to do would be to stop if that happened, wouldn't it? An automatism sufferer would not in fact necessarily stop.

A.    That's correct.

Q.    So he would give the appearance of being unaware of what was going on.

A.    The problem with automatism is that they give the appearance of being aware of what s going on. It is the other way round."

49. In re-examination by prosecuting counsel there were these questions and answers:

"Q.    You're asked whether a person suffering from automatism could behave in such a way that they may direct themselves through sexual relief, and I think you said 'Yes, that was possible.' Could you explain that answer in the light of your opinion that you've given in respect of this case where it appears that the defendant's object was sexually?

A.    The commonest exhibition of sexual activity in automatism is sexual exposure or masturbation inappropriate to the circumstances in public. I do not believe that type of behaviour occurred in this case. And I repeat my earlier statement that this appear to be purposeful from the beginning until the end, until the apprehension. If one takes each individual little part of the behaviour of that entire situation, that entire incident, then any one single behaviour pattern could come within the ambit of automatism, but I believe if they are all added together, the pieces of that jigsaw make a different picture.

Q.    When you say a different picture, what do you mean?

A.    The one I have referred to earlier, I believe this was alcohol induced behaviour Perhaps I should elaborate and said alcohol induced disinhibited behaviour.

Q.    I don't think you have actually explained that expression: disinhibited.

A.    Disinhibited? Disinhibition occurs when the normal, moral and social controls of behaviour are removed. Of course, they are frequently removed by alcohol. Simply put, under the influence of alcohol, people behave in a way which when sober, they would find reprehensible."

50. It is, of course, a serious matter to withdraw an issue of fact from the jury and it is only when it is demonstrably justified that an appellate court will endorse such a course. However, we accept the point made by Mr. Bruce that the authorities impose a duty upon the judge not to allow the issue of automatism to be left to the jury unless the evidential burden discussed in the cases has been discharged. When the evidence as a whole is, in the opinion of the judge, insufficient for that purpose, it would not be right for him to allow the issue to go to the jury because he was confident that on the strong direction he intended to give, the jury would reject it.

51. It is not surprising that in the real world the courts have insisted upon an adequate foundation of evidence before a defence which could so easily be feigned warrants consideration. In this context, Mr. Bruce reminded us of what Lord Denning said in Bratty, at pp.413-414, immediately after he had observed (we have cited the passage above) that medical evidence to support the evidence of the defendant is usually necessary when he relies on automatism:

"It is not sufficient for a man to say 'I had a black-out' for 'black-out' as Stable J. said in Cooper v. Mckenna, Ex parte Cooper [1960] Qd.L.R. 406, 419 'is one of the first refuges of a guilty conscience and a popular excuse.' The words of Devlin J. in Hill v. Baxter 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.'"

We note, too, that in R. v. Quick [1973] 1 QB 910, at p.922, Lawton, L.J. remarked that a defendant seldom entered nowadays into this "quagmire of law" unless he was "in desperate need of some kind of defence."

52. When one examines the evidence of the lay witnesses, the picture given is that of a man who, although he might well have been under the influence of alcohol to a certain degree (and who probably would not have acted as he did had he not been drinking) was fully conscious, or at least very much more than dimly aware, of what he was doing. Then we have the defendant, who according to his own account, had had a few beers on an empty stomach (he had had no breakfast) asserting that he could remember nothing about the incident.

53. The fact that a doctor who is told the relevant facts and the apparent state of the defendant is not able to exclude the remote possibility that the defendant was hypoglycaemic, and that this state led to automatism, cannot, in our judgment, amount to medical evidence from which it might reasonably be inferred that the defendant's acts at the material time were involuntary to the extent which would found a defence of automatism. The harsh truth was that the medical evidence was adverse to the defence sought to be advanced.

54. We reached the conclusion, as a matter of law, that the medical evidence, when considered with the rest of the testimony the jury heard, fell far short of laying a proper foundation for the issue of automatism to be left to the jury.

55. Mr. Spicer did not seek to contend before us that a defence of intoxication, per se, should have gone to the jury.

56. It was for these reasons that we dismissed the application for leave to appeal against conviction.

57. Our decision made it unnecessary for us to consider the other ground upon which the judge withdrew the issue of automatism from the jury's consideration. The matter became entirely academic.

Representation:

Mr. Rupert Spicer (Director of Legal Aid) for the Appellant

Mr. Andrew Bruce (Crown Prosecutor) for the Crown