LAW106 Legal Research & WritingAssignment 3: Appellate Brief

Leong Hern Wei (G6)

S9203876I

Word Count: 2657

IN THE HIGH COURT OF THE REPUBLIC OF SINGAPORE

Criminal Appeal No.

254 of 2014

BETWEEN

MINA MURRAY WONG

… APPELLANT

AND

PUBLIC PROSECUTOR

... RESPONDENT

APPELLANT’S SUBMISSIONS

Dated this 1st day of April 2014

Submitted by:

Leong Hern Wei, Counsel for Appellant

We-Say-You-Pay LLC

81 Victoria Street

Singapore 123456

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Table of Contents

I. Table of Authorities..........................................................................................................4

A. Case(s) referred to.........................................................................................................4

B. Legislation referred to...................................................................................................4

C. Other references............................................................................................................4

II. Introduction......................................................................................................................5

III. Statement of the case.......................................................................................................5

A. Background facts...........................................................................................................5

B. Expert evidence..............................................................................................................6

C. Decision below...............................................................................................................7

IV. Questions presented........................................................................................................7

V. Summary of Arguments..................................................................................................7

VI. Arguments.......................................................................................................................8

A. The District Judge erred in holding that Mina’s act were voluntary and deliberate..8

(1) Psychiatric evidence and Mina’s testimony showed that she had been in a

automatistic state, thus her actions had been involuntary.................................................8

(2) Bystander evidence suggests that Mina was in an automatistic state.....................10

(3) Lack of motive increases plausibility of automatism...............................................10

(4) Seemingly purposeful and deliberate nature of actions is not conclusive in proving

voluntariness of actions...................................................................................................11

B. Defence of automatism will not be precluded even if Mina had not fully lost

consciousness......................................................................................................................11

(1) The necessary factor in proving automatism is loss of control, not loss of

consciousness...................................................................................................................11

(2) Residual degree of consciousness does not preclude a case of automatism...........12

(3) Degrees of consciousness shown in Sinasamy v PP and Bannin were much higher

than in present case, and should not be relied upon to preclude automatism.................13

VII. Conclusion....................................................................................................................14

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I. Table of Authorities

A. Case(s) referred to

Police v Bannin [1991] 2 NZLR 237 …………………………………………………7, 12, 13

R v Carter [1959] VR 105 …………………………………………………………………...14

R v Falconer [1990] 171 CLR 30 ………………………………………………………......8, 9

R v Parks [1992] 2 S.C.R 871. ……………………………………………………………9, 11

R v Radford 42 SASR 266 ……………………………………………………….........8, 9 , 12

R v Stone [1999] 2 S.C.R. …………………………………………………………8, 9, 10, 12

R v T [1990] Crim LR 256.………………………………………………………………..9, 11

Sinnasamy v Public Prosecutor [1956] MLJ 36 …………………………………….........7, 13

B. Legislation referred to

Penal Code (Cap. 224, 2008 Rev Ed) s 322

C. Other references

Stanley Yeo, “Fleshing Out Malaysian Perspectives on Automatism” (2011) SLJS 289–297

Stanley Yeo “Situating Automatism in the Penal Codes of Malaysia and Singapore” in INSAF

The Journal of the Malaysian Bar 2004 (Volume IV) 1–31

Halsbury’s Laws of Singapore Volume 8 (Singapore: LexisNexis, 2013 Reissue)

Somnambulistic Homicide: Ghosts, Spiders, and North Koreans 5 Res Judicatae 29 (1951)

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II. Introduction

1 The Appellant, Mina Wong (“Mina”), was charged with voluntarily causing grievous

hurt under section 322 of the Penal Code.1 This is an appeal against the District Court

decision that Mina is liable for an offence under section 322.

III. Statement of the case

A. Background facts

2 Mina is a single step mother. She divorced her husband, Jonathan Singh (“Jonathan”),

in 2010. She lives with her 15 year old step daughter from the marriage, Lucy (“Lucy”). Mina

is deeply attached to Lucy and the pair share a very close relationship.

3 For several years, Lucy had suffered from a mild neurotic disorder that manifested in

unruly and disruptive behaviour. This condition had caused Mina considerable emotional

strain and worry, even after Lucy’s recovery.

4 While Lucy’s condition did contribute to her parents’ divorce, other factors had

contributed heavily to the breakup of the marriage. Mina had compensated for her own

frustrations in the marriage by over-protecting Lucy. Dr Quek, a noted psychiatrist, stated

that Mina “subconsciously” blamed Lucy for the breakup and her exaggerated concern for

Lucy was a conscious expression of her subconscious emotional hostility to Lucy.

5 On 3 August 2013, Lucy was confronted and robbed on her way home from school.

When Mina was later informed of this news, she was profoundly and deeply distressed.

6 At home that night, both watched the 7pm news on CNA. The distressing news of

bomb attacks between Syria and Israel, that had resulted in heavy loss of life, added to

Mina’s already pronounced unease and distress. Mina then put Lucy to bed at 8pm as usual

1 S322, Penal Code (Cap 224, 2008 Ed).

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that night. Mina was left further distressed when she later watched the 10pm CNA news

update, which referenced the robbery and the final death toll of the Middle East bombing.

7 Mina went to bed. She dreamt that the civil war in Syria was all around the house and

that terrorists were in Lucy’s room attacking her. Mina has little recollection of what

happened next in her dream but she recalls being aware of having a machete and lashing out

at the terrorist. She asserts that in her dream, she had wanted to chop off his ears so that he

would not be able to hear her step daughter’s screams. This was all Mina could remember

and she asserts that she has no other recollection of events.

8 Unknown to Mina, she was actually sleepwalking. She had left her bed, gone to the

garden outside her bungalow house and fetched a machete that was embedded in a piece of

wood. Mina then returned inside with the machete and went into Lucy’s bedroom. As she

struck the terrorist in her dream, Mina had actually struck Lucy with two blows to the side of

Lucy’s head. Mina had no recollection or awareness of these actual events at all.

9 Mina’s first waking recollection is of running to her neighbour, Mrs Tan’s (“Tan”)

house. Mina fell into Tan’s arms crying, “I think I’ve hurt Lucy.” Mina cannot recall this.

Tan notes that Mina was hysterical and incoherent, and made no sense at all. The police,

upon arrival, also noted that Mina was incoherent and struggling to string a sentence together.

B. Expert evidence

10 Mina had already been suffering from an overlay of depression before the events on 3

August 2013. News of the attack upon Lucy had a “highly traumatic” effect upon Mina and

had caused a form of hysteria. Watching the news reports further aggravated her already

acute traumatic state.

11 When Mina was asleep, the “shattering and traumatic” events of that day “overlaid

with her pre existing anxieties and depression”. This caused her to sleepwalk and carry out

the attack on Lucy.

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12 It was likely that Mina had been in a state of “dissociation” when carrying out the

attack. In this dissociative state, Mina would have been unable to control her actions at the

time of the attack.

C. Decision below

13 The District Judge held that Mina’s actions were voluntary and deliberate, thus she

was liable for voluntarily causing hurt to Lucy under section 322.

IV. Questions presented

14 There are two questions before Your Honour today:

a) Whether the District Judge erred in holding that Mina’s acts were voluntary and

deliberate

b) Whether the defence of automatism will be precluded if Mina had not fully lost

consciousness

V. Summary of Arguments

15 The District Judge had erred in holding that Mina’s acts were voluntary and

deliberate. The psychiatric evidence and Mina’s testimony proved that she had been in an

automatistic state, so her actions had been involuntary. Bystander evidence and a lack of

motive to hurt Lucy supported that Mina’s actions involuntary. The seemingly purposeful and

deliberate nature of Mina’s actions were also not conclusive in proving that she had acted

voluntarily.

16 The defence of automatism will not be precluded even if Mina had not fully lost her

consciousness during the attack. The necessary factor is proving automatism is loss of

control, not loss of consciousness. Hence, a residual degree of consciousness will not

preclude a case of automatism. The cases of Sinasamy v PP2(“Sinasamy”) and Police v

Bannin3(“Bannin”) should not be relied upon as they are factually distinguishable from the

present case.

2 Sinasamy v PP [1956] MLJ 36.3 [1991] 2 NZLR 237 at p 11.

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VI. Arguments

A. The District Judge erred in holding that Mina’s act were voluntary and deliberate

17 Acts done in a state of automatism4 are involuntary. The concept of voluntariness

relates to physically willed acts.5 A person does not incur criminal liability for acts done in a

state of automatism, because that involuntary conduct negatives actus reus.6 In the present

case, the facts suggests that Mina was in a state of automatism. Hence, her actions were

involuntary.

(1) Psychiatric evidence and Mina’s testimony showed that she had been in a

automatistic state, thus her actions had been involuntary

18 In R v Radford7 (“Radford”), it was stated that actions done in a dissociative state

would not have resulted from the exercise of will and would not be subject to its control or

direction. 8

19 Furthermore, as seen in Radford,9 a state of dissociation can result from

“psychological and emotional stress”. Similarly, in R v Falconer10(“Falconer”), the

appellant had previously been suffering from depression, and a psychologically traumatic

incident caused her to enter a dissociative state.

20 In the present case, the psychiatric evidence11 gave basis to support that Mina was in

an automatistic state. The evidence stated that it was “likely that Mina had been in a state of

dissociation when carrying out the attack”. The attack while sleepwalking was a

manifestation of Mina entering a dissociative state during her sleep.

4 Also known as defence of sane automatism.5 R v Falconer [1990] 171 CLR 30. 6 Halsbury’s Laws of Singapore Volume 8 (Singapore: LexisNexis, 2013 Reissue) at [90.006].7 [1985] 42 SASR 266.8 R v Radford [1985] 42 SASR 266 at p 12.9 [1985] 42 SASR 266.10 [1990] 171 CLR 30.11 R v Stone [1999] 2 S.C.R. 290 at [187].

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21 Additionally, psychiatric evidence had shown that Mina was already suffering from

an overlay of depression one day before the attack. This had arisen from her constant worry

over Lucy and her frustrations over her previous marriage. The series of shattering and

traumatic events on 3 August overlaid with Mina’s pre-existing depression. This caused Mina

a “severe psychological blow”.12 Thus, the 3 August events effectively formed a severe

“triggering stimulus”13 that led to her entering a dissociative state.

22 The unreported case of The King v Cogdon14 further supports that Mina had been in a

state of automatism. The facts are very analogous. The accused had also suffered from an

overlay of depression, and had entered a somnambulistic state upon a psychological blow and

attacked her daughter in that state. Her acts were held to be involuntary. The similar factual

matrix thus bolsters the inference that Mina was in a state of automatism when attacking

Lucy.

23 Mina’s testimony further shows that she had been in a dissociative state during the

attack. First, Mina had been in a dream-like state and thought that she was attacking the

terrorist in her dream. Likewise, in R v T,15 the accused “was acting as though in a dream”16

and was held to be in a dissociative state. Second, Mina had no recollection of the actual

events that had occurred. This lack of memory towards what had happened would imply that

her acts were committed in a dissociative state, as supported by cases such as R v Stone17

(“Stone”), Falconer18 and Radford.19

24 In a dissociative state, Mina would likely have been in a state of automatism.

Therefore, she had been unable to control her actions, and did not voluntarily attack Lucy.

25 In any case, sleepwalking is commonly seen as a state of automatism, as asserted by

cases such as R v Parks20 and Falconer.21 Thus, even if Mina was held to have been

12 R v K [1971] 2 OR 401 at p 4.13 R v Stone [1999] 2 S.C.R. 290 at [192].14 Somnambulistic Homicide: Ghosts, Spiders, and North Koreans 5 Res Judicatae 29 (1951).15 [1990] Crim LR 256.16 R v T [1990] Crim LR 256 at p 1.17 [1999] 2 S.C.R. 290.18 [1990] 171 CLR 30.19 [1985] 42 SASR 266.20 [1992] 2 S.C.R 871. 21 [1990] 171 CLR 30.

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sleepwalking, she would be still have been in an automatistic state. Her actions would still

have been involuntary.

(2) Bystander evidence suggests that Mina was in an automatistic state

26 As stated in Stone,22 “corroborating evidence of a bystander” would be relevant in

determining whether an accused acted involuntarily. Thus, in R v K,23 bystander evidence that

the accused was agitated and rambling was taken to indicate automatism.

27 In the present case, bystander evidence showed that Mina was similarly in a state of

agitation and incoherence. Tan and the police had noted that Mina was “hysterical and

incoherent” and struggled to string a sentence together. Mina’s falling to the floor may also

be indicative of a person who had lost physical control. Therefore, the bystander evidence

would suggest that Mina had been in an automatistic state, and her actions were committed

involuntarily.

(3) Lack of motive increases plausibility of automatism

28 A motiveless act will generally lend plausibility to an accused’s claim of

involuntariness.24 If the alleged crime is inexplicable without reference to the alleged

automatism, the plausibility of a claim of involuntariness will be heightened.25

29 The facts showed that Mina loved Lucy dearly. Even her estranged ex-husband stated

that Mina “absolutely adores Lucy”. A loving mother like Mina would not possess any

motive to hurt her beloved daughter.

30 Any subconscious resentment towards Lucy would not form a motive to hurt her as

well. A motive is essentially a reason that gives rise to an intention to act. However, the

subconscious nature of the resentment means that Mina herself likely did not know of her

22 R v Stone [1999] 2 S.C.R. 290 at [190].23 [1971] 2 OR 401 at p 3.24 R v Stone [1999] 2 S.C.R. 290 at [191].25 R v Stone [1999] 2 S.C.R. 290 at [191].

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own feelings of hostility. Thus these feelings, which were unknown to Mina, would not have

led to her consciously forming a reason to attack Lucy.

31 Therefore, the lack of motive to hurt Lucy would be indicative that Mina had likely

been in an automatistic state when she did attack Lucy.

(4) Seemingly purposeful and deliberate nature of actions is not conclusive in proving

voluntariness of actions

32 Apparently deliberate or goal-directed conduct can be performed by one while in a

state of dissociation or sleepwalking.26 In R v T,27 the accused was regarded as being in an

automatistic state even when she had committed an armed robbery involving stabbing her

victim and leaning into the victim’s car to take her bag.28 The case of R v Parks29 shows that a

sleepwalker can be regarded as behaving in an automatistic state even though he had

performed apparently goal-directed conduct such as driving to the house of his victims and

killing them. In

33 In the present case, Mina had fetched the machete embedded in the wood, went into

Lucy’s bedroom and struck her with “two accurate and forceful blows”. This apparently

deliberate conduct would not be conclusive in showing that Mina had voluntarily carried out

these actions.

B. Defence of automatism will not be precluded even if Mina had not fully lost

consciousness

(1) The necessary factor in proving automatism is loss of control, not loss of

consciousness

26 Stanley Yeo “Situating Automatism in the Penal Codes of Malaysia and Singapore” in INSAF The Journal of the Malaysian Bar 2004 (Volume IV) 1–31 at p 6.27 [1990] Crim LR 256.28 Stanley Yeo “Situating Automatism in the Penal Codes of Malaysia and Singapore” in INSAF The Journal of the Malaysian Bar 2004 (Volume IV) 1–31 at p 6.29 [1992] 2 S.C.R 871.

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34 Automatism has often been defined as “unconscious involuntary action”.30 However,

the key feature of automatism is the “total inability to control one’s conduct”.31 As stated in

Stone,32 the “lack of voluntariness, rather than consciousness, is the key legal element of

automatism”.33 Similarly it was stated in Radford34 that “an act is involuntary only if it occurs

automatically in the sense… that it is not subject to the control or direction of the will”.35

Total unconsciousness is not necessary for the defence of automatism.36 The determinative

factor is ultimately a loss of control.

35 This does not mean that “a mental state of unconsciousness is immaterial to a finding

of automatism”.37 While automatism does not require a finding of total unconsciousness, a

claim for automatism can still be supported by the degree of consciousness. As supported by

the expert evidence, consciousness is not like a light which can be switched on and off.

Similarly, the case of Bannin38 showed that consciousness “is a matter of degree, not kind”.39

The degree of consciousness thus becomes a factor subsidiary to the loss of control in finding

automatism.

(2) Residual degree of consciousness does not preclude a case of automatism

36 The District Judge had accepted the Prosecution’s argument that Mina had possessed

some degree of awareness or consciousness during the attack. This led to the holding that

Mina had not acted in a state of automatism.

37 However, as seen in the case of R v K,40 diminished awareness or consciousness of

what was going on does not necessarily preclude a case of automatism. As automatism is

essentially based upon involuntariness and lack of control, a residual degree of consciousness

is not necessarily fatal to a claim of automatism.

30 Police v Bannin [1991] 2 NZLR 237 at p 11.31 Stanley Yeo “Situating Automatism in the Penal Codes of Malaysia and Singapore” in INSAF The Journal of the Malaysian Bar 2004 (Volume IV) 1–31 at p 4.32 [1999] 2 S.C.R. 290.33 R v Stone [1999] 2 S.C.R. 290 at [224].34 [1985] 42 SASR 266.35 R v Radford [1985] 42 SASR 266 at p 11.36 Police v Bannin [1991] 2 NZLR 237 at p 11.37 Stanley Yeo, “Fleshing Out Malaysian Perspectives on Automatism” (2011) SLJS 289–297.38 [1991] 2 NZLR 237 at p 11.39 Police v Bannin [1991] 2 NZLR 237 at p 11.40 [1971] 2 O.R. 401 at p 4.

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(3) Degrees of consciousness shown in Sinasamy v PP and Bannin were much higher

than in present case, and should not be relied upon to preclude automatism

38 The Prosecution had relied upon the cases of Sinasamy v PP41 and Bannin.42 However

the facts of these cases should be distinguished from the present case. The degree of

consciousness of the accused in the two cases were much higher than in the present case.

39 First, in Sinnasamy v PP,43 the accused had “the clearest recollection, going into

considerable detail, of the events surrounding the killing”.44 The defence of automatism failed

due to this high degree of consciousness regarding the criminal incident.

40 Second, in Bannin,45 the accused had been aware of what he was doing at the critical

moments46 and “the key facts”47 of the incident. This showed that he had sufficient awareness

to make a voluntary decision to act. While he was acting at a level of reduced awareness, he

still possessed a degree of awareness that excluded a claim of automatism.

41 In contrast, Mina merely had brief recollections of what happened in her dream. She

did not even have any awareness as to what was happening in reality. The facts stated that

“her first waking recollection [was] of running to her neighbours”. Hence, there were no clear

and detailed recollections of the events surrounding the attack. She had also been unaware of

key or critical facts, such as entering Lucy’s room or actually attacking her.

42 Therefore, we cannot rely on the two cases to hold that Mina was not in an

automatistic state as the degree of consciousness for Mina was much lower. We then have to

examine the present facts and evidence to determine if Mina had been in an automatistic

state.

43 The psychiatric evidence shows that in her dissociative state, Mina would have “less

than full consciousness”. She could have “recollection of certain events”, implying some

41 Sinasamy v PP [1956] MLJ 36.42 Police v Bannin [1991] 2 NZLR 237.43 [1956] MLJ 36.44 Sinasamy v PP [1956] MLJ 36 at p 3.45 Police v Bannin [1991] 2 NZLR 237.46 Police v Bannin [1991] 2 NZLR 237 at p 9.47 Police v Bannin [1991] 2 NZLR 237 at p 11.

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awareness of events. In R v Carter,48 it was stated that having recollection of events during a

dissociative state would not preclude a case of automatism.49 Hence, Mina possessing brief

recollection of what happened in her dream did not mean she was acting voluntarily. The

recollection was a low degree of residual consciousness. This did not discount the fact that

she did not have control over her actions in the dissociative state, as supported by the

psychiatric evidence. Mina was therefore in an automatistic state despite some residual

consciousness.

VII. Conclusion

44 For the reasons above, Mina’s actions should be held to have been involuntary, and

this appeal must succeed.

48 [1959] VR 105.49 R v Carter [1959] VR 105 at p 4.

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