Burgess' Case

Less dramatic, but no less interesting, is the sleep walking defense when
murder has not been comitted. In 1996, in Queensland Australia, a man named
Burgess hit a woman in the head with a bottle and tried to strangle her. She was
injured, but not fatally. Burgess' defense was that he had been sleepwalking at
the time. Burgess was found not guilty just as Parks and Steinberg were, but
this time the accused was found not guilty by reason of insanity. In Burgess'
case, the sleepwalking and the resulting violence were deemed not normal. The
following discussion of this case is from E Law - Murdoch
University Electronic Journal of Law, Vol 3, No 1 (May 1996) , by Peter
Ridgway (this article quoted also in the Parks case).
The contrast in the nature and quality of the evidence between Burgess and
Parkes is interesting. Burgess was charged with wounding with intent. During the
night, he had hit a woman on the head with a bottle, then with a video, and
grasped her by the throat. She suffered some wounds. He claimed he lacked mens
rea because he was sleep-walking at the time. A ruling by the trial judge had
precluded him from raising a defence of automatism without involving an issue of
insanity. He was found not guilty by reason of insanity. 17. In Burgess, the
court had been referred to the earlier Canadian Supreme Court decision in R v
Parks and noted that a number of witnesses, including experts in sleep
disorders, had there given evidence to the effect that sleepwalking is not
regarded as a disease of the mind, mental illness or mental disorder.
"We accept of course that sleep is a normal condition, but the evidence in
the instant case indicates that sleepwalking and particularly violence in sleep,
is not normal ...That case apart (R v. Parks), in none of the other cases where
sleepwalking has been mentioned, so far as we can discover, has the court had
the advantage of the sort of expert medical evidence which has been available to
the judge here." That was, in part, a reference to the evidence of Dr. Peter
Fenwick, consulting neuropsychiatrist - who is, arguably without peer in the
field - which had been led by the Crown in the trial. A psychiatrist called by
the defence in Burgess was a Dr. d'Orban, consulting forensic psychiatrist, who
said:
"On the evidence available to me, and subject to the results of the tests
when they become available, I came to the same conclusion as Dr. Nicholas [a
consultant psychiatrist] and Dr. Eames [a consultant neuropsychiatrist] whose
report I have read, and that was that Mr. Burgess' actions had occurred during
the course of a sleep disorder."
He was asked by counsel:
Q. Assuming this is a sleep associated automatism, is it an internal or
external factor?
A. In this particular case, I think that one would have to
see it as an internal factor.
Q. Would you go so far as to say that it was
likely to recur?
A. It is possible for it to recur, yes.
. He was asked
by the judge:
Q. Is this a case of automatism associated with a pathological
condition or not?
A. I think the answer would have to be yes, because it is
an abnormality of the brain function, so it would be regarded as a pathological
condition."
Dr. Fenwick's evidence was that this was not a sleep-walking episode at all
but he described the features of sleepwalking as commonly including violence -
although extreme violence is rare; the propensity for severe violence to recur
is there. He opined that persons suffering from the disorder should be detained
in hospital "because it is a treatable condition."
The Court of Appeal accepted that evidence (taken with the other defence
psychiatrist, Dr. Eames) as properly leading to a conclusion that Burgess was:
".. suffering an abnormality or disorder, albeit transitory, due to an
internal factor, whether functional or organic, which had manifested itself in
violence. It was a disorder or abnormality which might recur, although the
possibility of it recurring in the form of serious violence was unlikely.
Therefore since this was a legal problem to be decided on legal principles, ...
on those principles, the answer was as the judge found it to be."
The legal decisions in the Burgess have been summarized in an About.com web
site (no longer accessible) as follows:
1. A person is not criminally responsible for an act or omission which occurs
independently of the exercise of his will or an event which occurs by accident.
2. No act is punishable if it is done involuntarily; and an involuntary act
in this context - some people nowadays prefer to it as 'automatism' - means an
act which is done by the muscles without any control by the mind, such as in
spasm, a reflex action or a convulsion; or an act done while suffering from
concussion or whilst sleep-walking.
However, in Burgess' case, it was judged that the violence didn't match the
situation, that there was the possibility of a recurrence during other episodes
of sleepwalking. It was, therefore, deemed a "disease of the mind." In other
words, insanity.