Court acquits accused of homicide on non-insane automatism grounds due to prosecution's failure to prove voluntary act.

[*405] 1977 February18

(LORIS, P.D.C. HADJITSANGARIS S.D.J. & KORFIOTIS D.J.)

IN THE ASSIDE COURT OF LIMASSOL

Republic,

v.

John Brian Lummas,

Accused.

(Criminal Case No. 19294/76)

Criminal Law - Defences - Automatism

- Non-insane automatism - Principles applicable - Homicide by assaulting - Accused not suffering from any disease of the mind - But of neurotic predisposition - Sexually insulted by the victim - And had a transient malfunctioning of the mind which created depersonalization and derealization and brought about a state of non-insane automatism which resulted in the very act of assaulting - Defence evidence laying in law a proper foundation for the defence of automatism by introducing evidence from which it could reasonably be inferred that the act was involuntary - Prosecution failing in its duty to adduce evidence to negative non-insane automatism and prove positively that the act of the accused was a voluntary one - Accused acquitted and discharged.

A. Evangelou, Counsel of the Republic, for the Republic

G. Cacoyiannis with Captain Charles Garraway, for the accused.

JUDGMENT

The judgment of the Court was delivered by:-

LORIS, P.D.C.: The accused in the present case [*406] is charged with the offence of Homicide contrary to s. 205(1)(3) of the Criminal Code, Cap. 154, as amended by Law 3 of 1962. According to the particulars of the offence set out in the present Information, the accused on the 9.10.76 at Limassol, in the District of Limassol, did by an unlawful act, cause the death of Neophytos Ioannou Komodromos, alias Fitirikos, late of Limassol. The unlawful act in question is an assault.

The salient facts of the present case are as follows:

The accused, an English serviceman aged 20 at the material time of the present case, (he was born on 21.12.55), who was posted at Akrotiri S.B.A. some 15 days earlier, came to Limassol with some English friends of his, at about 10.30 p.m. of the 8.10.76 and after visiting two discotheques and consuming several drinks, ended up in a cabaret called ’LIDO’ at about 3 a.m. of the 9.10.76; the aforesaid cabaret is situated at Pavlou Mela Str. within the infamous Heroes Square, Limassol.

Whilst the accused was sitting at the counter of the said cabaret together with a colleague of his, namely Emblem (P.W. 25) having a glass of beer, he was approached by the deceased who was not known to him up to that very moment. The deceased, a Greek Cypriot was a man of

73 years of age, single, and as it transpired during the trial a man of very bad character and a known homesexual. It may be added here that the accused who was a [*407] new comer to Cyprus did not understand Greek at all, whilst the deceased could utter a few words in broken. English which far from being helpful in communicating with English-speaking people, were apt to be misunderstood. The deceased approached the accused and without any introduction asked him in broken English whether "he wanted a fuck" and at the same time motioned him to the door of the cabaret saying "come"; the accused, taking the deceased to be a pimp inviting him to visit a prostitute, followed him outside the cabaret and walked with him along Pavlou Mela Str. towards west, entered Anexartissias Str, proceeded thereon southwards and turned right into Andreas Themistocleous Str. where they stopped at the bus-shelter which is opposite this very Court premises. Whilst following the aforesaid route, at times the deceased had his arm around the waist of the accused and the accused had his arm on the shoulder of the deceased. At the bus-shelter, for reasons with which we shall be dealing later on in our present judgment -as the versions of the Prosecution and Defence diverge - the accused assaulted the deceased by punching and kicking him and then left the scene, leaving the deceased shouting in Greek, "Police, help" and in English "Soldier". Due to the shouting of the deceased, people in the neighbourhood were awakened, and the night-watchman of the adjacent ESEL Supermarket, namely Erodotos Franzides (P.W.21) summoned the Police by telephone. Shortly afterwards at about 4.20 a.m. P. Constables

Neophytos Christou, P.C. 2245 (P.W.6) and Andreas Christodoulou P.C. 4l8, (P.W.8) arrived at the [*408] scene. They found the deceased injured and

unconscious but alive and conveyed him in a Police landrover to the Limassol Hospital. Dr. Kannavas, (P.W.27) of the Limassol Hospital examined the deceased and performed a tracheotomy as the deceased was presenting signs of acute breathing insufficiency. The deceased who was admitted to the hospital at about

4.45 a.m. of the 9.10.76, according to the evidence of Nurse

Maria Lanitou (P.W.3), remained under the doctor’s supervision up to 6.30 a.m. of the same day when he succumbed to his

injuries.

Dr. Panos Stavrinos, the Government Pathologist of the Nicosia General Hospital, performed at 1.30 p.m. of the 9.10.76 a Post Mortem examination on the body of the deceased at the Mortuary of the Limassol Hospital after the body/ was identified to him by the sister of the deceased, namely Efpraxia Demetriou (P.W.2).

The findings and the opinion of Dr. Stavrinos are set out in the deposition of Dr. Stavrinos before the Committing Judge, which was produced by the Registrar of this Court (P.W.28) and it is Exh. 21 before us.

Externally Dr. Stavrinos, according to Exh. 21, found the following:-

a) There were fractures of the right mandibular joint, with severe bruise and swelling of the joint,

b) Dense bruise at the left mandibular region, [*409]

c) Multiple minor abrasions, bruises with scratches at the chest, right shoulder, right elbow and left knee joint,

d) Laceration with abrasion of the left elbow, left forearm posteriorly,

e) Small and diffuse minor bruises at the right clavicular region and supra clavicular as well as at the base of the sternum

Internally the doctor found the following:-

The scalp and the skull were oedematus with a haematoma of the right parietal region. The brain was congested and severely oedematus with severe degree of arteriosclerotic changes of the basillary artery; however there was no fracture of the skull.

Chest cavitythere was dense and severe bruise of the muscles and soft tissues bilaterally at the region of the body of the sternum. There was compound fracture of the 4th, 5th, 6th, 7th and 8th ribs of the right side, forming a huge haematoma of the surrounding soft tissues and muscles with diffusely subplural haemorrhage of the right lung. The larynx, oesophagus and the upper part of the trachea were densely bruised posteriorly. Within the right plural cavity there was free blood approximately one litre; both lungs were voluminous and congested and at the upper lobe of the right lung there were 3

lacerations caused probably by the fractured ribs. The heart was [*410] enlarged with the densely arteriosclerotic plugs of the ascending

aorta, resembling those of syphilitic aortitis. The coronary arteries were severely arteriosclerotic and their luman was partially occluded with dense atheromatus plugs. The stomach contained digested meal and the liver was enlarged and jaundiced. The kidneys were atrophic, otherwise normal and their capsule was not stripped easily due to old inflammations. The intestines and the rest of the internal viscera, without significant abnarmality.

The doctor went on to give the cause of death as follows:-

"The cause of death was shock and haemorrhage due to injuries of the chest and right lung, and secondly severe degree of systemic arteriosclerotic changes of the aorta and big vessels.”

From Exh. 21 it also appears that the doctor carried out a perectum examination and his finding is stated to be "that there was stretch of the anal sphyctir, evidence and sign of being homosexual”.

Police Inspector Andreas Frangos (P.W.23), the investigating officer into the present case, carried out investigations in Limassol with a view to arresting the culprit, and at the same time requested Warrant Officer Frederick Joseph Jackman (PW.24) stationed at Akrotiri and attached to the S.I.S. to make enquiries amongst servicemen R.A.F. Akrotiri concerning the present case. [*411] Jackman at 11.40 hrs. of 15.10.76 saw the accused, interrogated him and the latter after being cautioned made a statement which was produced and it is Exh. 16 before us.

The Prosecution called 28 witnesses in order to establish their case. The accused when called upon to defend himself, elected to give evidence on oath. In his sworn testimony he alleged that his act of assaulting the deceased was an involuntary act. He gave his explanations as to the alleged involuntariness and in support of his allegations he called Dr. Roy James Davies, a consultantneuropsychatrist who gave evidence before us as D.W.3. We shall be dealing at length with the evidence of the accused and that of Dr. Davies later on in our present judgment when we shall be examining the defence thus put forward, which is known as "Automatism".

The defence also called another witness, namely Captain Robin Albert Robinson (P.W.2) the Administrative Officer of the Squadron in which the accused is serving, who gave evidence about the character of the accused. This witness was not cross-examined by the Prosecution.

The Prosecution applied for leave and called Dr. Malekides, a specialist-psychiatrist in rebuttal.

This case was hotly contested on two points:

A) On the evidence of P.W. 19, namely Drakos, and

B) On the issue of the involuntariness of the act of the accused in assaulting the deceased, in other words on the issue of Automatism. [*412]

We intend to deal first with the evidence of Drakos. Independently of the contradictions in his evidence before us and in his testimony at the P.I., we have had the opportunity of watching this poor drunkard shaking in Court and perspiring whilst giving his evidence and we hold the view that no tribunal would ever consider relying on his evidence. He admitted that he was shaking because he did not have his drink (pinian) in time. If he has refrained from so doing out of respect for the Court, that is to his credit of course, but nevertheless that would not help to make him a creditable witness.

Now that we have discarded from our mind the evidence of Drakos, the only version before us as to what happened at the bus shelter, is the version of the accused.

Before proceeding to examine what happened in the bus shelter, according to the version of the accused, which leads us to the crucial topic of Automatism, we consider it convenient to deal with another aspect of the case which was touched by the Defence, but was not pursued further. This aspect refers to the cause of death of the deceased. Dr. Davies (D.W.3) in his examination in chief was asked in this respect, the following and gave the following answers:-

"Q. Now, I would like first to take you to the injuries that were found by the doctor who carried the P.M. which are described in his deposition which you have seen and the illness [*413] the deceased was suffering from and the fact that he was found to be a homosexual, and also the injuries you heard Dr. Kannavas describe. A. Yes. Q. Now, from these injuries and general personality of the deceased, how would you describe him? A. He was undoubtedly a homosexual. He was undoubtedly very dirty from the evidence of the clothes; he also had evidence of advanced syphilitic disease and he had syphilitic aortitis which is the 3rd stage of syphilis, that is the last stage, the worst stage. The syphilis also involved the coronary arteries, and do you wish me to express to you that he might have died eventually? Well, had he been a younger man without disease, two pints of blood in the plural cavity would probably not have killed him ... ".

It is true that Dr. Stavrinos stated at the P.I., and this appears in Exh. 21, that "the heart was enlarged with the densely arteriosclerotic plugs of the ascending aorta resembling those of syphilitic aortitis" but he clearly states that the cause of death was shock and haemorrhage due to injuries of the chest and right lung, and secondly severe degree of systemic arteriosclerotic changes of the aorta and big vessels." [*414]

But even if the act of the assault, with the consequential injuries had hastened the death of the deceased who was otherwise to die, suffering from syphilis that involved the coronary arteries, yet the accused would have been liable to causing the death -- that is if all the other ingredients of the offence are proved --, owing to the provisions of

S. 211 (d) of our Criminal Code, which reads as follows:-

”211. A person is deemed to have caused the death of another person although his act is not the immediate or not the sole cause of death in any of the following cases:-

"(a)...

" (b) ...

" (c) ...

" (d) If by an act or omission he hastened the death of a person suffering under any disease or injury, which, apart from such act or omission would have caused death;

" (e)..."

We shall now proceed to examine what happened in the bus shelter in the early hours of the morning of the 9.10.76 and under what circumstances did the accused assault the deceased. [*415]

As we have already stated earlier on in our present judgment when dealing with the evidence of P.W.19, Drakos, after discarding from our mind his evidence, the only version before us as to what happened at the bus shelter is the version of the accused. Accused’s version is to be found in his statement to Warrant Officer Jackman which is Exh. 16 before us and the testimony of the accused given viva voce before us, when called upon to defend himself.

The relevant extract from Exh. 16 reads as follows:-

" I walked round the corner of the bar with him and he led me into the dark bus shelter where he said or motioned such a thing as 'Wait for a taxi1. He was saying 'taxi, taxi'. With it being dark, because it was roughly between 3-4 0’ clock in the morning, I could not see very well. I then saw him stood in front of me with his trousers undone and his penis hanging out. Well, when I saw him like this, I think I said something 'Get off you queer. He then put his arms around my neck, then I hit him in the face with my fist pretty hard, with my right fist. He fell to the ground and I kicked him several times; he was shouting 'soldier, soldier’. He then tried to kick me but he missed and I kicked him again on his head. He was still shouting when I walked off ... " [*416]

Commenting on his conduct, or rather explaining his conduct in his said statement further down, the accused added:

"I did not mean to beat him so badly but it was the shock of his being a queer and the drink that I had had, that made me do it,"

When called upon to defend himself, the accused testified on oath and was cross-examined at length. After giving details about himself, his family and his environment, he stated,inter alia,

that up to the age of 5 he had nocturnal enuresis and that between the age of 5 to 10 he was sleep-walking. Speaking about the

incident at the bus shelter he stated that when the deceased extended his arms towards him as if about to kiss him, he (the accused) stepped back and at that moment he felt a shivery feeling, his mind went blank and he had a vague recollection of what happened, but he could remember that he was watching himself, as a spectator, punching and kicking the deceased. This picture which was like a dream, the accused added, continued from the very first moment he started punching the accused up to the last moment he withdrew his leg after the last kick.

The accused by introducing such evidence to the effect that his aforesaid acts were involuntary, and by calling medical evidence, i.e. the evidence of Dr. Davies (D.W.3) to give his expert opinion on the matter, led the way to what is

known as the Defence of Automatism. But [*417] before going into the evidence of Dr. Davies and the evidence of Dr. Malekides

who was called by the Prosecution in rebuttal, let us consider very briefly what ’Automatism' is.

In Bratty.v Attorney-General for Northern Ireland,

46 Cr. App. R.1, Lord Kilmuir, L.C. defined Automatism as "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'."

Ever since Bratty’s case several definitions were given to Automatism which boil down to one and the same thing, namely that the act must be the result of the volition of the person charged with the offence, in other words it must be a voluntary act, otherwise automatism comes in.

It is now well established that automatism may arise from a disease of the mind. In such a case the defence open to the accused is one of insanity and the onus of proof lay on the accused. Where automatism arises from some causes other than a disease of the mind, the onus of proof is on the Prosecution. In cases of non-insane automatism, the accused bears only "evidential burden". He must lay a proper foundation for the defence, by introducing evidence from which it may be reasonably inferred that the act was involuntary; whether such a foundation [*418] has been laid is a question of law. Lord Denning has said in R. v. Dervish (1968) Crim. L.R. 37 that the accused’s own word will rarely be sufficient unless it is supported by medical evidence. But once a proper foundation has been laid, the jury must be directed not to convict unless satisfied beyond reasonable doubt that the act was voluntary. In other words, once a prima facie case is made out by the defence, that the act was involuntary, the burden of proof remains throughout on the Prosecution to negative involuntariness beyond reasonable doubt. These principles with regard to automatism and in particular with regard to the burden of proof thereof which were laid down by Lord Denning in Bratty’s case, have been reaffirmed ever since and they are good law till the present

day. This was repeated recently in the case of D.P.P. v. Majewski (1976) 2 All E.R. 142, a House of Lords case. In this

latter case, Lord Edmund-Davies sums up the law in connection with voluntariness of an act and automatism as follows at p. 161 (letter c) up to p. 162 ( letter d). That is what Lord Edmund-Davies says on the matter:

"The mental element required to be present in assault has long been established in law; as long ago as 1669 it was said in Tubervell v. Savage:

“'... the intention as well as the act makes an assault. Therefore if one strike another upon the hand or arm or breast in discourse, it is not assault, there being no intention to assault...'” [*419]

“The striking has to be done with a hostile intention: Coward v. Baddeley. More recently, James J. said obiter in Fagan v. Metropolitan Police Commissioner, 'an assault is any act which intentionally -- or possibly recklesslycauses another person to apprehend immediate and unlawful personal violence...'... “

“If logic is to be the sole guide, it follows that a man can never be regarded as committing an assault unless he is conscious of what he is doing. Whatever be the reason for its absence, if he in fact lacks such consciousness, he cannot be said to act either intentionally or recklessly. It is submitted on the appellant's behalf that he was at all material times in a condition of 'noninsane automatism resulting from pathological intoxication'". (Here Lord Edmund-Davies, refers to the definition of automatism in Bratty's case, which is referred to above and continues:-

"In strict logic it may be that a physical action performed in such a state ought never to be punished as a criminal assault no matter how grievous the injury thereby inflicted on the person attacked.”

" Then is it the case that a man is always to be absolved by the criminal law from the consequences of acts performed when in a state of automatism,

regardless of how that state was brought about? The law is certainly clear [*420] and commentable in relation to cases where

the actor is wholly free from fault, in relation to the onset of such a mental state. The decided cases show that a wide range of organic and pathological conditions can reduce a man to a state of automatism.”

“Writing in Canaca Professor J.LL. J. Edwards commented:”

“'Whether it be arteriosclerosis, diabetic coma, hypogleycaemia, carbon-monoxide poisoning or a blow on the head, the conduct of a person suffering from one of these conditions can give rise to serious doubts as to his conscious knowledge of what he is doing. Two cases of somnambulism... add to the collection of causative factors relied upon by the defence in cases of murder. Moreover, ... the range of crimes to which a plea of automatism has been tendered by the defence, ranges from homicide to malicious wounding and from impaired or dangerous driving to simple failure to observe a stop sign on the highway. And we have by no means seen the end of the list of offences that may involve a defence of automatism’”.

“In this country in 1955. there was the notable direction of Barry J. in R. v. Charlson ((1955) 1 All E.R. 859, at p. 864) in relation to the criminal responsibility of a defendant (possibly suffering from a cerebral tumour) [*421] for a violent attack on his son, that -- 'if he struck... knowing what he was doing ... he is guilty ... If he did not know ... he was in the same position as if in an epileptic fit and is not guilty.'"

And the Noble Lord proceeded on the issue of intoxication by restating the Law to the effect that selfinduced intoxication however gross, cannot excuse crimes of basic intent.

Reverting now to the facts of the present case and in particular to the medical evidence before us, what is the effect of such evidence? Dr. Davies, a consultant in neuropsychiatry who has examined the accused on three occasions lasting for 6½ hours, gave his opinion very briefly as follows: The accused was not and is not suffering from any disease of the

mind; but owing to the fact that he was sexually insulted by the deceased, and due to his neurotic predisposition plus the

feeling of fear that was caused to him, had a transient malfunctioning of the mind which created depersonalization, derealization and brought about a state of non-insane automatism which resulted in the very act of punching and kicking.

Dr. Davies elaborated at length on the nocturnal enuresis of the accused, his sleep-walking between the ages of 5 and 10, his phobias, during his childhood, and explained that this neurotic

predisposition of the accused, plus his fairly biassed anti-homosexual ideas and his strong [*422] heterosexual drive, led him to a state of depersonalization and derealization when he was sexually

assaulted by the deceased and made him act as an automaton. He concluded that the accused’s/ acts were the acts of an automaton, that is they were unconscious in the sense that they were involuntary.

Dr. Davies also mentioned that the state of depersonalization started as the accused was moving backwards from the deceased, and it finished at some time after he probably kicked the deceased on the head. Furthermore, this doctor explained what the accused told him about

the shock which has been referred to by the accused in his statement to Jackman (Exh. 16). This is what Dr. Davies stated verbatim about this: " ...

Well I asked him afterwards what he meant by shock, because we all have a different idea, and he said that his feeling of shock was a feeling of shiver going through his body and then finding himself outside himself and in a dream-like state and then later coming around..."

Dr. Malekides, a specialist-psychiatrist, Registrar at the Athalassa Mental Hospital, who was called by the Prosecution in rebuttal, examined the accused once only on the 19.10.76 for 45 minutes. He also followed the evidence of the most material witnesses in this case, from the 2nd day of the trial till the end. He gave his opinion about the accused and such opinion is not very far away from that given by Dr. Davies. Dr. Malekides referred to [*423] the past history of the accused, nocturnal enuresis, sleep-walking etc. and stated that in his opinion when sexually insulted by the deceased, the accused had a shivery feeling and such insulting behaviour of the deceased made him panicky. He also accepted that the accused suffered from depersonalization and derealization, but he would not accept that the accused suffered real automatism. He maintained that the accused in a way was influenced by the alcoholic drinks he had before the incident, but he could not say to what extent the accused was so influenced. He would not all malfunctioning of the mind the state of depersonalization and derealization, although it seems from his evidence, that it is not the substance of what is meant by depersonalization and derealization which he disputes, but merely the word ’malfunctioning’.

It is abundantly clear to us that in the present case the accused did not suffer from any disease of the mind. The evidence of the accused coupled with the evidence of Dr. Davies called by the defence did lay in law a proper foundation for the defence of automatism by introducing evidence from which one may reasonably infer that the act was involuntary. Under the circumstances it was the duty of the Prosecution, this being a case of non-insane automatism, to adduce evidence to negative non-insane automatism and prove positively that the act of the accused was a voluntary one. The Prosecution called Dr. Malekides in rebuttal. We must say that Dr. Malekides gave his honest opinion before us, but his evidence is not such as to negative positively the involuntariness of the act.

We are left in doubt as to whether the act was a voluntary one, and as the burden of proving all the essential ingredients of the offence, including voluntariness of the act, lay squarely on the shoulders of the Prosecution, this doubt must go to the benefit of the accused.

We accordingly acquit and discharge the accused.

Accused acquitted and discharged.