R v Eriksen (No 6)

1. [1]

   On 9 April 2023 Lisa Fenwick (“the deceased”) died as a result of numerous stab wounds. Anthony Eriksen (“the accused”) is charged with her murder.

2. [2]

   The accused entered a plea of not guilty. He elected to be self-represented during the proceedings. On 28 April 2025, the accused indicated that he intended to rely on the defence of “sane automatism by dissociation”. That is, he said his defence to the charge of murder was that at the time of stabbing the deceased, he was sleepwalking. [1] The accused accepted he stabbed the deceased. He denied it was a voluntary or wilful act. He also denied that at the time he stabbed the deceased he had the intention to kill the deceased or cause grievous bodily harm.

3. [3]

   The defence of sane automatism entitles the accused to acquittal simpliciter or outright acquittal, if the charged act occurred independently of their will by reason of involuntary conduct not arising from a disease of the mind: R v DB [2022] NSWCCA 87 at [19] citing R v Falconer [1990] HCA 49; (1990) 171 CLR 30 (“Falconer”).

4. [4]

   In R v Radford (1985) 42 SASR 266 at 276 King CJ explained the difference between sane automatism and insane automatism as follows:

5. [5]

   ‘Sleepwalking’ is a “paradigm case of sane automatism”: R v DB at [33].

6. [6]

   In Falconer Deane and Dawson JJ at 61 characterised the evidentiary requirements of the defence of sane automatism as follows:

7. [7]

   In Woodbridge v R [2010] NSWCCA 185 at [73] Davies J said with respect to the evidential onus of sane automatism:

8. [8]

   It is clearly established that the evidence required for a jury to make a reasonable inference as to the voluntariness requires evidence more than the assertion of the accused: R v Tsigos [1964-1965] NSWR 1607 at 1630; Falconer at 61.

9. [9]

   In R v Tsigos Moffit J said at 1630:

10. [10]

    The availability of medical evidence which substantiates any question of voluntariness has been held to be a paramount factor in deciding whether the evidential onus has been met by the defence: R v DB at [28] and Dragan v R [2010] NSWCCA 329 at [137] both citing Falconer at 61.

11. [11]

    In Falconer Deane and Dawson JJ said at 61 (emphasis added):

12. [12]

    On the same issue of medical evidence Gaudron J said at 83 (emphasis added):

The course of events pre-trial

1. [13]

   After the accused had indicated he was to rely on automatism, he was advised on several occasions that in accordance with the principles I have referred to above, if the issue of sane automatism was to be left to the jury the law required that there must be some evidence, usually expert medical evidence, about sleepwalking and its effects from which a reasonable inference could be drawn that there was a possibility his actions at the time of stabbing the deceased were not wilful or voluntary. [2] The accused was told that it was not enough for him to give evidence that he was sleepwalking at the time he stabbed the deceased. He was told that whilst the Crown at all times bore the onus to prove the elements of the offence of murder beyond reasonable doubt, in circumstances where there was no other evidence from which it could reasonably be inferred that he was not acting voluntarily when he stabbed the deceased, he had an evidential onus in that regard.

2. [14]

   It was conveyed to the accused that, in the circumstances where there was no other evidence from which the relevant inference could be drawn, for this issue to be left to the jury, he would require some kind of independent evidence which went to the fact that he was sleepwalking at the time of him stabbing the deceased and the possible effects of such a condition on his actions and behaviour. [3]

3. [15]

   The trial was scheduled to start on 5 May 2025. The start of the trial was deferred, for reasons including to give the accused time to seek to engage an expert to assess him and provide evidence which would go towards his defence. This involved the court adjourning on eight occasions from the scheduled start date.

4. [16]

   Allowance was made for the fact that the accused was self-represented, in custody and the attendant difficulties he faced in contacting potential expert witnesses. The Crown collated and copied material and sent it on the accused’s behalf to one potential expert, Dr Anup Desai from the Sydney Sleep Clinic to facilitate a prospective assessment of the accused. [4] Dr Desai ultimately declined to provide an assessment. That was, the accused said, because Dr Desai said there was no evidence provided to him that the accused had been asleep. [5] The accused was also allowed to appear via AVL on several occasions in order to maximise his access to facilities available to him at the prison to allow time to research and contact prospective experts.

5. [17]

   In total, six full days were vacated from the scheduled start of the trial on 5 May. On 22 May the trial was adjourned to commence on 10 June 2025 to allow time for the accused to prepare, fully review the material disclosed by the Crown in the brief of evidence and attempt to contact expert witnesses.

The course of the trial

1. [18]

   A jury was empanelled on Tuesday 10 June 2025.

2. [19]

   On Tuesday 17 June 2025, towards the end of the Crown Case, I directed that a voire-dire be held where the accused was to identify any fact or matter in the pre-trial material disclosed by the Crown and from the evidence it had led and intended to lead, from which an inference could be reasonably drawn that it was possible when he stabbed the deceased he was not acting voluntarily. This exercise was necessarily limited given the Crown Case was not closed, and the accused was under no obligation to point to the evidence, if any, he intended to lead.

3. [20]

   The accused identified the following from the evidence tendered in the Crown Case to that point:

4. [21]

   I formed the view that none of the evidence in the Crown case identified by the accused would allow the inference to be drawn that there was a reasonable possibility that the accused was not acting voluntarily when he stabbed the deceased. As I said to the parties at the time, my decision then was necessarily preliminary. [6]

The close of the Crown case

1. [22]

   Subsequently, after the close of the Crown Case the accused elected, as was his right, not to lead any evidence. Given this decision, in following with my preliminary view, and with no other evidence in the Crown case being identified, I confirmed as final my preliminary view that there was no evidence from which an inference could be drawn that that there is a reasonable possibility his actions at the time of him stabbing the deceased were not wilful or voluntary. [7]

2. [23]

   As to the matters in [20]:

3. [24]

   It was for these reasons that I refused to allow the issue of whether the accused was not acting voluntarily or wilfully at the time he stabbed the deceased to be left to the jury.