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R v Bailey [1983] Crim LR 353 Court of Appeal


The appellant went to the house of his ex-lover's new partner, Mr Harrison. The appellant was visibly upset and Mr Harrison invited him in and they had a cup of tea and discussed the situation.The appellant was diabetic and had taken insulin but had not eaten. He said he was feeling unwell and asked Mr Harrison to get him a cup of water and sugar. Ten minutes later, the appellant got up to leave. He then said he had left his glove. Mr Harrison bent over to pick up the glove and the appellant struck him with an iron bar leaving a wound which required 10 stitches. The appellant was charged with wounding under s.18 OAPA 1861. At his trial he raised the defence of automatism arguing that the effect of the sugar and water had sent him into a state of hypoglycaemia and he was not conscious of his actions and thus incapable of forming the mens rea of the offence. The trial judge ruled that self-induced automatism could not be relied on. The jury thus convicted and the appellant appealed.

Held:

The trial judge had mis-directed the jury. However, the mis-direction did not render the conviction unsafe.

Griffiths LJ:
"In our judgment, self-induced automatism, other than that due to intoxication from alcohol or drugs, may provide a defence to crimes of basic intent. The question in each case will be whether the prosecution have proved the necessary element of recklessness. In cases of assault, if the accused knows that his actions or inaction are likely to make him aggressive, unpredictable or uncontrolled with the result that he may cause some injury to others and he persists in the action or takes no remedial action when he knows it is required, it will be open to the jury to find that he was reckless....

In the present case the Recorder never invited the Jury to consider what the Appellant's knowledge or appreciation was or what would happen if he failed to take food after his insulin or whether he realised that he might become aggressive. Nor were they asked to consider why the Appellant had omitted to take food in time. They were given no direction on the elements of recklessness. Accordingly, in our judgment, there was also a mis-direction in relation to the second count in the indictment of unlawful wounding.

We think it very doubtful whether the Appellant laid a sufficient basis for the defence to be considered by the jury at all. But even if he did, we are in no doubt that the jury properly directed must have rejected it. Although an episode of sudden transient loss of consciousness or awareness was theoretically possible, it was quite inconsistent with the graphic description that the Appellant gave to the police both orally and in his written statement. There was abundant evidence that he had armed himself with the iron bar and gone to Harrison's house for the purpose of attacking him, because he wanted to teach him a lesson and because he was in the way.


Moreover, the doctor's evidence to which we have referred showed it was extremely unlikely that such an episode could follow some five minutes after taking sugar and water. For these reasons we are satisfied that no miscarriage of justice occurred and the appeal will he dismissed."
 
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