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Monday, 27 February 2012

R v Smallshire - NOT influenced by Citalopram - evidence of Dr Herxheimer is not evidence that should be received on the appeal - discredited like FIDDAMAN

R v Smallshire -  extract

[18] It is against this background that we turn to the question as to whether Dr Herxheimer's evidence is capable of belief and whether it affords grounds for allowing the appeal on the basis of a defence of automatism. The account given by Mr Smallshire to the police who went to his house on 16 December 2008, after the incident, was that after the trouble between the dogs, he “went inside my house and took a knife from the kitchen drawer. I went outside and stabbed the man who was with the dogs. The knife broke and I had no idea where it is.” He said after arrest: “I know I have
done wrong. What I have done is totally out of proportion to what happened.”

[20] In his interview on 19 December 2005, he said that he “just went absolutely berserk”. Again, there is nothing that would amount to an assertion of automatism. He described choosing the knife as “a split second decision” and that he ploughed into the bloke because: “I saw the situation that I had got to get the upper hand.” He spoke of his intention being to get Mr Oakley away from his wife.

He said that when he struck with the knife: “My main concern was to get the situation under  control.”

[21] These are not accounts that amount to an assertion of automatism or state anything indicative of the loss of voluntary control that would amount to a defence of automatism. Dr Herxheimer's opinion that Mr Smallshire's actions are more likely than not the result of automatism do not explain these accounts of what happened. Without that, we are unable to accept that the evidence affords any grounds to allowing the appeal. The bald assertion that Mr Smallshire was more likely than not in a state of automatism is not, without attributing to Dr Herxheimer any intention to mislead
whatsoever, capable of belief. The question is not whether the effects of Citalopram are capable of giving rise to a state of automatism in other circumstances, but whether there is a credible evidence that they did so in this case. Dr Herxheimer's reports do not provide credible evidence that they did.

[22] In these circumstances the evidence of Dr Herxheimer is not evidence that should be received on the appeal. Without it, the appeal is hopeless. The application for leave to appeal against conviction is, for that reason, refused.

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