El Seidi v R [2026] NSWCCA 143.

The decision in summary.

El Seidi v R [2026] NSWCCA 143 was decided on 16 September 2026. Adamson JA, Lonergan J and Roberts J sat. The applicant had been convicted after a trial by judge alone of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. The case run at trial was that an epileptic seizure explained the driving. The Court of Criminal Appeal held that the verdicts were not unreasonable, that the onus of proof had not been reversed, and that no procedural unfairness arose. The appeal was dismissed.

This note leaves the detail of the driving and the medical evidence to the court's published reasons. It uses the decision as a starting point to explain the law that sits behind it: what automatism is, how a medical episode such as a seizure fits the requirement that a criminal act be voluntary, who carries the onus of proof, and how a conviction can be tested on appeal as unreasonable.

The decision is available on JADE at jade.io. The published reasons of the court are the authoritative record of what was decided.

What is automatism, and is it a defence?

A criminal offence needs a voluntary act. A person is not liable for conduct that was not willed. Automatism is the word the law uses for movement of the body that happens without the exercise of the will. Classic examples are a convulsion during an epileptic seizure, movement while sleepwalking, and conduct in the confusion after a blow to the head.

Automatism is not strictly a defence. It is a denial that the prosecution has proved a voluntary act. Voluntariness is part of what the prosecution must establish, so if the act was not voluntary, an element of the offence is missing. The distinction matters, because a true defence usually places some burden on the accused, while automatism does not shift the persuasive burden off the prosecution. The point was settled long ago in Woolmington v DPP [1935] AC 462, where the House of Lords described the burden of proof as a golden thread running through the criminal law: it is for the prosecution to prove guilt, not for the accused to prove innocence.

The High Court examined automatism closely in R v Falconer (1990) 171 CLR 30. The Court accepted that an act done in a state of automatism is not a voluntary act, and worked through how the law tells apart a reaction that reflects a healthy mind responding to an external event from one that reflects an underlying mental infirmity. That line is the line between sane and insane automatism.

What is the difference between sane and insane automatism?

Sane automatism is involuntariness with a cause that is not a disease of the mind. That includes external or transient triggers. If the prosecution cannot disprove sane automatism beyond reasonable doubt, the accused is acquitted outright and walks free.

Insane automatism is involuntariness caused by a disease of the mind, which the law treats as a mental health impairment. It does not lead to a plain acquittal. It leads to a special verdict, in New South Wales an act proven but not criminally responsible, under the mental health impairment framework. That outcome can carry ongoing supervision, so the two categories lead to very different places even though both start from an involuntary act.

Where a seizure sits between those two categories has divided the authorities and turns on the medical evidence in the individual case. Some cases have treated epilepsy as a disease of the mind, which places it in the insane category; others have treated a seizure with an external or transient trigger as sane automatism. The classification is not an academic point. It decides whether the person is acquitted outright or dealt with under the mental health provisions. In a driving case that difference is stark.

Who has to prove that the driving was voluntary?

The prosecution. The law begins with a presumption that a person acts voluntarily. An accused who wants to raise sane automatism carries only an evidential burden, which means pointing to material capable of raising involuntariness. That material often comes from the accused, from witnesses, and from medical evidence about the condition.

Once that threshold is met, the legal burden of proving a voluntary act stays where it started, on the prosecution, to the criminal standard of beyond reasonable doubt. The accused does not have to prove they were an automaton. This is the point the Court of Criminal Appeal addressed in El Seidi when it held that the onus of proof had not been reversed. A verdict that rests on the accused failing to prove involuntariness would be wrong in law; a verdict that rests on the prosecution proving a voluntary act to the criminal standard is not.

Can an epileptic seizure be a defence to dangerous driving?

A seizure can be relevant, but it is not a passport to acquittal. If a genuine seizure meant that the driving at the moment of the collision was not a voluntary act, and the prosecution cannot exclude that beyond reasonable doubt, then the driving element is not made out. That is the argument automatism supports.

There is a limit that bites hard in driving cases. A driver who knows they are prone to sudden loss of consciousness, and who chooses to drive anyway, may be unable to rely on automatism. The reason is that the decision to drive in that state can itself be the dangerous or negligent act, made at a time when the person was fully in control of their choices. A first, unheralded seizure in a person with no reason to expect it is one thing. Driving in the face of medical advice, missed medication, or a known pattern of seizures is another. The medical evidence and what the driver knew about their own condition tend to decide which case it is.

What is dangerous driving occasioning death or grievous bodily harm in NSW?

The offences sit in section 52A of the Crimes Act 1900 (NSW). Dangerous driving occasioning death under section 52A(1) carries a maximum of 10 years, rising to 14 years in its aggravated form under section 52A(2). Dangerous driving occasioning grievous bodily harm under section 52A(3) carries a maximum of 7 years, rising to 11 years in its aggravated form under section 52A(4). Aggravating circumstances include high range alcohol readings, very high speed, and driving to escape police.

The offence needs a driver who was driving, an impact that caused death or grievous bodily harm, and driving that was dangerous in the circumstances. Voluntariness sits underneath all of that. If the person was not driving in any legal sense during the relevant moment, because their body was moving without the exercise of the will, the prosecution has not proved that they drove. That is the space automatism occupies in a section 52A case, and it explains why a medical cause for the driving is argued the way it is. The wider section 52A framework is set out in the firm's note on dangerous driving occasioning death.

What is the unreasonable verdict ground of appeal?

A conviction can be appealed to the NSW Court of Criminal Appeal on the ground that the verdict is unreasonable or cannot be supported having regard to the evidence. The ground is found in section 6(1) of the Criminal Appeal Act 1912 (NSW). It is different from a ground that says the trial judge made a legal error. It says the finding of guilt itself was not open on the evidence.

The test comes from M v The Queen (1994) 181 CLR 487. The appeal court asks whether it was open to the tribunal of fact to be satisfied of guilt beyond reasonable doubt. To answer that, the court makes its own independent assessment of the whole of the evidence, both its sufficiency and its quality. Where the evidence, viewed in that way, leaves the appeal court with a reasonable doubt that the trial court ought also to have held, the conviction is set aside. The bar is high, because the appeal court does not simply substitute its own preference for that of the trial court.

How does an unreasonable verdict appeal work after a judge-alone trial?

A judge-alone trial changes what the appeal court can see. A jury gives no reasons; a judge sitting alone must give reasons for the verdict. Those reasons expose the path to the finding of guilt, including how the judge dealt with the medical evidence and the question of voluntariness.

In Dansie v The Queen [2022] HCA 25 the High Court confirmed that, even with reasons available, the Court of Criminal Appeal still performs the M v The Queen task of making its own assessment of the evidence. It does so while giving proper respect to findings the trial judge made from the advantage of seeing and hearing the witnesses. The appeal court is not confined to checking the reasons for legal error. It asks whether guilt was reasonably open on the whole of the evidence. In El Seidi the Court applied that approach and concluded the verdicts were not unreasonable.

What this means for a person raising a medical cause for their driving.

If a medical episode may explain your driving, the law gives you a real argument, but it has to be built properly. It starts with medical evidence: the diagnosis, the history, what was known and when, and an expert opinion on whether the episode could have caused involuntary movement at the relevant time. It also matters whether the cause is treated as sane or insane automatism, because that decides whether the outcome is an outright acquittal or a special verdict under the mental health provisions.

The prosecution keeps the onus of proving a voluntary act, but it will meet the argument with the driver's own knowledge of their condition and their choice to drive. Getting the medical and factual case in order before trial is where these matters are won or lost. Where a conviction has already been entered and the verdict was not open on the evidence, the unreasonable verdict ground exists, but the time limit is short. In New South Wales an application ordinarily must be lodged within 28 days of conviction, and an extension is a separate hurdle. El Seidi is a reminder that the ground is available, and that it is decided by the appeal court making its own hard look at the evidence.

Frequently asked.

What is automatism in criminal law?

Automatism is an act done without the exercise of the will, such as movement during an epileptic seizure, while sleepwalking, or after a blow to the head. It is not strictly a defence. A criminal offence needs a voluntary act, and voluntariness is something the prosecution must prove. If the evidence raises automatism and the prosecution cannot prove a voluntary act beyond reasonable doubt, the accused is not guilty.

What is the difference between sane and insane automatism?

Sane automatism is involuntariness caused by something other than a disease of the mind. If it is not disproved, the result is an outright acquittal. Insane automatism is involuntariness caused by a disease of the mind, treated as a mental health impairment. It leads to a special verdict of act proven but not criminally responsible rather than a straight acquittal. Which category a seizure falls into depends on the medical evidence.

Who has to prove that driving was voluntary?

The prosecution. The law presumes acts are voluntary. An accused raising automatism only has to point to evidence capable of raising it. Once that is done, the legal burden of proving a voluntary act stays on the prosecution beyond reasonable doubt. The accused does not have to prove they were acting involuntarily.

Can an epileptic seizure be a defence to dangerous driving in NSW?

It can be relevant. If a genuine seizure meant the driving was not voluntary, and the prosecution cannot exclude that beyond reasonable doubt, the driving element is not made out. But a driver who knew they were prone to seizures and drove anyway may be unable to rely on automatism, because the choice to drive in that state can be the dangerous act. The medical evidence and the driver's knowledge of their condition usually decide it.

What is the unreasonable verdict ground of appeal?

It is a ground under section 6(1) of the Criminal Appeal Act 1912 (NSW) that the verdict is unreasonable or cannot be supported having regard to the evidence. The test from M v The Queen asks whether it was open to the tribunal of fact to be satisfied of guilt beyond reasonable doubt. The Court of Criminal Appeal makes its own independent assessment of the whole of the evidence.

How does an unreasonable verdict appeal work after a judge-alone trial?

In a judge-alone trial the judge gives reasons, so the appeal court can see the path to the finding of guilt. In Dansie v The Queen the High Court confirmed that the Court of Criminal Appeal still makes its own assessment of the evidence, while respecting findings the trial judge made from seeing and hearing the witnesses. The reasoned verdict is examined for whether guilt was reasonably open on the whole of the evidence.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Brady & Associates Lawyers, as at 19 September 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

← Back to all news