Published on 16/04/2007

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Insanity

A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to act or make the omission - Porter

1. Generally

* The Doctrine of insanity is concerned with those situations where the defendant is said to be suffering from a disorder of reason such that the defendant does not know right from wrong.
* The Doctrine of insanity is concerned with the cognitive capabilities of the defendants; their ability to reason, and distinguish right from wrong
* It is the existence of such defects, which legally reduce criminal responsibility of the particular defendant.

M’Naghten’s Case (1843)

Facts: M’Naghten was charged with murder when he shot and killed a man but wad acquitted on the grounds of insanity. Consequently, the HOL put certain questions to the judges concerning ht e law of insanity and obtained to following reply.
Held: Every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible of his crimes until the contrary be proved by reason of insanity. The following test is to be applied.

M’Naghten Rules:

The defence of insanity is defined as requiring the defendant to prove on the balance of probabilities that the defendant was:

1) Suffering from a disease of the mind at the time of the act;

2) as a result of the disease, the defendant was suffering from a defect of Reason;

3) As a result of the defect, the defendant either (a) did not know the nature and Quality of his/her act, or if he/she did know it (b) did not know that the act was wrong.

Porter (1933) - followed M’Naghten rules

Facts: D was charged with murder for the poisoning of his child. He also tried to kill himself in the same manner however was interrupted by the entry of the police.
Held: The jury found the accused NOT GUILTY on the ground of insanity at the time of the commission of the act.

2. Defect of reason (First Limb)

Sodeman (1936)

* Defect of understanding and not volition or emotion
* Must have no intellectual awareness that his or her act was wrong
* Accused must be ‘disabled from knowing that it was a wrong act to commit…he was disabled from reasoning with a moderate degree of composure and sense as to wrongness of what he is doing…’ - Spigelman CJ in R v Cheatham
* It must first be shown that the defendant was suffering from a defect or reason. That is, that at the time of the offence the defendant was not capable of reasoning. Willgross

Willgross (1960) - whether intellectual apprehension must be accompanied by moral feelings

Facts: Willgross was charged with murder when he shot the deceased during the course of a burglary at the deceased’s house. He pleaded insanity and there was evidence that he was a gross psychopath in that he suffered fro ma serious lack of self-control and emotional feeling although he was intellectually capable of knowing his acts were wrong. He was convicted and sought leave to appeal.
Held: In considering the defence of insanity, mere intellectual apprehension by the accused of the wrongness of his acts could amount to knowledge, and it was not necessary to show that the accused had a sufficient appreciation or feeling about the affects of his acts on other people.

3. Disease of the mind (Second Limb)

* A relevant defect of reason will only ground the defence of insanity if it derives from the disease of the mind.
* It must be a disease, disorder, or disturbance - M’Naghten
* A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease - Quick (1973)
* It must be shown that the defect of reason arose from the disease of the mind. The arguments in favour would be strong. The epilepsy is an internal cause that is likely to recur. This reflects an underlying pathological infirmity of the mind. R v Radford; R v Falconer.
* It would seem likely that epilepsy would be regarded as a disease of the mind and there is in fact authority to that effect. R v Sullivan
* The condition need not be permanent. R v Kemp.

4. Onus of Proof

The jury must consider “whether the things which constitute the crime were done to the question whether the man who did them was criminally responsible for his actions or was not, because of unsoundness of the mind at that moment, it is necessary for the accused person to make out positively, on the balance of probabilities that he was not criminally responsible and that he was not of such a mental condition a the time as to be criminally responsible”.

The jury must be satisfied beyond reasonable doubt, to the exclusion of all doubt, of the following:

1. That he did administer strychnine to the child
2. That he did so with the intention of killing it; and
3. That the child’s death did result from that administration

Then, you will proceed to consider whether at the particular time when he did those things:

4. His state of mind must have been one of disease, disorder or disturbance, as to prevent him from:
            (a) knowing the physical nature of the act he was doing; or
            (b) knowing that what he was doing was wrong

5. Knowledge of nature and quality of act or wrongness

* As a result of disease of the mind, D was unable to appreciate the nature and quality of the act committed by D, which has attracted the criminal charge. I.e. to the physical nature of the act in question. The D may think the destruction of life, that to him it is no more than breaking a twig. He would not know the implications and what it really amounted to - Porter (1933)

* Refers to the physical character of the conduct, but also to the significance of the conduct itself - did the defendant know the nature and quality of his act such that he knew what the outcome would be? - Willgross

* It must be shown that the defendant did not understand the nature and the quality of the act. In all jurisdictions this requirement refers to the physical nature of the act and would appear to be satisfied on these facts. If it is accepted that the defendant was in a dissociative state it would appear that the defendant did not understand what the defendant was doing or the physical consequences of the defendants actions

Stapleton (1952) - It must be proved that D knew it was morally wrong, not legally wrong.

Facts: Stapleton was charged with murder and pleaded insanity. Evidence showed that he belonged to a family with a history of mental deficiency and abnormality. The trial judge directed the jury on the issue of insanity by telling them that the defence depended, inter alia, upon   the accused not knowing what he was doing was wrong, in the sense of being contrary to the law. He was convicted and appealed.
Held: In applying the test of insanity as formulated in M’Naghten’s case, the question was whether the accused knew that his act was wrong according to the ordinary principles of reasonable men, not whether he knew it was wrong being contrary to the law.

Not knowing the act is wrong

1. Where D knows the physical nature of D’s act, where owing to disease of the mind, D knows not that the act is wrong may secure an acquittal

2. An evaluation of whether or not that the accused Stapleton v R can reason about wrongness.

3. Moral wrongness (aka - Contrary to law) not a legal wrongness

4. did not know it was wrong

* Even where D knew the nature and quality of his or her act, D may secure an acquittal if he or she proves, on the balance of the probabilities that he or she did not know that the act was wrong, due to a disease of the mind.
* The main question is whether or not D was able to reason with a moderate degree of sense and composure. If he or she was unable to reason, then it could be said that D could not know that he or she was doing wrong - Porter
* Finally, and alternatively, it must be shown that the defendant did not understand that what they were doing was wrong. In all jurisdictions except SA, the focus of this limb is upon the accused being incapable or reasoning as to whether the conduct was right or wrong. Wrong in this context means morally wrong. It does not refer to a failure to understand that the act was legally wrong. The question is whether at the time of the offence the accused was capable or reasoning as to right or wrong having regards to the everyday standards of reasoning people – apply objective test - Porter
* In determining whether the defendant was capable of reasoning in the same way as an ordinary person, the jury may consider whether the defect of reason was such that the defendant was unable to reason with a moderate degree of sense and composure - R v Porter; Stapleton v R,
* If the defence of insanity for murder cannot be proven, there would be the alternative of returning a verdict of manslaughter on the basis of diminished responsibility.

5. Fitness to be tried

* The mental state of the accused may also be relevant tat the time of the trial.
* The test for unfitness o be tried differs from that for criminal insanity - R v Presser [1958] approved in R v Mails (2001):

“He needs...to be able to understand what it is that he is charged with…be able to plead to the charge and to exercise his right of challenge…understand generally the nature of the proceeding… [and] the course of the proceedings...the substantial effect of any evidence that may be given against him…needs to be able to make his defence or answer to the charge.”

6. Diversion of Accused persons with disabilities from the Criminal Justice System

DPP v Mills - NSW Court of Appeal considered the scope of the Mental Health (Criminal Procedure) Act 1990 as a means of diverting persons, who because of mental, intellectual or other disability, need treatment not punishment from the criminal justice system.

7. Insanity: Criticism

R v Massei - Defence lawyers actively seek to avoid insanity as a defence, in favour of ‘substantial impairment’, as a result of the government policy of keeping the criminally insane criminally incarcerated long after they are well enough to be released.

Continued on page 2

Diminished Responsibility

Diminished responsibility

23A Substantial impairment by abnormality of mind

(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:

(a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and
(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

(2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.

(3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section.

(4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.

(5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead.

(6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death.

(7) If, on the trial of a person for murder, the person contends:

(a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or
(b) that the person is not liable to be convicted of murder by virtue of this section, evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.

(8) In this section:
"underlying condition" means a pre-existing mental or physiological condition, other than a condition of a transitory kind.

* Only applicable to murder
* If effective will only reduce liability to that for manslaughter
* The statutory provisions impose the burden of proof on D
* Substantial impairment and not total. I.e. still has capacity to understand events

9. Generally

Veen (1979)
Thompson (1988)

10. Abnormality of mind

Byrne [1960]

Facts: Byrne was a sexual psychopath who strangled a young girl. His defence was that he was suffering from diminished responsibility. The evidence showed that he suffered from violent perverted sexual desires, which he found difficult or impossible to control. He was otherwise normal and, on his conviction for murder, he appealed.
Judgement: An abnormality of mind which resulted in the inability to exercise will power to control physical acts could constitute diminished responsibility and a conviction for manslaughter would be substituted.

* Abnormality of mind was defined in R v Byrne as a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It is therefore a much broader concept than than of disease of the mind in the defence of insanity. It would seem that the dissociative state that appears to have arisen from epilepsy would constitute an abnormality of mind as it affects the ability to form rational judgement as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgement.

* The defence of diminished responsibility requires that the accused was suffering from an abnormality of the mind - R v Byrne [1960]
* The abnormality of the mind need not be a permanent feature - Tumanko (1992), but it does not include emotions such as anger, jealousy, bad temper or prejudices arising from upbringing - R v Whitworth [1989]

The abnormality of the mind must have arisen from a specified cause by either a condition of arrested or retarded development or any inherent causes or disease of injury

* For diminished responsibility to be made out, the abnormality of the mind must arise from a prescribed factor - Fenton (1975)
* The accused who suffers a transient abnormality of the mind because, say, of intoxication per se unrelated to brain damage, will not qualify for the defence. The abnormality of the mind must derive from a cause (one within the prescribed categories – s23A) (those of ‘arrested or retarded development of mind or any inherent causes or induced by disease or injury), which has a quality of permanence or endurance.
* If the abnormality of the mind is itself transient, then it must be shown to derive from an inherent cause, or alternatively, a specific, inherent cause, which has the necessary element of permanency. Tumanako (1992)
* Inherent causes apply. R v Whitworth – a natural feature that has existed since birth. But abnormality of mind need only be temporary. R v McGarvie (1986)
* The defendant must show that they suffered from an abnormality of mind but that it arose in one of the ways specified in the sections s23A(1)-(8). These factors have been interpreted as being exhaustive R v Purdy.
* Where there is a combination of prescribed factors and other factors, the jury must consider only the prescribed factors in determining whether they have caused an abnormality of the mind. R v Whitworth

Substantial impairment to understand his or her actions or to know that he or she ought not to do the act or to control his or her actions

· The abnormality of the mind must have substantially impaired the accused’s capacity to understand events, the wrongness of the act or the ability to control his or her actions. Substantial does not mean total nor does it mean trivial or minimal. R v Lloyd [1967]

· Did the accused have

            1) The capacity to understand what he or she is doing
            2) The capacity to know that it was wrong; and
            3) The capacity to control his or her actions.

· Where insanity is raised the accused must have been incapable of understanding or controlling his or her actions.

· In the case of diminished responsibility it is enough that the accused’s capacity was substantially impaired.

· Thus the question is whether the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. s23A(1)(b).

· On these facts it is clear that the defendants capacity was substantially impaired and therefore the defence of diminished responsibility is likely to succeed.

Tumanako (1992)

D must establish 3 matters:

1) At the time of the act causing death he was suffering from an abnormality of mind;

2) Such abnormality arose from one or more several causes specified in s23A;

3) That such an abnormality of mind was such as substantially impaired the mental responsibility of the accused for what he did

Purdy [1982]

Defence under s23A requires D to show:

a. that his state of mind when he carried out the acts or omissions were abnormal;
b. that the abnormality can be attributed to one of the aetiological factors specified in the section; and the abnormality substantially impaired his mental responsibility for the acts or omissions

11. Substantial impairment of mental responsibility

- Substantial impairment often arises in the context where an accused claims that he or she was mentally ill at the time, and raises the defence of insanity.

- The defence of substantial impairment due to abnormality of mind was substituted in s23A of the Crimes Act 1900 for the pre-1998 defence of diminished responsibility.

- The concepts relevant to both the pre- and the post-1998s 23A defence are ‘abnormality of mind’, and ‘capacity to act rationally’. Lloyd [1967]

12. Proof

In order to prove that the defendant is suffering from diminished responsibility, there are three elements which are required to prove:

1) Requires proof that he or she is suffering from an abnormality of mind at the time of the commission of the offence.

2) Requires the accused tot how that his or her abnormality of mind arose from one of the three causes listed in s23A, namely from a condition of arrested or retarded development of mind, or from an inherent cause, or induced by disease or injury. Tumanako (1992).

3) Requires the accused to prove that his or her mental responsibility for the act causing death was ‘substantially impaired’ as a result of the abnormality of mind. Walton [1978]

13. Problems in applying the defence in practice

R v Chanya (1993) NSW Law Reform Commission, Report 82, Partial Defences to Murder: Diminished Responsibility (1997) (Sourcebook, p 584)

Facts: Andre Chayna, was convicted by a jury for the murder of her two daughters and her sister-in-law. At her trial, the defence of mental illness and the defence of diminished responsibility were left for the jury to consider. Several expressed the view that the accused was suffering from diminished responsibility, others rejected this conclusion and state that the defence of mental illness was established, while one doubted that the accused was suffering from any mental impairment at the time of the killings.
Judgement: The CCA held that the trial judge had erred in this aspect of the summing up and consequently quashed the conviction, substituting it with a conviction for manslaughter.

Criticism was directed at each of the three elements of the defence requiring proof of abnormality of mind, proof of origin of the abnormality, and proof of substantial impairment of mental responsibility.

Abnormality of Mind

- Two main objections to the term.

1. It is largely a meaningless expression, being based on neither medical nor legal concepts. Juries and expert witnesses may have difficulty making sense of it.
2. its such an ambiguous term, it is not clear exactly what mental conditions are to be included within its scope.

- The commission agrees.

Proof Of Origin of Abnormality

- Two main objections

1. The requirement to identify the aetiology (or cause) of an impairment is that it can lead to a great amount of disagreement amongst expert witnesses, who may not be able to nominate the origin of a condition with any certainty, or may disagree on the diagnosis of a particular offender.

2. It gives rise to a great deal of complex, confusing and technical debate in an attempt to define each of the three terms listed and to fit a specific condition into one of the three.

- The commission agrees.

Substantial Impairment of Mental Responsibility

- It may be argued that juries have difficulty understanding what is meant by this third element, and that the wording does not make it sufficiently clear that it is a question for juries, rather than experts, to decide.

The commissions recommended reformulation, the following elements must be satisfied in order to establish the defence of diminished responsibility:

1. The accused is otherwise liable for murder.
2. At the time of the killing, there was a substantial impairment of the accused’s capacity to:

- understands events; or
- judge whether his or her actions were right or wrong; or
- control himself or herself

3. the impairment was due to an abnormality of mental functioning arising from an underlying condition.
4. The impairment was so substantial as to warrant reducing murder to manslaughter.
5. The effect on the accused was not the result of the accused being intoxicated at the time of the killing, where intoxication was self-induced.