Week 6Week 6

InsanityInsanity

s26 and s27 Codes26 and s27 Code

FalconerFalconer

Mary Falconer convicted of wilful murder of her husband in the Supreme Court of WA

Evidence from two psychiatrists called to establish non-insane automatism excluded

Appeal to CCA allowed and retrial ordered

Special leave to High Ct sought against the Court order quashing conviction and ordering a new trial

Leave granted, appeal dismissed and order of CCA affirmed.

FalconerFalconer

Appealed to High Ct :Appealed to High Ct :• wh the involuntary acts performed in a state of wh the involuntary acts performed in a state of

dissociation resulting from emotional tension dissociation resulting from emotional tension are excused by virtue of the operation of s23are excused by virtue of the operation of s23

• also examining the relationship between s23, also examining the relationship between s23, s26, and s27 s26, and s27

• and the application to the Code of the common and the application to the Code of the common law decisions dealing with automatism and law decisions dealing with automatism and insanityinsanity

M’Naghten RulesM’Naghten Rules

‘the accused must prove that they were labouring under such a defect of reason, from disease of the mind,

1. As not to know the nature and quality of the act [they] were doing

2. Or if they did know it,

3. That [they] did not know [what they] were doing was wrong.’

Every person is presumed to be of sound mind, and to have been of sound mind [ie criminally responsible] at any time which comes in question, until the contrary is proved.

s26 Presumptions26 Presumption

S27 InsanityS27 Insanity

not criminally responsible …. the act or making the omission … mental disease or natural mental infirmity ... deprive the person of capacity

to understand what the person is doing, or ….

to control their actions or

know that they ought not to do what they are doing

S23Evidence raised byaccused; Onus ofproving guilt restswith the Crown andmust be dischargedbeyond reasonabledoubt

Successfulargument based ons23 results inabsolute acquittal

S27Onus of proof restswith party raising itand they mustdischarge it on thebalance ofprobabilities

Successful argumentbased on s27results in qualifiedacquittal unders647

Duty of judge where evidence of insanity raised

As to the evidence required for s27 As to when the issue of insanity

may be raised - Code s613, s645 and acquittal under s647

Proceedings under the Mental Health Acts

S613 want of understanding of the accused person - before trial and relates to fitness to stand trial

s645 accused person insane during trial - where fitness questioned once the trial has commenced

S27 Elements

The accused must be in such a state of The accused must be in such a state of mental disease or natural mental mental disease or natural mental infirmityinfirmity

so as to deprive the accused ofso as to deprive the accused of the capacity to:the capacity to:

• understand what they are doing orunderstand what they are doing or• control their actions orcontrol their actions or• know that they ought not do what they are know that they ought not do what they are

doing.doing.

M’Naghten Rules

Speaks only of a‘defect of reasonfrom a disease of themind’

‘Ability to controlactions’ not there

A person sufferingfrom delusions hadno defence atcommon law

Code S27

Uses the term ‘mentaldisease’ or ‘naturalmental infirmity’

person guilty to thesame extent as if thereal state of thingshad been such as hisor her delusionssuggested

What is a disease of the What is a disease of the mind?mind?

Foy’s Case: Philp,J

Wide definition - includes 244 ‘any disorder or derangement of the understanding - any destruction of the will’ or

‘an abnormal mental state, no matter how caused or how transient’

See also Bratty v Attorney-General (Northern Ireland) [1963] AC 386

Lord Denning ‘any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind.’

Radford v The QueenRadford v The Queen

Current (internal/external) test for Current (internal/external) test for ‘disease of the mind’‘disease of the mind’

Radford arguing s23 act Radford arguing s23 act independent of willindependent of will

trial judge refused to leave this trial judge refused to leave this issue to the jury issue to the jury

Radford not arguing insanityRadford not arguing insanity Appeal allowed Appeal allowed

There must be underlying There must be underlying pathological infirmity of the mindpathological infirmity of the mind

with expert medical evidence with expert medical evidence being essentialbeing essential

whether sufficient evidence whether sufficient evidence amounting to insanity is a question amounting to insanity is a question of law for the judgeof law for the judge

Mental illnesses and states Mental illnesses and states of mind classified under of mind classified under s27s27

Reactive depression schizophrenia epilepsy hyperglycaemia arteriosclerosis delirium tremens

Natural Mental Infirmity?Natural Mental Infirmity?

R v Rolph [1962] Qd R 262 Congenital defects including

arrested or retarded development

Emphasis on deprivation Emphasis on deprivation of one of the three of one of the three capacitiescapacities

To understand what they are doing To know they ought not do what

they are doing Note the difference between these

capacities of understanding and knowing and the remaining capacity

The deprivation of the capacity to control their actions

Need to show that the accused was suffering from the condition, and thus totally deprived of one of the capacities because of the condition

R v Porter Dixon J 188

If the mental disorder existed then it must have prevented him from • knowing the physical nature of the act - so

little capacity for understanding [the killing] that it is no more than ‘breaking a twig’ or

• of knowing what he was doing was wrong, that is ‘wrong according to the everyday standards of reasonable people’

In regard to knowing right In regard to knowing right from wrong - Michauxfrom wrong - Michaux

Medical evidence that schizoid and with severe state of personality disorder

Also outward actions Connolly,J 162 ‘the jury was

entitled to weigh the expert testimony in the light of the whole of the circumstances’

Is evidence of insanity Is evidence of insanity relevant to issue of intent?relevant to issue of intent?

Where evidence of insanity insufficient for the defence itself, is the evidence still relevant to intent?

Hawkins v The Queen 1994 Applied in Qld in R v Wilson [1998]

2 Qd R 599