Criminal Law 20002nd Semester Part 4

Week 5-7 Accident, Acts Independent of Will, Insanity, Diminished Responsibility, Intoxication

S23

includes the two excuses of accident and acts independent of will:

No criminal responsibility for

s23(1)(a) acts independent of will - an excuse resulting in acquittal s646

s23(1)(b) events occurring by accident - an excuse resulting in acquittal s646

– s23(1) Qualification which excludes the use of s23 where offences are based on criminal negligence

– s23(1A) ‘eggshell skull’ provision

– s23(2) intention immaterial to the accused’s criminal responsibility unless it is a stated element of a Code offence

– s23(3) declaring motive immaterial for criminal responsibility separate from intent - but still useful as evidence

s23(1)(b) Second LimbA person is not criminally responsible for an Event which occurs by accident

S23(1)(b) Accident

• ‘an event which occurs by accident’ (the result)

• evidential onus rests with the accused

• the Crown must negative the excuse beyond a reasonable doubt

• Test stated by Gibbs J in Kaporonovski restated in the positive in Taiters

Point of difference between the excuses

• S23(1) (a) ACT independent of will

• S23(1) (b) EVENT which occurs by accident

McTiernan ACJ and Menzies J

* The ACT 23(1)(a) = the forcing of the glass against and into the person’s face

* The EVENT 23(1)(b) = grievous bodily harm suffered by the person

Kaporonovski Test (for determining wh event occurred by accident)

• Not intended by the accused (subjective)

• Not foreseen by the accused (subjective)

• Not reasonably foreseen by an ordinary person (objective)

All three aspects of the test must be satisfied before excuse can be successfully raised

Taiter’s formulation of test for determining if event occurred by

accident

338 ‘The Crown is obliged to establish that the accused intended that the event in question should occur or foresaw it as a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome.’

Taiters - not accident •If outcome certain or even just more probable than not, then not accidental.

•If there is a substantial likelihood although something less than a preponderance of probability that a particular outcome will occur and the risk of the outcome is voluntarily accepted by the one acting, it should not, if it results, be called accidental.

And see R v Knutsen

•something which a reasonable [person]might think of as no more than a remote possibility which does not call to be taken into account and guarded against can, when it happens, be fairly described as accidental 338 and see Vallance v The Queen

S23(1)(a) Act independent of will

Three views of ‘act’

Wide view Dixon J Vallance Act + consequence eg all acts + results

**Narrow Menzies J Vallance

***Physical action eg firing the gun*****

Intermediate Barwick J Timbu Kolian Totality eg striking of blow on

child’s head

Narrow View

Falconer 39:

'bodily movement over which an accused has control and its contemporaneous and inevitable consequences'.

firing of the rifle

wielding of the stick

pushing of the hand holding the glass

Independent of will

FalconerMason CJ, Brennan, McHugh JJ 39‘the notion of will imports a consciousness in the actor of the nature of the act and a choice to do an act of that nature.’

Note that a bodily action independent of will and * due to mental illness comes under s26/27 and * if due to intoxication s28

Test to distinguish sane automatism s23 and insanity s27

Radford v The Queen

internal - ‘an underlying pathological infirmity of the mind be it of long or short duration and be it permanent or temporary which can be properly termed mental illness’

external - ‘as distinct from the reaction of a healthy mind to extraordinary external stimuli’

Insanity Defence

s26 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.

s27(1) provides defence of unsoundness of mind

s27(2) where suffering from delusions, criminal responsibility limited as if reality was the same as delusion

s27

The accused must be in such a state of mental disease or natural mental infirmityso as to deprive the accused ofthe capacity to:

understand what they are doing orcontrol their actions orknow that they ought not do what they are doing.

s23(1)(a) s27• reflex or muscular

spasm• somnambulists or

sleep walkers• concussion• hypoglycaemia (low

blood sugar due to insulin taken)

• dissociative states caused by stress, anxiety, psychological blow, and/or fear

• reactive depression• schizophrenia• epilepsy• hyperglycaemia (high

blood sugar due to disease)

• arteriosclerosis• delirium tremens

S23(1)(a)&(b) s27• Evidence raised by

accused; Onus of proving guilt rests with the Crown and must be discharged beyond reasonable doubt;

• Successful argument based on s23 results in absolute acquittal

• Onus of proof rests with party raising it and they must discharge it on the balance of probabilities

• Successful argument based on s27 results in qualified acquittal under s647

s23 Evidence s27

Non insane automatism• With (a) presumption

that all acts are willed so need evidence of condition at the time supported by expert evidence

Falconer, Deane and Dawson,61

• There must be underlying pathological infirmity of the mind

• with expert medical evidence being essential

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

Evidence of insanity and intent

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

Hawkins v The Queen 1994Applied in Qld in R v Wilson [1998] 2 Qd R 599

Diminished Responsibility s304A

s304A (1) in relation to murder

Where person in a state of abnormality of the mind impairing one of the 3 capacities

s304A(2) onus of proof on the accused who must establish the defence on the balance of probabilities

accused must be in such a such a STATE of ABNORMALITY

(whether arising from a condition of arrested or retarded development of the mind or inherent causes or induced by disease or injury)

so as to SUBSTANTIALLY IMPAIR

the CAPACITY to(a) UNDERSTAND what

they are DOING; or(b) CONTROL their

ACTIONs; or(c) KNOW that they

OUGHT NOT DO what they are doing.

• All offences

• Mental disease ornatural mentalinfirmity

• Deprived

• Only applies whereaccused charged withmurder

• State of abnormalityarising from one offive causes

• Substantially impaired

s27 s304A

s304A• ‘so different from that of ordinary human beings

that the reasonable man would term it abnormal’- but see narrowing by Hanger J in Rolph

• Thomas in Whitworth notes the excluded factors 462

• Biess 485 Matthews J ‘substantially’ as ‘being something between trivial or minimal and total’ - mental responsibility need not be totally impaired.

Intoxication s28

s28 (1) applying s27 insanity provisions only where the intoxication is involuntary

s28(2) insanity provisions do not apply where the person is to any extent intentionally intoxicated

s28(3) intoxication can be considered when the offence has an element of intent to cause a specific result

Involuntary Intoxication

28.(1) The provisions of section 27 apply to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his or her part by drugs or intoxicating liquor or by any other means.(2) They do not apply to the case of a person who has, to any extent intentionally caused himself or herself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not and whether his or her mind is disordered by the intoxication alone or in combination with some other agent.

s27

Intentional Intoxication

(3) When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.

Element of Intent

‘stupefy’ ‘to make stupid or torpid; to deprive of apprehension, feeling or sensibility; to benumb, deaden. To become stupid or torpid; to grow dull or insensible.’

‘Intoxicate’: ‘to stupefy, render unconscious or delirious, to madden or deprive of the ordinary use of the senses or reason, with a drug or an alcoholic liquor; to inebriate, make drunk.’

Kusu ‘s28 covers the whole field of liability’BUT note Macrossan dicta and Griffith CJ in Corbett and Auld

Intoxication Burden of Proof

S28 (1) and (2)• Unintentional

intoxication• accused carries onus

of proof as for insanity• results in special

verdict

S28 (3)• For offences where

intent to cause a specific result is an element

• Accused has to put forward some evidence

• Onus on Crown to prove the intent existed

Excuses Defences