Seminar 8 Insanity_ DR

7/30/2019 Seminar 8 Insanity_ DR

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UNSOUNDNESS OF MINDUNSOUNDNESS OF MIND

Section 84 of theSection 84 of thePenal CodePenal Code


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Elements of the DefenceElements of the Defence

At the time of the offence

D was suffering from an unsound mind

causing in D an incapacity to know

the nature of the act, or

that it was either wrong or contrary to law


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Historical originsHistorical origins

MNaghtens RulesMNaghtens Rules


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Unsoundness of mind

Disease of the mind (MNaghten) Has been broadened in UK Any underlying pathological infirmity Cf. temporary (purpose of commitment under s. 84 vs

criminal punishment) or externally caused (individualfault) infirmity

YMC: must read s.84 holistically Linked to notion of cognitive incapacity

mental malfunctioning that renders A completelyincapable of knowing acts nature or that actwrong/contrary to law

At the point of crime cf. continuing nature


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Rosman Bin Jusoh

D was charged with trafficking and possessing of cannabis.D was charged with trafficking and possessing of cannabis.

A clinical expert testified that D was of subnormal intellectualA clinical expert testified that D was of subnormal intellectualcapacity.capacity.

The Court of Appeal held:The Court of Appeal held:

subnormal intellect is not unsoundness of mind True, thesubnormal intellect is not unsoundness of mind True, the[expert opined] that D might not have been able to discern[expert opined] that D might not have been able to discernright from wrong but this opinion is itself inconclusive Onright from wrong but this opinion is itself inconclusive On

the contrary, D knew it was contrary to law to sell drugsthe contrary, D knew it was contrary to law to sell drugs


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Incapable of knowing

What about capable of knowing but did notWhat about capable of knowing but did notexercise capacity at the time of crime?exercise capacity at the time of crime?

Indian courtsIndian courts Require total incapacityRequire total incapacity

MNaghten RulesMNaghten Rules Actual lack of knowledgeActual lack of knowledge

Local courtsLocal courtsNo distinction between capacity and exercise ofNo distinction between capacity and exercise of

capacity (YMC prefers this why?)capacity (YMC prefers this why?)


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Nature of Act

Unsoundness of mind --- results in incapableof knowing nature of act

Penal Code illustrations Refers to surface features of act

YMC: include harmful consequences of act Would this be merely partial inability to know

nature of act? Australian case law (applying MNaghten)

Includes harmful consequence


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Wrong or contrary to law

Disjunctive (favorable to A)Disjunctive (favorable to A) WordingWording

Artificial distinction between different kinds ofArtificial distinction between different kinds of

wrongswrongs

Morally wrong vs. legally wrongMorally wrong vs. legally wrong

What is the purpose of criminal punishment?What is the purpose of criminal punishment?

Conjunctive (Narrower application)Conjunctive (Narrower application)


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Controversy

Should s. 84 be interpreted to includeShould s. 84 be interpreted to include

irresistible impulse?irresistible impulse?

YMC: interpret act in s. 84 if irresistibleYMC: interpret act in s. 84 if irresistible

impulse then not an actimpulse then not an act


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Take note

Relationship between s.84 unsoundness of

mind Diminished responsibility

S. 85 (ii) (b) insane intoxication

Insane automatism

Sane automatism


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Diminished Responsibility

Exception 7Exception 7


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Partial defense

Cf. insanity Does not get you completely off the hook

From s. 300 to s. 299

Why only for murder? Why just a partial defense?

You are ill but still aware physical/moral

Sufficiently culpable for criminal punishment (Retribution)

Other objectives of criminal punishment (Can be deterred?)


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Diminished responsibilityDiminished responsibility

Suffering from suchSuffering from such abnormality of mindabnormality of mind

(whether arising from a(whether arising from a condition of arrestedcondition of arrested

or retarded development of mindor retarded development of mind or anyor any

inherent causesinherent causes ororinduced by disease orinducedby disease or

injuryinjury) as) as substantially impairedsubstantially impaired his mentalhis mental

responsibility for his acts and omissions.responsibility for his acts and omissions.


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Diminished responsibilityDiminished responsibility

YMCYMC advocates adopting three-stage test (abnormality +advocates adopting three-stage test (abnormality +

cause + substantial impairment) vs. composite testcause + substantial impairment) vs. composite test

(Krishnasamy)(Krishnasamy) Advocates adopting Bryne definition forAdvocates adopting Bryne definition for

abnormality of mind (that includes inability toabnormality of mind (that includes inability to

exercise will-power)exercise will-power) cf with actual wording of Penal Code)cf with actual wording of Penal Code)


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KrishnasamyThe gravamen of Exception 7 concerns theThe gravamen of Exception 7 concerns the

straightforward question whether the offenderstraightforward question whether the offender

was suffering from such abnormality of mind was suffering from such abnormality of mind

as substantially impaired his mental responsibilityas substantially impaired his mental responsibility

Splitting the one question into three stagesSplitting the one question into three stages

compels the court to ask three questions instead ofcompels the court to ask three questions instead of

one. That may be an acceptable method providedone. That may be an acceptable method provided

that the court eventually reconstitutes the threethat the court eventually reconstitutes the three

stagesstages to the composite question and answers it asto the composite question and answers it as

a wholea whole..

Choo Han Teck J in the Court of AppealChoo Han Teck J in the Court of Appeal


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Abnormality of mind

Byrne definition (why does YMC advocate adoptingByrne definition (why does YMC advocate adoptingthis cf with actual wording of Penal Code)this cf with actual wording of Penal Code) Commonsense broad definition reasonable man willCommonsense broad definition reasonable man will

term abnormalterm abnormal

perception of physical acts and mattersperception of physical acts and matters

ability to form a rational judgment on right or wrongability to form a rational judgment on right or wrong

exercise will powerexercise will power

Note:Note: VolitionalVolitional

DegreeDegree

Normal quirks?Normal quirks?


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Abnormality of mind

This is a legal definitionThis is a legal definition

Not a medical definitionNot a medical definition


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Cause of abnormality

Exception 7Exception 7 Arrested or retarded development of the mindArrested or retarded development of the mind

An inherent causeAn inherent cause

Induced by disease or injuryInduced by disease or injury


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Causes of abnormality

Arrested or retarded development of mindArrested or retarded development of mindNot only organicNot only organic

Includes subnormal intellectIncludes subnormal intellect

Personality disorderedPersonality disordered


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Causes of abnormality

Inherent causeNatural to persons mind

At birth or after

Permanent (other causes can be transitory)


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Causes of abnormalityCauses of abnormality

Disease or injury Physical deterioration

Can be caused by external factors (E.g. drugs, alcohol) aslong as leads to actual physical deterioration But note that cannot just be transitory effect of external factors

(E.g. drugs, alcohol)

What if the drugs, alcohol aggravates an underlyingcondition?

YMC: should look at whether without the drugs, alcohol --- stillaffected by underlying condition?

Self-induced intoxication is not an injury under s44Penal Code


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Abnormality - substantially impaired

Case by case determinationCase by case determination

Krishnasamy NaiduKrishnasamy Naidu

a close, if not the only, connection betweena close, if not the only, connection between

conduct and deathconduct and death

YMCYMC Australian exampleAustralian example

Impairment that justifies lowering of convictionImpairment that justifies lowering of conviction


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Jimmy Chua

Caution expressed by the Court of Appeal over the

use of the term partial insanity or borderline

insanity to describe Diminished Responsibility

The need to distinguish between didnot resist animpulse and couldnot resist an impulse.

Queare: Which type of non-resistance will support aplea of Diminished Responsibility?


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Problems

Over-reliance on medical experts by courts

Failure to interrogate link between mental

problem and consequence (as defined in Penal

Code provisions)

Failure to differentiate between mental

condition at time of crime and at time of trial

Documents

Seminar 8 Insanity_ DR