WEEKS 5 - 7

ACCIDENT, ACTS INDEPENDENT OF WILL, INSANITY,DIMINISHED RESPONSIBILITY & INTOXICATION

Sections 23, 27 and 28, but NOT section 304, apply to any crim offence created by any statute in addition to the Code: section 36 CC. Note in s.36(2) - exceptions relating to regulatory offences.

SECTION 23 - ACTS INDEPENDENT OF WILL and ACCIDENT.

Section 23(1) contains two excuses to criminal responsibility:1. Acts Independent of Will.(referred to as involuntarism, or sane/non insane automatism) OR2. An event which occurred by accident.

If the accused successfully raises either of these excuses, it will result in a COMPLETE ACQUITTAL, pursuant to s.646 CC.

NOTE: s.23 will NOT operate as excuse where the offence charge is based upon criminal negligence. Express provisions relating to criminal acts and omissions are found in Ch.27 CC - ss.285-290.- eg. ss.288 - duties in relation to persons doing dangerous acts; and 289 - duties of persons in charge of

dangerous things. - If either duty is breached to the required criminal standard, it may give rise to any number of offences,

depending on the consequences of the breach. eg. br caused GBH - offence under s.320; if breach led to death - manslaughter.

Historically the use of the words “subject to the express provisions of this Code relating to negligent acts and omissions” in s.23(1) has caused problems from 2 perspectives:1. Not all provisions in Ch.27 are express in their terminology, i.e. they do not use the word ‘negligence’

within the section itself.

2. Where there has been a deliberate, as distinct from a negligent breach of one of the duties (ie. a deliberate act, but maybe no intention to cause the consequences of that act) - will s.23 still be barred from operating as an excuse?

R v. Young:- Where a breach of s.285 (duty to provide necessities in life) is based on a negligent breach of that

duty, section 23 could not operate because of the qualification operating in s.23. - However, where there are deliberate acts (deliberately did not provide food, but no desire to bring

about the consequences of death), amounting to breach of that duty, then s.23 could apply (as it is not based upon negligence).

The situation is not clear in the question of whether s.23 is available when there is a deliberate breach of the other duties found in Ch.27 (ss.299 or 289).

R v. O’Halloran- 13 yr old boy convicted of murder after deliberately aiming a rifle at his father, shutting his eyes, and than

firing the weapon. - The boy claimed that all he intended to do was frighten his father, he did not wish to cause harm and kill his

father. - The Crown alleged that it was a deliberate act, and that the boy had intended to kill, and the boy was

subsequently convicted of murder. HELD:- On appeal, the court substituted a verdict of manslaughter based upon a criminally negligent act.

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- Mack J @ 8: the sections dealing with negligent acts generally could still apply if the acts were done deliberately or negligently.

- However, Mack J failed to consider the implications of this regarding s.23. Although, it could be inferred upon reading his arguments that section 23 could possibly be called into operation where the breach of the duty is based upon a deliberate act.

See further: Hodgetts & Jackson - conflicting dicta.(Butchers - meat preservative in coke can for homeless man to drink, to frighten away).

Area remains uncertain. Room to argue the application of s.23 when a breach of one of the negligent provisions is based by a deliberate act.

Acts Independent Of Will – S.23(1)(a)

s.23 (1) Intention – Motive Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for (a) an act or omission that occurs independently of the exercise of the person’s will;

Onus: The onus is on the accused to fairly raise the excuse on the evidence. Once raised, burden shifts to the Crown to negative its operation BRD. Where the excuse is not raised, the presumption is that the acts are voluntary.

What is sufficient evidence to raise the excuse?R v. Falconer - Must be evidence to raise a doubt as to whether the act was voluntary. Not enough that the accused asserts

that their acts were involuntary. - Must be cogent evidence of it, which should be supported by expert medical evidence.

If the excuse is supported on the evidence, but is not advanced by the accused’s counsel, a judge has a duty to direct a jury on the excuse.

HOWEVER, while the judge has a duty to direct the jury, Lucas J at 264 qualifies this duty: This does not mean that a judge must search their minds for fanciful interpretations of the evidence in order to put it to the jury as a possible excuse.

ISSUE 1: Intention - s.23(2)

s.23(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or in part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

Thus the effect of s.23(2) is that where intention is NOT an element of an offence, intention does not have to be shown by the prosecution.

320 - offence to unlawfully DO GBH to another person. The fault element of that offence is causation & nothing else. Intention is not required.

If intention is an element of the offence, it must be negatived to reduce his criminal responsibility . (Widgee Shire Council v Bonney)

Therefore if intention is proved to be absent, the accused party will still be criminally responsible for his act, but to a lesser extent.

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ISSUE 2: Act

The focus of this section is on the Act of the Accused. There is a Presumption that acts are willed unless otherwise shown (R v Kusu)

Historically there were three judicial views of the extent and meaning of the word act in this section, the wide, intermediate, and narrow views, giving rise to different conclusions for the same fact situation.

Wide: Vallance v R- ‘act’ refers to ALL the actions of the accused plus the event, which must be willed before criminal

responsibility attaches. (eg. for unlawful wounding, the punishable act is the wounding).- clouds the distinction between excuses of accidental events and act independent of will, and has been

discarded.

Intermediate: Timbu Kolian v R- Encompasses the totality of the Accused’ actions.

Narrow: Vallance v R The narrow view is now favoured by the courts and is illustrated in the following cases:Vallance v R- The narrow view looks not to the accused’s actions, but to the ultimate act which leads to the event entailing

criminal responsibility (the bodily action of the accused)- Eg where you lift a rifle, aim it and pull the trigger – it is the pulling of the trigger which is the “act” for

purposes of s.23.

Adopted in:Kaparanowski v R- The word “act” is a reference to some physical action apart from its consequences.

The Queen v Falconer- The term “act” means a bodily action which either alone, or in conjunction with some quality of action or

consequences caused by it, or an accompanying state of mind, entails criminal responsibility.

Issue 3: Independent of Will

Defn of will - “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” (The Queen v Falconer)

Judicial consideration of s.23 has given rise to a number of categories of ‘acts’ which can occur independently of will and which fall within the scope of the section. In Bratty v Attorney General Lord Denning @ 409 grouped some of these recognised categories of acts together under the broad heading of automatism.

While they are identified categories, they are subject to change due to changes in medical technology/knowledge. There is consequently always room for argument.

What are these categories?1. Acts occurring independently of will because of a reflex action or muscular spasm: Ryan v. The Queen: (UK) more properly dealt with under ‘involuntarism’.

2. Automatism: Where someone acts because they are NOT CONSCIOUS of what they are doing; they are an

unconscious state.

NOTE:

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- An automatistic state may be due to some external cause such as the consumption of alcohol or drugs, psychological trauma, or the state of disassociation due to mental disease. Although the first limb of s.23 has the potential to encompass such situations, matters relating to insanity and intoxication are SPECIFICALLY provided for in the Code.

- Consequently where the underlying reason for the automatistic state of the accused is a “mental disease or natural mental infirmity” as provided for in s.27, or “intoxication” as provided for in s.28, s.23 will be of little relevance.

Automatism includes somnambulists (sleep walkers): R v. Holmes Hypoglycemia (low blood sugar levels – need to inject insulin to counter-act – External): R v Bailey Epilepsy can be caused by flashing lights. Therefore, it is an external influence…….therefore under s.23 Concussion: Cooper v. McKenna - A footballer suffered concussion at a football match - convicted a driving offence whilst in a concussed state

- dismissed action on appeal - post-traumatic automatism originating from concussion would excuse criminal responsibility under s.23

sane (non insane) automatism - dissociative states caused by psychological blow, due to stress, anxiety and/or fear: The Queen v. Falconer

The Queen v. FalconerFacts:- Woman shot and killed husband - 30 year marriage involving violence and abuse. - There was evidence of her acting in a “dissociative state”; of a history of violence by the deceased towards

her and of sexual assault by him of the accused daughters.- The accused gave evidence that, on the day of the shooting, the deceased entered her house unexpectedly,

sexually assaulted her, demonstrated dramatic changes of mood and taunted her with the suggestion that the daughters would not be believed if evidence was given against him in respect of sexual offences.

- From that point onwards Mrs F claimed that she remembered nothing of the shooting. (Amnesia is a condition which is commonly used to identify states of disassociation, or automatism). She went to a cupboard, retrieved a gun, and shot her husband.

- Mrs F gave evidence that she lived in continual fear of violence, at the same time stating that she still loved her husband. (Issue of psychological conflict within her mind).

At Trial:- Counsel for Mrs F sought to rely on the excuse of involuntary act (WA equivalent of s.23), in that the act of

shooting her husband was an act that occurred independently of her will. - They called evidence form 2 psychiatrists, who gave evidence of dissociation, ‘automatic’ or ‘involuntary’

acts caused by the psychological conflict in Mrs F” mind, and by stress, anxiety and fear.- The TJ excluded the psychiatric evidence and refused to direct the jury on s.23. Mrs F was convicted for

the murder.On Appeal to CA (WA):- The conviction was overturned. The Crown subsequently appealed to the HC.Held (HC):- Upheld the appeal decision - the psychiatric evidence was wrongly excluded. - Asked whether involuntary acts performed in a state of dissociation resulting from emotional tension are

excused under s.23.- All judges agreed that dissociation (automatism) caused by a psychological blow and resulting from

depression, anxiety and fear were capable of giving rise to a complete excuse under s.23. - Such dissociation caused by a psychological blow must be distinguished from ‘dissociation caused by low

stress threshold and [propensity] to surrender to anxiety’, importing objective criteria:Mason, Brennan & McHugh @ 53: normal factors such as excitability, passion, stupidity, obtuseness, lack of self control and impulsiveness failed to satisfy conditions of both sane or insane automatism. Those conditions would not give rise to an excuse under s.23, nor would they give rise to the excuse of insanity.

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The Internal\External Test If the accused does not fall within one of the broad categories, the internal/external test must be

applied to determine whether the most applicable defence is that of s.23 or s. 27. The influence of external factors on an otherwise healthy mind was considered by the High Court in

R v Falconer: in which the court adopted what was said by King CJ in R v Radford: A temporary disorder or disturbance of an otherwise healthy mind caused by external factors cannot

properly be regarded as a disease of the mind. To be a disease of the mind the defect of reason must result from an underlying pathological infirmity of the

mind. As distinct from the reaction of a healthy mind to extraordinary external stimuli. Additionally the case of Re Bromage established that a disorder of the mind resulting from intoxication or

stupefaction is not a state of mental disease or natural mental infirmity.

Conclusion State Conclusion. and that s.28 covers the field of intoxication. (R v Kusu). Therefore if intoxication is

present, s.23(1)(a) will NOT be applicable.

Accident - S.23(1)(a)

S.23(b) “A person is not criminally responsible for an EVENT which occurs by ACCIDENT”

In general subject to the express provisions of this code relating to the negligent acts and omissions a person is not criminally responsible for an event which occurs by accident.

The focus of this excuse is on the EVENT (consequences) as distinct from the act, which is dealt with under the 1st limb of s.21 (refer above)

Onus: Evidential onus is on the accused to raise the excuse on the evidence; Crown to negative BRD. Ultimately these are questions of fact to be decided by the jury.

Issue 1: Act and Event Distinction R v Taiters : Act: is some physical action apart from its consequences Event: in the context of occurring by accident is a reference to the consequences of the act

E.g. for GBH the state of the bodily harm will be the relevant event, or when unlawful killing is charged, the death will be the relevant event.

Issue 2: Test for Accident “it must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was

a consequence which is not in fact intended or foreseen by the accused and would not have been foreseen by an ordinary person.” Kaporonovski v R

Test To determine if an EVENT occurs by accident it must be:1. Unintended by the accused (subjective)2. Unforeseen by the Accused (subjective)- may be negatived by knowledge peculiar to the accused allowing the accused to foresee the accident. 3. Not reasonably foreseen by an ordinary person (objective) – ordinary person similarly circumstanced

ALL 3 criteria MUST BE ESTABLISHED before the excuse is raised. Thus the Crown need only show the presence of one of those criteria to negative its operation.

Kaporonovski v. The QueenFacts:- K appealed to HC from a conviction of unlawfully doing GBH under s.320 CC.

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- Conviction arose out of an incident where it was alleged that the victim (B) had insulted and intended to hit K (evidence of provocation).

- K responded by taking hold of B’s wrist and pushing B’s hand towards B’s face, to which B resisted. B was holding a glass in his hand at the time, and it broke, injuring B’s face.

- Q: Whether any excuse under s.23 was available in the circumstances.Held:- Neither excuse was available - neither accidental event nor act independent of will. - The consequences of the act, ie. the injury sustained by B, was the event, and the pushing of B’s hand

towards his face was the act. - The act did not occur independent of K’s will - it was a deliberate act, and applying the test for accidental

event, the court held that it was not an accident in the circumstances. - test for accidental event. 3 fold test - the event:

1. must be unintended by the accused;2. must be unforeseen by the accused; &3. must be not reasonably foreseeable by an ordinary person.

RE: 2.- Both judges highlight that the 2nd test may be negatived by (special) knowledge that is peculiar to the

accused, which would cause the accused to personally foresee the event. - This is despite the fact that the event would not be reasonably foreseen by an ordinary person. RE: 3 - Objective test; Looks to the foresight of an ordinary person in similar circumstances. Number of

propositions through judicial consideration:a) If an ordinary person would regard the event as so unlikely, and would not have taken it into account, then

it is an accident: Kitto J @ 65 Vallance. b) However, the exact nature of the event need not be foreseen by the ordinary person: Stanley and Mack JJ in

Knusten. (see below)

Stanley J: “In deciding whether an injury was likely to happen, a jury should ask themselves - would an ordinary person, then and there at the time the accused did the unlawful act, beyond reasonable doubt have foreseen that injury was likely to be sustained by the victim. It is not a matter of foreseeing the details or the degree of injury. It is a matter of foreseeing the PROBABILITY of SOME INJURY being received in the manner in which the known injuries were in fact received.”

Mack J:What is likely to happen from A’s conduct depends on the circumstances of each case.

Propositions were applied narrowly in the case of Knusten.

Causation??? If the chain of causation is broken, Accident will be a successful excuse and the accused will be acquitted of

the relevant charges. Knusten.

Knusten . Facts:- Assault on a woman – taken home after evening out, resisted accused’s advances. K assaulted her, rendered

her unconscious, fell on roadway . - K then drove off in a taxi. Shortly afterwards, a motorist ran over her. - Alleged on appeal that it was the negligent motorist that caused the GBH to the woman, of which Knusten

was convicted.Held:- RE: Excuse of accident – event was the causing of GBH by the negligent motorist. - K successfully appealed his conviction of ‘doing GBH’. - Stanley & Mack JJ considered that it was open to a reasonable jury to conclude that the injuries rec’d in the

manner in which they were received was not reasonably foreseeable in the circumstances. Factors looked at:1. an ordinary person would not foresee negligence of a driver in the circumstances

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inference = most drivers would have avoided hitting the woman on the road.2. woman was lying on the road under a well-lit street lamp; and3. the incident occurred at 1 am. When it was unlikely that there would be much traffic on the road.

Issue 3: Constitutional defects, the ‘EGG SHELL SKULL’ principle:

Where the consequences of an accused criminal acts were exacerbated by a constitutional defect in the victim, s.23 (accidental events) does not operate despite the fact that the event was not intended, foreseen by the accused and not foreseen by an ordinary person.

s.23(1A) …under subsection (1)(b), the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality even though the offender does not intend or foresee or cannot reasonably foresee the death or GBH.

Therefore, the principle of “taking the victim as you find them” applies.

INSANITY (s.27CC)

S.27 is to be read in conjunction with s.26 which contains a presumption of sanity:

s.26 Presumption of sanity. Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proven’.

To rebut this assumption, the defence bears the onus of proof.

s.27(1) Insanity. A person who is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission.

ELEMENTS OF SECTION 27(1) (1) State of MENTAL DISEASE or NATURAL MENTAL INFIRMITY(2) DEPRIVE the accused of(3) the CAPACITY to,

(a) UNDERSTAND what they are DOING(b) CONTROL their ACTIONS; or(c) KNOW that they OUGHT NOT DO what they are doing.

The deprivation of only one of those capacities is required [(a) - (c)].

ELEMENT 1: Mental Disease OR Natural Infirmity

Mental Disease The characterisation of a condition as a mental disease is a question of law for the judge’s determination.

In Qld the principal authority as to what a mental disease was R v. Foy

R v. FoyHeld:- Philp J give a very wide definition of ‘mental disease’:

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“Insanity applied to all cases in which an abnormal mental state, no matter how caused or how transient, is relied on as showing in the accused at the relevant time an absence of will or an absence of a capacity to form a specific intention.”

- Wanstall agreed, and formulated his definition:“any form of physical or material change or deterioration of the brain or any recognisable disorder or derangement of understanding”. Also included epilepsy as coming within the scope of that definition.

- Mansfield J “temporary or permanent derangement of the mind”

The definitions in Foy are VERY WIDE, and leave little scope for the operation of s.23 - ‘abnormal state .. no matter how transient’ would preclude acts independent of will, as it is capable of coming within that definition.

The definitions were NARROWED BY APPLICATION in Cooper v. McKenna - Stable and Matthews JJ held that the external trauma of a kick to the head during a football match, causing

concussion, was a state more appropriately dealt with under s.23 - acts independent of will.

The narrow view is NOW adopted in Qld, together with the decision in Falconer.

Radford v. The QueenFacts:- R went to a female friend of his ex-wife’s house and shot her several times with a rifle. R believed that his

ex-wife was engaged in a lesbian relationship with the deceased, and it was this relationship that had caused the break-down of their marriage.

- Medical evidence - at the time of the shooting R was in a state of derealization brought about by severe emotional stress.

- The TJ refused to allow the excuse of ‘act independent of will’ to go to the jury, and considered the medical evidence given concerned insanity and nothing else. On appeal:

Held:- TJ’s refusal to allow the excuse ‘act independent of will’ was wrong. King @ 274 - looked at concept of

‘disease of the mind’, and drew contrasts with the excuse of automatism (s.23 of the Code).“The essential notion appears that in order to constitute insanity in the eyes of the law the MALFUNCTIONS OF THE MENTAL FACULTIES.. MUST RESULT FROM 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, AS DISTINCT FROM THE REACTION OF A HEALTHY MIND TO EXTRAORDINARY STIMULI”.

Classification of a mental disease is highly dependent upon the nature of MEDICAL EVIDENCE given at trial.

RECOGNISED MENTAL ILLNESSES/STATES OF MIND AS A MENTAL DISEASE.

EPILEPSY R v. Foy & R v. Mursic:

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Epilepsy has historically been regarded as a condition classified as a mental disease, although obiter in modern judgments attempts to argue to the contrary.

Cooper v. McKenna - a physical condition causing mental malfunctions considered appropriate for automatism. Could be argued

that certain kinds of epilepsy caused by physical trauma may be more appropriately dealt with under s.23.Bratty v. A-G for Northern Ireland

ARTERIOSCLEROSIS (hardening of the arteries)R v. HolmesFacts:- H caused an explosion - raised the excuse - medical evidence suggested the accused was suffering from a

premature hardening of the arteries. - Although this is a physical disease, it was alleged that it was capable of, and did effect the mental

capacities of the accused, due to a loss of blood supply to the brain.Held:- Physical diseases which affect the mind are more appropriately dealt with an issue of insanity. [If the

underlying pathological infirmity is based in a physical condition, as opposed to a chemical condition in the brain, it is still capable of coming within the Radford test.]

- See also: R v. Kemp

HYPERGLYCEMIA (elevated blood sugar levels due to diabetic’s failure to ingest insulin – internal ) Like epilepsy, has been traditionally regarded as a ‘mental disease’: R v Hennessy

BUT NOT: S.23 Act Independent of Will S.28 Intoxication UNLESS ss28(1) and (2) “mind disordered by intoxication or stupefaction caused without

intention” Cf a disease of the mind caused by the condition of alcoholism: Dearnley v The King

Natural Mental Infirmity Section 27(1) also applied to ‘natural mental infirmity’. How does this extend, if at all, coverage of

the section?

“Natural mental infirmity” was equated by Mansfield in R v. Rolph as with ‘arrested and retarded development’. (Emphasising congenital defects).

While the inclusion of ‘natural mental infirmity’ in s.27 confirms the applicability of s.27 to conditions such as arrested and retarded development, some doubt the necessity of referring to ‘natural mental infirmity’ within s.27 in view of the scope of the definition of ‘mental disease’.

ELEMENT 2: The Three Capacities

Where the underlying mental state referred to in s.27 is present, it must be shown that, because of that mental disease, there was a loss of ONE of the capacities referred to in the provision.

Deprivation of 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.

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2 TYPES:1. Cognitive Relating to AWARENESS of the accused, the ABILITY TO THINK AND REASON, remember and

judge their actions:(a) capacity to understand what they are doing (know the physical nature of what they are doing: Porter); OR(c) the capacity to know that they ought not do what they are doing (know right from wrong: R v. Micheaux).

2. Volitional The ABILITY TO CONTROL one’s actions:(b) capacity to control actions (has been equated with involuntariness under s.23)

Capacities (a) and (c):

R v. PorterFacts:- P administered chemical to his infant son causing death – attempted to commit suicide in the same manner. - In custody of child at time - unsuccessful attempts at reconciliation with his wife - extremely emotional -

symptoms nervous breakdown. - Prior no sleep for 3 days, - took numerous drugs - also met with wife in a last attempt at reconciliation -

indicated his intentions to poison his son to her. - At the time of the meeting, there was evidence to suggest that he had lost all control of his emotions. Held:- The accused was acquitted by the jury by reason of insanity.- Dixon directed the jury at 188 in relation to the loss of capacities:

“In a case where a man intentionally destroys life, he may have so little capacity for understanding the nature of life and the destruction of life, that to him it is no more than breaking a twig or destroying an inanimate object. In such a case he would not know the physical nature of what he was doing.”

- ie. not knowing the material character of actions.

- Dixon introduced an objective criteria as to the meaning of ‘wrong’ - is not determined according to what is known as right or wrong at law, instead it is judged by what people would morally think to be right or wrong.

Capacities (b) and (c):R v. MichauxFacts:- M indicted on 17 counts of sexual assault against female patients -argued insanity on the basis that he was

in a state of mental disease so as to deprive him of the capacity to control his actions (capacity (b)), and of the capacity to know that he ought not do the acts charged (c).

- Undisputed medical evidence that M was a schitzoid, suffering from a severe state of personality disorder leading to severe sexual problems.

- There was conflicting medical evidence as to the condition but consensus that there was no deprivation of any of the three capacities.

Held:- The defence failed due to the conflicting medical evidence - fell short of satisfying the existence of a

mental disease together with the deprivation of one of the three prescribed capacities. ELEMENT 3: Is there conflicting medical evidence?? Where there is conflicting medical evidence, then the jury is entitled to consider the evidence and its weight

to draw their own conclusions based upon the weight of the evidence. (R v Porter)

ELEMENT 4: Where evidence of a medical condition falls short of insanity

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Suggests where evidence of a medical condition falling short of an actual defence under s.27, that condition can be still used in order to negative intent, where intent is an element of the offence charged. eg. murder, s.317 (doing GBH with intent).

This was considered in: Hawkins v. the Queen:Held:- Allowed the appeal. Where medical evidence of a mental disease that is incapable of supporting a

finding of insanity .. it is nevertheless still relevant to and admissible as evidence on the issue of the capacity to form an intention.

- This dimension has never been considered in the context of the Qld CC. Nevertheless, because of the parallels between the Tas Code and the Qld Code, and as Hawkins is a HC decision, it may be applicable in Qld.

ELEMENT 5: If successful plea of Insanity

What is the effect if this defence is successfully raised at trial? See ss.645 and 647 CC and Mental Health Act (Qld) Part IV.

If the defence is proved to the required degree, then the accused is entitled to a qualified acquittal in accordance with s.647.

The accused will be declared to be not guilty due to unsoundness of mind, and will be taken into detention and dealt with under the Mental Health Act.

The Mental Health Act also provides an alternative method for hearing, to avoid costly trials. Where insanity is raised as a defence, or where insanity is also brought into issue in relation to an

ability of the accused to stand trial, then s.613 and s.645 CC apply - case may be referred to the Mental Health Tribunal for determination.

When the matter is heard by the tribunal, the same onus of proof applies, however under s.33 MHA - a finding should not be made unless there is clear and convincing evidence. In the case of highly questionable factual evidence, the accused has a right to a trial: R v. Schafferius

The tribunal can find that the accused is of sound mind, and order a continuation of trial under s.33 MHA. Or they may find the accused to be of unsound mind and order detention. Appeals can be made under s.43A MHA, and the Crown has a right to appeal where the matter was referred to the Tribunal by the accused. The appeal is the C of A, and if the decision is upheld, then the Crown has no further rights in relation to that matter. The options of the accused differ on appeal. If the tribunal has found the accused to be of sound mind, the defence of insanity may still be raised at trial, and the tribunal’s findings are not admissible in evidence.

ELEMENT 6: - s.27(2) Note the qualification in s.27(2) relating to persons who are affected by delusions on some specific

matter or matters.

s.27(2) A person whose mind at the time of the person’s doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection(1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist.

What is the effect of section 27(2)? Merely provides that a person who is suffering from delusions cannot rely on the defence of insanity,

UNLESS they show that those delusions arise either from a mental disease or a natural mental infirmity, and that they were deprived of one capacity [a - c]. ie.

Delusions alone will NOT provide a defence - must satisfy the criteria of the section.

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THE RELATIONSHIP BETWEEN s.23 and s.27. SANE AND INSANE AUTOMATISM (INVOLUNTARISM)

The basic difference between a s.23 excuse and s.27 defence lies with the characterisation of the condition which allegedly causes the accused to act in the manner in which they did, leading to criminal responsibility.

That characterisation will be made in accordance with the internal/external test.

The test is more easily applied where there is ONE condition being considered in the case. However, it becomes problematic where there is evidence of both a mental condition as well as circumstances which come within the scope of s.23.

Involuntariness under s.23 (sane automatism) and s.27 (insanity, encompassing insane automatism) can be both left to the jury in the one case (Falconer).

Consider the following scenario: Adam is fired from his job. He suffers from a mental illness (mental disease) and has not taken his

medication for a number of days. He sees his former employer “Snake”, who by the way also stole his wife, “Eve”, and he attacks and kills

Snake. He claimed that he cannot remember anything after sighting his former employer (indicative of a state of

dissociation). What caused the act? What defences/excuses are appropriate?

The outcome in cases such as this will depend upon:

Firstly:

The CHARACTERIZATION OF THE CONDITIONS which give rise to the accused’s actions. This is essentially a question of law for determination by the judge(s) where insanity is raised as an issue. There are 2 POSSIBILITIES as to characterisation:(1) Insanity under s.27 raised due to the existence of a mental disease, coming within the test‘ underlying

pathological infirmity of the mind’. (2) ‘Act independent of will’ will also be raised - dissociation (as in Falconer) caused by a psychological blow

and stress due to the loss of A’s job. The test applicable here is ‘the reaction of an healthy mind to extraordinary external stimuli’.

Secondly:

CAUSATION - what actually triggered the accused to act in the manner that he did? This essentially is a question of fact for determination by the jury. There are 3 options in this scenario:1. The mental disease giving rise to an incapacity to control actions. The accused did not take his medication

for several days, and at that stage, even after having sighted Snake and Eve together, he may have suffered a manifestation of that mental disease causing him to loss the capacity to control his actions.

2. The psychological blow of sighting his former employer together with his wife acted as a trigger to bring about some manifestation of his mental illness, leading to an incapacity to control his actions

3. The psychological blow of sighting Eve and Snake against the background of the stress of having lost his wife and his job, acting as a trigger for a dissociative state, causing him to act independently of his will, and causing him to act totally independent of any mental condition.

1 & 2 are directed at s.27, and 3. at s.23.- 12 -

Ultimately it will be for the jury to determine this issue on the evidence.

The fundamental distinction between s.23 and s.27 in such circumstances was drawn by the Supreme Court in SA in Radford per King CJ @ 276 - Distinguished both conditions (s.27 - insanity and s.23 - sane automatism - acts independent of will), by s.27 involving a question of law for the judge with expert medical evidence given at the trial. Adopted by the HC in Falconer.

THE DIFFERENCE BETWEEN AN EXCUSE (EG. S.23(1)) AND A DEFENCE (EG. S.27) AND THE VARYING BURDEN OF PROOF. The difference between an EXCUSE and a DEFENCE lies in the onus of proof. For example an excuse - s.23 - all that is required to be done by the accused is to raise it on the evidence.

The onus then shifts to the Crown to negative it BRD. With a defence - s.27 - the accused is required to prove on the balance of probability. The accused bears the

persuasive onus, as well as an evidential onus to raise it fairly in the evidence. The Queen v. Falconer

Note: While in most situations it is the accused who will rely on the defence if insanity, the CROWN CAN

ALSO raise it at trial. In Falconer , Deane and Dawson state that it is almost a duty of the prosecution to raise the issue of

insanity where the accused does not, and the duty arises out of a community protection issue. It is the duty of the trial Judge to direct on the issue of insanity where there is evidence of it,

notwithstanding that the accused does not want to rely on it (R v. Schafferius).

Intoxication s.28

Can Albert rely on the defence of intoxication?

s.28(1) The provisions of s.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 an 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.

(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 actually existed.

Where there is evidence of intoxication s.28 will cover the field. Ss(1) and (2) of s.28 apply to all offences where the accused was unintentionally intoxicated.(first limb) The third subsection will apply to those offences which have an element of intention. (second limb)

S.28 of the code makes provisions for limited circumstances where the accused’s mind was affected by intoxication by alcohol or by stupefaction from some other form of drug.

Onus the accused has the onus of proving the relevant incapacity, a successful reliance upon the defence is met with the special verdict in s.647 of the Code.

Where the state of intoxication manifests itself in a manner akin to automatism, so that the actions of the accused are not controlled or the accused is acting independently of will there can be no reliance upon the rules of s.23 (R v Kusu)

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FIRST LIMB

ISSUE 1 – Intoxication ‘Stupefy means stupid or torpid; deprive of apprehension, feeling or sensibility; denumb, deaden, to grow

dull or insensible.’ (Haggie v Meredith) Intoxicate means to stupefy, render unconscious or delirious, to madden or deprive of the ordinary use of

senses or reason; to inebriate, make drunk; intoxicate is wide enough to include stupefaction.

ISSUE 2 – Mind Disordered by intoxication or stupefaction R v Whitworth: ‘Medical evidence is needed to show the combination of the quantity of alcohol and the

quantity of tablets can produce a state of intoxication. Also medical evidence will have to be presented to show the accused had in fact consumed the alcohol and the tablets.’

Kaminski v The Queen: where evidence of intoxication is sufficiently cogent to be considered by the jury.

ISSUE 3 – Caused without intention This is the most difficult element to establish and judges have different views regarding the meaning and

thus application of intention. ‘intent’ – has been equated with recklessness, negligence, voluntary actions and self induced intoxication.

In R v Corbet something approaching voluntariness was required. The defence was open only if the intoxication arose in circumstances for which the accused ‘could not be held fairly responsible’ (p249) The accused may have been mistaken about the nature of the substance consumed i.e. where it was not known to be alcoholic, or where the dug was taken on a Doctors instruction without warning of its possible effects.

Parker v R: there is a Presumption that a person who drinks to excess intends to become intoxicated; where the accused did not intend to become intoxicated, but did so merely because of excessive consumption, there could be no reliance on the the first rule in s.28. (Kingston v R)

ISSUE 4 – by drugs or intoxicating liquor [or by any other means]

ISSUE 5 – Loss of one of Three Capacities in s.27 The first limb of s.28 is dependent for its operation on concepts relating to insanity. Because the state of

intoxication required must be of such a degree as to deprive the accused of one of the capacities referred to in s.27, the insanity provision:

1. To understand what he or she is doing2. To control his or her actions3. Ought to know that he or she should not do the act or make the omission which constitutes the offence

SECOND LIMB

The second limb of s.28 applies when an INTENTION to cause a specific result is an element of an offence and intoxication may be regarded for the purpose of ascertaining whether such an intention in fact existed.

ISSUE 1: Onus: The accused has the evidential onus but doesn’t need to raise evidence of complete intoxication, as the

section itself uses the words “complete” or “partial”. (Crozier).

Thus, after some evidence of intoxication is put before the jury, the onus of proof remains upon the Crown to prove that the intention defined in the offence was present. In that sense, it is for the jury to be satisfied

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beyond reasonable doubt whether or not the specific state of mind existed and not whether the accused had the capacity to form that specific state of mind. (Cameron and Hubert).

ISSUE 2: Is intention an element of the offence?

ISSUE 3: Intoxication may be complete or partial

ISSUE 4: Immaterial whether intoxication is intentional or unintentional.

ISSUE 5: Did intent in fact exist? Evidence of intoxication must be sufficiently cogent for s.28 to be considered by the jury as a defence

(Kaminski v The Queen per Burt CJ at 146) Dearnley v The Queen per Philp J at 62 – evidence must be of a nature so as to cause a reasonable person to

have at least a doubt as to the existence of intent. R v Crozier: if the jury is not satisfied BRD that through intoxication Albert was capable of forming an

intent, then the jury must acquit and convict of a lessor offence if available. Dearnley v The Queen: if the defence of intoxication is successfully raised and the jury is left with a

reasonable doubt as to whether intent existed they must acquit and convict of a lessor offence if available.

Conclusion Reach a conclusion

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