Week 6

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Week 6

• Insanity
• s26 and s27 Code

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Falconer
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.
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Falconer

• Appealed to High Ct
• wh the involuntary acts performed in a state of
  dissociation resulting from emotional tension are
  excused by virtue of the operation of s23
• also examining the relationship between s23, s26,
  and s27
• and the application to the Code of the common law
  decisions dealing with automatism and insanity

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MNaghten 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.
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s26 Presumption
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.
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S27 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
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• 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

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• 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

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S27 Elements

• The accused must be in such a state of mental
  disease or natural mental infirmity
• so as to deprive the accused of
• the capacity to
• understand what they are doing or
• control their actions or
• know that they ought not do what they are doing.

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What is a disease of the mind?
Foys 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
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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.
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Radford v The Queen

• Current (internal/external) test for disease of
  the mind
• Radford arguing s23 act independent of will
• trial judge refused to leave this issue to the
  jury
• Radford not arguing insanity
• Appeal allowed

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• 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

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Mental illnesses and states of mind classified
under s27

• Reactive depression
• schizophrenia
• epilepsy
• hyperglycaemia
• arteriosclerosis
• delirium tremens

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Natural Mental Infirmity?

• R v Rolph 1962 Qd R 262
• Congenital defects including arrested or retarded
  development

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Emphasis on deprivation of one of the three
capacities

• 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

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• 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

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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

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In regard to knowing right from 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

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Is evidence of insanity 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