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CRIMINAL LAW
Carolyn McKay
carolyn.mckay@sydney.edu.au

Class 17: Unfitness to


Plead, Mental Illness and
Substantial Impairment by
Abnormality of Mind
(SIAM)

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Image: Carolyn McKay
Todays Class: Unfitness to Plead, Mental Illness and
Substantial Impairment by Abnormality of Mind (SIAM)
Fitness to stand trial
Defence of Mental Illness (insanity):
the elements; special verdict and its
consequences; circumstances in
which the Crown may seek to prove
Mental Illness
Mental Health (Forensic Provisions)
Act 1990 (NSW)
Common law: M'Naghten Rules
SIAM: statutory basis s23A Crimes
Act 1900; abnormality of mind;
circumstances in which the Crown
may seek to prove SIAM.

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Context: Mental Illness (MI) Defence
Criminal responsibility rests on presump=on that individuals possess capacity to
make ra(onal choice to act/not act (principle of individual autonomy)
Mental Illness (MI) (insanity): A is not morally responsible for ac=ons because of
mental impairment ie goes to moral responsibility & capacity for ra=onal choice
A threshold ques=on of responsibility before criminal liability is determined
Insanity = no capacity = no crim. responsibility = not guilty by reason of MI
Conict between law and psychiatry/psychology: crim. law based on assump=ons of
free will & choice v. more determinist theory of psychiatry or science of psychology
& medicine
Arguable that law of MI does not keep up with advances in medical/psychiatric
understanding (eg science of the brain)
Eg: Model Criminal Code (1992) recommended changes to MNaghten Rules
Vic, SA, ACT have introduced reforms
NSW Law Reform Commission (2013): recommended new defence of mental health or
cogni=ve impairment
MI over-represented in Criminal Jus=ce: 55% of people in local court had psychiatric
disorder (Brown 832-4)

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http://www.aihw.gov.au/prisoner-health/mental-health/

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http://www.abc.net.au/news/2014-10-08/solitary-
confinement-mental-health/5789062
See also: http://www.justiceaction.org.au/mental-health/what-
is-mental-illness

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Fitness to stand trial

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Mental Illness: Proof & Procedure
Crim law presumes that A is sane (has capacity) un=l contrary is proven (Da-Pra 2014)
Reverse burden of proof: A has eviden(ary & legal burden (balance of probabili=es)
MI defence can apply to any oence
Lower courts: MI tends to -> diversion
Higher courts: outcome of MI verdict:
Special verdict: not guilty by reason of MI: s38 MHFPA
Court has discre=on eg order indeterminate psychiatric deten=on (with periodic review) or
release on condi=ons or uncondi=onally (if sa=sed on bal. of prob that A or public not
seriously endangered): s39 MHFPA
Fitness to stand trial:
A exempt from ordinary trial if cannot understand or par=cipate (unt to plead)
A needs to be able to understand: charges, proceedings, communicate etc (Presser 1958)
Can be raised by any party, determined on bal. of prob. by judge: ss 5, 6, 11 MHFPA
See MHFPA Pt 2: referrals between court & Mental Health Review Tribunal; Khoury [2014]

Law is also concerned with dangerousness of A (principle of community welfare)

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Fitness to plead
Unless A fit to plead, there can be no trial.
Presser [1958] VR 45 - A needs to be able to understand:
- what A is charged with
- how to plead, and how to challenge
- what the proceedings are about, and be able to follow them
- the substantial effect of the evidence against A
- communication with counsel, and with the court, especially
re As version of facts
- what defence A will rely on

Mental Health (Forensic Provisions) Act 1900 (NSW) Pt 2 re


Fitness to plead

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Indictable Offences:
Director of Public Prosecutions v Khoury [2014] NSWCA 15,
Basten JA at [31]:

Questions of mental capacity can arise at three stages in


the course of criminal proceedings. First, in the order in
which matters will be addressed, there may be a question
as to whether the person charged is fit to stand trial.
Secondly, there may be a question as to whether an
accused person should be found not guilty of the offence
charged, by reason of mental illness. Thirdly, mental
illness may be a significant factor in sentencing: even
though it does not negate guilt, mental illness may reduce
moral culpability, and continuing mental illness may also
render a period of incarceration more onerous. The present
case is concerned only with the first stage, namely fitness
to be tried.
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MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 (NSW)

Summary Offences:

Part 3 Summary proceedings before a Magistrate relating to persons


affected by mental disorders

s31 Application
(1) This Part applies to criminal proceedings in respect of summary offences
or indictable offences triable summarily, being proceedings before a
Magistrate, and includes any related proceedings under the Bail Act 2013,
but does not apply to committal proceedings.

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http://www.mhrt.nsw.gov.au/forensic-patients/forensic-
procedures.html

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http://nswmentalhealthcommission.com.au/sites/default/files/
publication-documents/Submission%20on%20%20Indefinite
%20Detention%20-%2031%20March%202016.pdf p.4
The population of people within the forensic mental health system
also continues to grow, and each year the courts and Corrective
Services NSW refer more people than are discharged from the
system. Between 2012 and 2015, the number of forensic and
correctional patients increased almost 16 per cent, from 387 to
448. During the same period, the number of acute and non-acute
beds available through Justice Health & Forensic Mental Health
has remained steady, at 152 acute beds and 79 non-acute beds.

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Procedures involved in the defence of mental illness
Special verdict: mental illness
Mental Health (Forensic Provisions) Act 1990 (NSW)
at trial: jury may reach special verdict
s38: not guilty by reason of Mental Illness (special verdict)
s39: effect of finding - sentencing discretion

See also:
https://www.judcom.nsw.gov.au/publications/benchbks/
criminal/procedure_for_fitness.html
Cth

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https://www.judcom.nsw.gov.au/publications/benchbks/
criminal/orders/Section_39_Order-DETAINED.pdf

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Mental Illness Defence

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http://www.judcom.nsw.gov.au/publications/benchbks/
criminal/ch06-defences.html

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Mental Illness
presumption that A sane (MNaghten); to be of sufficient
soundness of mind to be criminally responsible (Porter
(1933), Dixon J)
A has persuasive burden to prove on balance of
probabilities -
- Prosecution can also raise MI (OBP)
success = not guilty on grounds of MI - see MH(FP)Act
- discretion re sentencing (historically: indefinite)
defence of general application - including eg traffic
infringement - but most noted by public when raised re
murder
governed by MNaghten Rules

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M'Naghten's case [1843-1860] All ER 229
HL: jurors ought to be told in all cases that every man is to be
presumed to be sane, and to possess a sufficient degree of
reason to be responsible for his crimes, until the contrary
be proved

to establish a defence on the ground of insanity, it must


be clearly proved that, at the time of the committing of the
act, the party accused was labouring under such a defect of
reason, from disease of the mind, as not to know the nature
and quality of the act he was doing; or, if he did know it, that
he did not know he was doing what was wrong.

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MNaghten Rules: the elements
A was suffering from a

defect of reason

from a

disease of the mind

so as not to know

the nature and quality of the act

OR
that the act was wrong

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1. Disease of the Mind (more next class)
Legal rather than medical ques=on (Kemp 1957, Woodbridge 2010)
ie Q of law for judge but jury decides if A aected by disease of the mind at the =me
not a medical judgment: but expert evidence is usually relied upon: jury not bound to accept
medical evidence but cannot disregard it capriciously (Da-Pra 2014)
Disease of mind must cause a defect of reason
Disease, disorder or disturbance arising from some medical condi=on: Da-Pra [2014]
Condi=on must cause func=on of As reason, memory or understanding to be thrown into a
state of derangement or disorder of the capacity to reason: Da-Pra [2014], Porter (1933)
Defect of cogni=on (capacity to understand); more than mere confusion/forgelulness;
malfunc=on of mental facul=es (Radford 1995)
Defect of reason must result from an underlying pathological inrmity of the mind
(whether temporary or permanent) as dis=nct from the reac=on of a healthy mind to
extraordinary s=muli (Falconer 1990)
Synonymous with mental illness (Radford 1985); includes major mental diseases, psychoses
such as schizophrenia: BraFy (1963)
Does not include mere excitability, intense passions, uncontrollable/irresis=ble
impulses alone: Porter (1933), Sodeman (1936), AG for SA (1960)
Does not include gross psychopath who lacks feeling or remorse (an=social personality
disorders) - not a cogni=ve defect of reason: Willgoss (1960)

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Disease of Mind: Porter v The Queen (1933) 55 CLR 182

Definition: examine common law


Dixon J: [As] state of mind must have been one of
disease, disorder or disturbance. Mere excitability of
a normal man, passion, even stupidity are quite
different from a state of disease or disorder or
mental disturbance arising from some infirmity,
temporary or long standing.

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How does disease of mind differ from automatism (next
class)?

Bratty v A-G [1963] AC 386, Lord Denning:


Eg crime committed in a state of automatism due to a recurrent disease of
the mind: such an act may be involuntary but will not result in acquittal as A
would be a danger to society and self; A should be detained in hospital
Prosecution is entitled to raise defence of mental illness
Major mental illnesses such as psychoses including schizophrenia are clearly
diseases of the mind; and any mental disorder which has manifested itself
in violence and is prone to recur is a disease of the mind.
See also Falconer (1990) 171 CLR 30; Woodbridge [2010] NSWCCA 185

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2. A did not know the nature & quality of the act OR
did not know that the act was wrong
n Nature & quality of the act:
q A does not know or comprehend the physical nature of the act
q A does not know what he/she is doing or did not appreciate/foresee the
possible eects of the conduct: Porter (1933); Willgoss (1960)
q 'In a case where a man inten=onally destroys life he may have so li@le capacity for
understanding the nature of life and the destruc(on 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 implica(ons and what it really amounted to.' (Porter (1933) at 188 per
Dixon J)
n Wrongfulness of the act:
q A did not have capacity to understand the moral quality of act
q Did A appreciate the wrongfulness of the par=cular act he/she was doing at
the par=cular =me? (Porter 1933).
q A mere diculty with reasoning is far too law a standard (Cheatham 2000)
q Wrong = morally wrong according to the ordinary standards of right/wrong
adopted by reasonable people: Da-Pra [2014]; rather than legally wrong:
Stapleton (1952)

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Did not know the nature and quality of the act

Porter, Dixon J (at 188): 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 implications and what it really amounted
to.

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Did not know the act was wrong

Porter, Dixon J: What is meant by wrong? What is


meant by wrong is wrong having regard to the
everyday standards of reasonable people- ie moral
wrong as distinct from knowing the actions are wrong
at law.
Willgoss v R (1960) 105 CLR 295: it is unnecessary
for an A to know why an action is wrong, or to care
that it is wrong, if they are intellectually aware that it
would be regarded as wrong by ordinary people.

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Legal v medical judgments: Da-Pra [2014] NSWCCA 211

Emmett JA: [11] It is possible for an accused to be suffering from


a disease of the mind but still know that what he was doing in
committing an offence was wrong, such that he will be legally
responsible for itthe central issue at trial and on appeal was
whether at the time of the offences the appellant had a defect of
reason in the legal sense, such that he should not be held
responsible for committing the three offences because he did not
know or was unable to realise that what he was doing in
committing the offences was wrong.

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Reform?
See Brown, p.855+
http://www.lawreform.justice.nsw.gov.au/Documents/
report%20138.pdf Report No 138 at 61

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NSWLRC reform recommendations (June 2013)
New defence of mental health or cognitive impairment:
A person is not criminally responsible for an offence if, when carrying
out the conduct required for the offence, the person was suffering from
a mental health impairment or a cognitive impairment that had the
effect that the person:
(a) did not know the nature and quality of the conduct
(b) did not know that the conduct was wrong, that is, the person
could not reason with a moderate degree of sense and composure
about whether the conduct, as perceived by reasonable people, was
wrong, or
(c) was unable to control the conduct.
A verdict of not guilty by reason of mental illness should be
replaced with a verdict of not criminally responsible by reason of
mental health or cognitive impairment.
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NSWLRC reform recommendations
http://www.lawreform.justice.nsw.gov.au/Documents/report%20138.pdf Report
No 138 at 61
1.(a) Mental health impairment means a temporary or continuing disturbance
of thought, mood, volition, perception, or memory that impairs emotional
wellbeing, judgment or behaviour, so as to affect functioning in daily life to a
material extent.
(b) Such mental health impairment may arise from but is not limited to the
following:
(i) anxiety disorders
(ii) affective disorders
(iii) psychoses
(iv) substance induced mental disorders.
Substance induced mental disorders include ongoing mental health
impairments such as drug-induced psychoses, but do not include substance abuse
disorders (addiction to substances) or the temporary effects of ingesting substances.
For the purposes of this section mental health impairment does not include a
personality disorder.

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NSWLRC reform recommendations
http://www.lawreform.justice.nsw.gov.au/Documents/report%20138.pdf Report
No 138 at 61
2.(a) Cognitive impairment is an ongoing impairment in comprehension,
reason, adaptive functioning, judgement, learning or memory that is the
result of any damage to, dysfunction, developmental delay, or
deterioration of the brain or mind.
(b) Such cognitive impairment may arise from, but is not limited to, the
following:
(i) intellectual disability
(ii) borderline intellectual functioning
(iii) dementias
(iv) acquired brain injury
(v) drug or alcohol related brain damage
(vi) autism spectrum disorders.

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http://nswmentalhealthcommission.com.au/sites/default/files/
publication-documents/Submission%20on%20%20Indefinite
%20Detention%20-%2031%20March%202016.pdf

In 2012 and 2013 the NSW Law Reform Commission recommended


extensive amendments to the forensic mental legislation to improve access to
diversion, extend court-based assessment and case management services,
and simplify the management of forensic patients.

NSW Government committed to increase diversion, but no legislative


changes so far.

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Substantial Impairment
(SIAM)

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http://www.judcom.nsw.gov.au/publications/benchbks/
criminal/
substantial_impairment_by_abnormality_of_mind.html

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SIAM Substantial Impairment by Abnormality of Mind
Formerly known as diminished responsibility
1998 reform of s23A based on NSWLRC recommendations
following comments by Gleeson CJ in Chayna (1993)
Partial defence: reduces murder to manslaughter: s23A(1)(b)
Applies only to murder; all elements for murder must be
made out
ie voluntary manslaughter (like Extreme Provocation &
Excessive Self Defence)
A has evidential and legal onus: 23A(4)
Key concept of abnormality of mindcriticised as lacking
scientific basis
Model Criminal Code Committee v NSWLRC positions
How does SIAM differ from defence of mental illness?
Controversial: A is partly responsible for actions but partly
mad
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SIAM: Elements: 23A(1)(a) Crimes Act 1900
At the time of the act causing death, A must:
1. be suffering from abnormality of the mind
2. arising from an underlying condition
3. that substantially impairs capacity to
- understand events or
- to judge when conduct is right or wrong or
- to control self
(expert evidence required to establish these elements)

And

4. Impairment is so substantial as to warrant reducing murder to


manslaughter: 23A(1)(b)
(23A(2): expert evidence inadmissible on this point)
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1. Abnormality of Mind

Jury decides what cons=tutes AM, based on medical & other evidence:
Byrne (1960)
a state of mind so dierent from that of ordinary human beings that the
reasonable man would term it abnormal. wide enough to cover the
minds ac(vi(es in all its aspects, not only the percep(on of physical acts
and marers, and the ability to form a ra(onal judgment as to whether an
act is right or wrong, but as to the ability to exercise will power to control
physical acts in accordance with that ra=onal judgment (per Lord Parker CJ
in R v Byrne (1960) at 403)

Can a psychopath/sociopath have an abnormality of mind?

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2. Arising from an underlying condi(on

This underlying condi=on must cause the abnormality of mind


A pre-exis=ng mental or physiological condi=on, other than a transitory
condi=on: s23A(8)
Need not be permanent (Tumanako 1992) but does not include
transitory or disabling passions of an ephemeral kind: Purdy 1982
eg: emo=ons such as anger, jealousy, bad temper, astudes/prejudices of
upbringing have been held to not count: R v Whitworth (1989), Hinz (1986)
Examples of Abnormality of Mind arising from underlying condi=on in
common law include: severe depression (Chayna 1993); post-trauma=c
stress disorder (Neilson 1990); some personality disorders (Whitworth
1989)

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3. Substan(al impairment of As capacity to understand events or to judge
when conduct is right or wrong or to control self

Was As capacity for ra=onal thinking substan=ally impaired and is there a


causal link between that impairment and the conduct? NSWLRC (1993)
Impairment must be substan=al, can be less than total but must be more
than trivial: R v Lloyd (1967)
As above, extent of impairment is ques=on for jury, (23(2)) applying
community standards: NSWLRC (1993)
n s23A(3) Eects of self-induced intoxica=on at =me of oence disregarded
Goodridge [2014]: A intoxicated at =me but also had underlying condi=on of
alcohol-related brain damage (which made him more suscep=ble to eects of
alcohol); establishing the defence will depend on whether the impairment from
underlying condi=on was substan=al when not intoxicated
Under common law, if Abnormality of Mind arises from voluntary use of drugs/
alcohol may be relevant if there has been a protracted use that has produced brain
damage: Tandy (1984); R v Whitworth (1989); Sanderson (1994)

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4. Impairment is so substan(al as to warrant murder being
reduced to manslaughter

Expert evidence of an opinion on this point is inadmissible: 23A(2)


ie ul=mate moral ques=on for jury only, looking at all the evidence, not
just expert evidence
PoFs [2012]:
A killed sex worker by stabbing
Despite evidence that A had paranoid schizophrenia and heard voices
before killing, primary ques=on was whether the requisite nexus had been
demonstrated between As condi=on and his oending
Clearly open to jury on the evidence not to be sa=sed that there was a
causal link between his oending and his abnormality of mind ie that SIAM
not made out on balance of probabili=es

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Does the often deplorable manner in which those who rely on
SIAM kill or anything else justify the abolition of SIAM?

Some of the issues that arise in the debate or repeal debate are:
SIAM leads to manslaughter conviction; sentenced the same; eg
prison not psychiatric institution (as for MI) is this the best approach?
How do the court balance community protection with effective
sentencing for SIAM offenders?
Eg Veen (1979 HCA): A was 20 yr old indigenous homosexual sex worker
who killed V after V refused to pay; evidence of racial insults from V; A
successfully claimed diminished responsibility: life imprisonment
HCA: reduced life to 12 yrs; need to balance sentencing objectives:
protecting community vs sentence proportionate to gravity of crime
Veen (No 2) (1988): A released from prison in 1985; committed similar
killing; plea of diminished responsibility accepted; HCA (4:3) upheld life
imprisonment on basis of community protection (not preventative
detention) see also: http://www.abc.net.au/news/2016-02-12/bobby-veen-
one-of-australias-longest-serving-prisoner/7115350
Would it be better to remove SIAM from trial altogether and deal with it
at sentencing?
What other issues arise?

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NSWLRC reform recommendations (June 2013)
SIAM to be retained
# Recommendation 4.1:

(1) Section 23A(1)(a) of the Crimes Act 1900 (NSW) should


be amended by substituting mental health or cognitive
impairment as the specified mental state, instead of
abnormality of the mind arising from an underlying
condition.
(2) For the purposes of s 23A(1)(a) mental health
impairment and cognitive impairment should be
defined [as set out earlier].

Sentence

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Sentencing issues
Veen (1979 HC): Aboriginal homosexual prostitute demanded
payment after sex A killed V when V said: No, you black
bastards are all the same, always wanting handouts
A successfully claimed DR: life imprisonment
HC: life imprisonment at trial too extreme
- need to balance sentencing objectives:
protecting community vs sentence proportionate
to gravity of crime

Veen No2 (1988 HC): almost identical killing: DR accepted


HC (4:3): upheld life imprisonment for MNS based on
community protection

Critics: but A needed treatment, not life in gaol

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Summary of Key Issues in Todays Class


A. Insanity/Mental Illness
Complete defence
A suers from a disease of the mind which means either:
a) that he/she did not know nature and quality of the act or
b) that he/she did not know it was wrong according to the
standards of ordinary reasonable people.
B. SIAM
Par=al defence: reduces liability for murder to manslaughter only
AM must arise from an underlying condi=on and must substan=ally
impair As capacity to understand events, to judge when conduct is right
or wrong or to control self
And that impairment must be so substan=al as to warrant reduc=on

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