Risks vs Rights, Australia and New Zealand Association of Psychiatry, Psychology and Law (ANZAPPL) annual congress
Manly NSW, 23-26 October 2008
Alison Merridew
Graduate Clerk, New South Wales Law Reform Commission
A man with an intellectual disability, caring for his infant child, sits on her in an attempt to stop her from crying. He had previously done this to her, successfully stopping her from crying but without causing injury. This time, the baby dies. He is convicted of manslaughter and sentenced to 6 years’ imprisonment.1
A man with an intellectual disability strikes a woman twice, in the face, with an iron bar. At his trial for murder, his defence counsel argues that his client, because of his intellectual disability, did not realise that this was likely to result in the woman’s death.2
A man with an intellectual disability is accused of sexually assaulting a woman who also has a degree of intellectual impairment. The prosecution is unable to establish that he knew, or was reckless as to the victim’s lack of consent. He is acquitted.3
A man with an intellectual disability is charged with possession of child pornography. He lives with his ageing parents, has little contact with people his own age and there is no suitable employment available for him in the region where he lives. He surfs the internet to pass the time. He states that he first began purchasing adult pornography in response to a pop-up window that appeared on his computer. That site led to others, including some where he purchased child pornography. He is convicted and sentenced to a 12 month good behaviour bond.4
I will return to these cases later.
Good morning. I acknowledge the traditional owners of this land, the Guringai people of the Eora nation.
The NSW Law Reform Commission is currently reviewing the criminal law and procedure in relation to people with cognitive and mental health impairments. The principal aspects that we have been asked to review are diversion, sentencing, fitness to be tried and the defence of mental illness. I would like to acknowledge the other members of the team, legal officers Donna Hayward and Rebecca Kang, Commissioners Professor Michael Tilbury, the Hon Greg James QC, the Hon Hal Sperling QC and our Chairman the Hon James Wood AO QC.
The question I am going to attempt to answer today is, “Does the defence of mental illness apply to intellectual disability?”
First of all I want to explain where the defence fits in the overall scheme of things.
In general, at an ordinary trial, there are three possible outcomes. A person can be found not guilty, in which case they are free to go. They can be found guilty, convicted and sentenced – a punitive process. Or, they can be found not guilty by reason of mental illness.
If a person is found not guilty by reason of mental illness, they become what is called a “forensic patient” and are detained or released on conditions. This is, in theory, a non-punitive process, although there are some issues in NSW in the way it operates in practice. The Mental Health Review Tribunal has an oversight role and can recommend the release, or conditional release, of a forensic patient. The power to order release is currently vested in the Executive branch of government. However, there is legislation before parliament that will remove this political involvement and give the Tribunal sole jurisdiction. Under both the existing and the new system, a person who is found not guilty by reason of mental illness can be detained indefinitely.5
A person with an intellectual disability can go through the ordinary trial process. However, if the person is not able to understand the trial process to a sufficient degree to instruct counsel and make out a proper defence, then they can be found unfit to be tried. A person can also be unfit for reasons other than intellectual disability, for example, if the person is actively psychotic.
If a person is unfit to be tried, again speaking generally, there is a procedure called a “special hearing” which runs like a normal trial, except that the person cannot be convicted at the end of it. The person can be found not guilty and released – this is in fact the purpose of the special hearing, to give the person a chance of being acquitted. It is also possible, at a special hearing, for the court to make a finding that the person is not guilty by reason of mental illness, the same as at an ordinary trial.
The third possible outcome is a finding that, on the limited evidence available, the accused committed the offence charged. This is the equivalent, but more limited version, of the guilty verdict at an ordinary trial.
If the person is found to have committed the offence, the court can order that the person be detained. If that happens, the person becomes a forensic patient, subject to the jurisdiction of the Tribunal, similar to those people who are found not guilty by reason of mental illness. However, there is one important difference. People who are the subject of a limited finding of guilt at a special hearing can only be detained up to the end of a “limiting term” which is set by the court. They are not detained indefinitely like people who are found not guilty by reason of “mental illness”.
So, even if on the facts of the case the person might have the defence of mental illness available, in a way it is better not to raise it, because if you are unfit and subject to a limited finding of guilt, there is a time limit on detention, whereas if you are found not guilty by reason of mental illness, you can be detained indefinitely.
A final point about the Mental Health Review Tribunal’s jurisdiction over forensic patients. In the case of people who haven’t been involved in the criminal justice system, under the Mental Health Act the Tribunal only has jurisdiction over “mentally ill persons”. The Act specifically excludes intellectual disability so the Tribunal, in its civil jurisdiction, does not ordinarily have jurisdiction over people with intellectual disabilities. However, in the case of forensic patients, the requirement that the person be a “mentally ill person” does not apply. so the Tribunal does have jurisdiction over people with intellectual disabilities if they are forensic patients.
Returning now to the defence of mental illness. The defence was famously stated in M’Naghten’s Case as follows:
“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”.
The defence as stated requires, first of all, that the defendant, at the time of the offence, has a “disease of the mind”. Secondly, that disease of the mind must have the effect that the defendant either does not know the “nature and quality” of the act that he or she is doing or does not know that the act is wrong.
The defence serves two purposes – first, it provides an excuse from criminal liability in cases where the person had a mental condition which produced one of the required effects. Secondly, it is designed to protect the community. This is achieved by means of the special verdict of “not guilty by reason of mental illness”, which channels the person into the forensic mental health system and keeps them subject to restriction – whether in custody or in the community on conditional release – until the person no longer poses a threat to the safety of others.
So, returning to the question that I posed – does the defence of “mental illness” apply to intellectual disability?
That depends, first of all, on whether an intellectual disability qualifies as a “disease of the mind”. This is a legal construct with a much wider meaning than the medical concept of “mental illness”.
The “medical” mental illnesses, such as schizophrenia, bipolar disorder and depression can be a basis for the defence. But courts have also interpreted “disease of the mind” as including conditions such as the neurological effects of organophosphate poisoning, delirium tremens associated with chronic alcoholism, cerebral arteriosclerosis, and epilepsy.
This broad approach is partly because of a perception that actions arising from those conditions are not ones for which people should be held criminally responsible, and partly because the courts have their eye on the protective aspect of the defence, so that if someone has a mental condition which leads them to behave violently (etc), and which otherwise satisfies the requirements of the defence, that mental condition has often been regarded as a “disease of the mind”.
So the fact that, medically speaking, intellectual disability is not a “mental illness”, does not mean that it is not a “disease of the mind” for the purposes of the defence. However, there are almost no cases where the defendant has tried to use the defence on the basis of an intellectual disability.
Legal textbooks from the 1700s explain in some detail the existence of a defence in law for “ideots” – spelled with an “e”.6 The criteria listed by the textbook writers suggest that the defence was available to people with a relatively high degree of impairment, so that they did not know their own age, their own parents, could not count to 20 and did not know the days of the week. Such people fell within a broader category of persons described as “non compos mentis”, which also included people suffering from permanent or periodic bouts of madness.
In the early 20th century, the Queensland, Western Australian and Tasmanian Criminal Codes were enacted. Each of the Codes includes “natural mental infirmity” or “natural imbecility” as a basis for a finding that the person was not guilty on the grounds of “insanity”.
We can get some idea of what might have been meant by “imbecility” from another piece of legislation that was passed shortly after the Tasmanian Code, the Mental Deficiency Act of 1927.
The Act provided for the institutionalisation of people with intellectual disabilities. It included four categories of mental deficiency, the most severe of which is idiocy. Imbecility is the second category and an “imbecile” is defined as a person who, although able to “guard themselves against common physical dangers”, is incapable of managing themselves or their affairs or, in the case of children, of being taught to do so. Like the 18th century textbooks, this suggests that a relatively high degree of impairment is required.
The 1981 Western Australian case of Schultz, the iron bar case that I referred to earlier, gives us some idea of what is required. In that case, the defendant had an IQ between 69 and 78, described as a borderline intellectual disability. The defence did not try to raise the defence of mental illness. But the court commented in passing that there was no evidence in that case which would support a defence of mental illness. The point wasn’t argued by counsel so it is not decisive, but it suggests that the court still considers that a relatively high degree of impairment is required.
Some people have argued that the fact that the Codes included natural mental infirmity as a basis for the defence suggests that this reflected the criminal law at the turn of the 20th century. However, it is also possible that the Code-writers were in fact amending and expanding the law.
If the law does recognise intellectual disability, or at least relatively severe intellectual disability, as a basis for the defence, why are there so few reported cases where it has happened? This could be for procedural reasons, in particular, if the person was, by reason of the intellectual disability, unfit to be tried.
The procedure for unfitness was first formalised in 1800, when the Criminal Lunatics Act was passed. It provided for two situations – those who were “insane” at the time of the acts, and those who were “insane” at the time of arraignment (unfit). In those days, there was no “special hearing” or any sort of trial for the unfit – they were simply let go, or detained until the King made an order about their future care and supervision. That meant that, once a person was found unfit, there could be no question of raising a defence of insanity because there was no trial at all.
Two aspects of the Act are important. First, that the provisions for insanity on arraignment – unfitness – applied to all offences, unlike the provisions for the insanity defence which applied only in cases of treason, murder and felony. So it was more likely that a person with an intellectual disability would fall into the category of “insane upon arraignment” and never be tried, than to be tried and found “not guilty on account of insanity”.
Secondly, that both those who were insane on arraignment or insane at the time of the acts could be detained, indefinitely. This illustrates the protective aspect of the defence.
The defence of insanity was extended to all offences in the middle of the 1800s. From then until almost the end of the 20th century, the procedures remained essentially unchanged – if a person was found unfit, they were detained, indefinitely, without trial.
In 1983, the New South Wales Mental Health Act introduced, for the first time, the special hearing. So, for the first time, a defendant to be found unfit but still have the possibility of being found not guilty by reason of mental illness.
However, the Act of 1983 also introduced the “limiting term” for those who were unfit to be tried and found, on the limited evidence available, to have committed the offence charged. The time limit is set by reference to the sentence that the person would have received at an ordinary trial. This changed the position that existed under the Criminal Lunatics Act of 1800 which provided for the indefinite detention of people who were insane upon arraignment.
This introduced a key difference between unfitness – which can lead to detention for the duration of the limiting term – and a finding of not guilty by reason of mental illness, which still leads to an indefinite order.
So, while the Mental Health Act made it possible, for the first time, for an unfit defendant to be found not guilty by reason of mental illness, at the same time it also created an incentive to rely on unfitness alone and to NOT raise the defence of mental illness.
So what is the position in October, 2008? The first thing we can say is that I am not aware of any cases that say that intellectual disability is not a “disease of the mind” for the purposes of the defence of mental illness. Secondly, courts have adopted quite a broad approach to what constitutes a “disease of the mind”. Finally, in the old days of the common law – pre-1800, it is clear that a defence was available, although a relatively high degree of impairment was required. So I would say that in New South Wales, it is arguable, but not certain, that intellectual disability could be a basis for the defence.
Assuming, for argument’s sake, that it is, the next step for a defendant under the M’Naghten Rules would be to show that one of the two limbs applied – either that, because of his or her intellectual disability, the defendant did not know the nature and quality of the act, OR that he or she did not know that the act was wrong.
I’m going to return now to the factual situations that I described at the beginning of this presentation, and look at how the defence might work.
When thinking about whether the defence “should” apply, it is important to bear in mind the dual purpose of the defence. So there are two questions to think about – first, should this person, by reason of their intellectual disability, not be held criminally responsible? And secondly, does this person pose a risk to others such that some form of restriction is warranted. A third question that you might ask yourself is, should there be a different formulation of the defence altogether, instead of the two limb M’Naghten Rules that we are about to put into action.
The first two scenarios that I described, the man who sat on his baby [Leach] and the man who hit the woman with the iron bar [Schultz] both involve cases where the person, because of the intellectual disability, could not foresee the likely consequences of his or her actions. This arguably falls under the first limb of the defence, that the person did not know the nature and quality of the act, namely, one that was virtually certain to cause serious harm.
The third scenario I described was a sexual assault. [Ardler] Looking at that case, it is possible that Ardler, because of his intellectual disability, did not realise that the victim was not consenting. So he didn’t know the nature and quality of his act, namely, that he was having sex with a person against her will. Alternatively, if he did know that she was not consenting, he might not have known that that circumstance – the absence of consent – meant that it was wrong to have sex with her.
Looking at another sexual assault case involving a man with an intellectual disability [Mrzljak], in this case the defendant knew that it is wrong to have sex with someone who does not consent, and also said that he knew it would be wrong to have sex with a person who has an intellectual disability such that they lack the capacity to give consent. The victims’ actions suggested that she was consenting, but the prosecution argued that she lacked cognitive capacity.
The defendant was Bosnian and spoke almost no English, and also had an intellectual disability himself. Because of these factors, he was not able to perceive that the victim had an intellectual disability. Here, it could be argued that because of his intellectual disability, he was unable to perceive the circumstances that meant that the act was wrong, or, to put it another way, because of his intellectual disability he did not know that the act was wrong.
The last scenario is the child pornography case [Winter]. Again, it might be argued that the defendant, because of his intellectual disability, does not know that it is wrong to look at and possess child pornography. This case also particularly shows the importance of looking at the whole context of the offence.
So to answer the big question – does the defence of “mental illness” apply to intellectual disability? The answer is a strong “maybe”.
I’m going to leave the floor open for some questions now but before I do that, we would really like to hear your views and, since we aren’t mindreaders, I would urge you all to consider making a submission to the Law Reform Commission’s reference.
FOOTNOTES
1. Leach. Full citation below.
2. Schultz.
3. Ardler.
4. Winter.
5. See Mental Health (Criminal Procedure) Act 1990 (NSW), Mental Health (Forensic Provisions) Amendment Bill.
6. Bacon, Hale, Hawkins, Walker.
Bibliography
Bacon’s Abridgement of the Law, (first published c.1740, 7th ed 1832)
B Dimond, Legal Aspects of Mental Capacity (Blackwell Publishing, 2008)
Hale’s Pleas of the Crown (first published 1736, 1971 reprint)
W Hawkins, Pleas of the Crown 1716-1721, Vol 1 (1973 reprint)
M Ierace, Intellectual Disability: A Manual for Criminal Lawyers (1989)
N Walker, Crime and Insanity in England, Vol 1: The Historical Perspective (1968)
Legislation
Criminal Lunatics Act 1800 (Eng) 40 Geo III, ch 94
Criminal Code 1899 (Qld)
Criminal Code 1902 (WA)
Criminal Code 1924 (Tas)
Mental Deficiency Act 1913, 1927 (Imp)
Mental Health Act 1983 (NSW)
Mental Health (Criminal Procedure) Act 1990 (NSW)
List of cases
Ardler [2004] ACTCA 4, [2003] ACTSC 24
Leach v The Queen [2008] NSWCCA 73
M’Naghten’s Case (1845) 10 Cl&F 200, 8 ER 718
Mrzljak [2005] 1 Qd R 308
R v Porter (1933-1936) 55 CLR 182
Schultz (1981) 5 A Crim R 234
Police v Winter [2008] NSWLC 15
Other cases considered during preparation
R v AN [2005] NSWCCA 239 and R v AN (No 2) (2006) 66 NSWLR 523
Hawkins v The Queen (1994) 179 CLR 500
R v Mailes [1999] NSWSC 942 and (2001) 53 NSWLR 251
R v Minani (2005) 63 NSWLR 490
Tadeo Oyee s/o Duru v The Queen [1959] EACA 407
Re Pitt [2000] QCA 30
R v S (1979) 2 NSWLR 1
Ward v The Queen [2000] WASCA 413
