INTRODUCTION

4.1 Diminished responsibility operates to reduce liability for murder to manslaughter if the defendant was suffering from some form of mental disorder at the time of the killing which substantially impaired his or her mental responsibility, but was not legally insane. The defence was introduced in New South Wales in 1974 using section 2 of the English Homicide Act 1957 as a model. That Act had itself drawn inspiration from the Scottish common law. In Australia, only the Australian Capital Territory, Queensland and the Northern Territory have similar defences. Unlike the defence of mental illness¹ to which it has certain similarities, it is only available as a (partial) defence to murder.

4.2 In many ways, diminished responsibility is a defence which defies categorisation. On the one hand the defendant is arguing that he is responsible for his actions, but only partly. He is also arguing that he is “mad” but, again, only partly. It is in this “contradictory middle ground between responsibility and non-responsibility”² that the defence resides. This is not merely a theoretical issue. As will be seen, the concept of diminished mental responsibility can create acute practical problems. In addition, many of the concepts utilised by the section as drafted are unclear, problematic or unknown to either the law or psychiatry. It is with these issues and, in particular, with the problems inherent in the juxtaposition of law and medicine that this Chapter will be primarily concerned.

BRIEF HISTORY

4.3 The defence of diminished responsibility developed at common law in Scotland and was first articulated in 1867 in the case of HM Advocate v Dingwall.³ The defendant, who had killed his wife, suffered from epilepsy, was a heavy drinker and had attacks of delirium tremens. Lord Deas instructed the jury that they could return a verdict of culpable homicide (manslaughter) if the defendant’s state of mind was considered by them to be an extenuating circumstance although not sufficient to warrant an acquittal on the grounds of insanity. Dingwall was convicted of culpable homicide and sentenced to ten years imprisonment.

4.4 Walker⁴ has traced developments in the area of insanity in England and Scotland leading up to Dingwall. In the sixteenth century both the English and Scottish law dealt with insanity in much the same way, but by 1674 a notion of partial insanity to “lessen and moderate the punishments” of those whose reason was partially clouded was beginning to be evident.⁵ Thus:

Since the law grants a total impunity to such as are absolutely furious, it should by the rule of proportions lessen and moderate the punishments of such.⁶

4.5 After the Act of Union with England the differences between English and Scottish law were largely glossed over, but partial insanity played a role in the recommendation of pardons by the jury as well as being evidenced by outright acquittals. Subsequent cases picked up and developed the concept articulated in Dingwall. Thus “weakness of mind”,⁷ “a state of mind bordering on, though not amounting to, insanity”⁸ or “partial insanity”⁹ were variously held to allow the defendant to escape a murder conviction. By 1909, the particular term “diminished responsibility” was being used in the cases¹⁰ and Walker asserts that:

By the nineteen-thirties the stage had been reached at which the defence of insanity was rarely offered in a Scots court to a charge of murder. Either the accused was found “insane in bar of trial” or he pleaded diminished responsibility.¹¹

4.6 In England, dissatisfaction with the M’Naghten Rules for insanity led to suggestions for an alternative “diminished responsibility” verdict from as early 1883.¹² But for many years after that the idea was not taken up. It was raised again in the 1950s in the context of the debate over capital punishment. While such a reform was rejected by the Royal Commission on Capital Punishment 1949-53, it was recommended by the Heald Committee in 1956¹³ and the result was the enactment of s 2 of the Homicide Act 1957, which provided as follows:

(1) Where a person kills or is party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing.

(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.

4.7 It is not necessary to discuss in detail the history of the subsequent case law. A number of things should, however, be noted. It was not until Byrne in 1960¹⁴ that a definitive interpretation of the section began to emerge. Before that judges either left the section to the jury to interpret or described the relevant state of mind as “borderline insanity” without further explanation.¹⁵ Further, studies have shown that in the early years of the defence it was highly successful, that a wide variety of conditions were regarded as satisfying the definition in the Act but that the total number of people using either diminished responsibility or insanity did not change.¹⁶ Thus Walker asserts that the effect of s 2 was to “take over the sort of case which previously would have been accepted by courts as within the M’Naghten Rules”.¹⁷

CURRENT LAW IN NEW SOUTH WALES

4.8 Section 23A was introduced into the Crimes Act 1900 (NSW) in 1974¹⁸ and provides as follows:

(1) Where, on the trial of a person for murder, it appears that at the time of the acts or omissions causing the death charged the person was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for the acts or omissions, he shall not be convicted of murder.

(2) It shall be upon the person accused to prove that he is by virtue of subsection (1) not liable to be convicted of murder.

(3) A person who but for subsection (1) would be liable, whether as principal or accessory to be convicted of murder shall be liable instead to be convicted of manslaughter.

(4) The fact that a person is by virtue of subsection (1) not liable to be convicted of murder in respect of a death charged shall not affect the question of whether any other person is liable to be convicted of murder in respect of that death.

(5) Where, on the trial of a person for murder, the person contends:

(a) that he is entitled to be acquitted on the ground that he was mentally ill at the time of the acts or omissions causing the death charged; or

(b) that he is by virtue of subsection (1) not liable to be convicted of murder,

evidence may be offered by the Crown tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.

The elements of the defence

4.9 The defendant¹⁹ is required to show, on the balance of probabilities²⁰ that:

1. at the time of the act he or she was suffering from an abnormality of mind;
2. the abnormality arose from one of the causes listed in the parenthetical reference in s 23A(1); and
3. the abnormality substantially impaired his or her mental responsibility for the act or omission.

Abnormality of Mind

4.10 The defendant must have been suffering from the abnormality of mind at the time of the offence. It has been said that abnormality of mind means:

A state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal. It appears ... to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will-power to control physical acts in accordance with that rational judgment.²¹

4.11 The range of conditions which may amount to an abnormality of mind are quite broad. For example, psychosis, organic brain disorder, schizophrenia, psychopathy, epilepsy, hypoglycaemia, depression (reactive and endogenous), post-traumatic stress syndrome, chronic anxiety and personality disorders have all been found to come within the scope of the defence. The defence will cover those people who are mentally ill as well as those with an intellectual disability. Premenstrual tension is another “condition” which may amount to an abnormality of mind.²²

4.12 There have been a number of criticisms that the range of abnormalities of mind is too broad. Thus, for example, the inclusion of personality disorders and cases of sexual psychopathy within the term “abnormality of mind” is highly contentious.²³ It has been suggested that further consideration should be given to whether personality disorders ought to be included within the scope of “abnormality of mind” and, if so, whether legislative provision should be made to clarify this.²⁴

4.13 In general terms, “abnormality of mind” is problematic because it is neither a medical nor a legal concept. For example, it is unclear whether abnormality of mind is restricted to known mental illnesses or whether the condition must be serious. It has been submitted to the Commission that juries have particular trouble making sense of this requirement.²⁵

The causes of the abnormality

4.14 It was held in Purdy that the causes of the abnormality of mind found in s 23A - arrested or retarded development of mind, disease or injury or inherent causes - were exhaustive and not merely illustrative.²⁶ It is worth noting the dissent of Roden J in Purdy and the reasons his Honour gave for rejecting the interpretation that the parenthesised causes are exhaustive. Amongst other reasons, his Honour thought that unburdening the jury from the necessity of considering the difficult question of aetiology would simplify complicated jury directions. It has also been pointed out that there is no particularly good policy reason for the causes to be so limited. The New South Wales provision was copied from the English legislation which, itself, was a “remarkably inept reconstruction of the definition of ‘mental defectiveness’ in section 1(2) of the Mental Deficiency Act 1927".²⁷ This less than impressive pedigree suggests that there is no magic in the legislative formula.

4.15 Where the aetiology of the abnormality of mind is disease, injury, brain damage or arrested development of mind, the situation is relatively straightforward. Thus for defendants with an intellectual disability, for example, there is generally little problem in finding that their “mental abnormality” stemmed from a condition of “arrested or retarded development”²⁸ although complications can arise where the defendant has both an intellectual disability and a mental illness. It has been held that psychological injury is included in the term “disease”.²⁹ However, acute problems are presented when the cause relied upon is “inherent cause”. In these cases it is not so easy to analyse the defence in terms of the three elements. It appears that the relevant principles are:

• Inherent causes do not mean “inherited” causes. They can stem from outside sources, upbringing, development and so on.³⁰
• The abnormality of mind itself can be temporary or fleeting but if the cause relied on is an “inherent cause” then that cause must have the quality of permanence.³¹
• In some cases abnormality of mind is not capable of being identified as distinct from some inherent cause and s 23A can be satisfied by proof of an “inherent abnormality of mind”.³² This is often the case with personality disorders. In these cases the abnormality itself must be permanent and expert evidence on the question of “inherent abnormality of mind” is necessary.

4.16 It is clear that the relationship between the two elements of abnormality and cause is quite complex. The jury is, in effect, required to ascertain a state (which may be temporary) and ascribe its origin to a cause (which must be permanent). But the alternative form, “inherent abnormality of mind” is even more complex. When all of this is couched in psychiatric terminology - which is not tailored to fit the legally constructed categories - the jury’s task becomes extremely difficult.

4.17 One particularly problematic area is where the defendant killed while intoxicated. It is clear that a temporary state of irresponsibility induced by alcohol will not fall within s 23A.³³ However brain damage from the effects of drugs or alcohol may be a relevant cause.³⁴ It has also been held that alcoholism that rendered the use of drink involuntary may come within the section.³⁵

Mental responsibility

4.18 In Byrne, Lord Parker described “mental responsibility” in the following way:

The expression “mental responsibility for his acts” points to a consideration of the extent to which the accused’s mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will-power to control his physical acts.³⁶

4.19 This element of the defence has been subject to a great deal of criticism. It has been said that the phrase “mental responsibility” has no clear meaning and that it is neither a legal nor a psychiatric concept. If anything it appears to be a moral one. In particular it has been argued that the concept conflates two distinct ideas: the capacity of the defendant (impaired or reduced capacity) and an assessment of culpability (reduced or diminished liability).³⁷ Despite this theoretical criticism, it has been said that juries find the concept much less puzzling than do lawyers and psychiatrists and generally tend to approach the question with “good practical common sense”.³⁸ Thus the jury may well be able to make the necessary moral assessment without undue concern for technical problems.

Substantial impairment

4.20 Section 23A requires that mental responsibility be “substantially impaired”. This means that the impairment must fall somewhere between total and merely trivial or minimal impairment.³⁹ This issue is often assessed by psychiatrists but it is a particularly difficult task. Indeed Glanville Williams has described the requirement that the abnormality of mind must substantially impair the defendant’s mental responsibility as follows:

[It is] as embarrassing a formula for the scientifically-minded witness as could be devised ... [it is] a question of subjective estimation, not of medical science.⁴⁰

Onus

4.21 At present the defendant is required to prove, on the balance of probabilities, that she or he falls within the defence. This is out of step with the other criminal defences which place the onus of proof on the prosecution, but is in keeping with the position in respect of the related defence of mental illness. Such an onus is clearly disadvantageous to the defendant who has to prove the three separate and complicated elements of the defence. In cases where there is conflicting medical evidence, the burden falls particularly heavily on the accused - a jury that is simply unsure which version to prefer must find against the defendant. It also may be confusing to the jury to be instructed on the differing burdens and standards of proof where, for example, the diminished responsibility and provocation defences are run together.

4.22 It was suggested in one submission that the burden of proof is discriminatory.⁴¹ This is because a person who does not suffer from an abnormality of mind but who loses control and kills has the benefit of the requirement that the prosecution must negative his or her defence of provocation beyond a reasonable doubt. On the other hand, a person who is suffering from an abnormality of mind and who consequently may have a lower level of self-control must be able to affirmatively prove this. It may be that this discriminates against people with intellectual disabilities and/or mental illnesses.

Medical evidence

4.23 There is no legal requirement that a plea of diminished responsibility be supported by medical evidence. In practice, however, the defence will not succeed without it.⁴² The following picture emerges from the cases:⁴³

• Medical evidence is admissible on all three elements of the defence; that is, abnormality, cause and substantial impairment of mental responsibility.
• The jury is entitled to reject the medical evidence with respect to the first (abnormality) and third (substantial impairment of mental responsibility) elements if there is other evidence which conflicts with and outweighs it.
• There must be medical evidence on the second element (cause) although it is not necessary for the exact statutory terminology to be employed.
• The jury can come to a conclusion that differs from the medical experts on any of the three elements only where there is other evidence doubting it or where the medical evidence is not unanimous.

4.24 There are a number of quite serious problems associated with the use of expert medical evidence in diminished responsibility cases.

4.25 Terminological problems. In the first place, there are difficulties with the terminology of mental disorder which may have passed inaccurately into everyday language. A good example is the difference between the colloquial and clinical use of the term “depression”.⁴⁴ This is, of course, not a problem that is peculiar to a diminished responsibility defence - similar problems may arise, for example, in the context of other “mental disability defences”. It could be avoided to some extent if medical witnesses refrained from giving diagnoses and instead described as fully as possible the mental and emotional state of the defendant at the time of the offence. This would give the jury all the information it needs without involving them unduly in terminological issues.⁴⁵ However, it has been submitted to the Commission that as a practical matter it would be almost impossible not to provide diagnoses and that current court practice compels it.⁴⁶

4.26 Contradictory medical evidence. Secondly, it has been noted that the medical evidence is often contradictory. In Chayna, for example, seven psychiatrists offered seven differing opinions. Because there are three elements involved in a s 23A plea, the psychiatrists often give evidence on each and there may be differences of opinion on each element. In cases in which mental illness is also at issue - under s 23A(5) it is open to the prosecution to lead evidence tending to prove mental illness where the defence raises diminished responsibility - the problem is further exacerbated.⁴⁷ This can be highly confusing for the jury and can consequently be disadvantageous to the defendant who carries the onus of proof on the relevant issues. It has been suggested that a non-diagnostic approach would also allow less scope for experts to disagree. If the ultimate goal of diminished responsibility proceedings is trial by jury, and not trial by medical experts, then:

Judges and juries need behavioural facts about the defendant’s functioning, not labels that have been developed for nonlegal purposes.⁴⁸

4.27 Another suggestion for reform in this area is to give consideration to the utilisation of techniques proposed for the simplification of serious and complex criminal trials.⁴⁹ Such techniques include holding preparatory hearings at which the judge could make a variety of directions and at which points of agreement and disagreement between the medical experts could be settled, eliminating the need for them to be fought out before the jury.

4.28 Despite the perceived problems with conflicting expert testimony, the frequency of this occurring must be closely examined. A 1982 English study found that medical experts disagreed in only 13% of cases.⁵⁰ What is particularly interesting, though, is that in over half these cases the disagreement was over the question of “substantially impaired mental responsibility”, which arguably does not require a medical opinion at all. If medical experts were prohibited from expressing opinions on this issue then the percentage of cases in which conflicts arose might be low. However, the position appears to be significantly different in New South Wales where there seem to be more trials (that is, fewer pleas to manslaughter are accepted by the prosecution) and more contested medical evidence. The Commission is interested in receiving submissions concerning the position in New South Wales on this issue.

4.29 Evidence of “substantial” impairment. There are also problems with respect to the element of “substantial impairment of mental responsibility”. One arises because of the nature of a psychiatric evaluation. If a psychometric test is used, there is some quantifiable data about the defendant that can be compared to others in the community so that a meaningful assessment of “substantial” can be made. However, a psychiatric report or diagnosis does not generally involve a comparative aspect and often an opinion on “substantial impairment” is made without an explanation as to why this is so.⁵¹

4.30 Evidence on the “ultimate issue”. However, the major problem in this area is whether medical experts should testify to this issue at all. This is because the expert is essentially giving evidence on the very question that the jury must decide. This is allowed to occur because the evidentiary rule known as the “ultimate issue rule” apparently does not apply in cases of diminished responsibility.⁵² Evidence of this nature is routinely given by psychiatrists at diminished responsibility trials and a number of local psychiatrists consider that “in New South Wales courts [psychiatrists are] more or less expected to do so”.⁵³ However, noting the criticisms of the concept of “mental responsibility” given above and realising that the concept is not a medical one, this practice means that:

Doctors routinely testify to matters that are not within their professional competence and judges accept and act on that testimony.⁵⁴

4.31 It has therefore been suggested that legislation (or Court rules) could provide that expert witnesses are not to give opinions on these issues.⁵⁵ However, it also has been submitted to the Commission that it is sometimes desirable and even necessary for medical witnesses to give evidence on this question. For example, the jury may need to be told what effect a psychotic condition or other abnormality would have on the defendant’s conduct. This would involve addressing questions of responsibility.⁵⁶ It has also been suggested that counsel will inevitably develop ways to ask expert witnesses the question by other means.⁵⁷

4.32 Inadequacy of expert testimony. It has been suggested that expert testimony is often inadequate. Sometimes experts are unaware of the legal issues involved and their reports may be sketchy, reliant on a short interview with the accused and based on inadequate information, particularly about the background of the defendant.⁵⁸ It has been suggested that more adequate training and/or accreditation for forensic psychologists and psychiatrists is required and that a special Code of Ethics for such practitioners be developed.⁵⁹

4.33 The use of psychological evidence. Another issue is the reluctance of judges to accept the evidence of psychologists (as distinct from psychiatrists) in diminished responsibility cases.⁶⁰ Although there is usually little problem with psychologists testifying as to the results of various psychological or psychometric tests,⁶¹ there is resistance to allowing them to express their opinions on whether the mental responsibility of the defendant was substantially diminished. Noting the criticisms above, it is doubtful that this is an issue on which any expert is qualified to testify. Nevertheless, if psychiatrists are permitted to give such evidence, it is illogical to prevent psychologists from doing so. This is particularly the case in respect of evidence about people with intellectual disabilities.

4.34 Lack of notice that defence is to be run. Finally, it has been submitted to the Commission that there is a problem for the prosecution in respect of medical evidence.⁶² This arises because in many cases they are not informed that a diminished responsibility defence is to be run (or are informed at the very last moment) and consequently have no opportunity to arrange for their psychiatrists to evaluate the defendant. In other cases the defendant refuses to make him or herself available for examination by prosecution psychiatrists or by a particular prosecution psychiatrist. Another problem noted by this submission is that the defence can “shop around” for a sympathetic psychiatrist and has no obligation to disclose contrary psychiatric opinions to the prosecution.

4.35 On the other hand it has been submitted that it may be difficult for the defence to make the accused available for examination where the prosecution doctor is known to have a particular philosophical or medical disagreement with the defence of diminished responsibility in general or with specific conditions.⁶³ And it has also said to be problematic that the prosecution has access to prison medical files when the defendant on remand is being treated by the prison medical service. This is because the defendant has no choice but to be examined by this doctor, especially if he or she needs treatment.⁶⁴ It has been suggested that the prosecution not be allowed access to the files of the treating prison doctor. At the same time, this course will only be viable if the defendant is required to be made available for examination by prosecution doctors.

Diminished responsibility and the defence of mental illness

4.36 The defence of mental illness is a complete defence and can be pleaded in relation to any charge. By contrast, diminished responsibility only reduces a charge of murder to one of manslaughter. Following acquittal on the grounds of mental illness, the defendant is confined indefinitely in a psychiatric institution while the diminished responsibility offender will receive a determinate sentence. The onus of proof lies on the defendant in respect of both defences.

4.37 The common law defence of insanity is defined in the “M’Naghten Rules” formulated in 1843.⁶⁵ The Rules state that a person is not criminally responsible if he or she is “labouring under such a defect of reason, from disease of the mind” that he or she is incapable of understanding the “nature and quality” of the act or, if this was understood, incapable of understanding that the act was wrong.

4.38 Almost from their inception, the M’Naghten Rules have been subjected to serious criticism. In particular, they have been criticised for being unduly restrictive and relying on outdated assumptions that the human mind is divisible into separate compartments - the intellect, the will and the emotions - each operating independently of the other. Read literally, they exclude, for example, emotional disorders deriving from disease of the mind. The onus of proof with respect to the defence has also raised questions of whether it is fair and consistent with other defences to place the onus on the defendant, albeit on the balance of probabilities.

4.39 In New South Wales, the defence is now known as the defence of mental illness and is found in s 38 of the Mental Health (Criminal Procedure) Act 1990 (NSW). That section does not redefine the M’Naghten Rules or attempt to codify the defence. It merely renames the common law defence. In addition there is now a statutory requirement⁶⁶ that the jury is to be given an explanation of the legal and practical consequences of a finding of mental illness.

4.40 The scope of the defence of mental illness is narrower than the defence of diminished responsibility. For example, it will rarely be available where the defendant acts under an uncontrollable impulse⁶⁷ or in cases of psychopathy were the accused appreciates the nature of his acts but chooses nevertheless to do them. It is essentially directed towards a failure of cognition and if the defendant understands what he or she is doing and that it is wrong then the fact that the act could not be controlled is irrelevant. Diminished responsibility by contrast is broader in that “abnormality of mind” covers uncontrollable urges and emotional states as well as cognitive disorders which fall short of the defence of mental illness.

4.41 Under s 23A(5) the prosecution can tender evidence of mental illness where diminished responsibility has been raised by the defence and vice versa. Because the defences are separate the jury must be instructed as to their elements independently. In Ayoub,⁶⁸ the New South Wales Court of Criminal Appeal held⁶⁹ that where the prosecution raises the defence of mental illness it need only prove this contention on the balance of probabilities. The rationale for this is said to be that it would be artificial for the standard of proof to differ according to who had raised the defence. Enderby J, in dissent, considered that such a course contravenes the basic principle that the prosecution must prove its case beyond a reasonable doubt.

4.42 In New South Wales, the number of people found not guilty by reason of mental illness is low: between 1990 and 1992 there were only 8 such acquittals on charges of murder.⁷⁰ There are clear disadvantages to using the insanity defence and it is not hard to see why diminished responsibility might be preferred (especially if a plea is accepted).⁷¹ The English experience of diminished responsibility has been that the defence has largely taken over from the insanity defence which now results in only one or two acquittals per year.⁷² This is despite the fact that studies have shown that a number of those convicted of manslaughter on the grounds of diminished responsibility would have come within the insanity defence.⁷³ There do not appear to have been any comparable studies in New South Wales and the Commission is interested in receiving submissions on the position in this State.

THE DEFENCE OF DIMINISHED RESPONSIBILITY IN PRACTICE

Guilty pleas

4.43 Although the role of the jury may well be raised in this context, it has been common practice in England since 1960 for trial judges to accept manslaughter pleas where medical evidence of abnormality of mind is uncontested. The practice was confirmed by the Court of Appeal in 1968⁷⁴ and 85-90% of diminished responsibility cases in England are disposed of in that way.⁷⁵ The Commission estimates that the figures would be lower in a jurisdiction with a discretionary murder penalty but would appreciate submissions or comments on this issue. It appears that pleas are often accepted where the medical evidence is all one way but that this is not a common occurrence.⁷⁶ It has been submitted to the Commission that plea negotiations are sometimes difficult where the defendant refuses to submit to psychiatric examination by the prosecution⁷⁷ or where the prosecution is unaware that a diminished responsibility is to be run at trial.

The role of the jury

4.44 In Chayna, Gleeson CJ pointed to the reluctance of juries to make a finding of manslaughter in cases which clearly appeared to them to be murder and thought that because of this:

in recent times in this State there has been a tendency for the legal representatives of accused persons who wish to raise a case of diminished responsibility to prefer a trial without a jury.⁷⁸

4.45 This tendency may stem from the reluctance of defence counsel to run a diminished responsibility defence in front of a jury where the circumstances of the crime (apart from the mental state of the defendant) are particularly horrific.⁷⁹ The view of some defence counsel is that diminished responsibility is rarely successful in front of a jury.⁸⁰ Although trials by judge alone⁸¹ are rare - there have only been five murder trials before a judge in the past 12 months⁸² - it is still worth considering how the defence may operate differently in this context. In O’Bree,⁸³ Finlay J thought that the diminished responsibility defence, involving as it does the question of whether the accused suffered from a state of mind so different from that of the ordinary person that a reasonable person would term it abnormal, was one that was better dealt with by a jury.

Sentence

4.46 Sentencing diminished responsibility offenders raises some very difficult issues. On the one hand the verdict is a recognition of a lower level of culpability and this should be reflected in sentence. On the other hand some such offenders might present a danger to the community and this may be thought to warrant a longer period of detention, even up to the maximum sentence.⁸⁴ This, in effect, imposes a greater penalty for abnormality of mind. It was this balance between a sentence proportional to the offence and the need to protect the community that was at issue in Veen.⁸⁵ In that case the majority of the High Court thought that while it was not permissible to impose a disproportionate sentence in order to achieve the preventative detention of an offender, it was permissible to consider the protection of society as a factor in the exercise of the sentencing discretion. The minority considered that this gave too much weight to the protection of society and Deane J suggested that the appropriate solution would be:

The introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he were to be released as a matter of course at the end of what represents a proper punitive sentence.

4.47 There are at present no special institutions for those suffering from an abnormality of mind under s 23A and, other than prison hospitals or units for prisoners with intellectual disabilities, there is no alternative to imprisonment. This situation has been described as illogical and inhumane because the diminished responsibility offender who receives a longer sentence because of danger to the community is merely incarcerated and provided with little treatment to minimise that danger.⁸⁶ There is also no provision in New South Wales for the making of hospital orders analogous to those available under the English Mental Health Act 1983. These orders are discussed below at para 4.60. The most that a sentencing judge can do is to recommend the incarceration of the offender in a gaol with psychiatric facilities.

4.48 It should be noted that special sentencing principles may be involved when dealing with diminished responsibility offenders. For example, principles of deterrence are usually given very little weight.⁸⁷ In Falconetti,⁸⁸ the New South Wales Court of Criminal Appeal approved the expedient adopted by Mathews J of imposing a short minimum term and a substantial additional term. In cases where the defendant is potentially dangerous, this course of action is said to allow:

the prison medical authorities a large area of discretion as to when the prisoner should be released, according to his mental state at the time. In the interests of the community the total sentence will have to be a long one for there will be no discretion as to ... release when it expires.⁸⁹

4.49 Because of these issues it is important in cases in which diminished responsibility and provocation are run together to know on what basis the jury has returned a manslaughter verdict.⁹⁰ It appears that the New South Wales Court of Criminal Appeal has adopted the practice that in dual diminished responsibility and provocation cases the jury should be told that they will be called upon to state the basis for their manslaughter verdict.⁹¹

THE POSITION IN OTHER JURISDICTIONS

Other Australian jurisdictions

The substantive law

4.50 Of the other Australian jurisdictions, only the Australian Capital Territory,⁹² Queensland and the Northern Territory have a defence of diminished responsibility. The Code defence in Queensland and the Northern Territory is somewhat different from the New South Wales and Australian Capital Territory provision, primarily because it does not use the concept of “mental responsibility”, relying instead on the substantial impairment of three named capacities. It should also be noted that both Code jurisdictions have a mandatory life sentence for murder.

4.51 Section 304A of the Queensland Criminal Code, introduced in 1961, provides that:

(1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair capacity to understand what he is doing, or his capacity to control his actions, or his capacity to know that he ought not to do the act or make the omission, he is guilty of manslaughter only.⁹³

4.52 In Rolph⁹⁴ the Queensland Court of Criminal Appeal held that abnormality of mind under s 304A covers the same ground as the insanity defence under s 27 of the Code. The only difference then is a question of degree - insanity deals with complete deprivation of the relevant capacities and diminished responsibility is concerned with their substantial impairment.⁹⁵ This must be contrasted with the position in New South Wales (and England). In the latter jurisdictions the difference is one of kind as well as degree because the insanity defence does not deal with uncontrollable impulse whereas the defence of diminished responsibility does.

4.53 In Whitworth⁹⁶ the Queensland Court of Criminal Appeal interpreted abnormality of mind in a very broad way. The Court found that the abnormality of mind itself could be temporary if it arose from permanent underlying causes and included within these causes an “inherent limitation of the mind to withstand stress”. With respect to disease or injury as a cause, the Court found that psychological injury fell within the terms of the section, thus a “psychological scar” from a childhood experience could be a cause for abnormality of mind.

4.54 As in New South Wales, the burden of proof under the Codes falls on the defendant. It should also be noted that while both the New South Wales and English legislation specifically provides for the prosecution to elicit evidence to prove insanity or diminished responsibility where the defence has raised the other⁹⁷ the Queensland and Northern Territory Codes make no such specific provision.⁹⁸

Procedure

4.55 In Queensland, the question of diminished responsibility can be dealt with at trial or by the Mental Health Tribunal under the provisions of the Mental Health Act 1974 (Qld). When a person is charged with an indictable offence and there is reasonable cause to believe that he or she was mentally ill at the time of that alleged offence, he or she can be referred to the Tribunal, either on his or her own motion, by the prosecution or by the Department of Health.⁹⁹ The Tribunal is constituted by a Supreme Court Judge assisted by two psychiatric assessors.¹⁰⁰ The Tribunal decides whether the person was suffering from unsound mind and whether he or she was fit to stand trial. If the person is found to be of unsound mind and/or not fit for trial he or she is detained as a restricted patient and his or her case is periodically reviewed by the Patient Review Tribunal. On a charge of murder, if the Tribunal finds the person was not suffering from unsound mind, it must then determine whether he or she was suffering from diminished responsibility.¹⁰¹ If such a determination is made, the prosecution cannot indict the person for murder but proceedings may be continued in respect of any other offence constituted by the act to which the proceedings relate.¹⁰² This usually means that the person is indicted for manslaughter.

4.56 If no reference is made to the Tribunal, the defence of diminished responsibility can still be raised at trial. It appears that this course of action is not common.¹⁰³ Further, the Tribunal’s determination that a person was not suffering from diminished responsibility does not preclude that person from raising the issue at trial. If the issue is raised, the finding of the Tribunal is not admissible in evidence at the trial.¹⁰⁴

4.57 The Tribunal operates in a non-adversarial fashion although the defendant is represented by counsel, as is the prosecution and, if he or she has made the reference, the Director of Mental Health. Psychiatrists are called by the Tribunal to examine the defendant and their reports are made available to all parties. The psychiatrists then give evidence before the Tribunal and may be cross examined by counsel.

4.58 There are said to be several advantages to this system.¹⁰⁵ One is that the atmosphere is less antagonistic and, consequently, more humane to the defendant. There are far fewer divergences of opinion as terminological and other medical issues can be agreed upon. Because the psychiatrist is essentially speaking to a body of experts, this is said to make a difference to the nature of the psychiatric evidence presented and this makes the task of the psychiatrist a great deal easier. One disadvantage of this system is that it essentially removes the role of deciding whether the defendant is guilty of murder or manslaughter from the jury although if the Tribunal does not make a finding of diminished responsibility, the defendant can still choose to go to trial. It is also noted that there are several practical problems with the operation of the Tribunal and the area is currently under review.¹⁰⁶

New Zealand

4.59 There is no defence of diminished responsibility in New Zealand. In McGregor, a provocation case, the Court was concerned to limit the interpretation of “characteristics” to those mental peculiarities of “sufficient permanence” in order to prevent the introduction of a back-door diminished responsibility defence.¹⁰⁷ Later cases, however, tended to leave provocation to the jury where some mental disturbance was shown. It has been argued that this tendency means the courts have developed a “de-facto diminished responsibility defence”.¹⁰⁸

England

4.60 Section 2 of the English Homicide Act 1957 and s 23A are very similar although there are some minor differences in interpretation. A major point of difference is the power of English courts to make hospital orders.¹⁰⁹ Under s 37 of the Mental Health Act 1983 a convicted person can be committed to a mental hospital or to a local services authority. The offence must be punishable by imprisonment but does not include murder. The order can be made on the evidence of two medical practitioners who testify that detention for treatment is appropriate. In addition, restriction orders under s 41 may be made which prevent discharge, transferral or leave of absence without the consent of the Home Secretary. Without such an order the responsible medical officer or the Mental Health Review Tribunal can discharge the offender at any time.

Canada

4.61 There is no statutory defence of diminished responsibility in Canada. However in a number of cases the defendant has been able to advance a defence of lack of intent on the grounds of a mental disorder not amounting to insanity. Although the case law is not consistent, its overall effect may be to introduce a de-facto diminished responsibility defence.¹¹⁰ It is also to be noted that the insanity defence in s 16 of the Canadian Criminal Code is wider than the M’Naghten Rules. It has been said that:

The draftsman of the Code, as originally enacted, made a deliberate change in language from the common law rule in order to broaden the legal and medical considerations bearing upon the mental state of the accused and to make it clear that cognition was not to be the sole criterion. Emotional, as well as intellectual, awareness of the significance of the conduct, is an issue.¹¹¹

4.62 Because of this, the insanity defence in Canada incorporates elements of what we include within our defence of diminished responsibility, that is, emotional awareness of the significance of the conduct.

The United States

4.63 Those States which have enacted the Law Institute’s Model Penal Code have a type of defence of diminished responsibility which provides that a killing is manslaughter if:

committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse [such reason to be] determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.

4.64 Other jurisdictions do not have a specific statutory defence but instead rely on arguments negating mens rea or attaching some meaning to “malice aforethought” where the defendant claims he or she was mentally disturbed.¹¹² This has been described as follows:

[Diminished capacity] is directed at the evidentiary duty of the State to establish those elements of the crime charged requiring a conscious mental ingredient ... [D]iminished capacity is legally applicable to disabilities not amounting to insanity, and its consequences, in homicide cases, operate to reduce the degree of the crime rather than to excuse its commission. Evidence offered under this rubric is relevant to prove the existence of a mental defect or obstacle to the presence of a state of mind which is an element of the crime, for example; premeditation or deliberation.¹¹³

4.65 In cases such as this, the defendant would be convicted of second degree murder only. Further, the diminished capacity defendant may also be without malice aforethought and thus:

Even intentional killings can be mitigated to voluntary manslaughter if ... the defendant did not attain the mental state of malice due to mental illness, mental defect or intoxication.¹¹⁴

4.66 In California, however, these doctrines proved to be so confusing and were said to lead to such unjust results that legislation was enacted to remove the defence on the grounds of public policy.¹¹⁵

Singapore

4.67 The doctrine of diminished responsibility was introduced into Singapore law in 1961. Exception 7 to s 300 of the Penal Code is substantially the same as s 23A. ¹¹⁶ The two significant differences in the practical operation of the defence is that there are no juries in Singapore criminal trials and that a conviction for murder carries a mandatory death penalty.

European jurisdictions

4.68 The House of Lords Select Committee on Murder and Life Imprisonment¹¹⁷ conducted a survey of the Member States of the Council of Europe with respect to their law of diminished responsibility. It is difficult to appreciate the actual significance of the presence or absence of an analogous defence without considering the entire law of homicide in the relevant jurisdiction and, in particular, the murder/manslaughter distinction and the penalty for murder. However it is noted that no other jurisdiction has a specific partial excuse of mental disorder or diminished responsibility which operates only in the context of homicide. A number have partial defences of provocation or self-defence (Luxembourg, Malta, Cyprus) and a number (Turkey, Denmark, Italy, the Netherlands, Switzerland) provide that mental disorder is relevant to punishment or as a general defence. The Netherlands, for example, deals with concepts of diminished responsibility in terms of punishment. All offences carry a maximum sentence and mental illness can be taken into account at the sentencing stage. Thus mental disorder, though not totally exculpatory, is taken into account in determining punishment and the punishment can include special treatment or (infrequently) restrictive measures.¹¹⁸

OPTIONS FOR REFORM

Option One: Retain defence without amendment

Implementation

No changes would be required.

Other recommendations to this effect

There have been no recommendations by other law reform bodies to retain the New South Wales defence (or the English defence to which it is similar) in its present form.

Option Two: abolish defence

Implementation

The defence of diminished responsibility could be abolished altogether. This would mean that issues now going to reduced culpability would be taken into account in respect of sentence. This could be achieved by simply repealing s 23A although consideration could also be given to making specific legislative provision for matters currently going to establish the defence to be taken into account in respect of sentence.

The other matter worth considering is whether, if the defence of diminished responsibility is abolished, the defence of mental illness should be expanded or reformulated. The problems with the present mental illness defence are detailed above at paras 4.36 - 4.42. This issue is not strictly within the Commission’s present terms of reference but, as a matter of policy, it is crucial that the possibility of reform in this area be considered. Indeed it may also be necessary, even if diminished responsibility is retained, for the defence of mental illness to be reformed.

Other recommendations to this effect

The Gibbs Report in 1990 recommended against the inclusion of a diminished responsibility defence in the consolidation of Commonwealth criminal law.¹¹⁹ In England, the Butler Committee’s first choice was the abolition of the mandatory sentence for murder along with the defence of diminished responsibility.¹²⁰ A South Australian committee also has concluded that with the abolition of the death penalty there is no advantage to introducing the defence.¹²¹ The Victorian Law Reform Commission (writing in 1990 when the mandatory life sentence for murder had been abolished in Victoria) recommended that it was unnecessary to introduce a defence of diminished responsibility.¹²² It should be noted that the Victorian position is the most analogous to New South Wales in that both jurisdictions have a discretionary penalty for murder.

Option Three: reformulate defence

Other recommendations to this effect

In general terms the English Criminal Law Revision Committee,¹²³ the House of Lords Select Committee on Murder and Life Imprisonment¹²⁴ and the English Law Commission¹²⁵ have all recommended the retention and reformulation of the partial defence of diminished responsibility even if the mandatory life sentence for murder was to be abolished. The Victorian Law Reform Commissioner initially recommended the introduction of a defence of diminished responsibility when there was still a mandatory life sentence for murder.¹²⁶

Implementation

There are a number of possible reforms that could be introduced in an attempt to alleviate some of the problems noted above. A number of suggested changes are discussed below. Some involve redrafting the defence, some are procedural and some are related to sentencing. The changes are independent of each other - except for those presented as alternatives, they could all be introduced although this is not necessary.

1. Simplification of the elements

Suggestion A

A new diminished responsibility provision could be redrafted in the broad terms suggested by the Law Commission of England and Wales:


A person who, but for this section, would be guilty of murder is not guilty of murder if, at the time of his act, he is suffering from such mental abnormality as is a substantial enough reason to reduce his offence to manslaughter.¹²⁷

At the same time, “mental abnormality” could be redefined. For example it could be defined to include mental illness, intellectual disability, psychopathic disorder and any other disorder or disability of mind.

OR

Suggestion B

The diminished responsibility provision of the Queensland Code could be used as a model, requiring impairment of named capacities rather than relying on the concept of “mental responsibility”.¹²⁸

2. Onus and Procedure
• The onus of proof could be placed on the prosecution, in accordance with the general rule.¹²⁹
• The committal and indictment on a charge of manslaughter by reason of diminished responsibility could be specifically provided for.¹³⁰
• Consideration could be given to determining issues of diminished responsibility in a forum other than a trial. For example:
i. Preparatory hearings to reach agreement or determine points of disagreement between experts prior to trial;

OR

ii. A panel of experts to assess the condition of the defendant prior to trial;

OR

iii. A system of determination by a mental health tribunal similar to that used in Queensland.


3. Scope
• It could be clarified that the defence is available to reduce a charge of attempted murder to attempted manslaughter.¹³¹
• Consideration could be given to the extension of the defence to offences other than murder and attempted murder. The notion of an intermediate stage between insanity and full responsibility is relevant to all offences. In a jurisdiction with a discretionary murder penalty there is nothing special about the offence of murder and arguments for a diminished responsibility defence apply to all offences.¹³² An option may be introduction of a verdict of “guilty but with diminished responsibility” which could apply to all offences, either including murder or not including murder.



4. Reasons for verdict

It could be provided that the jury must specify the grounds on which they have returned a manslaughter verdict where diminished responsibility and provocation defences are run together.¹³³

5. Expert evidence

• Expert witnesses could be prevented from offering conclusions on the ultimate issue before the court. If the “mental responsibility” construction is reformulated (that is, Suggestion 1A above) this will go somewhere towards achieving this aim. If it is not it may be appropriate to legislate to apply the ultimate issue rule in diminished responsibility cases.
• Consideration could be given to making provision for psychologists to give evidence in the same way as psychiatrists.



6. Notice of defence

• The defence could be required to give advance notice to the prosecution of their intention to adduce psychiatric evidence or seek leave of the Court to adduce such evidence.¹³⁴ They could also be required to make the defendant available for examination by prosecution psychiatrists.
• If this is adopted then consideration should be given to preventing the prosecution from accessing the prison medical files of the defendant.



7. Sentencing issues

To alleviate sentencing difficulties, further sentencing options for diminished responsibility offenders could be considered. It is noted that reform of the sentencing options for diminished responsibility do not fall directly within the Commission’s terms of reference. However, in the words of the Victorian Law Reform Commission:

Any consideration of reform of the substantive criminal law cannot be divorced from the question of sentencing and sentencing options. This is particularly so in the case of homicide where the mental condition of the offender can have such an important bearing both on his criminal responsibility and therefore his guilt and on the problem of his disposition and treatment.¹³⁵

DISCUSSION OF THE OPTIONS

Should the defence of diminished responsibility be retained in one form or another or should it be abolished altogether?

4.69 There are two main arguments for abolishing the defence of diminished responsibility.

4.70 The defence is irrelevant in a jurisdiction with a discretionary penalty for murder. To put the defence into its historical context, it is noted that the Committee which called for the introduction of the defence in New South Wales specified that their recommendation was chiefly impelled by the “continuation of the mandatory life sentence for murder and the comparative inflexibility of the M’Naghten approach”.¹³⁶ Thus, it may be argued that the introduction of the defence arose at a particular point in the development of the criminal law and is now unnecessary in a jurisdiction with a discretionary sentence for murder. It is a “relic of harsher times”¹³⁷ and is no longer relevant.

4.71 It is said, therefore, that under current New South Wales sentencing law, factors now going to culpability could go in mitigation of sentence. This is fair, flexible and efficient, particularly in the not uncommon cases where there is conflicting medical evidence. Because of such evidentiary conflicts, a trial based on diminished responsibility is an expensive, lengthy process. Medical evidence may be presented more appropriately in terms of sentence. Finally, it is argued that, despite the different maximum sentences for murder and manslaughter, a maximum sentence of life is so rare as to make it unlikely that actual sentences would rise if diminished responsibility were abolished.

4.72 There is some validity in the argument that, with the disappearance of the original rationale for the defence of diminished responsibility, it has become redundant. However, such an argument ignores the role the jury plays as representatives of the community in considering issues of moral responsibility and the inadequacies of the sentencing process. A jury verdict of diminished responsibility has a number of advantages over reliance on the sentencing process alone. First, it focuses the mind of the sentencing judge on the mental abnormality of the offender. Secondly, at the sentencing stage psychiatric evidence is usually put in the form of a report and oral evidence (subject to examination and cross-examination) is rare. This is not an adequate presentation when a sentence for murder is at stake. Finally, there is concern that if diminished responsibility is abolished sentences could rise as sentencing judges would have regard to the current “tariff” for murder and not adequately take the diminution in culpability because of mental abnormality into account.

4.73 Further, this argument does not realise that it may be inapt and unfair to stigmatise as “murderers” people who kill with a reduced level of moral culpability. These “labelling” arguments are discussed in Chapter 2 at paras 2.17-2.19 and need not be repeated here.

4.74 Diminished responsibility is simply unnecessary. It is argued that diminished responsibility as found in s 23A is a relatively rare creature in the common law. Many other common law jurisdictions in Australia (Victoria, South Australia, Western Australia and Tasmania) and overseas (including New Zealand, Canada and most of the United States) seem to function without it. Abolition in New South Wales would achieve greater uniformity between Australian jurisdictions, leaving Queensland as the only Australian jurisdiction to retain the defence.

4.75 Without the defence of diminished responsibility, however, it is possible that the provocation defence may be distorted. This is evident from the New Zealand experience. It may also lead to strained interpretations of the “intent” requirement for murder as is evident in Canada and some United States jurisdictions.

4.76 Further, despite the positions in other jurisdictions, diminished responsibility is arguably a useful and relevant category. It reflects a valid distinction between full culpability and a partial diminution of it. The gap between mental illness and full culpability is too extreme and diminished responsibility recognises the continuum of moral responsibility. It has been said that the defence:

Enhances precision and therefore justice because the election it presents to the jury is not the all-or-nothing choice between full guilt and complete innocence but one involving recognition of the admixture of some blameworthiness and some ground for exculpation ... it is both just and reasonable.¹³⁸

4.77 Finally, it should be noted that diminished responsibility arose to some extent because of the manifest inadequacies of the insanity defence, especially in respect of uncontrollable behaviour. It has been said that diminished responsibility compensates for the lack of an “insanity defence that can be used”.¹³⁹ These inadequacies have not yet been remedied. In the absence of reform of the defence of mental illness it is premature to abolish diminished responsibility.

Should the defence of diminished responsibility be amended?

4.78 It has been argued that there is little point in amending the defence of diminished responsibility because, although there are clearly problems with the defence, any change would raise a further set of interpretational difficulties. This is because the basic problem with the defence is the inherent difficulty of the concepts and the fact that they represent an uneasy mixture of law and psychiatry.

4.79 It is also argued that while the concepts involved in the defence may be complicated and problematic for lawyers and psychiatrists, there is no indication that juries find them difficult to apply in practice. In essence the jury is asked to answer the common-sense question “was the state of mind of this person at the time of the offence so disturbed that we believe he or she was not fully culpable”. Thus the defence of diminished responsibility allows jury members to make value judgments giving expression to their personal sense of the proper boundary between murder and manslaughter. The jury can do this, to a large extent, not in spite of, but because of the uncertainties inherent in the defence itself.¹⁴⁰

4.80 These arguments are not persuasive. It is quite clear that, if the defence is to be retained, some or all of the suggestions for reform presented in Option Three should be adopted.

4.81 There is no need to rehearse the difficulties with the current drafting of s 23A. The deficiencies with the section and with the nature of expert evidence are discussed at paras 4.9 - 4.35 above. The proposed reformulations of the defence in Option Three reconsider the need for the concept “mental responsibility” (suggestions 1A and 1B), redefine “abnormality of mind (suggestion 1A) and consider the need for an exhaustive aetiology (suggestion 1A). The onus of proof and other procedural questions (suggestions 2 and 6) also are considered, as is the attempt to reduce the power of experts to comment on the ultimate issue and to clear up other points with respect to expert evidence (suggestions 1A and 5).

4.82 It should be noted that there are problems with the redrafting in both suggestions 1A and 1B. In respect of suggestion 1A, the redrafting provides no indication of what might be a “substantial enough reason” to reduce the conviction to manslaughter. It essentially leaves the jury to mark out for itself the boundary between murder and manslaughter with very little guidance as to how it is to do this.¹⁴¹ It also requires “mental abnormality” to be redefined, a complicated process. The definition could not be limited to mental illness, but there is little agreement between psychiatrists on what conditions it might include. In particular, cases of personality disorders are highly contentious. Finally, the redrafting removes the need to find a cause for the abnormality of mind. This may well open a “Pandora’s box” with causes such as intoxication, jealous rages or extreme religious or political views included within the diminished responsibility defence.

4.83 In respect of suggestion 1B, it is noted that caution is required in simply copying a Code provision. For one thing, the insanity defence in Queensland is different from the common law and the specified categories in s 304A mirror that defence. Queensland courts therefore have experience in working with the three specified capacities in the context of the insanity defence. Secondly, Queensland procedure is significantly different from that in New South Wales and the Code provision may not function well under our procedure.

1. Mental Health (Criminal Procedure) Act 1990 (NSW) s 38. The defence of mental illness was formerly known as the “insanity defence”. Section 38 does not amend the common law insanity rules, however.

2. D Fraser “Still Crazy After All These Years: A Critique of Diminished Responsibility” in Yeo (ed) Partial Excuses to Murder (The Federation Press, 1991) at 115.

3. (1867) 5 Irvine 466.

4. N Walker Crime and Insanity in England vol 1 (Edinburgh University Press, 1968) ch 8.

5. See Sir George MacKenzie The Laws and Customs of Scotland in Matters Criminal (1674). MacKenzie was a contemporary of Hale who firmly rejected such partial insanity.

6. Quoted in Walker at 140.

7. Dingwall (1867) 5 Irvine 466.

8. Savage (1923) JC 49.

9. Muir (1933) JC 46.

10. Walker at 144.

11. Walker at 144.

12. Sir James Fitzjames Stephen History of the Criminal Law of England (1883) at 175 quoted in Walker at 147.

13. Murder: some suggestions for the reform of the law relating to murder in England (Inns of Court Conservative and Unionist Society, 1956).

14. [1960] 2 QB 396.

15. See Spriggs [1958] 1 QB 270; Walden [1959] 1 WLR 1008.

16. See B Wootton “Diminished Responsibility; a laymans view” (1960) 76 Law Quarterly Review 224.

17. Walker at 158.

18. Following the recommendations of the Criminal Law Committee Report of the Criminal Law Committee on Proposed Amendments to the Criminal Law and Procedure (Parliamentary Papers No 54, 1973).

19. Crimes Act 1900 (NSW) s 23A(2). See below, regarding onus of proof.

20. Dunbar [1958] 1 QB 1.

21. Byrne [1960] 2 QB 396 per Lord Parker at 403, approved by the New South Wales Court of Criminal Appeal in Tumanako (unreported) Supreme Court, NSW, Court of Criminal Appeal, 7 October 1992 at 12.

22. See discussion in H Allen “At the Mercy of Her Hormones: Premenstrual Tension and the Law” (1984) m/f 19, extracted in D Brown, D Farrier, D Neal and D Weisbrot Criminal Laws (The Federation Press, 1990); R Graycar and J Morgan The Hidden Gender of Law (The Federation Press, 1990) at 409 and references there cited.

23. Dr W Barclay Oral Submission (8 July 1993); Dr R Milton Oral Submission (28 June 1993); Dr B Westmore Oral Submission (14 July 1993).

24. M Sides QC, Acting Senior Public Defender Submission (18 May 1993); Legal Aid Commission Oral Submission (8 July 1993).

25. M Tedeschi QC, Crown Prosecutor Oral Submission (21 June 1993); Dr R Milton Oral Submission (28 June 1993).

26. Purdy [1982] 2 NSWLR 964 per Glass JA and Maxwell J following Byrne (Roden J dissenting).

27. E Griew “The Future of Diminished Responsibility” [1988] Criminal Law Review 75 at 77.

28. It has been pointed out that this terminology is outdated, Professor S Hayes Oral Submission (25 June 1993).

29. Whitworth (1987) 31 A Crim R 453 (Qld CCA).

30. McGarvie (1986) 5 NSWLR 270.

31. McGarvie; Tumanako (unreported) Supreme Court, NSW, Court of Criminal Appeal, 7 October 1992.

32. Tumanako.

33. Jones (1986) 22 A Crim R 42 (NSW CCA).

34. McGarvie (1986) 5 NSWLR 270 at 272, 273; Jones (1986) 22 A Crim R 42.

35. Tandy [1989] 1 All ER 267. See discussion in Brown et al at 706 note 1.

36. Byrne (1960) 2 QB 396 per Lord Parker at 403, approved by the New South Wales Court of Criminal Appeal in Tumanako at 12.

37. Griew at 81.

38. W Barclay Diminished Responsibility: The Psychiatrist’s View (Public Defenders Seminar, 1992) at 5; M Tedeschi QC, Crown Prosecutor Oral Submission (21 June 1993); Dr R Milton Oral Submission (28 June 1993).

39. Lloyd [1967] 1 QB 175 at 178-9, see also Biess [1967] Qd R 470 at 475.

40. Textbook of Criminal Law (2nd ed, Stevens & Sons, 1983) at 686.

41. M Ierace Oral Submission (2 July 1993).

42. See Dix (1981) 74 Cr App R 306; Tumanako.

43. See Byrne [1960] 2 QB 396; Purdy [1982] 2 NSWLR 964; Tumanako.

44. S Hayes “Diminished Responsibility - The Expert Witness’ Viewpoint” in Yeo (ed) at 150.

45. S Morse “Undiminished Confusion in Diminished Capacity” (1984) 75 Journal of Criminal Law and Criminology 1 at 51-55. Dr R Milton Oral Submission (28 June 1993) thought that in most cases this would be feasible.

46. Professor S Hayes Oral Submission (25 June 1993).

47. See Ayoub [1984] 2 NSWLR 511.

48. Morse at 53.

49. See J Nader QC Report to the Attorney General Concerning Complex Criminal Trials (3 June 1993) for a consideration of these techniques.

50. S Dell “Diminished Responsibility Reconsidered” (1982) Criminal Law Review 809. The study considered the period 1976-1977.

51. Professor S Hayes Oral Submission (25 June 1993).

52. See Tonkin and Montgomery [1975] Qd R 1. In Chayna, each of the seven psychiatrists expressed opinions concerning the applicability of the M’Naghten Rules and the provisions of s 23A to the defendant.

53. Barclay at 5; Dr R Milton Oral Submission (28 June 1993).

54. Dell (1982) at 818.

55. M Ierace Oral Submission (2 July 1993).

56. S Norrish QC Oral Submission (30 June 1993).

57. Dr R Milton Oral Submission (28 June 1003); Dr B Westmore Oral Submission (14 July 1993).

58. Professor S Hayes Oral Submission (25 June 1993); M Tedeschi QC, Crown Prosecutor Oral Submission (21 June 1993); Dr W Barclay Oral Submission (8 July 1993); Dr J Phillips Oral Submission (8 July 1993).

59. Professor S Hayes Oral Submission (25 June 1993); Dr W Barclay Oral Submission (8 July 1993); Dr J Phillips Oral Submission (8 July 1993); Dr B Westmore Oral Submission (14 July 1993). See, with respect to training, Codes of Ethics and the relationship between the legal and psychiatric professions, I Freckleton “Current Legal Issues in Forensic Psychiatry” in H Strang and S Gerull (eds) Homicide: Patterns, Prevention and Control (Australian Institute of Criminology Conference Proceedings No 17, 1993).

60. M Ierace Oral Submission (2 July 1993). See, for example, Peisley (1990) 54 A Crim R 42 at 52 (NSW CCA).

61. Mulligan (unreported) Supreme Court, NSW, Court of Criminal Appeal, 7 June 1985.

62. R Blanch QC, Director of Public Prosecutions Submission (12 May 1993).

63. Legal Aid Commission Oral Submission (8 July 1993).

64. M Ierace Oral Submission (2 July 1993).

65. The Rules were established in M’Naghten’s Case [1843] 10 Cl & Fin 200; 8 ER 718.

66. Mental Health (Criminal Procedure) Act 1990 (NSW) s 37.

67. See Sodeman (1936) 55 CLR 230; AG (SA) v Brown [1960] AC 432. See the discussion in Brown et al at 684.

68. [1984] 2 NSWLR 511.

69. Street CJ and Slattery J.

70. Data obtained from B Boerma, Registrar of Mental Health Review Tribunal (21 July 1993). In this period there were 24 acquittals overall.

71. Note, however, the rule (albeit much mitigated by recent cases) that a murderer or manslaughterer cannot claim a share in the estate of the victim although a killer acquitted on the grounds of insanity can.

72. S Dell Murder into Manslaughter: The Diminished Responsibility Defence in Practice (Oxford University Press, 1984) at 53.

73. Dell (1984) at 53.

74. Cox (1968) 52 Cr App R 130.

75. Dell (1984) at 25-6; F Rinaldi “Case and Comment: Purdy” (1983) 7 Criminal Law Journal 218 at 219. But note that in some cases, despite unanimous medical opinion, the trial judge has refused to accept a guilty plea. This occurred in the trial of Peter Sutcliffe (the so-called “Yorkshire Ripper”), see Williams at 689-90.

76. S Norrish QC Oral Submission (30 June 1993).

77. R Blanch QC, Director of Public Prosecutions Submission (12 May 1993).

78. Chayna (unreported) Supreme Court, NSW, Court of Criminal Appeal, 15 February 1993.

79. S Norrish QC Oral Submission (30 June 1993).

80. M Ierace Oral Submission (2 July 1993); Legal Aid Commission Oral Submission (8 July 1993).

81. See Criminal Procedure Act 1986 (NSW) Pt 9. This Part was inserted in 1990 and came into operation on 17 March 1991 (Gazette No 37 of 1 March 1991).

82. Information from W Soden, Chief Executive Officer and Registrar of the Supreme Court of NSW (29 June 1993).

83. (unreported) Supreme Court, NSW, 16 July 1992.

84. See, for example, Veen (No 1) (1979) 143 CLR 458; Veen (No 2) (1988) 164 CLR 465; Evers (unreported) Supreme Court, NSW, 25 February 1992, noted at (1992) 16 Criminal Law Journal 135.

85. Veen (No 1) (1979) 143 CLR 548; Veen (No 2) (1988) 164 CLR 465. For a discussion of these cases, see R Fox “The Killings of Bobby Veen: The High Court on Proportion in Sentencing” (1988) 12 Criminal Law Journal 339; D Wood “The Abolition of the Mandatory Life Imprisonment for Murder: Some Jurisprudential Issues” in H Strang and S Gerull (eds) Homicide: Patterns, Prevention and Control (Australian Institute of Criminology Conference Proceedings No 17, 1993). See also Falconetti (unreported) Supreme Court, NSW, Court of Criminal Appeal, 24 March 1992.

86. Editorial (1992) 16 Criminal Law Journal 135 at 137.

87. Scognamiglio (1992) 56 A Crim R 91 (NSW CCA). This is particularly so in respect of offenders with an intellectual disability.

88. Falconetti (unreported) Supreme Court, NSW, Court of Criminal Appeal, 24 March 1992.

89. Judgment of Mathews J at first instance, quoted in judgment of Court of Criminal Appeal at 4.

90. See Rolph [1962] Qd R 262, per Hanger J at 290; Veen (No 1) (1979) 143 CLR 458, per Stephen J at 465-6.

91. Low (1991) 57 A Crim R 8 at 16 (NSW CCA); see also Martin (1981) 2 NSWLR 640 at 643.

92. Section 14 of the ACT Crimes Act is the same as s 23A. The ACT has a discretionary life sentence for murder: Crimes Act s 12(2).

93. Section 37 of the Northern Territory Criminal Code is essentially the same. In contrast, the Papua New Guinea Criminal Code 1974 does not contain such a provision.

94. [1962] Qd R 262.

95. But see the contention of R O’Regan in “Diminished Responsibility Under the Queensland Criminal Code” (1978) 2 Criminal Law Journal 183 at 187 that there may also be a qualitative difference.

96. (1987) 31 A Crim R 453.

97. Crimes Act 1900 (NSW) s 23A(5); Criminal Procedure (Insanity) Act 1964 (UK) s 6.

98. It appears that this is also taken to be the case under the Codes, see Carter’s Criminal Law of Queensland at 4819.

99. Mental Health Act 1974 (Qld) s 28D. This and the following sections (constituting Pt IV of the Act) were inserted in 1984.

100. Section 28B(2).

101. Section 33(1)(b). Diminished responsibility is defined according to s 304A of the Code: s 28A.

102. Section 35A(b).

103. Dr B Westmore, former Director for Psychiatric Services for Queensland Oral Submission (14 July 1993).

104. Section 43A(2)(b).

105. Dr B Westmore Oral Submission (14 July 1993).

106. See Queensland Health Department Review of the Mental Health Act: The Forensic Provisions (Discussion Paper, May 1993).

107. McGregor[1962] NZLR 1069 at 1081. See generally B Brown “Provocation in New Zealand: A Characteristic Solution” in Yeo (ed) at 85-87.

108. See W Brookbanks “Provocation - Defining the Limits of Characteristics” (1986) 10 Criminal Law Journal 411; W Brookbanks “Criminal Law” [1991] NZ Recent Law Review 385; B Brown “Provocation, ‘Characteristics’ and Diminished Responsibility” (1983) 10 New Zealand Universities Law Review 378.

109. JC Smith and B Hogan Criminal Law (Butterworths, 1992) at 215. See generally S Dell “The Detention of Diminished Responsibility Offenders” (1983) 23 British Journal of Criminology 50; Dell (1984).

110. See the cases and discussion in M Gannage “The Defence of Diminished Responsibility in Canadian Criminal Law” (1981) 19 Osgoode Hall Law Journal 301; J Walsh “The Concepts of Diminished Responsibility and Cumulative Intent: A Practical Perspective” (1991) 13 Criminal Law Quarterly 229.

111. Cooper (1980) 51 CCC (2d) 129 at 145.

112. See, generally, Morse; R Boyce and R Perkins Cases and Materials on Criminal Law and Procedure (7th ed, The Foundation Press, 1989) at 621ff.

113. State v Smith (1978) A 2d 126; see also People v Baker (1954) 268 P 2d 705.

114. People v Burton (1971) 491 P 2d 793; see also People v Henderson (1963) 386 P 2d 677.

115. Section 28 of Penal Code. This was introduced following the “twinkie defence” (impairment of mental processes from diet of junk food) raised by Dan White, tried for the murder of Harvey Milk, the gay activist and mayor of San Francisco. See Brown et al at 709 note 5.

116. See the cases and discussion in K Peng, M Cheang and C Tsee “Diminished Responsibility - the Position in Singapore” (1987) 16 Anglo-American Law Review 268.

117. House of Lords Select Committee on Murder and Life Imprisonment Report (1989).

118. M Zeegers “Diminished Responsibility - A Logical, Workable and Essential Concept” (1981) 4 International Journal of Law and Psychiatry 433.

119. Australia. Attorney-General’s Department Review of Commonwealth Criminal Law: Principles of Criminal Responsibility and Other Matters (AGPS, 1990) at paras 9.43-9.44.

120. Committee on Mentally Abnormal Offenders Report of the Committee of Mentally Abnormal Offenders (Home Office, 1975) (The Butler Report) at para 19.14.

121. Criminal Law and Penal Methods Reform Committee The Substantive Criminal Law (Fourth Report, 1977) (The Mitchell Report) at para 14.

122. Law Reform Commission of Victoria Mental Malfunction and Criminal Responsibility (Report 34, 1990) recommendation 26 at para 148.

123. Criminal Law Revision Committee Offences Against the Person (Report 14, 1980).

124. House of Lords Select Committee on Murder and Life Imprisonment Report (1989) at para 83.

125. As reported in Select Committee Report at para 82.

126. Victorian Law Reform Commissioner Provocation and Diminished Responsibility as Defences to Murder (Report 12, 1982).

127. This is the formulation of the Law Commission of England and Wales A Criminal Code for England and Wales (Report 177, 1989) in cl 58 which essentially implemented the recommendations of the CLRC Report 14. The CLRC recommendation referred to “mental disorder” as defined in the Mental Health Act. The CLRC had based their recommendation on a reformulation in the Butler Report to similar effect. Unlike the Butler Committee, the CLRC’s recommendations were made even if the mandatory penalty were to be removed. The VLRC Report 12 at para 2.55 accepted the CLRC’s reformulation.

128. The Queensland Criminal Code Review Committee Final Report (1992) at 95 has recommended the retention of the present Queensland diminished responsibility provision. Note that Queensland has a mandatory life penalty for murder. The Western Australian Law Reform Commission in The Criminal Process and Persons Suffering From Mental Illness (Project 69, Report 1991) at para 2.54 has recommended the introduction of the defence in its Queensland form should the mandatory life sentence for murder be retained,

129. Butler Report at para 19.18; CLRC Report 14 at para 94; VLRC Report 12 at para 2.67.

130. Butler Report at para 19.19; CLRC Report 14 at paras 95, 96; VLRC Report 12 at para 2.72.

131. CLRC Report 14 at para 98; VLRC Report 12 at para 2.76

132. See arguments for a general defence in R Meakin “Diminished Responsibility: Some Arguments for a General Defence” (1988) 52 Journal of Criminal Law 406; Law Reform Commission of Victoria Mental Malfunction and Criminal Responsibility (Discussion Paper 14, 1988) at paras 171-177.

133. England and Wales Law Commission Codification of Criminal Law (Report 143, 1985) cl 57(2). This suggestion was thought unnecessary in Report 177 on the ground that it may divide jurors and is adequately dealt with by present practice of judges directing the jury that they should state the ground in order to assist sentencing.

134. Butler Report at para 19.21. The CLRC did not think this was necessary, Report 14 at para 97. The Commission has received a number of submission indicating that reform in this area is desirable: R Blanch QC, Director of Public Prosecutions Submission (12 May 1993); Dr R Milton Oral Submission (28 June 1993).

135. VLRC Report 12 at para 2.21.

136. Criminal Law Committee Report of the Criminal Law Committee on Proposed Amendments to the Criminal Law and Procedure (Parliamentary Papers No 54, 1973) at 6.

137. B Fisse Howard’s Criminal Law (5th ed, Law Book Company, 1990) at 112.

138. S Glueke Law and Psychiatry (1963) at 23 quoted in Hayes in Yeo (ed) at 154.

139. S Dell “Wanted: An Insanity Defence that Can be Used” [1983] Criminal Law Review 431.

140. This point is made by Griew who argues that, paradoxically, the expansion of the defence has been facilitated by the “nonsensical quality of the statutory language”.

141. Griew at 86.