OVERVIEW

1.1 This Report is primarily concerned with the operation of diminished responsibility as a partial defence to murder in New South Wales. It is the first of two final reports on the Commission’s inquiry into the partial defences to murder. Our second report will focus on the defence of provocation and the offence/defence of infanticide.

1.2 “Partial defence to murder” is the expression commonly used to refer to diminished responsibility, provocation, and infanticide. They are partial rather than full defences because, if they succeed, they do not result in a complete acquittal but instead reduce liability for unlawful homicide from murder to manslaughter. The offender is then sentenced for manslaughter.

THE COURSE OF THE REFERENCE

1.3 On 17 March 1993, the New South Wales Law Reform Commission received a reference from the then Attorney General, the Hon John P Hannaford, MLC, to review the partial defences to murder.¹ This reference was made following a call for reform of the defence of diminished responsibility by the Chief Justice of the Supreme Court of New South Wales, the Hon Mr Justice Murray Gleeson.²

1.4 In August 1993, the Commission issued a Discussion Paper entitled Provocation, Diminished Responsibility, and Infanticide (“DP 31”). The Discussion Paper traced the historical development of each of the partial defences, and outlined the main problems relating to their current operation. It then set out a number of options for reform of each defence, which included their abolition and, alternatively, their reformulation. As a preliminary matter, DP 31 also examined a proposal to abolish the traditional distinction between murder and manslaughter in the law of unlawful homicide. The Commission invited submissions on DP 31, particularly on the options for reform there advanced.

1.5 Work on this reference was suspended in 1995 because of requests by the Attorney General to give priority to other references. The project was revived at the beginning of this year.

1.6 It was the Commission’s original intention to issue one final report incorporating our recommendations on all three partial defences, provocation, diminished responsibility and infanticide. However, as a result of some public controversy which arose earlier this year concerning the defence of diminished responsibility, we were requested by the Attorney General, the Hon Jeff Shaw QC, to expedite the release of our final recommendations on that defence. Given this request, we are issuing a separate report on the defence of diminished responsibility.

1.7 The Commission received a total of 28 submissions on DP 31, a list of which appears as Appendix A to this Report. In addition, we have consulted various groups specifically in relation to our proposals regarding the defence of diminished responsibility. These consultations, listed in Appendix B to this Report, provided particular assistance in arriving at a reformulation of the defence of diminished responsibility.

OUTLINE OF THIS REPORT

1.8 This Report begins with a general overview of the law of unlawful homicide in New South Wales. As part of this discussion, we address the threshold question of whether or not the distinction between murder and manslaughter in unlawful homicide should be retained, and conclude that it should be. Chapter three of the Report deals with the defence of diminished responsibility. In that chapter, the Commission discusses the criticisms made of the defence and recommends its retention, subject to reformulation.

FOOTNOTES

1. The terms of reference are set out on page vi.

2. See R v Chayna (1993) 66 A Crim R 178 at 189, 191. See further at paras 3.30-3.32.