RECOMMENDATION 2
The defence of diminished responsibility should be retained in New South Wales.

RECOMMENDATION 3
The Director of Public Prosecutions' Guidelines for consent to an accused's election for trial by judge alone should be reviewed to make it clear that the defence of diminished responsibility requires a judgment on issues raising community values, which issues should ordinarily be decided upon by a jury.

RECOMMENDATION 4
Section 23A of the Crimes Act 1900 (NSW) should be amended as follows:

(1) A person, who would otherwise be guilty of murder, is not guilty of murder if, at the time of the act or omission causing death, that person's capacity to:

(a) understand events; or

(b) judge whether that person's actions were right or wrong; or

(c) control himself or herself,

was so substantially impaired by an abnormality of mental functioning arising from an underlying condition as to warrant reducing murder to manslaughter.

"Underlying condition" in this subsection means a pre-existing mental or physiological condition other than of a transitory kind.

(2) Where a person is intoxicated at the time of the act or omission causing death, and the intoxication is self-induced, the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether or not the person suffered from diminished responsibility under this section.

(3) For the purpose of subsection (2), "self-induced intoxication" has the same meaning as it does in s428A (of the Crimes Act 1900).

[The current section 23A(2)-(5) remain unaltered, though renumbered].