Week 6
Insanity
s26 and s27 Code
Falconer
Mary Falconer convicted of wilful murder of her husband
in the Supreme Court of WA
Evidence from two psychiatrists called to establish noninsane automatism excluded
Appeal to CCA allowed and retrial ordered
Special leave to High Ct sought against the Court order
quashing conviction and ordering a new trial
Leave granted, appeal dismissed and order of CCA
affirmed.
Falconer
 Appealed
to High Ct :
• wh the involuntary acts performed in a state of
dissociation resulting from emotional tension
are excused by virtue of the operation of s23
• also examining the relationship between s23,
s26, and s27
• and the application to the Code of the common
law decisions dealing with automatism and
insanity
M’Naghten Rules
‘the accused must prove that they were labouring under such
a defect of reason, from disease of the mind,
1. As not to know the nature and quality of the act [they] were
doing
2. Or if they did know it,
3. That [they] did not know [what they] were doing was
wrong.’
s26 Presumption
Every person is presumed to be of sound
mind, and to have been of sound mind
[ie criminally responsible]
at any time which comes in question, until
the contrary is proved.
S27 Insanity
not criminally responsible …. the act or making
the omission … mental disease or natural mental
infirmity ... deprive the person of capacity
to understand what the person is doing, or ….
to control their actions or
know that they ought not to do what they are
doing
S23
S27
Evidence raised by
accused; Onus of
proving guilt rest s
wit h t he Crown and
must be discharged
beyond reasonable
doubt
Onus of proof rest s
wit h part y raising it
and t hey must
discharge it on t he
balance of
probabilit ies
Successful
argument based on
s23 result s in
absolut e acquit t al
Successful argument
based on s27
result s in qualified
acquit t al under
s6 47
 Duty of judge where evidence of insanity
raised
 As to the evidence required for s27
 As to when the issue of insanity may be
raised - Code s613, s645 and acquittal under
s647
 Proceedings under the Mental Health Acts
 S613 want of understanding of the accused
person - before trial and relates to fitness to
stand trial
 s645 accused person insane during trial where fitness questioned once the trial has
commenced
S27 Elements
 The accused must be in such a state of
mental disease or natural mental infirmity
 so as to deprive the accused of
 the capacity to:
• understand what they are doing or
• control their actions or
• know that they ought not do what they are
doing.
M’Naghten Rules
Code S27
Speaks only of a
Uses the term ‘mental
‘defect of reason
disease’ or ‘natural
from a disease of the mental infirmity’
mind’
person guilty to the
‘Ability to control
same extent as if the
actions’ not there
real state of things
had been such as his
A person suffering
or her delusions
from delusions had
suggested
no defence at
common law
What is a disease of the mind?
Foy’s Case: Philp,J
Wide definition - includes 244 ‘any disorder or
derangement of the understanding - any destruction
of the will’ or
‘an abnormal mental state, no matter how caused or
how transient’
See also Bratty v Attorney-General (Northern
Ireland) [1963] AC 386
Lord Denning ‘any mental disorder which has
manifested itself in violence and is prone to recur
is a disease of the mind.’
Radford v The Queen
 Current (internal/external) test for ‘disease
of the mind’
 Radford arguing s23 act independent of will
 trial judge refused to leave this issue to the
jury
 Radford not arguing insanity
 Appeal allowed
 There must be underlying pathological
infirmity of the mind
 with expert medical evidence being
essential
 whether sufficient evidence amounting to
insanity is a question of law for the judge
Mental illnesses and states of
mind classified under s27
 Reactive depression
 schizophrenia
 epilepsy
 hyperglycaemia
 arteriosclerosis
 delirium tremens
Natural Mental Infirmity?
 R v Rolph [1962] Qd R 262
 Congenital defects including arrested or
retarded development
Emphasis on deprivation of one
of the three capacities
 To understand what they are doing
 To know they ought not do what they are
doing
 Note the difference between these
capacities of understanding and knowing
and the remaining capacity
 The deprivation of the capacity to control
their actions
 Need to show that the accused was suffering
from the condition, and thus totally deprived
of one of the capacities because of the
condition
R v Porter Dixon J 188
 If the mental disorder existed then it must
have prevented him from
• knowing the physical nature of the act - so little
capacity for understanding [the killing] that it is
no more than ‘breaking a twig’ or
• of knowing what he was doing was wrong, that
is ‘wrong according to the everyday standards of
reasonable people’
In regard to knowing right from
wrong - Michaux
 Medical evidence that schizoid and with
severe state of personality disorder
 Also outward actions
 Connolly,J 162 ‘the jury was entitled to
weigh the expert testimony in the light of
the whole of the circumstances’
Is evidence of insanity relevant
to issue of intent?
 Where evidence of insanity insufficient for
the defence itself, is the evidence still
relevant to intent?
 Hawkins v The Queen 1994
 Applied in Qld in R v Wilson [1998] 2 Qd R
599