Diminished Responsibility and
Intoxication
Semester 2 Week 7
2000
accused must be in such a such a STATE of
ABNORMALITY (whether arising from a condition
of arrested or retarded development of the mind
or inherent causes or induced by disease or injury)
so as to SUBSTANTIALLY IMPAIR
the CAPACITY to,
(a) UNDERSTAND what they are
DOING; or
(b) CONTROL their ACTIONs; or
(c) KNOW that they OUGHT NOT
DO what they are doing.
S27 compared to s304A
1. When do you use it?
• All offences
• Only applies where
accused charged with
murder
2. Description of relevant state of
mind arising from • Mental disease or
natural mental
infirmity
State of abnormality
(whether arising from
- a condition of arrested
or retarded
development of the
mind (=nmi)
– or inherent causes
(=nmi)
– or induced by disease
or injury)
S27 compared to s304A
• Natural mental
infirmity =
• arrested or retarded
development of mind
• disease = (however
cts have said covers
defects of the mind
caused by trauma)
• natural mental
infirmity =
• disease or injury
• inherent causes
3. In regard to the effect on their
capacities
• Requires proof that
person charged
deprived of any one of
the three categories of
capacity
• Requires proof that
any one of the three
categories has been
substantially impaired
Abnormality of the Mind
Mansfield 271
• Refers to ‘natural mental infirmity’ in s27
and says that he thinks it means the same as
‘arrested or retarded development of mind’
in s304A
Hanger 288
Referred to an earlier description by Lord Justice
Parker in Byrne [1960] 2 QB 396 ‘so different from
that of ordinary human beings that the reasonable man
would term it abnormal’
BUT ADDED
‘I do not believe that such a description would be an adequate
direction to a Queensland jury. I would think it necessary to
remind juries that normal people in the community vary greatly
in intelligence; in their capacity to reason; in the depth and
intensity of their emotions; in their excitability; and their
capacity to exercise self-restraint, etc etc the matters calling for
mention varying with the facts of the particular case; and that
until the particular quality said to amount to abnormality of
mind, goes definitely beyond the limits marked out by the
varied types of people met day by day, no abnormality exists.’
(Mansfield however had thought the Byrne 1960 test as
accepted in Rose 1961 was appropriate)
Whitworth
Hanger’s statement adopted by Thomas J 447
‘not a subterfuge for the angry, the selfish or
the vindictive’
Case stresses the needs for links so that there
is abnormality of mind arising from
prescribed causes leading to impairment of
capacity.
Thomas notes the excluded factors 462
As to meaning of ‘substantially’
Biess
485 Matthews J ref’d to English case of Lloyd
and quoted ‘substantially’ as ‘being
something between trivial or minimal and
total’.
‘Provided there is evidence (to be gathered from
the whole of the evidence and not necessarily by
considering the medical opinion alone) of such
impairment it is for the jury to say whether it is
substantial …’
(Lloyd – substantial does not mean total. …
substantial does not mean trivial or minimal ….
It is something in between’)
As to the relationship between
various sections 23,27,28,304A
Milloy issues raised on appeal in light of Falconer
ruling on s23
Holbrook
Evidence led of intoxication (alcohol,
LSD) together with other evidence of
underlying condition (thyrotoxicosis)
Possible to argue in one fact scenario
but here there was a lack of
independent evidence of condition at
the time
Intoxication
28.(1) The provisions of section 27 apply to the case
of a person whose mind is disordered by intoxication
or stupefaction caused without intention on his or
her part by drugs or intoxicating liquor or by any
other means.
(2) They do not apply to the case of a person who
has, to any extent intentionally caused himself or
herself to become intoxicated or stupefied, whether in
order to afford excuse for the commission of an
offence or not and whether his or her mind is
disordered by the intoxication alone or in
combination with some other agent.
(3) When an intention to cause a specific result is
an element of an offence, intoxication, whether
complete or partial, and whether intentional or
unintentional, may be regarded for the purpose of
ascertaining whether such an intention in fact
existed.
Definition of Intoxication
See Haggie v Meredith
Scott J
Definition of ‘stupefy’ taken from OED:‘to make stupid or
torpid; to deprive of apprehension, feeling or sensibility; to
benumb, deaden. To become stupid or torpid; to grow dull or
insensible.’
‘Intoxicate’: OED‘to stupefy, render unconscious or delirious, to
madden or deprive of the ordinary use of the senses or reason,
with a drug or an alcoholic liquor; to inebriate, make drunk.’
Kusu
‘s28 covers the whole field of liability’
BUT note
Macrossan dicta
and Griffith CJ in Corbett
and Auld
Intoxication - and crimes of
specific intent
The main issue is whether the person did in
fact form an intention NOT whether the
accused was capable of forming an intention
Crump
Dearnley