Insanity Defence

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The insanity defence allows a defendant who was seriously mentally impaired at the time of committing an offence to escape a conviction. The rules governing the insanity defence are as follows:

  • It can only be used in the higher courts.
  • It can be raised by both the defence and the prosecution.
  • The standard of proof required is on the balance of probabilities: Ayoub.[1] The test for insanity defence is as follows:
    • A jury has to ask whether, at the time of committing the act (: M'Naghten's Case):
    1. The accused was labouring under a defect of reason due to a disease of the mind;
      • Disease of the mind means any mental disorder that ‘manifests itself in violence and is prone to recur’ (eg, schizophrenia): Bratty v AG (Northern Ireland).[2]
      • External influences (such as intoxication etc) do not count: R v Quick.[3]
      • Requires a disorder, merely a high emotional state of the 'normal' man does not count: Porter.
    2. That due to this disease of the mind, the accused either:
      1. Did not know the nature and quality of their act; OR
        • Narrow test, the accused did not understand what they were doing, and what the implications would be (ie, ending a life): Porter.
      2. Did not know what they were doing was wrong.
        • Broader test, the accused knew what they were doing but was not capable of reasoning that his act is wrong is the normal standards of everyday life: Porter.

If the insanity defence is successfully proven, the court issues a 'special verdict' of 'not guilty by reason of mental illness' : s38 of Mental Health (Forensic Procedures) Act 1990 (NSW).

  • Punishment is decided according to s39:
    1. The person is detained in a manner which the court sees fit (usually in a fitting institution) until the court chooses to release the person.
    2. 'The person should only be released after the court is satisfied (on the balance of probabilities) that the safety of the person or the public will not be seriously endangered by the person’s release.

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 515-532.

Introduction

For indictable offences heard in the higher court, a defendant can plead the insanity defence. In basic terms, the defendant claims that he was so mentally impaired at the time of the incident that he did not understand what he was doing and therefore should not be held accountable for it.

Research

[4] According to research, mental disorders play an integral role in crime.

  • In 2006, about 80% of the prison population was diagnosed as suffering from a psychiatric disorder (general population 30%).
  • 12% of the prison population was diagnosed with an intellectual disability, which is four times the rate of the general population.

The M’Naghten Rules

[5] Part 4 of the Mental Health (Forensic Provisions) Act 1990 (NSW) provides for the defence of mental illness. However, the actual definition of the defence and how its practical application is still to be found in M'Naghten's Case, the leading common law authority from the 18th century:

  • A jury has to ask whether, at the time of committing the act:
  1. The accused was labouring under a defect of reason due to a disease of the mind; and
  2. That due to this disease of the mind, the accused either:
    1. Did not know the nature and quality of their act; OR
    2. Did not know what they were doing was wrong.

Additions to the M'Naghten Rules

[6] The common law has since elaborated on the principles set down in M'Naghthen.

A few helpful explanations were given in Porter:

  • A 'disease of the mind' is defined as much more than mere excitability, stupidness, passion, lack of self control etc. Those are the actions of the normal man, and a 'disease of the mind' requires a real disorder.
  • 'Did not know the nature and quality of their act' means that the accused did not understand what they were doing, and what the implications would be (ie, ending a life).
  • 'Did not know what they were doing was wrong' means that the accused was not capable of reasoning that his act is wrong is the normal standards of everyday life.

Other attempted explanations of 'disease of the mind' include:

  • Any mental disorder that ‘manifests itself in violence and is prone to recur’ (eg, schizophrenia).[7]
  • Anything of a transitory nature caused by some external influence such as violence, drugs, alcohol, etc, does not count.[8]
  • 'Irresistible impulses' do not count as a disease of the mind.[9] However, they could be covered by the substantial impairment defence.

Procedures Involved

[10] There are a number of procedures involved in how to plead the insanity defence and what happens if it is successfully proven. Below is a step-by-step guide:

  • Pleading the insanity defence:
    • Both the defence and the prosecution are entitled to plead the insanity defence.
    • Whichever party raises the defence has the burden of proving on the balance of probabilities.[11]
    • Proving the defence is done according to the common law principles covered above.
  • Effect of the insanity defence:
    • If the insanity defence is successfully proven, the court issues a 'special verdict' of 'not guilty by reason of mental illness'.[12]
    • The Court then decides the punishment of the person according to s39, which basically states:
      1. The person is detained in a manner which the court sees fit (usually in a fitting institution) until the court chooses to release the person.
      2. 'The person should only be released after the court is satisfied (on the balance of probabilities) that the safety of the person or the public will not be seriously endangered by the person’s release.
      • Note: use of the insanity defence therefore has the potential for indefinite detainment, which often deters people from using it.

Reform Proposals

[13] There have been calls to reform the defence of insanity in both England and Australia. The trend in both recommendations was to replace the first limb of the M'Naghten test with a requirement that the defendant was suffering a mental illness (or 'impairment' - so as to encompass people who suffer from an intellectual disability) which would be defined by statute. This would include both intellectual disabilities as well as severe personality physiological disorders.

  • The proposal was never implemented in England.
  • In Australia, the defence of 'mental impairment' was enacted in the Criminal Code (Part 7.3).
  • Victoria, SA and ACT have all enacted similar, but not identical, provisions to those of the criminal code.

The NSW law reform committee made its own suggestions in 1996:

  • Renaming the defence to the defence of mental impairment (to be more inclusive), but not go as far the Criminal Code provisions.
  • Accommodate for serious personality disorders, such as irresistible impulses, considering it is often the relevant mental illness in cases involving psychopaths.

Fitness to Plead

[14] An accused raising the insanity defence is different from a situation where an accused is deemed unfit to plead because of insanity. The latter refers to the principle that an accused can only be put on trial if he is actually mentally fit to participate in it.

In Presser,[15] the Court stated that in order to be fit for trial, an accused must be able to:

  • Understand what he is charged with;
  • Plead to the charge & exercise his right of challenge;
  • Understand the general nature & follow the course of the proceedings;
  • Understand the substantial effect of the evidence against him;
  • Communicate with the court or counsel for the purposes of conducting a defence;
  • Must have a sufficient capacity to be able to decide what defence to rely upon (if any), and make his version of the facts known to the court and counsel.

These criteria were reaffirmed in Rivkin,[16] which also added:

  • All an accused has to satisfy the minimum standard in Presser requirements.
  • The fact that the accused could have done those actions better at a different time has no relevance.

Procedure in the Higher Court

The principles concerning fitness to plead in the District and Supreme Courts is laid out in Part 2 of the Mental Health (Forensic Procedures) Act 1990 (NSW):

  • Unfitness to plead may be raised by either party.[17]
  • Must be proven on the balance of proba­bilities.[18]
  • The issue should be raised well before trial, but can be raised at any stage in the proceedings.[19]
    • If the issue is raised before arraignment, the Attorney-General must decide whether an inquiry should be held to determine the question of unfitness.[20]
    • If the matter is raised after proceedings have commenced, the Court must hear submissions (in the absence of the jury) requesting the conduct of such an inquiry.[21]
  • Unless the Court believes that, in the circumstances, it is inappropriate to punish the person, or the question has not been raised in good faith, the Court must hold an inquiry into the person's fitness to be tried.[22]
  • The question of fitness is a matter for a judge alone.[23]
  • The process of the inquiry is set out in s 12 of the Mental Health (Forensic Procedures) Act 1990 (NSW).
    • If the person is found to be fit, the trial commences.[24]
    • If the person is found to be unfit, he is referred to the Mental Health Review Tribunal.[25] The tribunal decides whether he will be fit to stand trail within the next 12 months. [26]
      • If yes, the Court may either grant bail, detain the person in a hospital facility, or detain the person in another facility.[27]
      • If not, the Court notifies the DPP,[28] who decides whether to drop the case or not.
        • If the DPP decides the case should go on, a 'special hearing' is held.[29]
        • A verdict from the special hearing cannot be appealed.

Procedure in the Lower Courts

[30] Because of the massive amount of people coming in to the local courts, the procedure for the issue of 'fitness to plead' is done differently. The defendant must be established as developmentally disabled, which means suffering from a mental condition or mentally ill within the meaning of the Mental Health (Forensic Procedures) Act 1990.

  • Such people are governed by s 32 (people suffering from a mental condition/developmentally disabled) and s 33 (people suffering from a mental illness), which allow the judge to make a wide variety of orders, including dismissing charges or placing the person under another's care.
  • The provisions give the magistrate a wide discretion, which he exercises whilst keeping in mind the interests of the person and the community.[31]
  • These provisions allow people suffering from such disorders to be diverted away from the criminal justice system, which is arguably really good, because a massive amount of offenders suffer from these disorders.

Forensic Patients

[32] Forensic patients are held within health institutions until they are approved for release by the Mental Health Review Tribunal. The term 'forensic patients' refers to:

  1. Persons found not guilty by reason of mental illness.
  2. Persons found unfit to plead.
  • There used to be a third category of 'transferees' - people who became mentally ill whilst in prison and were transferred to a health institution. There is now a formal distinction between those people (now termed 'correctional patients') and forensic patients.

The Mental Health Tribunal initially reviews those patients who were found not guilty by reason of the mental illness defence. Thereafter, they are reviewed every six months by the tribunal.

Civil Proceedings for Involuntary Committal

[33] People suffering from a mental illness can be committed involuntarily to health institutions. Note that this is a part of civil law, as opposed to criminal law.


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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. [1984] 2 NSWLR 511.
  2. [1963] AC 386 at 412.
  3. (1973) QB 910.
  4. Gotsis and Donnelly, Diverting mentally disordered offenders in the NSW Local Court, Judicial Commission of New South Wales (2008) in Textbook, p. 515.
  5. Textbook, pp. 515-6.
  6. Textbook, pp. 517-20.
  7. Bratty v AG (Northern Ireland) [1963] AC 386 at 412.
  8. R v Quick (1973) QB 910.
  9. Sodeman v the King (1936) CLR 192.
  10. Textbook, pp. 522-3.
  11. Ayoub [1984] 2 NSWLR 511; Falconer (1990) 171 CLR 30, 63.
  12. Mental Health (Forensic Procedures) Act 1990 (NSW), s38.
  13. Textbook, pp. 520-1.
  14. Textbook, pp. 5235.
  15. (1994) 181 CLR 230.
  16. [2004] NSWCCA 7.
  17. Mental Health (Forensic Procedures) Act 1990 (NSW), s 5.
  18. Mental Health (Forensic Procedures) Act 1990 (NSW), s 6.
  19. Mental Health (Forensic Procedures) Act 1990 (NSW), s 7.
  20. Mental Health (Forensic Procedures) Act 1990 (NSW), s 8.
  21. Mental Health (Forensic Procedures) Act 1990 (NSW), s 9.
  22. Mental Health (Forensic Procedures) Act 1990 (NSW), s 10.
  23. Mental Health (Forensic Procedures) Act 1990 (NSW), s 11.
  24. Mental Health (Forensic Procedures) Act 1990 (NSW), s 13.
  25. Mental Health (Forensic Procedures) Act 1990 (NSW), s 14.
  26. Mental Health (Forensic Procedures) Act 1990 (NSW), s 16.
  27. Mental Health (Forensic Procedures) Act 1990 (NSW), s 17.
  28. Mental Health (Forensic Procedures) Act 1990 (NSW), s 16.
  29. Mental Health (Forensic Procedures) Act 1990 (NSW), s 19.
  30. Textbook, pp. 528-9.
  31. Confos v DPP [2004] NSWSC 1159.
  32. Textbook, pp. 525-8.
  33. Textbook, pp. 529-32.
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