Defences involving State of mind

Question 1

s23 of the crimes act 1961

Answer 1

insanity
s23:
1) everyone is presumed sane at the time of doing or omitting any act until the contrary is proved

2) no person shall be convicted of any done or omitted by him when labouring under natural imbecility or disease of the mind to such an extent as to render him incapable:

a) of understanding the nature and quality of the act or omission; or
b) of knowing that the act or omission was morally wrong having regard to the commonly accepted standards of right and wrong

3) insanity before or after the time when he did or omitted the act and insane delusions, may be partial evidence that he was in such condition at the time of doing or omitting the act

Question 2

who raises the issue of insanity

Answer 2

R v Green held that the issue of insanity is a matter for the defence to raise and the prosecution is prohibited from adducing evidence of insanity even if the accused has sought acquittal because of some state of mind

Question 3

what does s34 of the criminal procedure act 2003 allow a judge to do

Answer 3

allows a judge to still commit a person to a hospital or secure facility or, instead of passing sentence, order that the offender be treated as a patient under the mental health act 1992 or be cared for as a patient under the intellectual disability act 2003

before making these orders the court must be satisfied that the offenders mental impairment requires compulsory treatment or care either in the offenders interests or for public safety

Question 4

what must a judge do when there is strong evidence of insanity and the defendant has not plead insanity

Answer 4

the judge must direct the jury’s attention to the defence of insanity as set out in s23 of the crimes act 1961

judge must direct the jury that if an acquittal is decided upon, they must be specific as to whether the acquittal is based on the defendants innocence or on their insanity

Question 5

if the defence cannot prove insanity but the jury thinks it is more than likely that the defendant is insane what is the correct finding

Answer 5

the defendant is entitled to an acquittal on the grounds of insanity

the defendant is not required to prove insanity beyond a reasonable doubt, but to the satisfaction of the jury on the balance of probabilities

Question 6

the McNaghten rules are used to establish whether a defendant is insane, what is it based on

Answer 6

McNaghten’s test is based on the rationality of the defendant and depends on whether the person:

• suffering from a disease of the mind that they did not know
• aware of the nature and quality of their actions
• aware that their actions were wrong

Question 7

what is the definition of disease of the mind

Answer 7

a disease of the mind is a term which defies precise definition and which can comprehend mental derangement in the widest sense

r v warren held that a manic episode of bipolar affective disorder with psychotic features was a disease of the mind for purposes of s23(2)

Question 8

can a physical condition be a “disease of the mind”

Answer 8

yes, r v cottle accepted that epilepsy, although physical could amount to a disease of the mind

Question 9

can “disease of the mind” include a temporary mental disorder caused by some external factor such as a blow to the head, absorption of drugs, alcohol or hypnotism

Answer 9

no

Question 10

what are the mental faculties concerned with the “mind”

Answer 10

reason, memory and understanding

Question 11

what does s24 and 25 of the criminal procedure act 2003 allow the Court to do with a mentally impaired person

Answer 11

allows court to order a person to be detained as a special patient or special care recipient if they are found unfit to stand trial or acquitted due to insanity

Question 12

before reaching a decision to detain, release or apply alternative orders to an insane person what must the court do

Answer 12

consider all the circumstances of the case and the medical evidence of one or more health assessors concerning whether release or alternative measures are safe in the public interest

Question 13

what power does the attorney general have under s31 of CP (MIP) Act 2003

Answer 13

the AG may override other factors and direct the defendant to be held as a patient or a care patient in the case of a serious homicide due to public interest

Question 14

what is automatism

Answer 14

a state of total blackout during which a person is not conscious of their actions and not in control of them

Question 15

what are some automatism examples

Answer 15

R v Bratty:

• a spasm
• a reflex action
• a convulsion
• an act done while suffering from sleep walking or a concussion

Question 16

can you be criminally liable for an act done while in a state of automatism

Answer 16

No

Question 17

what are the two types of automatism

Answer 17

sane automatism:

the result of somnambulism (sleepwalking), a blow to the head or effects of drugs

Insane automatism:

the result of a mental disease

Both forms of automatism involve action without conscious volition

Question 18

if there is a successful plea of automatism what should the correct finding be

Answer 18

a successful plea of automatism negates intent (mens rea) as well as responsibility for the actus reus and the result is an unqualified acquittal

Question 19

what are some examples where criminal intent is to be proved or not

Answer 19

No intent required:

• driving with EBA content
• for a defence to succeed on this charge a person must prove a total absence of fault, in other words the person drove without conscious appreciation of the fact of driving or intoxication

Intent required:

• any offence that has intent as an element of the offence
• eg assault which requires intent to apply force to another person

Question 20

when can intoxication be a defence to the commission of an offence

Answer 20

• where intoxication causes a disease of the mind bringing in s23 of CA 1961 (insanity)
• if intent is required as an essential element of the offence and the drunkenness is such that the defence can plead a lack of intent to commit the offence
• where intoxication causes a state of automatism

Question 21

what is the standard of proof for intoxication to succeed as a defence

Answer 21

r v kamipeli

for intoxication to succeed as a defence all you need to establish is reasonable doubt about the defendants required state of mind at the time of the offence

Question 22

s25 - ignorance of law

Answer 22

the fact that an offender is ignorant of the law is not an excuse for any offence committed by them

Question 23

can intoxication be a defence against an offence that requires only simple or basic intent

Answer 23

Intoxication is unlikely to succeed but may be used by way of mitigation of penalty