LAW 2599 Lecture Notes - Lecture 11: Outpatient Commitment, Endangerment, Problem Gambling
23 May 2018
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MENTAL IMPAIRMENT
THE DEFENCE
STEP 1: accused to prove on the balance of
probabilities that he/ she had ‘mental impairment’.
Prosecution to disprove beyond reasonable doubt
STEP 2: at common law, the test for mental
impairment was first stated in R v McNaughten and
later confirmed in Au in R v Porter
• To establish a defence on the ground of
insanity, it must be clearly proved that, at the
time of committing the act, the party accused
was labouring under such a defect of reason,
from disease of the mind, as not to know the
nature and quality of the act he was doing; or
if he did know it, that he did not know what he
was doing was wrong.’
• The question of what constitutes a ‘mental
impairment’ is a legal rather than medical one:
R v Radford (1985) 42 SASR 266
o Thus medical evidence is important,
but not decisive
• mental impairment ‘is a pathological infirmity
of the mind.’ Intoxication is excluded from the
scope of a ‘mental impairment’.
• Disease of the mind’ synonymous with a
‘mental impairment’ R v Falconer
STEP 3: The common law test in McNaughten is
reflected in Part 8A CLCA, which codifies the modern
SA law on mental impairment
STEP 3.1: s 269 D establishes a presumption of
competence, providing that a person is presumed to
have mental competence to commit an offence unless
the person is found, on an investigation under this
Division, to have been mentally incompetent to
commit the offence (reflects common law presumption
in Bratty)
STEP 4: proving mental incompetence
s 269C(1) of the CLCA provides that a person is
mentally incompetent to commit an offence if, at the
time of the conduct alleged to give rise to the offence,
the person is suffering from a mental impairment and,
in consequence of the mental impairment
(a) does not know the nature and quality of the
conduct; or
• FIRST LIMB– not often found
• Accused so affected by mental disorder that
they mistake the nature of a physical act
• Examples
o R v Porter: breaking a twig thinking
you’re breaking a twig but you’ve
actually killed someone.
o throwing a baby on a fire believing
that it was a log of wood’
o cutting a person’s throat ‘believing it
is a loaf of bread that is being cut.’
LRCWA
(b) does not know that the conduct is wrong; that
is, the person could not reason about whether the
conduct, as perceived by reasonable people, is
wrong; or
• SECOND LIMB – often found
• Facts giving rise to defence: accused knew
they were killing, knew how and why they were
killing, but was unable to appreciate the
wrongness of the act
• s 269C(1)(b) essentially codifies the test as
stated in R v Porter = accused knew the nature
and quality of the act but owing to a mental
impairment, at the time of the act, did not
know that the conduct is morally wrong
o Note- s 269C(1)(b) excludes from
consideration the second part of the
test originally stated in Porter -
whether D could reason with a
moderate degree of sense and
composure
• Moral wrongness confirmed to be the test for
determining ‘wrongness’ in SA under Part 8A
in R v Stepleton; R v Cox (can be contrasted to
UK approach expressed in Hadfield, which
adopts the test of ‘legal wrongness’)
• FACT – did D know act was morally wrong?
Can have knowledge of illegality of act.
o Porter: P administered poison to the
child but by reason of his mental
impairment was disabled from
knowing the moral wrongness of the
act as would be assessed by standards
of ordinary people
o UK case of Hadfield, decided upon
legal wrongness, but had it adopted
the moral wrongness definition,
Hadfield would have been acquitted
for attempting to shoot the king
o R v Burfield accused stabbed his
mother - knew the nature and quality
of his act and sought to harm her - but
was severely psychotic and thought
his life was in danger and he did not
know his conduct was wrong.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Step 1: accused to prove on the balance of probabilities that he/ she had mental impairment". Step 3: the common law test in mcnaughten is reflected in part 8a clca, which codifies the modern. Step 3. 1: s 269 d establishes a presumption of competence, providing that a person is presumed to have mental competence to commit an offence unless the person is found, on an investigation under this. Division, to have been mentally incompetent to commit the offence (reflects common law presumption in bratty) Treats as insane certain people who under the old law would not have been treated as insane. Pathological gambling disorder amounted to a mental disease under s 269a but the impulse related to gambling and not to the linked offending. Step 5: consider s 269t matters court is to have regard to in deciding part 8a proceedings (below)
