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7. [s27] Insanity

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Queensland University of Technology

Insanity: s27 = an underlying mental infirmity which deprives a person of one of the three capacities: Falconer Onus—Defence—On accused BOP | R to negative BRD: Armanasco; s26 • On the defence if relying on the defence: Falconer • On the crown where they raise the defence: Re Walton Effect—Qualified Acquittal under s647 (jury must say so and person must be kept in strict custody in such a manner as the court thinks fit until dealt with under the Mental Health Act 2000) Procedure • Question of law for the judge o Judge should leave to jury in appropriate cases—must give leave as possible verdict even if defence doesn’t raise: R v Schafferius per Thomas J • May be raised o by the prosecution or by the accused o by the court itself o at any point during or after trial: s613 & s645 Other bodies (Mental Health Act 2000) • Court has discretion to order plea of not guilty & refer to tribunal if some mental illness apparent: Enright (serious assault—hit someone on head with iron bar | Vietnam veteran | psychiatric evidence that mentally ill & no medication for some time—convicted & sentenced to 3 yrs  should have ordered plea of not guilty & referred to tribunal) o Fit for trial = can instruct counsel, plead, understand charge & withstand trial without being likely to result in serious mental consequences: Re DWB (2004) QMHC  Nature of charge  Pleading  Nature of challenge  Understand the proceedings: Prichard (speech & hearing impaired)  Substantial effect of evidence  Ability to make defence • Mental Health Court established to determine mental state: o Supreme court judge sitting alone & 2 advisory psychologists o Inquisitorial o Can be referred by DPP, AG or courts themselves • Mental Health Review Tribunal o Lawyer, psychiatrist & another person with relevant qualifications INSANITY : s27(1) Automatism Act Independent of Will (external causes) ↔ Insanity (internal causes) (1) A person is not criminally responsible for an act or omission if • at the time of doing the act or making the omission • the person is in such a state of o mental disease or o natural mental infirmity Andrew Trotter LWB239 Criminal Responsibility • as to deprive the person o of capacity to understand what the person is doing, or o of capacity to control the person’s actions, or o of capacity to know that the person ought not to do the act or make the omission. 1. State of mental disease or natural mental infirmity at the time crime committed … at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity … • Whether a condition is a mental illness = Q of law: Falconer • Whether suffering from the condition at the relevant time = Q of fact: Falconer Not recognised • antisocial personality disorder: Hodges v R • disorder of the mind caused by intoxication/stupefaction: Bromage • Gulf war syndrome: Radford • Transient & associated with external factor & not prone to reoccur → not a mental disease: Falconer (objective test—may be non-insane automatism where ordinary person in the position of the defendant would have entered a state of dissociation) Natural Mental Infirmity • Includes retarded development: R v Rolph (1962) (murder of gf’s father—had polio | encephalitis as a child—illiterate | lacked basic numeracy | didn’t know Christmas was in December  natural mental infirmity) Disease of the mind = underlying mental infirmity | diagnosable mental condition • Definitions  Broad view—an underlying internal pathological infirmity long or short duration, permanent or temporary, which can properly be termed mental illness: R v Radford; Falconer  narrow view—any mental disorder which has manifested itself in violence and is prone to recur: Foy’s Case (1960); Bratty v Attorney-General (Northern Ireland) (1963) per Lord Denning rejected in Falconer (to include epilepsy etc) • Ordinary person test—if accused’s mind has less strength than the ordinary person to resist psychological trauma, the mind is infirm ↔ if it is higher, then it is sane: Radford (1985) (Vietnam veteran—wife at home involved in lesbian relationship—tried to kidnap wife—friend came to defence—shot friend 7 times  Appeal allowed—where evidence of both ss 27 & 23(1)(a) jury should be directed) • Includes any disorder or derangement of understanding | destruction of will: Foy’s Case (1960) (murdered wife with axe—alcoholic paranoia | history of epilepsy  disease of the mind || outlined old test—any disorder or derangement of understanding, any destruction of the will—abnormal mental state, no matter how caused or transient) • Irrelevant— o how caused: Foy’s Case o long or short duration, even if transient: Radford v The Queen; Foy’s Case • Recognised— o reactive depression: Milloy (reactive depression—carried out robbery—delusional and saw himself as part of an army  evidence raised schizophrenia || but only slight impairment so diminished responsibility under s304A) o schizophrenia: Bratty o epilepsy: Music (applying Foy) o hyperglycaemia (high blood sugar due to disease): Hennessy Andrew Trotter LWB239 Criminal Responsibility  ↔ hypoglycaemia = external → act independent of will o arteriosclerosis: Kemp (arteriosclerosis = hardening of the artery—struck wife with hammer  insanity) o mental diso
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