LLB180 Chapter Notes - Chapter 10.2-10.3: Blood Sugar, Promiscuity, Median Strip
WEEK 7 – DEFENCES I (MENTAL ILLNESS, AUTOMATISM/VOLUNTARINESS):
Chapter 10 – Defences:
10.1 – Thinking about Defences:
o10.1.1 – Introduction:
Defences are historically embedded in the common law
Definitions are part of the definition of an offence
Some impose a burden on the accused – mental illness and substantial
impairment
Distinguishing between offences and defences stems from Woolmington
‘The law may be said to be a compromise: it does not go so far as to put a
persuasive burden n the defendant in respect to common law defences, but is
sufficiently suspicious of them to put an evidential burden on him.’ – Granville
Williams, ‘Evidential burdens on the defence’ (1997)
If defendants cannot satisfy the evidential burden the judge does not leave the
question to the jury
10.1.1.1 – Negativing Factors:
Denial of an element of the offence
No evidential burden
Represent a failure to make out the case rather than a defence
10.1.1.2 – Defences which Deny the Elements:
Negate positive or core elements of the offence
Some defences include:
oAutomatism – denies the voluntariness of the act
oIntoxication – denies the voluntariness of both
No more than negativing factors
Defendant has an evidential burden to discharge
oIf not discharged the question is withdrawn from the jury
10.1.1.3 – Bars to Conviction:
Prevent conviction
Examples – statutory limitation periods; double jeopardy; diplomatic, consular,
judicial, parliamentary, sovereign and executive immunities; immunity granted in
exchange for cooperation
Importance of social interest or public policy involved
Occurs rarely
o10.1.2 – Justifications and Excuses:
“justifications and excuses” were thought to no longer be relevant
Recently revived by academic commentators and appellate court judges
Terms are not used consistently
o10.1.3 – A Single Category of Homicide?
Capital punishment & mandatory life sentencing for murder created the need for
parital defences
Reduce murder to manslaughter
Call for a unification to ‘unlawful homicide’
Said to result in more guilty pleas and simplify the role of the jury
NSW government expressly rejected this
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Reformed provocation
Removed mandatory life sentences
Would intrude on the role of the jury
10.2 – Mental Illness:
o10.2.1 – The Prevalence of Mental Illness in the Criminal Justice System:
NSWLRC, People with cognitive and mental health impairments in the criminal justice
system: Diversion’:
Clear evidence of over representation
Increased risk of encountering the criminal justice system, but not more likely to
offend
Heightened levels of offending for individuals with serious mental illnesses
Prison inmates are characterised as having ‘histories of disrupted family and social
backgrounds; abuse, neglect and trauma; poor educational attainment and
consequent limited employment opportunities; unstable housing; parental
incarceration; juvenile detention; dysfunctional relationships and family violence;
and previous episodes of imprisonment’
Social and cultural factors may explain imprisonment
o‘related to a number of deficits in life skills due to the lifestyle and the
environment in which they grew up, rather than having an intellectual
disability itself’
Impairments differ greatly and the age, cultural background, family situation and
other life experiences of the person can affect the extent of their impairment and
its treatment
NSWLRC, Diverting mentally disordered offenders in the NSW Local Court’:
Mental disorder affects 20% of people throughout their lifetime
2007 survey of 189 people appearing the two NSW Local Courts
55% suffered from one or more mental disorders
Prisoners have similar levels of functioning in the general community, but lower
mental health and higher levels of psychiatric stress
Prevalence of psychiatric disorder in inmates:
o74% compared to 22% (2003)
o80% compared to 31% (2006)
Prevalence of intellectual disabilities:
o12-13% in NSW
o4 times the rate of the population-wide rate
‘decentralising mental health care without providing sufficient community based
mental health care services – has led to inadequate care for many people with
mental disorders and an increase in the number of offenders with mental
disorders appearing before the court’
Higher courts:
June 1990 – September 2004: 126 raised the partial defence, 84 were successful
Distinct regimes are in place in higher courts
NSWLRC recommended definitions:
‘mental health impairment’
o‘temporary or continuing disturbance of thought, mood, volition, perception,
or memory’
o‘substance induced mental disorders’
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‘include ongoing mental health impairments such as drug induced
psychosis, but does not include substance abuse disorders’
o‘does not include a personality disorder’
‘cognitive impairment’
o‘ongoing impairment in comprehension, reason, adaptive functioning,
judgement, learning or memory that is the result of any damage to,
dysfunction, developmental delay, or deterioration of the brain or mind’
Mental health defences arise at three stages – DPP v Khoury [2014] NSWCA 15
‘First… there may be a question as to whether the person charged is fit to stand
trial. Secondly, there may be a question as to whether an accused person should
be found not guilty of the offence charged, by reason of mental illness. Thirdly,
mental illness may be a significant factor in sentencing…’
o10.2.2 – Summary Proceedings:
Mental Health (Forensic Procedure) Act 1990 Part 3 – governs the powers of
magistrates
Applies to summary offences and indictable offences being tried summarily
Section 32 – appears to the magistrate that the defendant is developmentally
disabled, suffering from mental illness or mental condition (but not mentally ill)
the magistrate may;
oAdjourn;
oGrant bail and/or make any other appropriate order;
oDismiss the charge and discharge the individual into the care of a responsible
person (with or without conditions)
Dismissal does not mean charged was proved – s 32(4)
If conditions are not complied with the individual can be brought back
into court and the matter dealt with de novo (Crimes Legislation
Amendment 2002)
Accused’s state of mind at the new trial is the basis
oJudges are required to give reasons – ss 32(4A) and 33(4A)
Provide procedure for a breach of a s 32 order
Section 33 – appears to the magistrate the defendant is mentally ill
oMagistrate may;
Adjourn the proceedings
Grant bail
Order that the defendant be detained in a mental health facility for
assessment
Order assessment and return if not found mentally ill
Discharge the defendant into the care of a responsible person with or
without conditions
Make a community treatment order
oDefendant not returned within 6 months, charge taken to be dismissed – s
33(2)
Does not mean the finding was proven – s 33(4)
Sections allow defendants to be diverted
Confos v DPP [2004] NSWSC 1159:
‘[T]he Magistrate has to perform a balancing exercise; weighing up, on one hand,
the purposes of punishment and, on the other, the public interest in diverting the
mentally disordered offender from the criminal justice system. It is ad
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Document Summary
Week 7 defences i (mental illness, automatism/voluntariness): 10. 1 thinking about defences: 10. 1. 1 introduction: Defences are historically embedded in the common law. Definitions are part of the definition of an offence. Some impose a burden on the accused mental illness and substantial impairment. Distinguishing between offences and defences stems from woolmington. If defendants cannot satisfy the evidential burden the judge does not leave the question to the jury. Denial of an element of the offence. Represent a failure to make out the case rather than a defence. Negate positive or core elements of the offence. Some defences include: automatism denies the voluntariness of the act, intoxication denies the voluntariness of both. Defendant has an evidential burden to discharge: if not discharged the question is withdrawn from the jury. Examples statutory limitation periods; double jeopardy; diplomatic, consular, judicial, parliamentary, sovereign and executive immunities; immunity granted in exchange for cooperation. Importance of social interest or public policy involved.
