Williams, C R --- "Development and Change in Insanity and Related Defences" [2000] MelbULawRw 28; (2000) 24(3) Melbourne University Law Review 711

Development and Change in Insanity and Related Defences

C R WILLIAMS[*]

[Developments in insanity and the related defences of automatism and substantially impaired responsibility over the course of the century are reviewed. The origin and development of automatism as a response to the restrictions of the insanity defence is explained, and the continuing relevance of the defences of automatism and substantially impaired responsibility in jurisdictions in which judges have discretion to sentence for murder is questioned. Legislative changes to the law of insanity are explained and the relationship between mental state defences and civil commitment is considered. It is suggested that more flexible approaches to the disposition of persons found not guilty by reason of insanity or mental impairment are to be welcomed, and that in the future the distinction between persons who have been found not guilty by reason of insanity and persons who have been civilly committed should be regarded as of less significance.]

INTRODUCTION

This article will seek to trace and comment on aspects of the defence of insanity and related defences in Australia during the course of the 20th century.[1] Although written from a legal perspective, it is informed by considerable familiarity with severe mental illness. I have served as a member, and for a period as Acting President, of the Mental Health Review Board of Victoria since its creation in 1987.[2] The Board carries responsibility for reviewing persons subject to civil commitment (involuntary patients) and offenders sentenced by the courts to serve their terms in mental hospitals, or transferred to mental hospitals from the prison system (security patients).

The first half of the 20th century saw substantial judicial development of the M’Naghten formulation of the insanity defence, together with the introduction of a statutory formulation of the defence in the Criminal Codes of Queensland, Western Australia and Tasmania. The major changes in the period from the mid to the latter part of the century were the development of the common law defence of automatism and the introduction of the statutory defence of diminished or substantially impaired responsibility. In the final years of the century there was significant legislative activity focusing both on the formulation of the defence of insanity and on issues of disposition. The interrelationship of these currents of development will be considered, along with the particular problem posed by severe personality disorder.[3]

II JUDICIAL DEVELOPMENT OF THE COMMON LAW

The foundations of the modern law of insanity are to be found in two 19th century English cases: the Trial of James Hatfield[4] and the Trial of Daniel M’Naghten.[5] In M’Naghten’s case Tindal CJ, in answer to questions posed for the judges by the House of Lords, stated the law as follows:

[J]urors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of 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 he was doing what was wrong.[6]

The Trial of Lunatics Act 1883 (UK) 46 & 47 Vict, c 38 provided for the indefinite confinement of persons found guilty but insane. Similar legislation providing for detention at the Governor’s pleasure was introduced in the Australian jurisdictions.[7]

Sir Owen Dixon is primarily responsible for judicial development and refinement of the defence of insanity in Australia. His judicial contribution is to be found in four decisions of the High Court: R v Porter,[8] Sodeman v The King,[9] Stapleton v The Queen[10] and A-G (SA) v Brown.[11] Sodeman v The King[12] and A-G (SA) v Brown[13] subsequently went on appeal to the Privy Council.

The first of these, R v Porter,[14] came before Dixon J presiding at a murder trial in Canberra in exercise of the High Court’s original jurisdiction. Dixon J’s direction to the jury came to be regarded as a model of clarity, frequently relied upon by trial judges.[15] The accused had killed his 11 year old son and attempted to take his own life. The accused had been emotional and exhibiting signs of nervous breakdown in the period leading up to the killing. He had been without sleep for the previous three nights, and appeared to have lost control of all of his emotions. On the meaning of ‘defect of reason, from disease of the mind’ Dixon J instructed the jury:

The next thing which I wish to emphasize is that his state of mind must have been one of disease, disorder or disturbance. Mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control, and impulsiveness, are quite different things from what I have attempted to describe as a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long standing. ... That does not mean ... that there must be some physical deterioration of the cells of the brain, some actual change in the material, physical constitution of the mind, as disease ordinarily means when you are dealing with other organs of the body where you can see and feel and appreciate structural changes in fibre, tissue and the like. You are dealing with a very different thing — with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder.[16]

The consequence of this interpretation is that the expression ‘disease of the mind’ is apt to cover all conditions clinically recognised as mental illness, including those with an organic base.[17] In an address to the Tenth Legal Convention of the Law Council of Australia, his Honour reinforced this interpretation. His Honour stated:

I have taken it [disease of the mind] to include, as well as all forms of physical or material change or deterioration, every recognizable disorder or derangement of the understanding whether or not its nature, in our present state of knowledge, is capable of explanation or determination.[18]

Dixon J’s direction in R v Porter is noteworthy also for the wide interpretation adopted of the notion of knowing that an act is wrong. This interpretation is in principle correct. In the case of the seriously mentally ill, the borderline between knowing and not knowing is anything but clear. His Honour directed the jury:

The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by ‘wrong’? What is meant by wrong is wrong having regard to the everyday standards of reasonable people.[19]

The use of the words ‘wrong having regard to the everyday standards of reasonable people’ was a precursor to the view to be taken by the High Court in resolving an ambiguity contained in the M’Naghten formulation. The word ‘wrong’ may require showing that the accused did not appreciate the wrongfulness of the conduct from a moral point of view, or it may require showing that he or she did not realise the conduct was prohibited by law. In England the Court of Appeal in R v Windle[20] adopted the latter stricter requirement. In R v Stapleton[21] the High Court considered and declined to follow the decision in R v Windle, and held that ‘wrong’ means wrong according to the reasons which govern the conduct of ordinary people. This decision is clearly sounder in principle than that of the Court of Appeal.[22]

The M’Naghten formulation focuses on cognition rather than volition. The availability of the defence in cases where the mental illness leads to an inability to control conduct, that is, cases of irresistible or uncontrollable impulse, was considered by both the High Court and the Privy Council in Sodeman v The King[23] and A-G (SA) v Brown.[24]

In Sodeman v The King the accused was convicted of the murder of a young girl. He confessed that he had killed the girl, and also that he had killed three other girls in similar circumstances. There was a history of insanity in Sodeman’s family, with both his father and grandfather dying in asylums. At his trial Sodeman raised the defence that by reason of mental illness he was subject to impulses he was unable to control. Medical evidence supported the plea of insanity. In directing the jury the judge focused on delusional insanity. The accused was convicted and his appeal dismissed by the Victorian Court of Criminal Appeal. He sought leave to appeal to the High Court, where it was argued the jury should have been told that if a mental disease from which the accused was suffering produced such a degree of madness at the time when he committed the crime that he was deprived of the capacity of controlling his actions, he was not morally responsible. Four justices heard the case. Latham CJ and Starke J held that the summing-up of the trial judge was adequate and dismissed the application. Dixon J and Evatt J favoured allowing the application. Dixon J stated: ‘[I]t is always recognized that overpowering obsession arising from mental infirmity provides strong reason for inferring the requisite lack of capacity to know that an act is wrong or to understand its nature and quality.’[25] The Court being evenly divided, leave to appeal was refused. The Privy Council also refused leave to appeal and Sodeman was hanged. It may be noted that an autopsy performed on Sodeman revealed that his brain was congested and showed an early leptomeningitis with excess cerebra-spinal fluid.[26]

In A-G (SA) v Brown[27] the accused committed a motiveless killing. The medical evidence for the accused was that he was a schizoid personality and that at the moment of killing he knew the nature and quality of his act but did not know that what he was doing was wrong. In the course of his summing-up the trial judge had directed the jury that ‘uncontrollable impulse’ was no defence in law. The accused was convicted and appealed unsuccessfully to the Full Court of the Supreme Court of South Australia. He then appealed to the High Court which quashed the conviction and ordered a retrial. In a joint judgment the Court, comprising Dixon CJ, McTiernan, Fullagar, Kitto and Taylor JJ, held that the judge was wrong to direct the jury that domination by an uncontrollable impulse was reason for rejecting the defence of insanity, and stated: ‘On the contrary it may afford strong ground for the inference that a prisoner was labouring under such a defect of reason from disease of the mind as not to know that he was doing what was wrong.’[28] On appeal by the Crown the Privy Council restored the conviction. The Privy Council held that the decision of the High Court involved an erroneous implication that the law knew and recognised uncontrollable impulse as a symptom of legal insanity within the meaning of the M’Naghten rules, and that it was the judge’s duty to instruct the jury as a matter of law, and in the absence of any medical evidence, that it might afford a strong ground for the inference that the accused was labouring under such a defect of reason from disease of the mind as not to know that what he was doing was wrong. The Privy Council accepted that uncontrollable or irresistible impulse could give rise to a defence of insanity. Their Lordships stressed, however, that for the defence to be available there must be medical evidence to support the conclusion that the irresistible impulse or defect of volition proceeds from mental illness. Such evidence had not, their Lordships held, been present in the current case. The effect of the decision is thus to render the defence of insanity manifested by uncontrollable impulse available, provided it is supported by appropriate medical evidence. Delivering the judgment of their Lordships, Lord Tucker stated:

Their Lordships must not, of course, be understood to suggest that in a case where evidence has been given (and it is difficult to imagine a case where such evidence would be other than medical evidence) that irresistible impulse is a symptom of the particular disease of the mind from which a prisoner is said to be suffering and as to its effect on his ability to know the nature and quality of his act or that his act is wrong it would not be the duty of the judge to deal with the matter in the same way as any other relevant evidence given at the trial.[29]

In Willgoss v The Queen[30] the High Court held that psychopathy does not fall within the scope of the M’Naghten formulation. Psychopathy, or severe personality disorder as it is now more commonly known, is considered in Part VII below. For present purposes, a psychopath may be defined as a person who exhibits a variety of anti-social behavioural characteristics, and whose personality is characterised by gross lack of self-control and emotional feeling and absence or gross diminution of conscience. At the trial of the accused for murder, two psychiatrists gave evidence that the accused was a gross psychopath. The accused was convicted and appealed on the ground that the trial judge did not adequately distinguish between an intellectual understanding of wrongfulness and an emotional appreciation of it. The appeal was dismissed. In a joint judgment Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ stated:

The complaint however on behalf of the prisoner is that his Honour did not direct the jury that a mere intellectual apprehension on the prisoner’s part of the wrongness of the act would not or might not amount to knowledge unless it was accompanied by some sufficient appreciation of, or feeling about, the effect of his act upon other people; perhaps some moral appreciation. The law provides no foundation for such a complaint. It is enough to say that it is an attempt to refine upon what amounts to knowledge of the wrongness of the act which is not countenanced by the law.[31]

III THE CODE JURISDICTIONS

In 1899 the Parliament of Queensland passed the Criminal Code Act. Sir Samuel Griffith, then Chief Justice of Queensland who, in 1903, became the first Chief Justice of the High Court of Australia, drafted the Queensland Criminal Code. It was based upon the draft Code prepared by the English Criminal Code commissioners in 1878–79.[32] In his ‘Introduction to the Code’ Sir Samuel wrote of the defence of insanity: ‘No part of the drafting of the Code has occasioned me more anxiety, but I may add that I regard no part of the work with more satisfaction.’[33] Section 27 of the Queensland Code Act 1899 (Qld) provides:

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 mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission.

The section dispenses with the phrase ‘the nature and quality of the act’, and avoids use of the word ‘wrong’, removing the necessity for some of the judicial refinement of the M’Naghten formulation which has taken place in the common law jurisdictions. The expression ‘natural mental infirmity’ brings mental defectiveness and intellectual retardation within the scope of the defence. The phrase ‘capacity to control the person’s actions’ brings irresistible impulse within the scope of the defence, but medical evidence of the type specified in

A-G (SA) v Brown would nonetheless be required to establish the defence.[34] No reference is made to psychopathy or personality disorder, and the common law position would accordingly prevail.

In 1902 the Western Australian Parliament adopted Griffith’s Code, including the insanity provision.[35] Provisions to a similar effect are contained in the Tasmanian and Northern Territory Codes.[36]

IV THE DEVELOPMENT OF AUTOMATISM

Automatism may broadly be defined as a state in which the mind or will of the accused does not accompany his or her bodily actions. In the New Zealand case of R v Cottle Greeson P defined automatism in the following terms:

Automatism which strictly means action without conscious volition, has been adopted in criminal law as a term to denote conduct of which the doer is not conscious — in short doing something without knowledge of it, and without memory afterwards of having done it — a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements. In such a case, the action is one which the mind in its normal functioning does not control.[37]

As a distinct defence, in English and Australian law automatism dates from the early 1950s.[38] The impetus to develop automatism or a defence akin to automatism had its origin in the combination of two pressures. The first pressure arose from the limitations of the M’Naghten formulation of insanity. Notwithstanding development and refinement of the M’Naghten rules, it remained the case that if the potentially exculpatory mental state of the accused did not proceed from a disease of the mind, the defence of insanity would not be available. The second pressure derived from an appreciation that a verdict of insanity, even if available, carried the consequence of indefinite confinement which was, in some cases, clearly not a just outcome.

The English case which clearly established automatism as a distinct defence leading to complete acquittal was R v Charlson.[39] The accused was charged with three offences of assault against his 10 year old son. For no reason the accused had struck his son twice on the head with a mallet and, when the boy attempted to ward off further blows, had picked him up and thrown him from a window. Medical evidence was given to the effect that the accused was not suffering from such a disease of the mind as to render him insane at the time of the commission of the acts; but that his actions were consistent with his having a cerebral tumour, a condition in which a person is liable to an outburst of impulsive violence, quite motiveless, and over which he or she has no control. In directing the jury the trial judge, Barry J, said that if they were satisfied that, owing to his condition, the accused did not knowingly strike his son, but was acting as an automaton without any knowledge of, or control over, his acts, it was open to them to acquit the accused. The jury returned a verdict of not guilty on all charges.

In Australia Charlson was preceded by the unreported Victorian case of R v Cogdon in 1950.[40] Mrs Cogdon, who had a record of bizarre dreams and excessive worry about her nineteen year old daughter, dreamed that the Korean War was taking place ‘all around the house’ and that a North Korean soldier was on the daughter’s bed attacking her. Mrs Cogdon fetched an axe and struck at the imaginary soldier, killing her daughter. At the trial for murder, insanity was not pleaded. The medical evidence established that Mrs Cogdon was suffering from hysteria and depression and likely to fall into states of dissociation such as fugue, amnesia, and somnambulism. Her defence was that her act was involuntary, and she was acquitted.

Both Charlson and Cogdon were tragic cases, and verdicts of outright acquittal as opposed to conviction or not guilty by reason of insanity were correct. The cases, however, raise issues as to the scope of the insanity defence. The expression ‘disease of the mind’, of course, covers mental states which proceed from an organic cause, and had the prosecution in Charlson chosen to argue that the case was one of insanity rather than automatism, it is difficult to see how that argument could have been refuted. It is now clear that where an accused raises the issue of mental state by arguing automatism, the prosecution is entitled to counter by arguing that the case is one of insanity.[41] While this had not been established at the time of Charlson, it would nonetheless seem that the desirable outcome of acquittal was a consequence of forbearance and discretion on the part of the prosecution rather than a satisfactory legal distinction. In Cogdon the case was not one of possible insanity; somnambulism or sleep walking is not a mental illness. If, however, Mrs Cogdon had been awake and acted from a delusion brought on by schizophrenia that her daughter was in reality a North Korean soldier, then the case would have been one of insanity rather than automatism. Yet it is anything but clear that there is a difference of principle between the two cases. A standard response is that the difference is likelihood of recurrence, but this line of argument is not necessarily persuasive. Somnambulism is a condition which is likely to recur, and serious forms of mental illness can in many cases be successfully controlled by medication.

Drawing the distinction between insanity and automatism has proven extremely difficult. It may well be that the task is a fruitless one, the necessity of which proceeds from a conceptual failure to define insanity sufficiently widely, traditionally coupled with an unwillingness to adopt a more flexible approach to issues of the disposition of those found not guilty by reason of insanity. The distinction turns on whether the state of unconsciousness proceeds from a disease of the mind; if it does the defence is one of insanity or insane automatism, and if it does not then automatism is available as a defence. Thus, unconsciousness as a consequence of short term trauma such as a blow to the head is automatism rather than insanity.[42] Likewise, unconsciousness as a consequence of the consumption of alcohol or other drugs is automatism.[43] Where, however, the consumption of alcohol results in delirium tremens or permanent injury to the brain, such as Korsakov’s syndrome, the unconsciousness is said to proceed from a disease of the mind and to be insanity rather than automatism.[44]

In R v Quick and Paddison[45] the two accused, who were nurses at a mental hospital, were charged with assaulting a patient. Quick, a diabetic, relied on the defence of automatism. He gave evidence that he had taken insulin as prescribed on the morning of the assault, had drunk a quantity of spirits and eaten little food thereafter and had no recollection of the assault. He called medical evidence to the effect that his condition at the material time was consistent with that of hypoglycaemia. The trial judge ruled that the evidence could only support a defence of insanity and Quick then pleaded guilty. The prosecution appealed to the Court of Appeal. The court held that ‘disease of the mind’ within the meaning of the M’Naghten rules does not include a malfunctioning of the mind of transitory effect caused by the application to the body of some external factor, such as insulin, and therefore the facts of the case did not support a defence of insanity. Delivering the judgment of the court, Lawton LJ stated:

Our task has been to decide what the law means now by the words ‘disease of the mind.’ In our judgment the fundamental concept is of a malfunctioning of the mind caused by disease. A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease.[46]

The Court quashed the convictions, holding that it should have been left to the jury to decide whether Quick had been suffering from a temporary malfunctioning of the mind caused by the taking of insulin and, if so, whether in the circumstances he was relieved from the consequences of that self-induced incapacity.

In R v Sullivan[47] the accused kicked a man violently on the head and body while suffering a seizure due to psychomotor epilepsy. At his trial on charges of assault the accused gave evidence that he had no recollection of the incident. Two medical experts testified that it was strongly probable that the attack took place during the third, or post-ictal, stage of the seizure, when the accused would make automatic movements of which he was not conscious. The trial judge ruled that the evidence, if accepted, amounted to insanity, and the accused, with leave, changed his plea to guilty. The accused appealed to the English Court of Appeal on the ground that the trial judge erred in ruling that on the evidence the accused could not rely on a defence of automatism. The Court dismissed the appeal and the accused appealed unsuccessfully to the House of Lords. Delivering the judgment of their Lordships, Lord Diplock stated:

‘[M]ind’ in the M’Naghten Rules is used in the ordinary sense of the mental faculties of reason, memory and understanding. If the effect of a disease is to impair these faculties so severely as to have either of the consequences referred to in the latter part of the rules, it matters not whether the aetiology of the impairment is organic, as in epilepsy, or functional, or whether the impairment itself is permanent or is transient and intermittent, provided that it subsisted at the time of commission of the act.[48]

The result in R v Sullivan is unsatisfactory. Epilepsy is a common condition, and certainly not generally regarded by the community as a mental illness. It is difficult to see any difference in principle between the underlying condition of diabetes in R v Quick and Paddison and epilepsy. Both in terms of the consequence of a sentence of indefinite confinement and the stigma inevitably associated with a finding of insanity, the decision is unduly harsh. Lord Diplock recognised this, stating: ‘[I]t is natural to feel reluctant to attach the label of insanity to a sufferer from psychomotor epilepsy of the kind to which Mr. Sullivan is subject’.[49]

In R v Radford[50] the accused was charged with the murder of a friend of his wife. The accused shot the deceased seven times with a rifle. Medical evidence was led that the accused had acted in a state of depersonalisation or dissociation brought on by stress as a consequence of his belief that his wife and the deceased had been involved in a lesbian relationship. The trial judge refused to leave the defence of automatism to the jury, ruling that the medical evidence could be regarded only as raising a defence of insanity. The accused was convicted of murder and appealed to the Supreme Court of South Australia. The Supreme Court upheld the appeal and ordered a re-trial. King CJ stated the distinction between insane automatism and non-insane automatism as follows:

The expression ‘disease of the mind’ is synonymous, in my opinion, with ‘mental illness’ ... In one sense automatism must always involve some disorder or disturbance of the mental faculties, but I do not think that a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as disease of the mind as that expression is used in the M’Naghten rules. ... The essential notion appears to be that in order to constitute insanity in the eyes of the law, the malfunction of the mental faculties called ‘defect of reason’ in the M’Naghten rules, must result from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli.[51]

The distinction between insane automatism and non-insane automatism was considered by the High Court in R v Falconer.[52] The accused was convicted in the Supreme Court of Western Australia of the wilful murder of her husband by shooting. The defence of automatism is available under s 23 of the Queensland and Western Australian Codes in the same manner as at common law. The accused gave evidence of the deceased’s violence to her during the marriage, of her discovery that he had sexually interfered with her daughters, and of their separation. She said that on the day of his death the deceased had entered her house unexpectedly, had sexually assaulted her and had reached out as if to grab her by the hair. From that point she remembered nothing until she found herself on the floor with the gun beside her and the deceased dead on the floor. The trial judge rejected the evidence of two psychiatrists, received on voir dire, by which the accused sought to support a defence of automatism. Both expressed the view that she was sane at the time of the shooting. One said that the accused might have panicked, which could have triggered a dissociative state in which she acted without an awareness of what she was doing. The other said that the accused was in a setting of psychological conflict in which she was capable of acting in an automatic way. An appeal to the Full Court of the Supreme Court was allowed and a re-trial was ordered. The Crown appealed to the High Court.

The High Court dismissed the Crown’s appeal. In a joint judgment Mason CJ, Brennan and McHugh JJ analysed with care the distinction between insane and non-insane automatism. Their Honours stated ‘the law divides mental irresponsibility into two categories distinguished by the aetiology of that condition: is the mind diseased or is it not?’[53] They continued:

Under the Code, as well as under the common law, it is necessary for the trial judge to determine what is meant by the terms used to describe the mental condition of a person who is of unsound mind or insane. The meaning of those terms is a question of law, not a question to be answered by medical witnesses. Although there is some divergence in the leading judgments, generally speaking a distinction has been drawn between an underlying mental infirmity which is productive of one of the prescribed effects and a transient non-recurrent mental malfunction caused by external forces which produces an incapacity to control actions. The former is treated as unsoundness of mind or insanity; the latter is no more than a variation within the norm.[54]

Their Honours held that automatism can be brought about as a result of stress, stating:

[T]here seems to be no reason in principle why psychological trauma which produces a transient non-recurrent malfunction of an otherwise sound mind should be distinguished from a physical trauma which produces a like effect.[55]

In the case of psychological trauma it is necessary to determine whether the trauma can be treated as the cause of the automatism or whether the trauma has acted upon some underlying infirmity of mind, in which case the mental state is regarded as one of insane automatism. This issue is resolved by application of an objective ordinary person test. Their Honours stated:

The problem of classification in a case of a transient malfunction of the mind precipitated by psychological trauma lies in the difficulty in choosing between the reciprocal factors — the trauma and the natural susceptibility of the mind to affection by psychological trauma — as the cause of the malfunction. Is one factor or the other the cause or are both to be treated as causes? To answer this problem, the law must postulate a standard of mental strength which, in the face of a given level of psychological trauma, is capable of protecting the mind from malfunction to the extent prescribed in the respective definitions of insanity. That standard must be the standard of the ordinary person: if the mind’s strength is below that standard, the mind is infirm; if it is of or above that standard, the mind is sound or sane. This is an objective standard which corresponds with the objective standard imported for the purpose of determining provocation ...[56]

The test postulated by their Honours does, with respect, involve difficulties. An acceptance that purely psychological factors can result in a defence of automatism inevitably gives rise to a danger of bogus defences being successfully raised.[57] It seems particularly incongruous that purely emotional considerations might result in a defence of automatism while a condition such as epilepsy cannot. But in truth the more likely result is that the adoption of an objective reasonable person test to distinguish insane from non-insane automatism in the case of stress-induced mental states probably means that the defence will rarely, if indeed ever, be available. The reasonable person simply does not respond to stress even of the most extreme variety by experiencing a state of automatism.

Deane and Dawson JJ delivered a joint judgment. They drew the distinction between a mental state involving a disease of the mind or natural mental infirmity which gives rise to a defence of insanity, and the operation of events upon a sound mind which raises a defence of automatism. Toohey and Gaudron JJ delivered separate judgments to similar effect.

V DIMINISHED OR SUBSTANTIALLY IMPAIRED RESPONSIBILITY

The limitations of the M’Naghten formulation of insanity, together with the consideration that a successful plea of insanity resulted in indefinite confinement led to the introduction in some jurisdictions of a statutory defence of diminished responsibility. Diminished responsibility was developed as part of the common law of Scotland, and introduced in England in statutory form by the Homicide Act 1957 (UK) 5 & 6 Eliz 2, c 2. In 1974 diminished responsibility was introduced in New South Wales as s 23A of the Crimes Act 1900 (NSW). The Crimes Amendment (Diminished Responsibility) Act 1997 (NSW) replaced that provision with a new s 23A and renamed the defence ‘substantial impairment by abnormality of mind’. Section 23A of the Crimes Act 1900 (NSW) now provides:

(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:

(a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and

(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

A statutory defence of diminished responsibility is also available in the Australian Capital Territory, the Northern Territory and Queensland.[58]

These provisions raise a number of difficulties. The idea of mental illness producing a state in which a person is partially but not fully responsible for his or her actions is both clinically and philosophically questionable. The defence may be available in cases of psychopathy or severe personality disorder where, it is submitted, a murder conviction is the appropriate outcome.[59] In 1991 the Law Reform Commission of Victoria considered and rejected the introduction of a defence of diminished responsibility.[60] It is suggested that the conclusion of the Law Reform Commission of Victoria was correct. Arguments for the introduction or retention of a defence of diminished or impaired responsibility have substantially reduced force in jurisdictions where the judge has discretion in relation to sentencing in cases of murder. At the time of the introduction of the defence in New South Wales murder carried a mandatory sentence of life imprisonment. In New South Wales, like Victoria, a life sentence is now the maximum rather than the mandatory penalty for murder.[61]

VI MODERN LEGISLATIVE REFORMS — SOUTH AUSTRALIA, VICTORIA AND THE ACT

In South Australia, Victoria and the Australian Capital Territory the defence of insanity, in each instance renamed, has been placed on a statutory footing.[62] The model for change has been the defence of mental impairment contained in the Criminal Code 1995 (Cth) (‘Model Code’). That Code was intended to serve as a model for adoption by all Australian jurisdictions. The defence of mental impairment is set out in s 7.3(1):

A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:

(a) the person did not know the nature and quality of the conduct; or

(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or

‘Mental impairment’ is defined in s 7.3(8) as including ‘senility, intellectual disability, mental illness, brain damage, and severe personality disorder’. The term mental illness is further defined in s 7.3(9) as

an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli.

The model defence departs from the common law in two significant respects. First, intellectual disability is included within the defence. This is clearly to be welcomed. Secondly, severe personality disorder (or psychopathy) is also included. The desirability of this extension will be considered in Part VII below. Section 7.3(1)(c) includes irresistible impulse within the scope of the defence. Since such a condition may, however, form the basis for a defence at common law if the appropriate medical evidence is presented, in this respect the model provision involves little practical change to the common law.

In South Australia the defence of mental impairment was introduced in 1995.[63] The South Australian legislation follows the lines of the Model Code, but specifically excludes severe personality disorder from the scope of the defence. The ACT provision similarly follows the model defence. No mention is made however, of either personality disorder or irresistible impulse.[64]

In Victoria s 20 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) provides:

(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that —

(a) he or she did not know the nature and quality of the conduct; or

(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

(2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

The Victorian provision departs from the Model Code, and closely follows the M’Naghten formulation as elaborated in R v Porter.[65] No mention is made of personality disorder, but the close alignment of the statutory provision to the common law would imply that personality disorder remains outside the scope of the defence. Likewise, no mention is made of irresistible impulse, leading to the conclusion that the position at common law continues to apply.

In South Australia, Victoria and the ACT the process of redefinition was accompanied by a significant new approach to the disposition of those found not guilty by reason of mental incompetence or impairment.[66] In the 19th century indefinite confinement as a consequence of a successful defence of insanity was easy to understand. There was little in the way of treatment for severe mental illness, and a person considered dangerous because of mental illness was likely to remain so. A person civilly committed to a mental institution was highly likely to remain there indefinitely. The last quarter of the 20th century saw a fundamental change worldwide in the direction of de-institutionalisation (treating the mentally ill in the community rather than in institutions) and mainstreaming (where treatment in an institution is necessary, but it takes place in special wards or parts of regular hospitals rather than in dedicated mental hospitals). What has enabled this process to occur has been the development of new and effective drugs for the treatment of the most serious mental illnesses, particularly schizophrenia. Thus, it is now possible for a considerable percentage of mentally ill patients, including those who may have been dangerous when untreated, to live successfully in the community and to represent no significant danger to others.

In South Australia a new and different approach to the disposition of mentally ill offenders was introduced by the Criminal Law Consolidation (Mental Impairment) Act 1995 (SA).[67] That Act introduced a new Part 8A into the Criminal Law Consolidation Act 1935 (SA). Where an issue of mental competence arises in a trial, the judge determines whether to proceed first with the trial of the objective elements of the offence, or with the trial of the mental competence of the defendant.[68] Whichever alternative is adopted, where the court is satisfied on the balance of probabilities that the defendant was at the time of the alleged offence mentally incompetent to commit the offence, and is satisfied that the objective elements of the offence are established beyond reasonable doubt, findings to that effect are recorded and an order that the defendant be liable to supervision is made.[69] Where a defendant is declared to be liable to supervision, the court may release the defendant unconditionally, or it may make a supervision order committing the defendant to detention or releasing the defendant on licence on conditions decided by the court.[70] If the court makes a supervision order, it must fix a limiting term equivalent to the period of imprisonment or supervision that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established.[71] At the end of the limiting term the supervision order lapses.[72] Provisions exist for the variation or revocation of such orders.[73]

In Victoria a new system of disposition was introduced by the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic). A special hearing may be held under Part 3 of the Act to determine whether the accused is not guilty of the offence, not guilty of the offence because of mental impairment, or committed the offence charged or an offence available as an alternative. A special hearing is to be conducted as nearly as possible as if it were a criminal trial. Section 17 provides:

(1) The following findings are available to the jury at a special hearing —

(a) not guilty of the offence charged;

(b) not guilty of the offence because of mental impairment;

Alternatively, the question of mental impairment may be raised during a trial by the defence or, with the leave of the trial judge, by the prosecution.[74] Where either as a result of a special hearing or a trial an accused is found not guilty because of mental impairment, the court must declare the accused is liable to supervision under Part 5 of the Act or order the accused be released unconditionally.[75] Part 5 entitles the court to impose one of two types of supervision order: a ‘custodial supervision order’ or a ‘non-custodial supervision order’. By the former type of order the court may commit a person to custody ‘in an appropriate place’ or ‘in a prison’, provided that a supervision order committing a person to prison may only be made if the court is satisfied ‘that there is no practicable alternative in the circumstances’.[76] By the latter type of order the court may ‘release the person on conditions decided by the court and specified in the order’.[77] Whether the court makes a custodial or a non-custodial supervision order, it must set a ‘nominal term’ of supervision which is graded by reference to the maximum term of imprisonment which applies to the offence which has been committed.[78] The nominal term fixed for murder is 25 years. The person who is subject to the order may apply to the court in the case of a custodial supervision order for a variation of the order, and in the case of a non-custodial supervision order for a variation or revocation of the order.[79] A person subject to a custodial supervision order cannot apply for a revocation of the order during the nominal term, but can have the order varied to a non-custodial supervision order if the court is satisfied on the evidence available that the ‘safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order’.[80] A custodial supervision order can only be varied to a non-custodial order where the person has completed at least 12 months ‘extended leave’ granted by the court.[81] The scheme of the Act is thus to provide for the release of persons found not guilty because of mental impairment in accordance with a graduated process supervised by the courts. Persons found not guilty by reason of mental impairment who represent no further danger to the public may be released unconditionally. A person in respect of whom a custodial supervision order has been made must first be granted at least 12 months extended leave by the court, which can then be converted to a non-custodial supervision order before they apply for revocation.[82]

In the ACT the Crimes Act 1900 (ACT) provides for involvement of the Mental Health Tribunal in questions of disposition. The Mental Health Tribunal was established under the Mental Health (Treatment and Care) Act 1994 (ACT). Where the accused is acquitted on the ground of mental illness then, in the case of serious offences (indictable offences involving actual or threatened violence or endangering life), the court shall order that the accused be detained in custody until the Mental Health Tribunal orders otherwise, unless the court is satisfied that it is more appropriate to order that the accused submit to the jurisdiction of the Mental Health Tribunal to enable the Tribunal to make a mental health order.[83] In the case of non-serious offences the court has an additional power to ‘make such other orders as it considers appropriate’.[84]

VII THE ISSUE OF SEVERE PERSONALITY DISORDER

The issue of severe personality disorder and mental illness was brought into sharp focus in Australia by the case of Gary David (otherwise known as Gary Webb).[85] Prior to his death in 1993 at the age of 38, Gary David spent almost all of his adolescent and adult life in institutions. As a child his background was one of brutality and deprivation. He mutilated his body more than 70 times, threatened to kill public figures, cause a police bloodbath and commit a public massacre. He was sentenced to 14 years gaol after a 1980 gun battle. Newly released from prison at the time, he had shot a woman in a pizza shop leaving her a quadriplegic, and shot two police officers who came to her rescue. In prison he assaulted more than 15 inmates and guards, but his main victim was himself. He sliced off his nipples, slashed his stomach, drank acid, mutilated his penis, poked pins in his eyes, nailed his feet to the floor and swallowed razor blades. He was diagnosed as suffering from borderline personality disorder and antisocial personality disorder or, to use an expression now less in vogue, as being a psychopath.

David was due for release in February 1990. His imminent release led to a public outcry. David was charged with threatening to kill a former fellow prisoner and remanded in custody. He was then certified as mentally ill and transferred to J-Ward, Ararat, then the State’s maximum-security psychiatric unit. He lodged an appeal to the Mental Health Review Board against that certification. In April the Victorian Parliament passed the Community Protection Act 1990 (Vic), an extraordinary and unprecedented piece of legislation, relating only to David and giving the Supreme Court power to continue David’s detention beyond the expiration of his sentence.

The certification of David as mentally ill in 1989 and his transfer to Ararat was at the time thought to present a solution to the problem posed by his imminent release. The law relating to the transfer of prisoners to psychiatric hospitals and the civil commitment of mentally ill persons in Victoria is contained in the Mental Health Act 1986 (Vic). The operation of this legislation is discussed more fully below. As a matter of terminology a person serving a sentence who is transferred from prison to a mental hospital under s 16 of the Act is known as a security patient, and a person civilly committed under s 8 of the Act is known as an involuntary patient. These provisions set out a number of criteria which must be satisfied, the key ones being that the person appears to be suffering from a mental illness and that treatment for that illness can be obtained by admission and detention in a psychiatric hospital. The Act sets up a Mental Health Review Board to review certifications and hear appeals from persons certified as security patients and involuntary patients. Had David’s certification as a security patient been upheld, then although at the expiration of his sentence he could no longer be held as a security patient, he could have been lawfully committed and held as an involuntary patient.

The flaw in such reasoning, however, was that the evidence suggested that David was not mentally ill. A person with a personality disorder is not regarded as being mentally ill within the discipline of psychiatry. The word ‘personality’ refers to an individual’s characteristic way of functioning psychologically. Some persons have traits of character that are abnormal or socially undesirable. At an extreme level such persons are described as having a personality disorder. The position of such persons is, however, quite different from that of a person suffering from a disturbance of mental functioning, which is what a mental illness is. The fact that a person’s behaviour is deviant, maladapted or non-conformist does not necessarily mean that it is the product of any disturbance in mental functioning. It may simply mean that that is the sort of person the particular individual is.

The Mental Health Review Board allowed David’s appeal against his certification as mentally ill.[86] The Board found that David satisfied the diagnostic criteria for both borderline personality disorder and antisocial personality disorder. The Board held, however, that these personality disorders did not constitute mental illnesses. The Board further held that, even were David suffering from a mental illness, no treatment for that illness within the meaning of the Act could be obtained. Thus David’s continued detention was dependent on the Community Protection Act 1990 (Vic). Two successful applications were lodged by the Attorney-General for David’s continued detention under the Act.[87] Ultimately David’s persistent self-infliction of injury proved too much for his body to bear. In June 1993, while a patient in the security wing of St Vincent’s Hospital, he died of a cardiac arrest.

A similar if less spectacular case in New South Wales involving one Gregory Kable led to similar legislation, the Community Protection Act 1994 (NSW), being passed. On this occasion, however, the case reached the High Court where the Act was held to be unconstitutional.[88]

The distinction between the concepts of ‘personality disorder’ and ‘mental illness’ was carefully stated in a paper prepared by the Victorian Branch of the Royal Australian and New Zealand College of Psychiatrists for the Social Development Committee of the Victorian State Parliament:

Within the discipline of psychiatry there has traditionally been made a significant distinction between ‘mental illness’ and ‘personality disorder’. Personality refers to enduring characteristics of a person shown in his or her ways of behaving in a wide variety of circumstances. It is usually described in terms of traits such as sensitivity, suspiciousness, conscientiousness, shyness, aggressiveness and so on. Such traits are present in all of us to a greater or lesser degree and are thus dimensional. People with a personality disorder are generally defined as (i) those in whom some of these traits are present to a statistically abnormal or extreme degree and (ii) who as a consequence of this suffer emotionally or who cause others to suffer. Element (ii) clearly reflects purely a social value judgment. People with an antisocial personality disorder, for example, show to an abnormal degree, a disregard for social obligations and rules, a lack of feeling for others, aggressive behaviours, irresponsibility, callous unconcern, a low tolerance of frustration and a number of other similar traits which bring them into conflict with society. These traits can be identified from late adolescence when personality is essentially formed and are an enduring feature of the person. Discrete symptoms of mental illness are absent.

A mental illness such as schizophrenia, on the other hand, is associated with the emergence of characteristic symptoms (such as delusions, hallucinations, pathological mood states), develops in someone who was previously free of such symptoms, and represents a disruption or discontinuity of their usual personality and their normal modes of psychological functioning.[89]

Talk of ‘care’ or ‘treatment’ is of limited application in relation to personality disorder; the very notion of being ‘cured’ of one’s personality has little meaning. In the paper of the Victorian Branch of the Royal College it is stated:

Most of us know how hard it is to change undesired aspects of our personalities. This experience also is borne out in attempts to treat personality disorders. There is little evidence that personality disorders change significantly as a result of any of the psychiatric treatments available at present. In particular, no treatment has been shown to have an impact on the behaviour of persons with antisocial personality disorders. A prerequisite for any change in personality functioning is a desire by the individual to deal with his or her problems. Psychotherapeutic approaches may then result in some improvements in some cases. Involuntary treatments imposed on a person not motivated to change have no chance of success.[90]

For completeness, a description of the two key personality disorders, borderline personality disorder and antisocial personality disorder, may be helpful. In the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, known as DSM-IV, the diagnostic criteria for borderline personality disorder are described as follows:

A pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:

(1) frantic efforts to avoid real or imagined abandonment. Note: Do not include suicidal or self-mutilating behaviour covered in Criterion 5.

(2) a pattern of unstable and intense interpersonal relationships characterised by alternating between extremes of idealisation and devaluation

(3) identity disturbance: markedly and persistently unstable self-image or sense of self

(4) impulsivity in at least two areas that are potentially self-damaging (eg. spending, sex, substance abuse, reckless driving, binge eating). Note: Do not include suicidal or self-mutilating behaviour covered in Criterion 5.

(5) recurrent suicidal behaviour, gestures, or threats, or self-mutilating behaviour

(6) affective instability due to a marked reactivity of mood (eg. intense episodic dysphoria, irritability, or anxiety usually lasting a few hours and only rarely more than a few days)

(7) chronic feelings of emptiness

(8) inappropriate, intense anger or difficulty controlling anger (eg. frequent displays of temper, constant anger, recurrent physical fights)

(9) transient, stress-related paranoid ideation or severe dissociative symptoms.[91]

The diagnostic criteria for antisocial personality disorder are described as follows:

A. There is a pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years, as indicated by three (or more) of the following:

(1) failure to conform to social norms with respect to lawful behaviours as indicated by repeatedly performing acts that are grounds for arrest

(2) deceitfulness, as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure

(3) impulsivity or failure to plan ahead

(4) irritability and aggressiveness, as indicated by repeated physical fights or assaults

(5) reckless disregard for safety of self or others

(6) consistent irresponsibility, as indicated by repeated failure to sustain consistent work behaviour or honour financial obligations

(7) lack of remorse, as indicated by being indifferent to or rationalising having hurt, mistreated, or stolen from another.

B. The individual is at least age 18 years.

C. There is evidence of Conduct Disorder with onset before age 15 years.

D. The occurrence of antisocial behaviour is not exclusively during the course of Schizophrenia or a Manic Episode.[92]

The balance of psychiatric opinion supports the view that insanity and personality disorder are distinct, and that a person classified as having an anti-social or borderline personality disorder is not necessarily mentally ill. Of course, a person may have both a mental illness and a severe personality disorder.

The common law position that severe personality disorder falls outside the scope of the insanity defence is thus supported by psychiatric opinion. In terms of both principle and policy this view is correct. If personality disorder is in essence a set of behavioural characteristics rather than an illness, then to classify a person as possessing such characteristics in an extreme form does not negate that person’s responsibility for his or her actions or reduce that person’s culpability. If severe personality disorder is not an illness and is largely untreatable, then those possessing such characteristics do not belong in mental institutions. If they commit serious crimes the institutions in which they belong are prisons.

Nor should severe personality disorder form a basis for removing such persons from society via the process of civil commitment. If an individual suffering severe personality disorder is regarded as representing such a danger to society that imprisonment for the term warranted by his or her crimes is thought not adequately to protect society, then the answer to that situation must be some form of preventive detention.[93] In Victoria in 1993, following the David case, a limited form of such preventive detention was introduced.[94]

VIII CIVIL COMMITMENT AND MENTAL STATE DEFENCES

Over the past three decades there has been a worldwide movement in favour of de-institutionalisation, a process of seeking, so far as possible, to treat the mentally ill while they continue to live in the community. The medical pre-condition for this movement was the development over the second half of the century of far more effective drugs for the treatment of the more severe forms of mental illness. This worldwide process has led to a much closer regulation of civil commitment and detention. In all Australian jurisdictions there is a regular process of review carried out by specialised courts or tribunals.[95] It will be convenient to focus on the Victorian legislation as being more or less typical of the Australian jurisdictions.

The process of civil commitment and detention is governed by the Mental Health Act 1986 (Vic). A person civilly committed is known as an involuntary patient. The process of civil commitment is governed by the Act, and is normally achieved through a process of ‘request’ and ‘recommendation’. A request is made for the admission of a person as an involuntary patient, which need not be made by a doctor. This must be followed by a recommendation, which must be made by a registered medical practitioner.[96] Within 24 hours of admission to a mental health service as an involuntary patient, an authorised psychiatrist must examine the patient, in practice a senior clinician, who determines whether continued detention as an involuntary patient is justified.[97]

The Act sets up a Mental Health Review Board to hear appeals and conduct reviews of involuntary patients.[98] If the criteria for admission and detention are not met the patient is discharged from involuntary status. A patient may appeal to the Board immediately following commitment and, in the absence of an appeal, the Board must conduct a review within eight weeks of admission. Thereafter, appeals may be lodged at any time, and regular reviews take place annually. The Board sits in divisions, normally comprising a lawyer, a psychiatrist and a community member. In hearing appeals against detention and conducting regular reviews of involuntary patients the Board applies the criteria for detention set out in s 8 of the Act. That section provides:

(1) A person may be admitted to and detained in an approved mental health service as an involuntary patient in accordance with the procedures specified in this Act only if —

(a) the person appears to be mentally ill; and

(b) the person’s mental illness requires immediate treatment and that treatment can be obtained by admission to and detention in an approved mental health service; and

(c) because of the person’s mental illness, the person should be admitted and detained for treatment as an involuntary patient for his or her health or safety (whether to prevent a deterioration in the person’s physical or mental condition or otherwise) or for the protection of members of the public; and

(d) the person has refused or is unable to consent to the necessary treatment for the mental illness; and

(e) the person cannot receive adequate treatment for the mental illness in a manner less restrictive of that person’s freedom of decision and action.

Section 8(1)(c) prescribes protection of members of the public as a justification for civil detention where the other sub-sections are satisfied.[99] Of course the great majority of severely mentally ill persons represent no danger to members of the public. A small percentage, however, do. Two particular classes of illness which may pose a danger to others are paranoid schizophrenia and schizophrenia involving command hallucinations. In the case of paranoid schizophrenia the patient may weave a complex delusional system involving bizarre plots and threats to the patient. These perceived dangers might lead to violence, which in the mind of the patient is violence required in self-defence. Command hallucinations involve auditory hallucinations in which the sufferer may be repeatedly and insistently commanded to take violent action against others.

Persons admitted to mental health services as involuntary patients can be discharged under a community treatment order.[100] A patient under a community treatment order continues to be an involuntary patient, but is treated in the community rather than as an in-patient. The patient is obliged to take prescribed medication and to attend a specified clinic. In cases of non-compliance the order may be revoked and the patient returned to hospital. Other conditions, such as a residence requirement, may also be imposed. The Mental Health Review Board hears appeals and conducts annual reviews in the case of patients on community treatment orders applying criteria similar to those set out in s 8 of the Act.[101]

Persons can also be committed to mental health services by court decision and by transfer from the prison system. Where a person is convicted of an offence a court can order that the sentence be served in a mental health service.[102] Persons in prison can be transferred to a mental health service if their mental state is thought to warrant this step.[103] Both these classes of patient are known as security patients. They can appeal to the Mental Health Review Board and are subject to regular review in the same way as involuntary patients. If, however, the Board determines that the criteria for detention as a security patient are not met they are not discharged, but rather returned to prison for the remainder of their term.[104] A court can also without conviction make a person charged with an offence an involuntary patient.[105] Again, such persons may appeal to and are subject to review by the Mental Health Review Board. As involuntary patients, however, if the Board determines the s 8 criteria are not met the patient is discharged.

Under the Governor’s Pleasure system which applied in Victoria prior to the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic),[106] persons found not guilty by reason of insanity could spend periods detained far beyond what was justified either on clinical grounds or having reasonable regard to public protection. Persons who kill while severely mentally ill, of course, differ from one another enormously, as do their clinical conditions and diagnoses. Some remain severely ill and a danger to the community for lengthy periods and even indefinitely. Others, however, acted because of an illness, which at the time was undiagnosed and untreated. In such cases, once properly treated and maintained on medication the individual may, after a reasonable period of time, represent no danger to anyone as long as treatment continues and he or she is subject to monitoring. While a relapse may remain a possibility, it is not normally something which occurs quickly and without warning. Under the Governor’s Pleasure system I encountered a significant number of individuals who were incarcerated for many years beyond the point at which their symptoms had resolved and there had ceased to be either a clinical or other justification for their continued detention.

The Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) recognises this by empowering the sentencing judge, following a verdict of not guilty because of mental impairment, to discharge unconditionally or to make a non-custodial or custodial supervision order. The system of supervision orders provides for a graduated court-supervised process leading to revocation and release when supervision is no longer warranted.

There remains a fundamental dichotomy between, on the one hand, persons found not guilty by reason of mental impairment or made security patients following conviction and, on the other hand, persons made involuntary patients either by civil commitment or by court order. The dichotomy is both a consequence of history and a recognition of public concern. It is, however, by no means a conceptually obvious dichotomy, nor is it necessarily required by considerations of policy. Persons who have killed or committed serious offences under the influence of mental illness may no longer represent a danger to the public. Likewise, persons who are severely mentally ill may represent a known serious danger notwithstanding that their delusions have not yet resulted in overt action. Ultimately, a more integrated system for those who have committed serious acts of violence under the influence of severe mental illness and those who are at risk of such action would seem a logical development. The fact that the actus reus of a crime has been committed should be regarded as having evidentiary significance as to the likelihood of future dangerousness on the part of a mentally ill person.

The development of more flexible regimes for the disposition of persons found not guilty by reason of insanity should have the effect of gradually reducing the significance, and even the need, for defences such as automatism and diminished or substantially impaired responsibility. The significance of automatism is that it leads to acquittal and the significance of diminished or substantially impaired responsibility is that it results in a verdict of manslaughter, thus giving the trial judge discretion as to sentencing. If, following a verdict of not guilty by reason of mental impairment, the judge possesses power, as he or she does in Victoria, to impose a sentence appropriate to the individual’s clinical condition and the needs of public protection, then the justification for defences of automatism and diminished or substantially impaired responsibility disappears.

IX CONCLUSION

The M’Naghten formulation of the defence of insanity was based upon medical knowledge as it existed in 1843. It is a formulation which, as a consequence of principled judicial interpretation and modification, has served surprisingly well in setting acceptable parameters for the scope of the defence. In Australia modern legislative reform has essentially involved only limited departure from the M’Naghten formulation as explained and developed by the High Court. Indefinite confinement of those found not guilty by reason of insanity was understandable in the mid-19th century and into the first half of the 20th century. There was in the 19th century little in the way of effective treatment for the more severe forms of mental illness. Indeed, indefinite confinement was frequently likely to be the result of civil commitment.

It was the harshness of the outcome of indefinite confinement that led to the development of the defence of automatism and, in several jurisdictions, to the partial statutory defence of diminished or substantially impaired responsibility. Legislative reform conferring discretion in sentencing following a verdict of not guilty by reason of insanity, and providing for a supervised process leading to release in suitable cases, has substantially lessened the need and justification for these defences.

In the future, the distinction between persons who have been found not guilty of offences by reason of insanity and persons who have been civilly committed should become less crucial. Advances in the treatment of severe mental illness mean that a considerable number of persons who commit what would otherwise have been criminal acts can now with safety be treated in the community after a period of institutional treatment. The fact that acts have been committed which would, were it not for the mental illness, have been regarded as criminal, should be regarded as of evidential significance in relation to the issue of whether confinement is necessary for protection of members of the public. Clinical issues and issues of public protection should be seen as not essentially different when they arise in relation to persons who have committed the actus reus of a crime, and when they arise in relation to those who have been civilly committed.

[*] B Juris, LLB (Hons) (Monash), BCL (Oxon), FASSA; Barrister-at-Law (Vic); Sir John Barry Professor of Law, Monash University.

[1] Terminology now varies from jurisdiction to jurisdiction. In the Northern Territory and Tasmania ‘insanity’ is the correct expression: Criminal Code Act 1983 (NT) s 382; Criminal Code Act 1924 (Tas) s 381; in the ACT ‘mental illness’: Crimes Act 1900 (ACT) s 428N; in New South Wales ‘mentally ill’: Mental Health Criminal Procedure Act 1900 (NSW) s 38; in Queensland and Western Australia ‘unsoundness of mind’: Criminal Code Act 1899 (Qld) s 647; Criminal Code Act Compilation Act 1913 (WA) s 653; in South Australia ‘mental incompetence’: Criminal Law Consolidation Act 1935 (SA) s 269C; and in Victoria ‘mental impairment’: Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) s 20. In this article the common law term ‘insanity’ will be used as a general term to cover all jurisdictions.

[2] The Board was established and operates under the Mental Health Act 1986 (Vic). See below Part VII.

[3] The subject of fitness to stand trial is treated as beyond the scope of the present article, except to the extent that it relates to the disposition of mentally ill persons.

[4] (1800) 27 St Tr 1282.

[5] [1843] EngR 875; (1843) 10 Cl & Fin 200; (1843) 8 ER 718 (‘M’Naghten’).

[6] (1843) 8 ER 718, 722.

[7] Butterworths, Halsbury’s Laws of Australia, vol 9 (at 1 December 2000) 130 Criminal Law,

‘7 Criminal Practice and Procedure’ [130–13795]; Brent Fisse, Howard’s Criminal Law (5th ed, 1990) 469–72.

[8] [1933] HCA 1; (1933) 55 CLR 182.

[9] [1936] HCA 75; (1936) 55 CLR 192.

[10] [1952] HCA 56; (1952) 86 CLR 358.

[11] (1959) 33 ALJR 89.

[12] [1936] 2 All ER 1138.

[13] [1960] AC 432.

[14] [1933] HCA 1; (1933) 55 CLR 182.

[15] See John Barry, ‘Insanity in the Criminal Law in Australia’ (1943) 21 Canadian Bar Review 427, 439. On interpretation of the M’Naghten formulation generally, see Bernadette McSherry, ‘Defining What Is a “Disease of the Mind”: The Untenability of Current Legal Interpretations’ (1994) 1 Journal of Law and Medicine 76.

[16] [1933] HCA 1; (1933) 55 CLR 182, 188–9.

[17] Eg arteriosclerosis; see R v Kemp [1957] 1 QB 399.

[18] Sir Owen Dixon, ‘A Legacy of Hadfield, M’Naghten and Maclean’ (1957) 31 Australian Law Journal 255, 260.

[19] [1933] HCA 1; (1933) 55 CLR 182, 189–90.

[20] [1952] 2 QB 826. See also Codere v The King (1916) 12 Cr App R 21.

[21] [1952] HCA 56; (1952) 86 CLR 358.

[22] The English approach seems contrary to the earlier cases. In the case of Hatfield (1800) 27 St Tr 1282 the accused had attempted to kill George III. Hatfield had acted under a delusion that he was to be the saviour of the world, and this was to be accomplished by his being executed after commission of a spectacular crime. Not only was Hatfield aware that his conduct was contrary to the law, breaking the law in spectacular fashion was the essence of his plan.

[23] [1936] HCA 75; (1936) 55 CLR 192; [1936] 2 All ER 1138 (PC).

[24] (1959) 33 ALJR 89; [1960] AC 432 (PC).

[25] [1936] HCA 75; (1936) 55 CLR 192, 222.

[26] Norval Morris and Colin Howard, Studies in Criminal Law (1964) 49.

[27] [1960] AC 432 (PC).

[28] (1959) 33 ALJR 89, 93.

[29] [1960] AC 432, 449–50. See also R v Harm (1975) 13 SASR 84.

[30] [1960] HCA 5; (1960) 105 CLR 295.

[31] Ibid 301.

[32] The Commissioners were Sir James Stephen, Lord Blackburn, Justice Barry and Lord Justice Lush. This Code was introduced into the House of Commons as the Criminal Code (Indictable Offences) Bill 1878, but did not become law.

[33] Quoted in Morris and Howard, above n 26, 55.

[34] Section 26 of the Code restates the common law rule that the burden of proof in respect of the defence of insanity rests on the accused.

[35] Criminal Code Act 1902 (WA) s 27.

[36] Criminal Code Act 1924 (Tas) s 16; Criminal Code Act 1983 (NT) s 35.

[37] [1958] NZPoliceLawRp 16; [1958] NZLR 999, 1077. On automatism generally, note articles by E M Coles and D Jang, ‘A Psychological Perspective on the Legal Concepts of “Volition” and “Intent”’ (1996) 4 Journal of Law and Medicine 60; E M Coles and S M Armstrong, ‘Hughlings Jackson on Automatism as Disinhibition’ (1998) 6 Journal of Law and Medicine 73; E M Coles, ‘Scientific Support for the Legal Concept of Automatism’ (2000) 7 Psychiatry, Psychology and Law 33.

[38] The earliest reported case in which the term ‘automatism’ is used in its modern sense is R v Harrison-Owen [1951] 2 All ER 726.

[39] [1955] 1 WLR 317 (‘Charlson’).

[40] (Unreported, Supreme Court of Victoria, Smith J, December 1950) (‘Cogdon’). Noted in Norval Morris, ‘Somnambulistic Homicide: Ghosts, Spiders and North Koreans’ (1951) 5 Res Judicatae 29. The case is also discussed in Morris and Howard, above n 26, 62–4.

[41] Bratty v A-G (Northern Ireland) [1963] AC 386, 411 (Lord Denning); R v Joyce [1970] SASR 184; Hawkins v The Queen [1994] HCA 28; (1994) 179 CLR 500.

[42] R v Carter [1959] VicRp 19; [1959] VR 105; Cooper v McKenna; Ex parte Cooper [1960] Qd R 406; R v Meddings [1966] VicRp 42; [1966] VR 306.

[43] R v O’Connor (1980) 146 CLR 64.

[44] Director of Public Prosecutions v Beard [1920] AC 479, 500 (Lord Birkenhead LC).

[45] [1973] EWCA Crim 1; [1973] QB 910.

[46] Ibid 922.

[47] [1984] AC 156.

[48] Ibid 172.

[49] Ibid 173. See also the remarks of Lawton LJ in the Court of Appeal at 165.

[50] (1985) 42 SASR 266.

[51] Ibid 274.

[52] (1990) 171 CLR 30.

[53] Ibid 48.

[54] Idid 49.

[55] Ibid 54.

[56] Ibid 55.

[57] See, eg, Bernadette McSherry, ‘Getting Away with Murder? Disassociative States and Criminal Responsibility’ (1998) 21 International Journal of Law and Psychiatry 163.

[58] Crimes Act 1900 (ACT) s 14; Criminal Code Act 1983 (NT) s 37; Criminal Code Act 1899 (Qld) s 304A.

[59] Turnbull v The Queen (1977) 65 Cr App R 242; Hodges v The Queen (1985) 19 A Crim R 129, 135 (Smith J).

[60] Victorian Law Reform Commission, Homicide, Report No 40 (1991).

[61] Crimes Act 1900 (NSW) ss 19A, 442; Crimes Act 1958 (Vic) s 3.

[62] Criminal Law Consolidation Act 1935 (SA) ss 269A, 269C, 269E; Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) s 20; Crimes Act 1900 (ACT) s 428N. See generally Bernadette McSherry, ‘Mental Impairment and Criminal Responsibility: Recent Australian Legislative Reforms’ (1999) 23 Criminal Law Journal 135.

[63] Criminal Law Consolidation Act 1935 (SA) ss 269A–269ZB as amended by the Criminal Law Consolidation (Mental Impairment) Act 1995 (SA).

[64] Crimes Act 1900 (ACT) s 428N.

[65] [1933] HCA 1; (1933) 55 CLR 182.

[66] The Victorian regime is based on recommendations made by the Community Development Committee of the Parliament of Victoria, Inquiry into Persons Detained at the Governor’s Pleasure, Report No 57 (1994).

[67] These provisions are discussed in Question of Law Reserved (No 1 of 1997) [1997] SASC 6781; (1997) 70 SASR 251 and R v W-B [1999] SASC 147; (1999) 73 SASR 45.

[68] Criminal Law Consolidation Act 1935 (SA) s 269F.

[69] Criminal Law Consolidation Act 1935 (SA) ss 269F and 269G.

[70] Criminal Law Consolidation Act 1935 (SA) s 269O(1).

[71] Criminal Law Consolidation Act 1935 (SA) s 269O(2).

[72] Criminal Law Consolidation Act 1935 (SA) s 269O(3).

[73] Criminal Law Consolidation Act 1935 (SA) s 269P.

[74] Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) s 22.

[75] Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) ss 18 and 23.

[76] Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) s 26.

[77] Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) s 26(2)(b).

[78] Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) s 28.

[79] Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) s 31.

[80] Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) s 32(2).

[81] Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) s 57.

[82] For discussion of these provisions, see In the Matters of Major Reviews of Percy, Farrell and RJO [1998] VSC 70; (1998) 102 A Crim R 554; RDM v Director of Public Prosecutions [1999] VSCA 86 (Unreported, Winneke P, Charles and Chernov JJA, 4 June 1999) <http://www.austlii.edu.au/au/

cases/vic/VSCA/1999/86.html> at 1 December 2000 (copy on file with author).

[83] Mental Health (Treatment and Care) Act 1994 (ACT) s 48R.

[84] Mental Health (Treatment and Care) Act 1994 (ACT) s 48Q.

[85] For a more complete account of the Gary David case, see C R Williams, ‘Psychopathy, Mental Illness and Preventative Detention: Issues Arising from the David Case’ (1990) 16 Monash Law Review 161. See also P Brett, L Waller and C R Williams, Criminal Law: Text and Cases (8th ed, 1997) 686–93; David Wood, ‘A One Man Dangerous Offenders Statute — The Victorian Community Protection Act 1990’ [1990] MelbULawRw 7; (1990) 17 Melbourne University Law Review 497. On the issue of personality disorder generally, see Ian Freckelton and Terese Henning, ‘Lies, Personality Disorders and Expert Evidence: New Developments’ (1998) 5 Psychiatry, Psychology and Law 271.

[86] Helen Kiel (ed), Decisions of the Mental Health Review Board of Victoria 1987–1991 (1992) 160.

[87] Kennan v David (Unreported, Supreme Court of Victoria, Fullagar J, 18 September 1990); Attorney-General v David [1992] VicRp 53; [1992] 2 VR 46.

[88] Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51. See Paul Ames Fairall, ‘Imprisonment without Conviction in New South Wales: Kable v Director of Public Prosecutions’ [1995] SydLawRw 36; (1995) 17 Sydney Law Review 573.

[89] Victorian Branch, Royal Australian and New Zealand College of Psychiatrists, ‘Some Comments on “Personality Disorder”, “Mental Illness” and Involuntary Hospitalisation’ (Submission to the Victorian Parliamentary Social Development Committee Inquiry into Mental Disturbance and Community Safety, 1989) 2–3.

[90] Ibid 3–4.

[91] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1994) 654.

[92] Ibid 649–50.

[93] For a general discussion of the issue of preventive detention, see Nigel Walker, ‘Unscientific, Unwise, Unprofitable or Unjust? The Anti-Protectionist Arguments’ (1982) 22 British Journal of Criminology 276; Williams, above n 85.

[94] Sentencing Act 1991 (Vic) as amended by the Sentencing (Amendment) Act 1993 (Vic)

ss 18(a)–(m). An indefinite sentence imposed pursuant to these provisions was upheld by the Court of Appeal of Victoria in R v Carr [1996] VicRp 43; [1996] 1 VR 585. To date only two offenders have been sentenced under this legislation.

[95] Mental Health (Treatment and Care) Act 1994 (ACT); Mental Health Act 1990 (NSW); Mental Health Act 1974 (Qld); Mental Health Act 1993 (SA); Mental Health Act 1963 (Tas); Mental Health Act 1986 (Vic); Mental Health Act 1996 (WA).

[96] Mental Health Act 1986 (Vic) s 9.

[97] Mental Health Act 1986 (Vic) s 12.

[98] The jurisdiction, functions and work of the Mental Health Review Board are fully explained in Mental Health Review Board & Psychosurgery Review Board, Annual Report to the Victorian Parliament for the Year Ending 30 June 2000 (2000).

[99] The s 8 criteria have not been the subject of judicial decision in Victoria. Decisions of the Mental Health Review Board are, however, collected in two volumes: Kiel, above n 86; Ian Freckelton (ed), Decisions of the Mental Health Review Board Victoria 1991–1997 (1998).

[100] Mental Health Act 1986 (Vic) s 14. On the nature of community treatment orders generally, see Wilson v Mental Health Review Board [2000] VSC 404 (Unreported, O’Bryan J, 6 October 2000) <http://www.austlii.edu.au/au/cases/vic/VSC/2000/404.html> at 1 December 2000 (copy on file with author).

[101] Mental Health Act 1986 (Vic) s 14(1A).

[102] Sentencing Act 1991 (Vic) s 93(1)(d).

[103] Mental Health Act 1986 (Vic) s 16.

[104] Mental Health Act 1986 (Vic) s 44.

[105] Sentencing Act 1991 (Vic) s 93(1)(e).

[106] Crimes Act 1958 (Vic) s 420. This section has now been repealed.

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Williams, C R --- "Development and Change in Insanity and Related Defences" [2000] MelbULawRw 28; (2000) 24(3) Melbourne University Law Review 711

Development and Change in Insanity and Related Defences

C R WILLIAMS[*]

INTRODUCTION

II JUDICIAL DEVELOPMENT OF THE COMMON LAW

III THE CODE JURISDICTIONS

IV THE DEVELOPMENT OF AUTOMATISM

V DIMINISHED OR SUBSTANTIALLY IMPAIRED RESPONSIBILITY

VI MODERN LEGISLATIVE REFORMS — SOUTH AUSTRALIA, VICTORIA AND THE ACT

VII THE ISSUE OF SEVERE PERSONALITY DISORDER

VIII CIVIL COMMITMENT AND MENTAL STATE DEFENCES

IX CONCLUSION

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All Databases

Cases & Legislation

Journals & Scholarship

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Communities

LawCite

Australia

CTH

ACT

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NT

QLD

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VIC

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Specific Year

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Williams, C R --- "Development and Change in Insanity and Related Defences" [2000] MelbULawRw 28; (2000) 24(3) Melbourne University Law Review 711

Development and Change in Insanity and Related Defences

C R WILLIAMS[*]

INTRODUCTION

II JUDICIAL DEVELOPMENT OF THE COMMON LAW

III THE CODE JURISDICTIONS

IV THE DEVELOPMENT OF AUTOMATISM

V DIMINISHED OR SUBSTANTIALLY IMPAIRED RESPONSIBILITY

VI MODERN LEGISLATIVE REFORMS — SOUTH AUSTRALIA, VICTORIA AND THE ACT

VII THE ISSUE OF SEVERE PERSONALITY DISORDER

VIII CIVIL COMMITMENT AND MENTAL STATE DEFENCES

IX CONCLUSION

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