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Responsibility) Bill 1997
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Diminished responsibility is a partial defence that operates to reduce a
person's liability for murder to manslaughter. Under section 23A of the
Crimes Act 1900, if a person charged with murder proves that he or she was
suffering from an abnormality of mind (whether arising from a condition of
arrested or retarded development of mind or any inherent causes or induced
by disease or injury) that substantially impaired his or her mental
responsibility for the acts or omissions that caused the death concerned, the
person is not liable to be convicted of murder. Instead, the person is liable to
be convicted of manslaughter.
This Bill replaces that defence with a new defence of substantial impairment
by abnormality of mind. The defence is still a partial defence (that is, it
reduces the accused's liability for murder to manslaughter) and still must be
proved by the accused.
The principal differences between the current defence of diminished
responsibility and the new defence are as follows:
The concept of "mental responsibility" is removed. The new defence
requires the accused to show that his or her capacity to understand
events, to judge whether his or her actions were right or wrong or to
control himself or herself, was substantially impaired by an
abnormality of mind.
The new defence is satisfied only if the impairment suffered by the
defendant was so substantial as to warrant liability for murder being
reduced to manslaughter.
The current defence refers to an abnormality of mind that arises from a
condition of arrested or retarded development of mind or any inherent
causes or that is induced by disease or injury. The new defence instead
requires the accused to prove that his or her abnormality of mind arises
from an underlying condition. This will require the accused to prove
that the abnormality of mind arose from a pre-existing mental or
physiological condition, other than a condition of a transitory kind.
The new defence makes it clear that the effects of any self-induced
intoxication on the accused at the time of the acts or omissions causing
death are to be disregarded by the jury.
The accused is required to give the prosecution notice of his or her
intention to raise the new defence before his or her trial.
The Bill also contains transitional provisions.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 is a formal provision giving effect to the amendments to the
Crimes Act 1900 set out in Schedule 1.
Schedule 1 [1] replaces section 23A of the Crimes Act 1900, which provides
for the defence of diminished responsibility. The principal elements of the
new defence (called substantial impairment by abnormality of mind) are
contained in new section 23A ( l ) , which provides as follows:
Explanatory note page 2
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.
New section 23A (2) provides that evidence of an opinion that an impairment
was so substantial as to warrant liability for murder being reduced to
manslaughter is not admissible.
New section 23A (3) makes it clear that the effects of any self-induced
intoxication on the accused at the time of the acts or omissions that caused
the death concerned are to be disregarded by the jury.
New section 23A (4)-(7) are substantially the same as current section 23A
(2)-(5). They provide that:
(a)
the onus of establishing the defence is on the accused, and
(b)
the defence results in the accused's liability being reduced from
murder to manslaughter, and
(c)
proof of the defence does not affect the liability of any other persons
for the death concerned, and
(d) if the accused raises a defence of mental illness or a defence under
section 23A, the prosecution may offer evidence tending to prove the
other of those contentions and the Court may give directions as to the
stage of proceedings at which the evidence may be offered.
New section 23A (8) defines underlying condition to mean a pre-existing
mental or physiological condition, other than a condition of a transitory kind.
Schedule 1 [2] inserts new section 405AB in the Act. This requires the
accused to give the Director of Public Prosecutions notice of an intention to
raise the new defence. The notice is to include the names and addresses of
any other persons the defendant intends to call to give evidence of the
defence and particulars of the evidence to be given by them.
Schedule 1 [3] inserts transitional provisions in the Act. These make it clear
that the defence of diminished responsibility will continue to apply in respect
of murders alleged to have been committed before the commencement of the
new defence and that the notice requirement does not apply in respect of a
trial for such an alleged murder.
Explanatory note page 3