The defences of insanity, substantial impairment by abnormality of mind and automatism play a vital role in avoiding criminal liability. Principally, the defences reflect the idea that intellectually challenged individuals should not be penalised but rather treated of their mental impairment. However the outcomes of each defence have also been criticised as ‘anomalous and arbitrary’ due to conflicting legal and medical definitions.
Consequently, support for the abolishment of these defences has been proposed to be replaced by sentencing discretion so that consistent and proportionate application of the law is achieved. However ultimately, abolishing the defences is undesirable as it is both ineffective and morally wrong to punish the mentally ill through sentencing. Rather, these defences need to be defined more clearly to curtail anomalous outcomes.
The first half of this essay shall focus on key drawbacks of these defences in regards to judicial and medical interpretation as well as the role that sentencing plays in the class of the intellectually challenged. The second half shall assess reforms seeking to qualify and to abolish the defences altogether.
Problems Arising from Broad Definitions of Mental Incapacity Defences Generally, the law acknowledges that mentally incapacitated offenders should not be treated in the same way as offenders of rational intelligence. Insanity is defined by the M’Naghten Rules as a ‘defect of reason’ caused by ‘disease of the mind’. However this classification of insanity has been criticised for being too broad often making it difficult to contrast from automatism. Automatism, described by Lord Goddard as akin to a novus actus interveniens causing involuntarily muscle movement, theoretically differs from insanity in two major instances. It is characterised by: 1.aetiology of an external kind (the ‘internal’/’external’ test) 2.minimal likelihood of recurrence
However in practice, the ‘internal’/’external’ test is a random and subjective attempt to distinguish insanity from automatism. Thus in Quick & Paddison and Hennessy the strikingly similar cases of hyperglycaemia and hypoglycaemia resulted in automatism succeeding only in the former. The sole disparity between the two cases was that in the first, injection of insulin was regarded as an external factor. Failure to take insulin, however, was triggered by an ‘inherent defect or disease’ (hypoglycaemia) so that the defence amounted only to insanity.
Yet to put two very similar cases in almost opposite categories is undoubtedly tenuous and greatly subjective. This weak distinction enables courts to deliberately circumvent the law through the defence of automatism which is apparent through a comparison between the epileptic and dissociative cases of Sullivan and Falconer . In Falconer automatism succeeded on the grounds that the ‘psychological blow’ was an external factor caused by stress. Yet a similar argument failed in the case of Sullivan, even though both dealt with a malfunctioning of the brain.
The determining factor was that the epileptic disorder, not stress, had caused the ‘defect of reason’. This vague distinction has been condemned by Schroeder JA, who describes the defence of “psychological blow automatism” as “the last refuge of a scoundrel”. The breadth of interpreting insanity (and automatism) shown by its arbitrary application, therefore prompts a need to reformulate the defence by ‘legislatively delineating’ its scope to ensure appropriate outcomes are applied and to simultaneously eliminate loopholes in the automatism defence.
The risk of loopholes is particularly relevant to medical opinion where the jury is often subject to a ‘battle of experts’ that is especially inconsistent within the legal context of diminished responsibility. S23A of the Crimes Act 1900 defines substantial impairment by abnormality of mind (SIBAM) as an impaired capacity to understand events, to judge wrongness or to control oneself that is so substantial that it warrants a reduction from a conviction of murder to one of manslaughter. In R v Lloyd ‘substantial’ was held to mean ‘more than a trivial degree but less than total impairment’.
The effect of this is that courts are reluctant to allow expert opinion to put forth a ‘quantitative opinion’ as it is incongruous to legal analysis. Like the defence of insanity, a long-winded technical debate attempting to define and diagnose the impairment may ensue. This can unnecessarily complicate the jury’s verdict leading to inefficiency and costly litigation, as demonstrated by Chayna. Hence to maintain the integrity of the defence of SIBAM, legislation prohibits expert opinion validating manslaughter, thereby upholding the jury’s role [s 23A(2)].
A similar reform of the defences of automatism and insanity, ensuring the verdict avoids a heated debate on justifying various diagnoses, will prevent trial from becoming unreasonably complex. McSherry believes that expert evidence needs to be precluded from dappling with the ‘ultimate issue’ of voluntariness, which should be the jury’s role.
Sentencing and Institutionalisation of ‘Dangerous Persons’ Lawbreakers that are mentally impaired should give grounds to either a mitigating sentence punishment or “acquittal” for psychiatric treatment. However punishment is a “communicative element” and it is therefore futile to condemn individuals who fully lack the capacity to control or comprehend the ‘wrongness’ of unlawful acts (not including those suffering from SIBAM).
The trend towards corrective and rehabilitative systems for social order however, has also been challenged upon its effectiveness. Under s 39 of the Mental Health (Forensic Provisions) Act 1990, the court may detain the accused for an indeterminate period, unless satisfied on the balance of probabilities that the release of the accused will not ‘seriously endanger’ other members of the public.
This non-proportionate period tends to become unreasonably prolonged, indeed beyond that of a ‘non-disordered offender’. This is primarily due to the fear of releasing potentially dangerous persons at large, even after institutional treatment is no longer necessary. This also places a high degree of discretion on hospitals, which do not possess the same level of legal knowledge in sentencing as the judiciary. Hence it is imperative that individuals be subject to proportionate hospitalisation for a period no longer than the sentence term equivalent of the non-insane offender.
Yet this can only be achieved once the stigma of ‘dangerous persons’ detaches from mentally ill offenders; the mentally-disordered should not be punished for what they are or what they will do. Therefore the defence of insanity should remain, whereby immediate transport to mental ward must be made after verdict; a gradual transfer from prison to hospital only delays treatment and avoidably extends the period of incarceration. Additionally constant review of hospitals by the Mental Health Tribunal will provide reassurance that no persons shall remain in custody longer than necessary.
The stigma of dangerousness of the mentally ill is also resonated in the ‘recurrence’ test, mentioned earlier. Disorders easily treatable outside of psychiatric institutions such as somnambulism are legally regarded as forms of “insanity”, merely because of the likelihood of violent recurrence. Hence defendants will more often than not, be “acquitted”, by reason of insanity, to mental institutions in case of potential violence to community welfare.
However, it has been noted that recidivism is equally likely in the general prison population. In truth, a civilly committed person is more likely to cause self-inflicted injury than harm towards other members of the public. The illogical recurrence theory has subjected the mentally ill to an unreasonable degree of injustice that is hypocritical to the Feinberg’s principle of individual autonomy and submissive to paternalistic interference.
The issue of whether to sentence or acquit to mental institutions is most prevalent in the defence of SIBAM. SIBAM is distinguished from insanity through its ‘enduring feature’ of personality traits that are ‘statistically abnormal’ to the ordinary person, for example psychopathy. This requires a judgment of social values in regards to the implications of ‘abnormality’ rather than just empirical evidence. However the underlying issue is the extent to which personality disorders may be ‘cured’ insofar as personalities may be ‘cured’.
Personality disorders should not be treated through an imprisonment sentence or involuntary mental treatment. Self-reform can only be achieved through self-motivation. One method of promoting this is through psychotherapeutic methods. The short fall of the law’s acknowledgement of this notion is represented in the Garry David case and Veen No. 2 whereby both imprisonment and psychiatric treatment were powerless in preventing repeated instances of self-harm and recidivism.
Therefore incarcerating persons of SIBAM has compromised the freedom of the individual for the benefit of an ideologically riskless society. We must therefore question whether the defence of SIBAM has been properly implemented. Deane J thus advocates for a statutory system that specifically addresses punitive sentencing that effectively reforms suffers of SIBAM. The VLR furthermore suggests that judges should be empowered to sentence SIBAM offenders weighing up the severity of the individual’s mental incapacity and the need to preserve public order. Moreover, a custodial supervision order following trial will provide a ‘graduated court-supervised process’ that eases the individual back into society.
Reform ProposalsDespite the innumerable problems associated with the defence of insanity and automatism, the draft Criminal Code supports its preservation. The ambiguity of the ‘internal’/’external’ test can be abolished, so that legal terminology will be streamlined to a list of medically recognised mental diseases. Falconer’s assertion that ‘disease of mind’ as a legal rather than medical classification should be modified so that only an official pool of accredited medical professionals shall interact with the Mental Health Review Tribunal to reach a more accurate understanding of psychiatrics within the legal context.
This will see a direction towards de-institutionalisation, enabling offenders with disorders that are not medically recognised as forms of insanity (such as sleepwalking) to be acquitted outright or subject to outpatient treatment. Therefore the defence of automatism can be retained without wrongfully classifying disorders in the insanity category.
Additionally, the defence of SIBAM was primarily introduced to lessen the severity of the mandatory life sentence for murder. As a ‘relic of harsher times’, popular view also argues that the defence has become redundant as judicial sentencing achieves virtually the same outcome. However, NSWLRC maintains that such a direction will lead to a disruption in public confidence in the criminal justice system.
Consequently courts will try to avoid lenient sentencing for fear of media sensationalism and public outcry. This will lead to an increase in unduly harsh sentencing and imprisonment rates. Therefore the answer to homicide should reflect and appease community expectations. Such can only be achieved with the inclusion of a jury and hence, the defence should be maintained.
However it must be noted that the jury tends to judge offenders in terms of their superficial status rather than the appreciating their wholecircumstances, which could potentially lead to a biased verdict. Dell observes that ‘family men and unhappy lovers’ are more readily excused when compared to ‘unpleasant psychopaths’. Hence trial by jury should be restricted to borderline cases as practised in the UK following the aftermath of Peter Sutcliffe.
CONCLUSIONThe defences of the mentally incapacitated have been censured for being too broad. However the correct treatment of the class of mentally impaired offenders is not within sentencing, but rather outside the criminal law system. It is unfair to condemn an individual to sanctioning who lacks sufficient capabilities in understanding or appreciating the ‘wrongness’ of crime. Furthermore the rationale of individual autonomy defying State oppression has failed to some extent through the defence of mental incapacity.
The shortcomings of these defences highlight that the mentally incapacitated fit neither the role of the ‘juridical subject’, nor the role of the free-willed individual. Indeed medical opinion implies that human idiosyncrasies are deterministic in nature and are necessarily subject to paternalistic interference. But if the law continues in this direction, to what extent will psychiatric theory attempt to justify the deterministic way in which the all human behaviour operates?
Though positivists claim that abolishment of the defence will provide a more consistent approach to addressing mentally challenged offenders, we cannot lose sight of the open textured nature of criminal law, where it is the public, and not medical nor legal authority, who plays the leading role in deciding who shall be subject to punishment and how severe sanctioning should be for the crime of murder.
BibliographyBooksSally Anne Gerull & William Lucas (eds), No. 19 Serious Violent Offenders: Sentencing, Psychiatry and Law Reform (1993).
David Neal, “Personality Disorder, the Criminal Justice System and the Mental Health System” in Sally Anne Gerull & William Lucas (eds), No. 19 SeriousViolent Offenders: Sentencing, Psychiatry and Law Reform (1993).
Ron Merkel, “‘Dangerous Persons’: To be Gaoled for What They Are, or What They May Do, NOT for What They Have Done” Sally Anne Gerull & William Lucas (eds), No. 19 Serious Violent Offenders: Sentencing, Psychiatry and Law Reform (1993).
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Bernadette McSherry, ‘It’s a Man’s World: Claims of Provocation and Automatism in ‘Intimate’ Homicides’ (2005) 29 MULR at 905-929.
C R Williams, ‘Development and Change in Insanity and Related Defences’ (2000) 24 MULR 711.
Roy G Beran, ‘Automatism: Comparison of Common Law & Civil Law Approaches – A Search for the Optimal’ (2002) 10 JLM at 61-68.
Stephen Gault, ‘Dissociative State Automatism and Criminal Responsibility’ (2004) 28 Crim LJ at 329-350.
WebsitesJudicial Commission of New South Wales, Mental Illness – Including Insane Automatism 18 May 2010 (22 Aug 2010).
M Souper, 6th Form Law: Murder – defences –non-insane automatism (22 Aug 2010).
Peter Zahra SC, Partial Defences to Murder, Provocation and Diminished Responsibility (24 Aug 2010).
ReportsNew South Wales Law Reform Commission, Partial Defences to Murder: Diminished Responsibility: Report 82 (1997).
New South Wales Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System: Report 80 (1996).
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).
Background CasesM’Naghten’s Case (1843) 8 ER 718.R v Porter (1933) 55 CLR 182.R v Cheatham  NSWCCA 282.A-G (SA) v Brown (1959) 33 ALJR 89;  AC 432 (PC).R v Ayoub  2 NSWLR 511 (NSWCCA).R v Stephens  NSWSC 811.Bratty v Attorney-General for Northern Ireland  AC 386. R v Szymusiak  3 OR 602 at 608.Chayna (1993) 66 A Crim R 178 (NSWCCA).Veen v R (No 2)  HCA 14.
LegislationMental Health (Forensic Provisions) Act 1990 (NSW) s 39.Mental Health (Forensic Provisions) Act 1990 (NSW) s 37.Crimes Act 1900 (NSW) s 23A.