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Precedent (Australian Lawyers Alliance) |
MENTAL ILLNESS DEFENCES AND THE CRIMINAL LAW
By Dr Robert Cavanagh
INTRODUCTION
Criminal laws and procedures often fail to provide justice when they are applied to people who are unfit to stand trial, have a cognitive disability, mental illness or disorder. This problem increases where serious indictable offences are involved.[1]
The failures can be many, including: receiving a fair trial when mental capacity to defend is absent or significantly reduced; where the application of legal principles to the indicia of mental illness or incapacity provided by health professionals can create confusion;[2] and where sentencing rules emphasise retribution, protection of the community and specific and general deterrence in cases where offenders have limited understanding of behavioural norms. The problem can be compounded where medical experts differ in their diagnoses and probable treatment outcomes for individuals.
This article outlines the main criminal laws, provides a brief historical perspective, touches on some of the obvious problems and suggests various areas for improvement.
FUNDAMENTAL PRINCIPLE
In the oft-cited case of R v Dashwood,[3] the English Court of Criminal Appeal found that it was a ‘cardinal principle of our law’ that no person could be tried for a crime unless they were able to defend themselves.[4] While clearly stating the principle, it is a good example of the difficulties that exist in applying it. The court decided that if the appellant had been unfit at trial this should have been raised by his legal counsel.
Samuel Sydney Dashwood and his co-accused were convicted of causing the death of Leonard Moules, who died on 18 May 1942, following injuries he received during their robbery of the pawnbroker’s shop where he worked on 30 April 1942. At trial, the court linked the defence of insanity to the issue of unfitness to stand trial. Dashwood apparently refused his lawyer’s advice to raise insanity as a defence and conducted his own trial. Subsequently, both Dashwood and the co-accused were sentenced to death. Dashwood’s appeal was heard on 26 August 1942 and he was executed by hanging at Pentonville on 10 September 1942. The whole case, including his execution, took less than five months, and although he was discharged from the army for mental incapacity no medical evidence was called.
UNFITNESS TO STAND TRIAL
One of the first considerations when preparing for trial is whether an accused person is fit to stand trial. A useful history of the parallel development of unfitness and insanity and the development of the common law in the United Kingdom is provided by Wood CJ at CL in R v Mailes.[5]
Procedural fairness has long been established as necessary at common law and ‘requires that the accused be aware of the nature of proceedings and be capable of participation in them in a fit state to defend himself’.[6] The requirement of a fair trial is clearly stated in Dietrich v R.[7] According to Hayne J, the question of fitness to plead where there is an unresolved issue results in the trial being a nullity because of ‘a fundamental failure in the trial process’.[8]
R v Presser[9] is the authority outlining the main requirements necessary to determine if a person is fit to stand trial. Presser was a 14-year-old school boy with an intellectual disability who killed a 4-year-old boy with an iron bar.[10] Smith J found that, for an accused to be fit to stand trial, he or she must be able to, at minimum:
1. understand the charge(s);
2. plead to the charge and exercise his or her right of challenge;
3. understand, generally, the nature of the proceeding;
4. follow the course of the proceedings so as to understand what is going on in court in a general sense, even if they cannot understand the purpose of various formalities;
5. understand the substantial effect of any evidence that may be given against him or her; and
6. make a defence to the charge. Where he or she has counsel, this must be done through counsel by giving any necessary instructions and by letting counsel know what his or her version of the facts is and, if necessary, telling the court what it is.[11]
The requirements listed in Presser were extended by the High Court in Kesavarajah v The Queen[12] to require the jury to consider the capacity of the accused to maintain fitness for the length of the trial.[13]
Unfitness to stand trial can arise: where the person is a deaf mute;[14] where language difficulties make it impossible for the accused to raise a defence;[15] where the person has an intellectual disability;[16] and where a person is suffering from mental illness. The failure to recall an incident, through amnesia or some other cause, is insufficient.[17]
The procedures controlling the application of the law, as it relates to unfitness to stand trial, are found in the Mental Health (Forensic Provisions) Act 1990 (NSW). If the Mental Health Review Tribunal finds the person to be in an ongoing state of unfitness a special hearing is held. If on the limited evidence available the person is found to have committed the offence, a limiting term of imprisonment can be imposed.[18]
MENTAL ILLNESS (INSANITY)
The extent to which a mentally ill person is excused from criminal liability is limited by the extent to which the law allows and is constrained by the theory of deterrence. Dixon J in The King v Porter,[19] upon providing directions to a jury, stressed the fact that the purpose of the law was to punish people who committed offences and thereby deter others from offending. The exception was ‘if their mental condition is such that they cannot be in the least influenced by the possibility or probability of subsequent punishment; if they cannot understand what they are doing or cannot understand the ground upon which the law proceeds’: then, it ‘is perfectly useless for the law to threaten punishment’.[20]
Bertram Edward Porter, a 23-year-old unemployed sheet metal worker, had separated from his wife and was looking after his 11-month-old child and at the same time was trying to reconcile with his wife. Apparently, his wife refused to have anything to do with the child and at ‘a final interview with his wife he appeared to have lost control of his emotions’.[21] He obtained strychnine and gave it to the child and was about to take some himself when the police arrived.
Dixon J told the jury that ‘a great number of people who come into a Criminal Court are abnormal’, but ‘they are mentally quite able to appreciate what they are doing and quite able to appreciate the threatened punishment of the law and the wrongness of their acts, and they are held in check by the prospect of punishment’.[22] The jury returned a verdict of: ‘Not guilty on the ground of insanity at the time of commission of the act charged’.[23] Porter was kept in strict custody at the pleasure of the Governor-General.[24] A person sentenced to the ‘Governor-General’s pleasure’ often received indefinite detention; clearly a significant punishment. However, it may have been considered preferable to the death penalty.[25] Today, indefinite detention is less likely.
LEGAL REQUIREMENTS
The Trial of James Hadfield[26] for high treason in 1800 provides some early background to the development of the legal requirements for a mental illness defence.[27] However, the legal requirements for a finding of mental illness (insanity) are found in R v M'Naghten.[28] The Court held that every person is to be presumed sane unless they were suffering from a defect of reason or disease of the mind such that they did not know the nature and quality of the act they were doing, or did not know it was wrong.[29]
The presumption of sanity is contained in Commonwealth, state and territory statutes.[30] It places the onus on the defence to raise the issue of insanity, although there is nothing stopping the prosecution from raising it. The principle was qualified in the case of Sodeman v The King[31] to exclude extreme anger or uncontrollable impulse, even if it arises from a disease of the mind, if the person knew the nature and quality of the act or that it was wrong.
In Bratty v Attorney-General for Northern Ireland,[32] Lord Denning provided some guidance as to what constituted a disease of the mind, stating: ‘The major mental diseases, which the doctors call psychoses, such as schizophrenia, are clearly diseases of the mind ... any mental disorder which manifests itself in violence and is prone to recur is a disease of the mind.’[33]
Not to know the nature and quality of the act is explained by Dixon J in Porter, in the following way: ‘In a case where a man intentionally destroys life he may have so little capacity for understanding the nature of life and the destruction of life, that to him it is no more than breaking a twig or destroying an inanimate object.’[34]
In R v Jenkins,[35] the Court interpreted narrowly the concept of ‘did not know he was doing what was wrong’ to be limited and not involving degrees of knowing. Jenkins was preceded by three High Court cases which emphasised the narrow approach to knowing that the act was wrong.[36] In Porter, it was held that a person does not know right from wrong when they cannot reason with some degree of calmness about the moral quality of what they are doing.[37]
In Willgoss v R,[38] the appellant had been diagnosed as a ‘gross psychopath’. He shot a person three times in the head, placed the body in an underground water tank, stole the deceased’s truck and some of his money. The opinion of one of the expert psychiatric witnesses was that: ‘He would be capable of understanding, assessing intellectually what he was doing was wrong. [But] he would not have the appropriate feeling to have a full appreciation of knowing what he was doing was wrong.’[39] The Court rejected the suggestion that an intellectual understanding without a moral understanding was not enough, stating: ‘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.’[40]
The extent to which knowledge of the wrongness of the act can be applied remains unclear, especially where experts disagree. For example, in CJ v Regina[41] the appellant had been convicted of 21 counts of indecency and sexual assault on boys under the age of 16 years while under her authority. She was employed as a weekend ‘housemother’ at a school.[42] The trial had been conducted before a judge alone and the defence had sought a special verdict of not guilty by reason of mental illness. The appellant was found guilty on all counts. At trial the expert psychiatric evidence differed on whether the appellant had a mental illness and whether she knew what she was doing was wrong. The Court of Criminal Appeal found that there was a judicial duty for a trial judge to resolve disputes between experts, and there was a failure of the trial judge to analyse the evidence of each witness.[43] The Court found an appellable error resulting in a miscarriage of justice and remitted the proceeding back to the District Court for retrial. Before a different judge the verdict was not guilty by reason of mental illness, and CJ was released into the community subject to conditions.
When considering a mental illness defence, a jury must first consider the issue of voluntariness on the basis that the accused person was of sound mind. If this is decided in favour of the prosecution, the jury then considers the defence of mental illness. When considering mental illness, a jury determines the question by applying the standard of proof on the balance of probabilities.[44] Detail of the process and voluntariness can be found in Hawkins v The Queen.[45] The defence of mental illness can be found in state and territory statutes, and operates as a complete defence.
Section 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW) allows a jury to return a special verdict of not guilty by reason of mental illness.[46] Section 39 gives the court the option to, after a finding of not guilty by reason of mental illness: (1) detain a person until release by due process of law or (2) release the person or (3) release them subject to conditions. If the individual is detained, then Part 5 of the Act applies, and the person becomes a forensic patient subject to review by the Mental Health Review Tribunal. This outcome can lead to prolonged detention of the person.
The Mental Health (Forensic Provisions) Act 1990 (NSW) does not include a definition of mental illness, so the test is as found in R v M'Naghten and refined in subsequent cases. However, some judicial officers, especially in the local court, may refer to the Mental Health Act 2007 (NSW), where s4 provides a definition. In my opinion, determining whether a person knew the nature of an act or knew that it was wrong introduces an unnecessary complexity. A causal link between a mental illness or condition and the offending should be sufficient.[47]
SUBSTANTIAL IMPAIRMENT
Prior to 3 April 1998 in New South Wales, substantial impairment was known as ‘diminished responsibility’.[48] Diminished responsibility is considered in R v Spriggs.[49]
Apart from in New South Wales, substantial impairment is a defence in Queensland, the Australian Capital Territory and the Northern Territory.[50] Section 23A of the Crimes Act 1900 (NSW) is applicable.[51]
Unlike the mental illness defence, substantial impairment applies only in cases of murder. It is a partial defence to the charge of murder in that, if made out, it results in a verdict of not guilty of murder but guilty of manslaughter. A finding of substantial impairment requires the prosecution to first prove all the elements for murder.
Substantial impairment by abnormality of mind only arises on a charge of murder where all other issues, including self-defence and provocation, have not been made out. Abnormality of mind is restricted to the accused’s capacity to: understand events; or to judge whether his or her actions were right or wrong; or to exercise self-control. However, the impairment must be substantial. The underlying condition has to be a pre-existing mental or psychological condition that is not transitory; it need not be permanent. Self-induced intoxication is to be disregarded.
The concern about how dangerous a mentally ill person might be is seen in the Veen cases.[52] Robert Veen is an Aboriginal man who was convicted of manslaughter based on diminished responsibility, and after his release he killed another person, of which he was convicted of murder and sentenced to life imprisonment. The Western Australian Law Reform Commission used his case as an example of why diminished responsibility should not be a defence in Western Australia.[53] What the Commission did not identify was that Veen’s ‘violent history’[54] prior to his first killing involved a stabbing when he was 16 years old that did not result in serious injury;[55] that he had been sexually assaulted by three men as an 11-year-old child; that he had been removed from his Aboriginal family when he was two years old; that he had been sexually assaulted when he was sent by the Aboriginal Protection Board to the Kinchella Boys’ Home in Kempsey; that he had been working as a prostitute in Kings Cross from the age of 14; that he attended the Christian Brothers School in Albury and came into contact with renowned paedophile Father Vincent Kiss, who gave evidence at his trial; and that he had attempted suicide on two occasions.[56]
SENTENCING
There are a number of cases that highlight mental illness as a mitigating factor in sentencing.[57] However, as noted by McClellan CJ at CL: ‘it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.’[58]
A lot depends on the type of mental illness, and in many instances, on a risk assessment. The danger to the community approach gives the courts and the community a straightforward way of dealing with a significant problem. Gaols become holding pens for the mentally ill while assistance for such persons is limited to glib advertising campaigns directing people to a telephone number if they have a problem.[59] In my opinion: (1) a risk assessment by a mental health professional who has had only a brief acquaintance with an accused should be avoided (2) preferring certain types of mental illness over others for mitigation in sentencing should be stopped; and (3) more resources should be devoted to stopping the abuse of children and providing adequate support to children who have been abused who can consequently develop serious mental health problems and occasionally become offenders.[60] Priority should be given to supporting offenders with mental health problems in the community, rather than simply gaoling them.
Dr Robert Cavanagh is a barrister at Sir Owen Dixon Chambers, Sydney/Newcastle. PHONE (02) 4925 2371 EMAIL robert.cavanagh7@hotmail.com.
[1] The law and procedures applying in the local court are not considered.
[2] P Shea, ‘M’Naghten Revisited – Back to the Future? (The Mental Illness Defence – A Psychiatric Perspective)’, Current Issues in Criminal Justice, Vol. 12, No. 3, 2001, 347-62.
[4] Ibid, 587.
[5] [2001] NSWCCA 155, [112]- [143].
[6] Eastman v The Queen [2000] HCA 29, 399 (per Callinan J) citing Proceedings in the Case of John Frith for High Treason (1790) 22 Howell’s State Trials 307, 318.
[7] [1992] HCA 57, [1]; [1992] HCA 57; (1992) 177 CLR 292.
[8] Eastman v The Queen [2000] HCA 29, [62].
[9] [1958] VicRp 9; [1958] VR 45.
[10] ‘14-Year-Old on Trial for Murder’, The Age (Melbourne), 12 September 1957, 6.
[11] R v Presser [1958] VicRp 9; [1958] VR 45.
[12] [1994] 41; (1994) 181 CLR 230; (1994) 123 ALR 463.
[13] Ibid.
[14] Ebatarinja v Deland (1998) 194 CLR 444; (1998) 157 ALR 385.
[15] Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1 at 9 per Gibbs, Mason and Wilson JJ; Begum (1985) 93 Cr App R 96.
[16] R v Miller (No. 2) (2000) SASC 152, involved intellectual disability and possible frontal lobe damage; R v Mailes [2001] NSWCCA 155.
[17] Drummond v R [1994] NSWCCA 27.
[18] See ss4-30 for the procedures.
[19] [1933] HCA 1; (1933) 55 CLR 182.
[20] Ibid, 186.
[21] Ibid, 183.
[22] Ibid.
[23] Ibid, 191.
[24] ‘Case of Porter: Prisoner to be Removed From Canberra’, The Canberra Times (Canberra), 15 February 1933, 4.
[25] The death penalty was abolished in Queensland in 1922; NT in 1973; Victoria in 1975; and SA in 1975. The ACT, never having executed anyone, formally abolished the death penalty in 1983; WA abolished it in 1984; and NSW in 1985. The Commonwealth Parliament abolished the death penalty when it enacted the Commonwealth Death Penalty Abolition Act 1973 and it locked in the positions of states and territories when it introduced the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010. This Act, perforce of s10 of the Constitution, binds states and territories. There has never been an execution carried out under Commonwealth law.
[27] See also H D Crotty, ‘History of Insanity as a Defence to Crime in English Criminal Law’, California Law Review, Vol. 12, Issue 2, 1924, for an outline of the 19th Century cases and statutes.
[28] [1843] EngR 875; [1843-60] All ER Rep 229.
[29] Ibid, 233.
[30] Criminal Code (Cth), s7.3(3); Criminal Code 2002 (ACT), s28(4); Criminal Code Act (NT), s43D; Criminal Code Act 1899 (Qld), s55; Criminal Law Consolidation Act 1935 (SA), s269D; Criminal Justice (Mental Impairment) Act 1999 (Tas), s9; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s21; Criminal Code (WA), s26. Some states and territories have similar provisions for unfitness, for example: Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s10; Criminal Law Consolidation Act 1935 (SA) s269I.
[31] [1936] HCA 75; (1936) 55 CLR 192, 205.
[32] [1963] AC 386.
[33] Ibid, 412.
[34] [1933] HCA 1; (1933) 55 CLR 182, 188.
[35] (1963) 81 WN (Pt 2) (NSW).
[36] See R v Porter [1933] HCA 1; (1933) 55 CLR 182; Stapleton v R [1952] HCA 56; (1952) 86 CLR 358; and Willgoss v R [1960] HCA 5; (1960) 105 CLR 295.
[37] [1933] HCA 1; [1933] HCA 1; (1933) 55 CLR 182, 189-90.
[38] [1960] HCA 5; (1960) 105 CLR 295.
[39] Ibid, [7].
[40] Ibid, [8].
[42] Ibid, [12].
[43] Ibid, [96].
[44] Mizzi v The Queen [1960] HCA 77; (1960) 105 CLR 659, 664-665; s141 Evidence Act 1995.
[45] [1994] HCA 28; (1994) 179 CLR 500, 512–13.
[46] See above note 30 for legislation of Commonwealth, states and territories.
[47] See above note 1.
[48] A history of the introduction of diminished responsibility as a defence in NSW before 1997 can be found in NSW Law Reform Commission Report 82 (1997) – Partial Defences to Murder: Diminished Responsibility.
[50] Criminal Code Act 1899 (Qld) s304A; Crimes Act 1900 (ACT) s14; Criminal Code Act (NT) s159.
[51] See NSW Law Reform Commission, Partial Defences to Murder: Diminished Responsibility, Report No. 82, 1997.
[52] Veen (No. 1) [1979] HCA 7; (1979) 143 CLR 458; Veen (No. 2) [1988] HCA 14; (1988) 164 CLR 465.
[53] ‘Mental Impairment Defences’, Chapter 5, Law Reform Commission of WA – Review of the Law of Homicide: Final Report, 259.
[54] Ibid.
[55] Veen v The Queen [1979] HCA 7, [8]; [1979] HCA 7; (1979) 143 CLR 458.
[56] For some background detail, see: J Stewart, ‘The story of a life behind bars’, ABC News, 4 October 2016, <http://www.abc.net.au/news/2016-02-12/bobby-veen-one-of-australias-longest-serving-prisoner/7115350> .
[57] See R v Hemsley [2004] NSWCCA 228; DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1; R v Chandler; Chandler v R [2012] NSWCCA 135; and Muldrock v The Queen [2011] HCA 39; 244 CLR 120, [53]-[54].
[58] DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, [177].
[59] NITV, ‘Nine out of ten young people in detention have mental disability, study finds’, NITV, 14 February 2018 < https://www.sbs.com.au/nitv/nitv-news/article/2018/02/13/nine-out-ten-young-people-detention-have-mental-disability-study-finds>; N Selvaratnam and N Hermant, ‘Prisoners with disability routinely face sexual, physical abuse: Human Rights Watch’, ABC News, 7 February 2018 <http://www.abc.net.au/news/2018-02-07/prisoners-with-disabilities-human-rights-watch-report/9401476> .
[60] For a discussion and list of adverse impacts, see: J Cashmore and R Shackel, ‘The long-term effects of child sexual abuse’, Child Family Community Australia Paper No. 11 – January 2013, <https://aifs.gov.au/cfca/publications/long-term-effects-child-sexual-abuse>.
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