Criminal Law Essay on Insanity

Topics: Psychiatry, Mental disorder, Insanity defense Pages: 9 (2511 words) Published: March 19, 2011
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...

Bibliography: David Neal, “Personality Disorder, the Criminal Justice System and the Mental Health System” in Sally Anne Gerull & William Lucas (eds), No. 19 Serious Violent 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).
Alan Norrie, Crime, reason and history : a critical introduction to criminal law (2nd ed, c2001).
Andew Ashworth, Principles of criminal law (6th ed, c2009).
Susan C Hayes, Simply Criminal (2nd ed, 1992).
Alan Norrie, Crime, Reason and History: A Critical Introduction to Criminal Law
(2nd ed, 2001).
Andrew Ashworth, Sentencing and criminal justice (4th ed, 2005).
Journal Articles
John Dawson, ‘Diminished Responsibility: The Difference It Makes’ (2003) 11 JLM at 103-111
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
Judicial 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).
New South Wales Law Reform Commission, Partial Defences to Murder: Diminished Responsibility: Report 82 (1997)
Background Cases
M’Naghten’s Case (1843) 8 ER 718
R v Porter (1933) 55 CLR 182.
A-G (SA) v Brown (1959) 33 ALJR 89; [1960] AC 432 (PC).
Chayna (1993) 66 A Crim R 178 (NSWCCA).
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