Hawkins v The Queen

[1994] HCA 28

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON AND GAUDRON JJ

ANDREW JOHN HAWKINS v THE QUEEN

(1994) 179 CLR 500

29 June 1994

Criminal Law (Tas.)

Criminal Law (Tas.)—Criminal responsibility—Voluntariness—Insanity—Psychiatric evidence—Relevance—Criminal Code (Tas.), ss. 13(1),16(1),157(1).

Orders

Appeal allowed.

Set aside the order of the Court of Criminal Appeal of Tasmania. In lieu thereof allow the appeal to that Court.

Remit the matter to the Court of Criminal Appeal to make such consequential order as that Court sees fit in accordance with the judgment of this Court.

Remand the appellant in custody to await the further order of the Court of Criminal Appeal.

Decision

MASON CJ, BRENNAN, DEANE, DAWSON AND GAUDRON JJ On the morning of 27 October 1990, the appellant, then aged 16, and his father went into a pine plantation at Railton. The appellant had a gun. He fired it in the direction of his father and the bullet entered the father's heart and killed him. The appellant was charged with murder under s.158 of the Tasmanian Criminal Code ((1) Schedule 1 to the Criminal Code Act 1924 (Tas.).) ("the Code"). Murder is defined by s.157(1) which provides, inter alia, as follows:

" Subject to the provisions of section 160, culpable homicide is murder if it is committed - (a) with an intention to cause the death of any person,
whether of the person killed or not; (b) with an intention to cause to any person, whether
the person killed or not, bodily harm which the offender knew to be likely to cause death in the circumstances, although he had no wish to cause death".

The prosecution case was one of premeditated murder. The defence case was that the appellant entered the pine plantation intending to commit suicide in his father's presence and that at the last moment, in a disturbed state of mind, he turned the rifle from himself towards his father and pulled the trigger without having the specific intention necessary to establish the crime of murder.

2. The appellant has been tried three times. On his first trial, he raised the defence of insanity but the jury was unable to reach a verdict. In the course of the second trial, he withdrew the defence of insanity, the jury convicted him but the Court of Criminal Appeal allowed an appeal and ordered the third trial. On the third trial before Underwood J, the prosecution adduced evidence of several accounts which the appellant had given of the killing of his father. Among those accounts was the appellant's unsworn statement at the second trial which contained this description of the critical events:

"I held the gun out on the right hand side up to my head, thumb on the trigger, right hand. I wanted him to see me shot myself. I was standing just down from the top of the drain. I heard Dad coming. I just saw him - he came out from around a bush he was about seven to eight metres away. I don't know whether he saw me. Then everything flashed through my head. Him bashing Mum, Mum being bashed by my step-father, flashes through me mind were pictures of Nan's coffin, arguments between Mum and Dad, what he'd done to me, all muddled thoughts - then why not him instead of me - he caused most of it. The thoughts went through my head not in any order but all muddled and at the same time. I put the gun from my head down to my hip and pulled the trigger within a second. It went off, Dad fell down, I didn't see where the bullet hit, he fell on his face. I just pointed the gun at him and pulled the trigger, I didn't aim it. He didn't say anything before or after the gun went off. It all happened at once - very quickly all in the one moment. At the time I pulled the trigger I can't recall any thoughts that were happening. I wasn't thinking about what I was doing or the consequences."

After the prosecution case was closed, his Honour held a voir dire in order to determine the relevance and admissibility of the evidence of Dr Sale and Professor Jones whom the defence wished to call in order to raise a reasonable doubt as to the appellant's intent when the gun was fired. Counsel for the appellant neither raised a defence of insanity nor wished that defence to be put to the jury. Underwood J ruled that the medical evidence was inadmissible for any purpose other than insanity. The trial proceeded without the evidence of Dr Sale and Professor Jones. The jury convicted the appellant of murder. The Court of Criminal Appeal by majority (Cox and Crawford JJ, Zeeman J dissenting) dismissed his appeal. The appeal to this Court turns on the admissibility of the medical evidence on the issue of the existence of the specific intent necessary to proof of murder.

The evidence

3. The evidence adduced from Dr Sale and Professor Jones on the voir dire is conveniently stated by Crawford J His Honour's summary of Dr Sale's evidence is as follows:

" (Dr Sale's) opinion was that at the time of the homicide the appellant was suffering from diagnosable mental diseases which he labelled an adolescent identity disorder and a depressive disorder. ... Dr Sale said that if the appellant was holding a gun to his head with the intention of killing himself he would have been highly aroused, both emotionally and physiologically, at the time. His ability to think clearly or logically would have been 'very very severely impeded' and his thought processes would have been 'somewhat fragmented'. Normal rational thinking and reasoning would not have been possible in that state of emotional and physiological arousal. In states of very high emotional arousal it is quite common for individuals to experience flashbacks of old and distressing memories. Dr Sale did not think the appellant would have been impaired in his ability to squeeze the trigger as a willed act ... but believed there was significant doubt that the appellant could (was able to) form a specific intention to either kill or cause bodily harm to his father. Dr Sale's views were based on an assumption that the appellant had been on the point of committing suicide at the critical moment. The mental disease suffered by the appellant caused that suicidal behaviour. Problems in thinking were likely to exist in the moments before the intended suicide. Dr Sale agreed that it would be fair to summarise his evidence by saying that there was significant doubt concerning the appellant's 'capacity to form the intent to kill his father or do him bodily harm by reason of his mental disease operating in the circumstances postulated, namely about to commit suicide.'"

Crawford J's summary of Professor Jones' evidence is as follows:

"The appellant was suffering from what the law regards as a mental disease, labelled by the professor as an adolescent adjustment disorder. A person suffering from that disease would be more prone to attempt suicide and when a person is about to attempt suicide the thinking processes are confused and poorly formulated. It is likely that a person suffering from the appellant's disease who was about to attempt suicide would be more prone to fragmented and disorganised thinking patterns. The appellant's capacity to form the specific intent to kill his father at the time he fired the rifle was at least diminished and it is possible that he did not form that intention at all. It is even possible that the appellant's capacity to form the intention of killing his father was extinguished, but this could not be expressed as a probability. A person with his disease would be more likely to act at a pre-cognitive level and would tend to act rather than think about it, and to that extent the appellant's capacity to form an intention to kill his father would have been reduced by virtue of his disease. Most people with that disease would not have an incapacity to understand or form that intention but the disease rendered it more probable that the capacity would be lost. Taking into account the appellant's probable anxiety at the time he was about to take his own life and that what his intentions were when he shot his father could not be elicited from him, it is quite likely that he did not form an intention to kill his father or cause him bodily harm. The mental disease on its own would not render a person incapable of forming such a specific intent but in consequence of the appellant's anxiety level when about to commit suicide it might have had the effect of the appellant shooting his father without having the intention of killing him or causing him bodily harm."

Although this evidence would have been admissible on the issue of insanity, the majority of the Court of Criminal Appeal held that, as counsel for the accused did not raise that defence, the ruling that the evidence was inadmissible for any other purpose did not occasion any miscarriage of justice.

The Code provisions

4. Section 15 of the Code contains what the sidenote describes as the
"presumption of sanity". It reads:

" Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved."

Section 15 is, as its terms convey, an evidentiary provision of general application. The presumption it contains is rebuttable by evidence. The chief, but not necessarily the only, work which the s.15 presumption has to do is to cast the evidentiary burden of proving insanity on the party seeking to prove it.

5. Insanity is privative of criminal responsibility for the
proscribed act or omission. It is provided for by s.16:

" (1) A person is not criminally responsible for an act done or an omission made by him - (a) when afflicted with mental disease to such an extent as to render him incapable of - (i) understanding the physical character of such act or omission; or

(ii) knowing that such act or omission was one which he ought not to do or make; or

(b) when such act or omission was done or made under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist."

6. As s.16 precludes criminal responsibility "for an act done or an omission made", a finding of insanity necessarily entails a verdict of acquittal, for no act has been done nor any omission made for which the accused is criminally responsible. Section 381 makes particular provision for the onus of proving insanity and for the return of a special verdict in the event that insanity is established:

" (1) If upon the trial of an indictment it is given in evidence, or appears from the evidence, that the accused person was insane at the time the crime was alleged to have been committed by him, and such person is acquitted, the jury shall be required to find specially whether such person was acquitted by them on the ground of insanity. (2)... (omitted by No.30 of 1973, s.27)
(3) The onus of proving the insanity of any such person
shall be upon the defence, but the same may be established
upon the evidence for the prosecution. (4) If in any case it is shown that counsel for the
accused person intends to allege that such person was so
insane as aforesaid, and such counsel announces that he will not adduce evidence, the prosecutor may call evidence of sanity before closing the case for the prosecution; but in any other case such evidence may be called by him in rebuttal."

Section 381(3) casts the ultimate onus of proving insanity on the defence though it contemplates that evidence called by the prosecution
may suffice to establish insanity. Whether s.381 permits the prosecution itself to raise and prove insanity is a question which need not be decided in this appeal ((2) The Court was informed that present authority prevents the prosecution from raising the issue in a prosecution under the Code; cf Reg. v. Falconer (1990) 171 CLR 30 at 62
per Deane and Dawson JJ). However, in a case where the evidence is capable of supporting an acquittal on the ground of insanity, it is the duty of a trial judge to leave that verdict to the jury with appropriate directions.

7. An act or omission which causes death is an essential element in homicide: ss.153, 154, 155. But there can be no liability to conviction for culpable homicide by an act which causes death unless the act is "voluntary and intentional" and the death of the deceased is not an "event which occurs by chance" within the meaning of those terms in s.13(1) of the Code. That sub-section provides:

" No person shall be criminally responsible for an act, unless it is voluntary and intentional; nor, except as hereinafter expressly provided, for an event which occurs by chance."

The meaning of the phrase "voluntary and intentional" was stated correctly, in our respectful opinion, by Neasey J in Williams v. The Queen ((3) (1978) Tas SR 98 at 101.) where, agreeing with a view earlier expressed by Crisp J ((4) In Reg. v. Vallance (1960) Tas SR 51 at 90-91; see also per Burbury CJ at 65.), he held that
"intention in this context is no more than an element in voluntariness". Neasey J noted ((5) (1978) Tas SR at 102.):

"For the purpose of instructing a jury, I think it is correct to say in simple terms that a voluntary and intentional act is a willed act; one which the person was aware he was doing and meant to do".

Section 13(1) thus appears to have a similar operation to s.23 in the Criminal Codes of Queensland and Western Australia. The first limb of s.13(1) precludes criminal responsibility for an unwilled act so that, if the prosecution does not establish in a murder case that the death-causing act was willed, the accused is entitled to be acquitted.

Sections 13(1) and 16(1): their fields of operation

8. An application of s.13(1) or of s.16(1) equally precludes criminal responsibility for an act done by an alleged offender but the onus of proving a willed act is on the prosecution while the onus of proving insanity is on the defence and its proof entails a special verdict. In these circumstances, it is not surprising that, in Tasmania as elsewhere ((6) Reg. v. Foy (1960) Qd R 225; Reg. v. Tsigos (1964-65) NSWR 1607; Reg. v. Joyce (1970) SASR 184; Reg. v. Carter (1959) VR 105; Rabey v. The Queen (1980) 2 SCR 513; (1980) 114 DLR (3d) 193; (1980) 54 CCC (2d) 1; Bratty v. Attorney-General for Northern Ireland (1963) AC 386.), counsel for the defence have sought to use evidence of mental abnormality to raise a reasonable doubt about the voluntariness of the accused's act independently of and distinct from a defence of insanity. Apart from the reversal of the ultimate onus of proving insanity effected by s.381 of the Code, ss.13 and 16 operate
by absolving the doer of an incriminated act from criminal responsibility for that act. On proof that an incriminated act is done by a person, there is a presumption that that person is of sound mind and that presumption justifies the further presumption that the act was "voluntary and intentional". Where there are two available avenues of complete excuse for an incriminated act, one placing the onus of proof on the prosecution, the other placing the onus on the defence, it is not surprising that great difficulties in theory and practice have arisen ((7) As Sir Owen Dixon foresaw in his paper, "A Legacy of Hadfield, M'Naghten and Maclean" (1957) 31 Australian Law Journal 255.). One basis for distinguishing between the two avenues of excuse is to confine the relevance of mental disease to the defence of insanity, denying its relevance to the issue of voluntariness. This has been the solution adopted in most if not all jurisdictions. The solution requires, of course, the determination by the court of the character of any mental abnormality the existence of which is proved or raised by the evidence. Where evidence of a mental abnormality is relied on by
the defence and the issue is criminal responsibility for the incriminated act, it is necessary to characterize the abnormality in order to determine whether the connection, if any, between the alleged abnormality and the doing of the act falls for consideration as a question of voluntariness or as a question of insanity. Characterization was the issue addressed by this Court in Reg. v. Falconer ((8) (1990) 171 CLR 30.). In that case, the Court was concerned to characterize the condition which was said to have affected the voluntariness of the appellant's act in discharging a gun and thereby causing the death of the deceased. The issue arose because evidence of the appellant's mental state when the gun was discharged had been rejected at the trial on the ground that it was insufficient to raise for the jury's consideration the possibility of non-insane automatism under s.23 of the Criminal Code of Western Australia. It was clear that the same abnormality could not give rise to issues of voluntariness and insanity at the same time ((9) ibid. at 48-49, 62, 70, 84.). The Court held that the evidence was capable of giving rise to an issue of voluntariness.

9. It follows that, if the only evidence tendered to raise the question of the voluntariness of the incriminated act is evidence of a mental abnormality amounting to a "mental disease" under s.16 ((10) or "mental disease or natural mental infirmity" under the Codes of Western Australia and Queensland.), the admissibility of the evidence does not depend on its relevance to the issue of voluntariness but on its relevance to the issue of insanity. And, if there be evidence of mental disease but the evidence is incapable of proving that the mental disease produced any of the consequences prescribed by pars (a) and (b) of s.16(1), that evidence is both insufficient to establish insanity and irrelevant to the issue of voluntariness.

10. That was the view taken in Williams v. The Queen, where evidence tending to establish "mental disease" (as that term is understood in s.16) was proffered in order to negative the prosecution's assertion that the act of the accused was "voluntary and intentional". The Court of Criminal Appeal held that it should not be used for that purpose. Neasey J said ((11) (1978) Tas SR at 105.):

" To summarize, the law in my opinion is that if the only explanation of unconscious conduct offered by the evidence is a state of mind properly to be described in common law terms as a defect of reason from disease of the mind, or in terms of s.16 of the Code, 'mental disease,' then the only 'defence' which may succeed if the jury is satisfied of its existence on the balance of probabilities is that of insanity. The same evidence should not be left to the jury to be considered by them in relation to whether the prosecution has proved the relevant conduct to have been voluntary and intentional."

Cosgrove J went further, saying ((12) ibid. at 115.):

"The extent to which a mind must be disordered in order to raise a defence, and the consequences of such a finding are laid down in s.16 and elsewhere in the Criminal Code. When these matters have been properly considered and rejected, either by a jury or by a judge exercising his judicial role, then disorder of the mind is, for the purpose of the criminal law, held not to exist. Any further consideration of the alleged disorder of that mind is out of Court, whether in relation to s.13 or any other issue raised in the trial." (Emphasis added.)

In the present case, the issue upon which the defence sought to tender evidence of the appellant's mental abnormality was neither
voluntariness nor insanity. The defence accepted criminal responsibility for the act of discharging the gun but sought to contest the intent with which the gun was discharged. A majority of the Court of Criminal Appeal, reaching the same view as Cosgrove J in Williams, held that evidence of mental abnormality was relevant only to the issue of insanity and that Underwood J was right to hold that it was irrelevant to the issue of intent.

11. Cox J was of the opinion that the medical evidence (including a passage which Underwood J had held to be inadmissible) was capable of sustaining a finding of insanity under s.16 and was therefore admissible. But his Honour thought that, if a finding of insanity
were not made, the appellant "must be taken to have a mind sufficiently sound as to have the capacity to understand the physical character of his act and to know that it was one which he ought not to do, and to have the capacity to resist an impulse to do the act". His Honour found it difficult to understand how the extinction by mental disease of a capacity to form one of the intents specified in s.157(1)(a) or (b) "could be anything but inconsistent with the existence of the mental capacity the law presumes in the absence

of proof to the contrary". Citing what Dixon J said in R. v. Porter ((13) (1933) 55 CLR 182 at 189-190.), his Honour was of the opinion that, if the jury were not satisfied that the appellant had not been able to reason with "a moderate degree of sense and composure", there was no room left for them to consider Professor Jones' evidence "which is inconsistent with that premise in respect of the question whether he did form (the) intention" of causing death. Accordingly, his Honour was of the view that Professor Jones' evidence was irrelevant to the inference of intention which the jury "might properly infer from the shooting itself, if they thought it right to do so".

12. Crawford J came to the same conclusion, emphasizing the effect of the presumption of sound mind in s.15. His Honour agreed with O'Brien J in Reg. v. S. ((14) (1979) 2 NSWLR 1 at 61.) who had said
-

"if the form in which the nature and quality of his act is raised is that, because of his insanity, he did not appreciate what he was doing, so that he did not intend the consequences of his act, it is upon him to prove that specific claim to lack of mens rea due to insanity."

Crawford J noted the distinction between cases in which the defence had unsuccessfully sought to use evidence of mental disease to negative voluntariness and the present case where evidence of mental disease was sought to be used to negative intent. However, just as the jury who were not satisfied that an accused had discharged the onus of proving insanity were precluded from taking mental disease into account in determining voluntariness, so the jury "must not consider the same explanation (of mental disease) when judging whether the existence of the requisite specific intent has been proven beyond reasonable doubt".

13. With respect, the approach of the majority overlooks the distinction between the operation of ss.13 and 16 in precluding criminal responsibility for doing an act and the prescription (as an element of an offence) of the specific intent with which an act is done. Although the evidentiary presumption of sound mind is of general application, there is a reason why rebuttal of that presumption by evidence of mental disease, which is necessarily admissible on the issue of insanity, cannot be taken into account in determining whether an act is voluntary and intentional. Mental disease, by itself, is no excuse for the doing of an incriminated act but s.16 provides an excuse ("not criminally responsible") when, and only when, the consequence and measure of the mental disease are as prescribed by pars (a) and (b) of s.16(1). It would destroy that limitation on the defence to allow evidence of mental disease to destroy the inference that an act is willed when it is done by a person of sound mind ((15) Reg. v. Falconer (1990) 171 CLR at 43.). If it were otherwise, the practical consequence of destroying that inference would be the outright acquittal of an offender although that offender, if he was suffering to any extent from a mental disease, was not suffering to the extent prescribed by pars (a) and (b) of s.16(1). That is a sound enough reason to reject evidence of mental disease in determining the issue of the voluntariness of an act done by a person presumed to be of sound mind. But there is no such reason for excluding evidence of mental disease in determining whether an act done by a person who is criminally responsible for the act was done with a specific intent. In such a case, the actor is liable in any event to conviction for an offence constituted by the doing of the act but is
liable to conviction for a more serious offence only if the prosecution establishes the intent which is the additional element in the more serious offence. The presumption of sound mind is not the equivalent of a presumption that a person intends the natural, or natural and probable, consequences of his act: Smyth v. The Queen ((16) (1957) 98 CLR 163. The reference in s.17(3) to the "presumption that a person intends the natural and probable consequences of his acts" was not advanced by counsel for the respondent as a presumption of general application. In Snow v. The Queen (1962) Tas SR 271 at 288, that presumption was said to be a "presumption of fact capable of rebuttal by an advanced degree of drunkenness". It does not affect the general question whether an inference of specific intent should be drawn from the circumstances of the case, though it may restrict the effect of a lesser degree of drunkenness on the drawing of an inference
of intent.). What a person who is criminally responsible for his act intended when he did the act is an issue which must be determined by the jury as an inference from all the evidence which is relevant to that issue and no presumption of law exists to relieve the jury of that duty ((17) per Kitto J in Thomas v. The Queen (1960) 102 CLR 584 at 596.). The prosecution is entitled to invoke the presumption of sound mind but not to exclude any evidence which is relevant to rebut it. In Schultz v. The Queen ((18) (1982) WAR 171 at 173.), Burt CJ pointed out that the intent of an accused is not necessarily the intent that might be attributed to an ordinary person in the circumstances but the intent of the accused himself. He said ((19) ibid. at 174.):

"For the purposes of this case the only question is whether the intellectual impairment of the appellant was relevant to and ought to have been admitted as part of 'the whole of the evidence' bearing upon the question of the appellant's intent.

14. Unless there are authorities to the contrary, in my
opinion the evidence was relevant and, when led by the appellant, admissible. Once it be acknowledged that there is no legal presumption that a man intends the probable consequences of his acts and that in every case the finding to be made is specifically and exclusively as to the intention of a particular person at a particular moment of time, then, as it seems to me, all facts personal to the person concerned which have bearing or which in the judgment of reasonable men may have a bearing upon the operation of his mind are relevant to that finding." In New Zealand, the acceptance of the presumption that a man "intend(s) the natural and probable consequences of his acts" seems to have led the Court of Appeal to a view different from that stated by Burt CJ: see Reg. v. Roulston ((20) (1976) 2 NZLR 644 at 648-649.). The view of Burt CJ accords with the law in this country.

15. Moreover, as evidence of "such intoxication as would render the accused incapable of forming (a) specific intent" is taken into account "in order to determine whether or not he had that intent" ((21) s.17(2), a provision which has been construed as limiting the relevance of intoxication to the capacity to form an intent as distinct from the actual formation of the intent: Snow v. The Queen (1962) Tas SR at 282. The Tasmanian Code is in this
respect different from s.28 of the Codes of Queensland and Western Australia: see Thomas v. The Queen (1960) 102 CLR esp. at 596-597.), it would be anomalous to exclude evidence of other forms of mental abnormality in determining the same issue. In United States v. Brawner ((22) (1972) 471 F 2d 969 at 999.) a majority of the Court of Appeals for the District of Columbia said:

" Neither logic nor justice can tolerate a jurisprudence that defines the elements of an offense as requiring a mental state such that one defendant can properly argue that his voluntary drunkenness removed his capacity to form the specific intent but another defendant is inhibited from a submission of his contention that an abnormal mental condition, for which he was in no way responsible, negated his capacity to form a particular specific intent, even though the condition did not exonerate him from all criminal responsibility."

16. To say that evidence of mental disease is admissible on the issue of intent is one thing; the strength of the evidence is another. If the evidence of mental disease does not establish that the accused was incapable of knowing that the act was "one which he ought not to do" (s.16(1)(a)(ii)) or, under the common law, was incapable of knowing the nature and quality of his act, that evidence may not greatly affect the strength of any adverse inference of intent drawn from the objective circumstances. But there is no necessary inconsistency between mental abnormality and the existence of a specific intent.

17. The admissibility of evidence of mental disease on the actual state of an offender's mind where that state is an element of the offence has often been discussed in Canada. In More v. The Queen ((23) (1963) 41 DLR (2d) 380; (1963) 3 CCC 289.), the question was considered by the Supreme Court in a case which arose under s.202A(2)(a) of the Canadian Criminal Code. That provision prescribed as an element of first degree murder a specific mental state in addition to the specific intent required for murder: the murder had
to be "planned and deliberate" (a term construed as meaning "considered, not impulsive") ((24) ibid. at 382; 291. The authority of More was not diminished by Mulligan v. The Queen (1976) 66 DLR (3d) 627; 28 CCC (2d) 266 which related simply to the relevance of evidence of a particular psychiatric condition to the issue of intoxication negativing intent: see at 631-632, 638-639; 271, 278.). Cartwright J (with whom a majority of the Court agreed) said ((25) (1963) 41 DLR (2d) at 382-383; (1963) 3 CCC 289 at 291-292.):

"The evidence of the two doctors is not relied on by the defence as raising the question whether the accused was legally sane. Its importance is that it would assist the jury in deciding the question whether the accused's action in pulling the trigger, which so far as this branch of the matter is concerned was admittedly the intentional act of a sane man, was also his deliberate act. This question is one of fact and its solution involves an inquiry as to the thinking of the accused at the moment of acting. If the jury accepted the evidence of the doctors it, in conjunction with the accused's own evidence, might well cause them to regard it as more probable that the accused's final act was prompted by sudden impulse rather than by consideration. On this question the accused was entitled to have the verdict of a properly instructed jury."

The point was clearly made in the Ontario case of Reg. v. Kirkby ((26) (1985) 21 CCC (3d) 31.) where the trial judge withdrew the issue of insanity from the jury but directed them to take the accused's mental disorder into account in determining specific mental elements in the crime of first degree murder (including planning and deliberation). Martin JA., speaking for the Ontario Court of Appeal ((27) ibid. at 61.), affirmed that the issue for the jury was "whether, taking into account the appellant's mental disorder, the appellant did plan and deliberate on the killing, as distinct from whether the appellant on account of his mental disorder lacked the capacity to plan and deliberate". In some cases, the same approach has been taken to the admissibility of evidence of mental disease on the issue of specific intent. In Reg. v. Baltzer ((28) (1974) 27 CCC (2d) 118 at 141.) Macdonald JA., speaking for the Appeal Division of the Supreme Court of Nova Scotia, said:

" In order to determine whether the appellant had the specific intent to commit murder the crucial problem for the jury is to determine what was in the mind of the accused. In order to determine what was in his mind, evidence of his whole personality and background including evidence of any mental illness or disorder that he may have suffered from at the material time, is relevant and must of necessity, be examined so that the jury can consider such evidence together with all the other evidence in determining whether the Crown has established beyond a reasonable doubt that the accused did have the specific intent required, this apart altogether from the issue or defence of insanity."

The same principle has been accepted in other cases: Reg. v. Meloche ((29) (1975) 34 CCC (2d) 184.); Reg. v. Browning ((30) (1976) 34 CCC (2d) 200 at 202-203.); Reg. v. Hilton ((31) (1977) 34 CCC (2d) 206 at 208.); Reg. v. Lechasseur ((32) (1977) 38 CCC (2d) 319.); Reg. v. Allard ((33) (1990) 57 CCC (3d) 397 at 401 where the Quebec Court of Appeal held that the accused's mental condition was relevant both to the specific intent in murder and the element of planning and deliberation.); Reg. v. Stevenson ((34) (1990) 58 CCC (3d) 464 at 488; cf Reg. v. Wright (1979) 48 CCC (2d) 334 at 340.).

18. In some of these cases ((35) Reg. v. Browning; Reg. v. Hilton and Reg. v. Lechasseur.), the Court was concerned with evidence of mental disease which the jury might find to fall short of insanity but the evidence was admitted on the issue of specific intent. In Reg. v. Hilton ((36) (1977) 34 CCC (2d) at 208.) Jessup JA., speaking for the Ontario Court of Appeal, said that:

"evidence of mental illness or mental disorder falling short of insanity should be considered along with all the other evidence in determining whether the accused had the intent requisite for murder, and in the event that a jury entertained a reasonable doubt on the issue of intent, the verdict would be one of manslaughter."

In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? Those questions must be resolved (the latter by reference either to s.13 or to s.16) before there is any issue of the specific intent with which the act is done. It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed. That issue can arise only on the hypothesis that the accused's mental condition at the time when the incriminated act was done fell short of insanity under s.16.

19. It follows that, if there be evidence that the accused was suffering from a mental disease when the incriminated act was done and the evidence is capable of supporting a finding of insanity, the trial judge must give the jury a direction on that issue. Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done, is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was "voluntary and intentional" within the meaning of those terms in s.13 of the Code. But such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent - relevantly, the intents prescribed by pars (a) and (b) of s.157(1) of the Code. The Courts below were in error in holding that the evidence of Dr Sale and Professor Jones was inadmissible on the issues of those intents.

20. In addition to the specific intents prescribed by pars (a) and (b) of s.157(1), Underwood J left to the jury a third state of mind as an alternative basis of conviction for murder. That was the state of mind which par.(c) prescribes as an element in the crime of murder,
namely, if the culpable homicide is committed -

"by means of any unlawful act or omission which the offender knew, or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person".

The appellant's notice of appeal to the Court of Criminal Appeal challenged the correctness of leaving the issues under par.(c) to the jury, but par.(c) received little reference in the judgments in the Court of Criminal Appeal and was not made the subject of any particular issue in this Court. Assuming that the evidence of the psychiatrists would have been relevant to and admissible on the issue whether the appellant knew that his conduct was "likely to cause death in the circumstances", it is another question whether that evidence would have been relevant to and admissible on the issue whether the appellant "ought to have known" that his conduct was "likely to cause death in the circumstances". And if that evidence was irrelevant to and inadmissible on that issue, it is a further question whether the verdict of the jury, construed by reference to the evidence admitted on the trial, necessarily carries findings adverse to the appellant that culpable homicide was committed (i) by means of an unlawful act (ii) which the offender ought to have known to be likely to cause death.

21. If these questions arising under par.(c) of s.157(1) were resolved against the appellant, the case would, in the absence of any reason to the contrary, be one for the application of s.402(2) of the Code. That sub-section empowers the Court of Criminal Appeal, though upholding an appeal point, to "dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred". As this Court is unable to resolve the questions arising under par.(c), it is necessary to remit the matter to the Court of Criminal Appeal in order to determine what order should be made consequent upon the allowing of the appeal to this Court on the question of the admissibility of the psychiatric evidence on the issues of specific intent arising under pars (a) and (b).

22. If the Court of Criminal Appeal is of the opinion that the questions arising under par.(c) remain open and must be resolved against the appellant, it will be for the Court of Criminal Appeal to determine whether the appeal to it should be dismissed pursuant to s.402(2) of the Code. If the appeal is not so dismissed, it will be open to the Court of Criminal Appeal to substitute a conviction of manslaughter and thereby avoid the unfortunate necessity for a new trial. However, it should be borne in mind that, if the evidence of Dr Sale and Professor Jones had been admitted in the ordinary course of the trial, the appellant might have been acquitted on the ground of insanity despite his counsel's disclaimer of that defence.

23. The case has come to this Court for decision on an important question of law but, that question having been decided, it must now be remitted to the Court of Criminal Appeal to determine, in accordance with the judgment of this Court and in the light of submissions to be made to the Court of Criminal Appeal, what order should be made.

24. We would allow the appeal, set aside the judgment of the Court of Criminal Appeal and remit the matter to the Court of Criminal Appeal to make such order as that Court sees fit consequential upon and in accordance with the judgment and order of this Court. The appellant should be remanded in custody to await the further order of the Court of Criminal Appeal.