Hawkins v The Queen

[1994] HCATrans 258

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No Hl of 1994

B e t w e e n -

ANDREW JOHN HAWKINS

Appellant

and

THE QUEEN

Respondent

MASON CJ
BRENNAN J
DEANE J
DAWSON J

GAUDRON J

Hawkins(2) 40 23/3/94

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON WEDNESDAY, 23 MARCH 1994, AT 10.16 AM

Continued from 22/3/94

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Bugg.

MR BUGG:  Thank you, Your Honours. Just to, perhaps, gloss

over som~ matters of yesterday afternoon, I repeat

the position in Tasmania, of course, in so far as

the issue of diminished responsibility, is quite

clear. The Parliament of this State has seen fit

not to create such a defence. It is interesting to

compare both Western Australia and Queensland,

operating under identical codes where Queensland

has incorporated such a defence or form of

exculpation into its Code but Western Australia has

not. Some of the other States in Australia have

seen fit also not to follow suit.

It is certainly a matter of distinction, in my

submission, that that facility is not available in

this State and it is important in considering just

what the logical conclusion of what the appellant

argues for may be by comparison to the result that would be achieved under similar legislation where,

of course, the onus is upon the defendant to raise

and prove, on the balance of probabilities, the

evidentiary basis for such a defence.

Throughout the appellant has maintained that

the disorder from which he suffers is, in fact, a

mental disease within the meaning of section 16.

It is not a question of saying, "I have a disorder

that isn't identifiable within the provisions of

the Code". He starts out by saying, "My disorder

is a mental disease within section 16", and, of

course, we say that is why the authorities which
are, I know, concentrating on the issue of

automatism are relevant and that is why we say

there is no distinction in principle in applying

what has been determined in common law and Code

jurisdictions in relation to the defence of

automatism and the relevance of the defence of

insanity. We are not suggesting that there should be a

total exclusion from the jury's consideration of mental disorders or states of mind which may, in

particular situations, be relevant or impinge upon

the issue of intent. But what we are saying is

that if an accused person seeks to raise a mental

disorder as an explanation for conduct or lack of a

particular mental element, then he starts upon a

road to a defence of insanity, for the same reasons

that have been expounded in Falconer, in Bratty, in

Williams, and all the other cases which the

appellant seeks to distinguish on the basis that
they are concerned only with that basic mental

element under section 13 - that is, was the act

Hawkins(2) 41 23/3/94

voluntary and intentional - that they should be
distinguished.

But, in my submission, they should not, for the simple reason that when one examines all the

authorities, that what the appellant has chosen to

do is embark upon that path towards a defence of

insanity. If the explanation is one of mental

disease, does it satisfy the second stage? It does

not and, therefore, the presumption must be

maintained.

BRENNAN J:  I am not sure that I understand that submission

precisely. Are you saying that if he gives the

mental condition the label of a mental disease,

then he is on the path which you just mentioned?

MR BUGG:  Yes.

BRENNAN J: But if he does not give it that label, that is

all right, the evidence is admissible?

MR BUGG:  No, I am not saying that.

BRENNAN J: Well, what are you saying?

MR BUGG:  Certainly the first part of what you have put to

me, we say - the latter part, no, I do not, because

what I said - I qualified it by saying that we

concede that there will be circumstances in which a

mental disorder may be relevant to the question of

intent and, if it is, then, in certain

circumstances, it will.

BRENNAN J: That is a mental order which is not given the

label of a mental disease.	How do you distinguish
between the two?

MR BUGG:  I suppose you distinguish between the two in

saying that a person who seeks to say, "I should no

dealt with differently by the criminal law and,	longer be presumed sane and, therefore, I should be
therefore, my responsibility at criminal law should
be judged according to that disorder.

BRENNAN J: Responsibility for what?

MR BUGG:	My criminal conduct.
BRENNAN J:	When he says, "By all means judge me - in this

case, judge me as responsible for my criminal

conduct, but don't say that I had the intent".

MR BUGG:  "Judge me for my criminal conduct and give me the

alternatives of manslaughter or insanity", when the Crown says, "No, insanity's an issue that shouldn't

be raised because the second foundation can't be

Hawkins(2) 42 23/3/94

established and you should be presumed sane and the

jury should, therefore, be able to infer on tt1e

product of a mind which the criminal law adjudges

as saying that certain intents can be inferred from
the conduct that you've undertaken".

That is the distinction, we say, between the path which the appellant chose and one which can be

obtained from some of the common law authorities

and decisions from Code States which the Court has

been referred to. There is a clear difference and

where you have a disordered mind and the jury is	being asked to understand the effect on that
disordered mind of the ingestion of alcohol or drugs, then you have the Honner-type situation. Or
if you want to go to judge, a person who is sitting
in the dock or in the witness-box and is responding in a particular way, so the community can
understand the workings of that person's mind, it
is useful for the jury to know that he is a
borderline mental defective, which was the Schultz
situation. In Cameron's case, you had, once again,
a combination of alcohol and a disordered mind.

In those circumstances, certainly, there is a

need for the jury to obtain assistance. But if you do not make that second step - Falconer's case is a

classic illustration, in my submission, of the

principle that we say is relevant to the Court's

determination in this particular matter.

BRENNAN J: Falconer's case was a case where there was an

attempt to use the mental condition as an excuse

for conduct. I do not understand - because it was

under section 23 of the Code, "that which occurs

independently of the exercise of the will". Why is

it that in this case, under the Tasmanian Code, we

do not treat section 15 as dealing with the onus of

proof of soundness of mind or the presumption that

is available to the Crown in a case in which any

question of the condition of the mind is in issue

and section 16 as a section which provides the

exculpation for conduct but says nothing about

intent, specific intent?

MR BUGG:	Why do we not treat it in - I am sorry?
BRENNAN J:	Why do we not regard 15 as it appears to be on

its face, as a section which deals with the

presumption of soundness of mind, for whatever
purpose, in a trial, and section 16 as a section

which relates to the exculpation for conduct as

distinct from specific intent?

MR BUGG: Certainly, and it is the exculpation for conduct

where the person who seeks to obtain that

exculpation must first of all establish a mental

Hawkins(2) 43 23/3/94

disease. That is, really, the position, "My

conduct, in this particular situation, was due to a

mental disease. Let's look at the Code; what does

the Code do about conduct that is attributable to a

mental disease? It only deals with that under

section 16. It doesn't deal with it anywhere

else."

The appellant starts out his submission

yesterday by saying, "Look, a person who

voluntarily consumes alcohol can use that ingestion

of alcohol as an explanation for a lack of a

particular specific intent." But Parliament

specifically met that issue by imposing a

presumption of intention within section 17. To say

that it is just unjust, that in this community a

person who may have some mental disorder cannot

rely upon evidence of the effect of that disorder

upon their capacity to form a specific intent,

whereas, in fact, a person who drinks can, is to

overlook the clear intention of Parliament to

impose a statutory presumption which Your Honour

specifically raised with me yesterday afternoon,

which goes much further than any presumption we say

is imposed by section 15.

The presumption that we say is imposed by

section 15 - that is why we would distinguish the

first one-third of the appellant's submissions

yesterday afternoon and say the attempt to draw

some comparison and, therefore, support from

section 17 should fail for that very reason, and

that is that there is a statutory presumptiqn that

a man intends the natural and probable consequences

of his act. Then the appellant says, "Well,

distinguish all the cases on automatism because all

they dealt with was whether or not the act was

voluntary and intentional and not the consequences

of the act." We would not seek to disagree or

persuade you otherwise than that the act, in this

particular case, is the act which Your Honours

dealt with in Falconer, which is the act considered

in Vallance, which is voluntary and intentional.

There was no argument about that at trial, but

what we say is if you say, "My explanation for my

conduct is a mental disease", turn to the Code,

what benefit does that get you under the Code, it

gets you a section 16 defence if you can satisfy

the second stage. If you cannot, you are therefore

presumed to be of sound mind. His Honour
Mr Justice Crawford used the Shorter Oxford English

Dictionary, "sound, free from disease", and we say you are now presumed free from disease, you are to

be treated as all other persons in that broad group

of the community who Sir Owen Dixon said are the

abnormals who finish up in the criminal court, in

Hawkins(2) 44 23/3/94

Porter's case. You cannot, for the purposes of

some subjective analysis of states of mind, impose

on the Crown an onus of proof in those

circumstances where the Crown should be entitled to

rely upon the inferences which are addres~ed in

Your Honours' judgments in Falconer's case.

DEANE J: But if you confine it to exculpation, do you not

put this case outside it? I follow the way the

evidence, if it established lack of capacity, would

come within an exculpation approach.	But here we
are concerned with diminished capacity.

MR BUGG:  I understand that, Your Honour.

DEANE J: If I can just follow on by putting this to you:

if, for example, the question was the identity of

the killer and the evidence was that the killing

involved a great degree of pre-planning and a

degree of mental processes, would you suggest that

an accused, in that situation, who clearly was not

within section 16, but who suffered a mental

disease, such as Alzheimer's, could not call
evidence that his mental disease simply made it

impossible that he could have engaged in the degree

of pre-planning involved in the killing?

MR BUGG:  No.

DEANE J: Which means you do focus on the exculpation?

MR BUGG:  Yes. It is really, I suppose, akin to the cases

to which I referred Your Honours yesterday from the

Supreme Court of Canada, McMartin and More, where

we say that court has allowed evidence of capacity

to form a particular intent or to conduct
themselves in a particular way because of the need

for there to be deliberation and planning to

establish the crime of first degree murder.	You
are there not adducing evidence as to the act
itself; that is, the state of mind at the time of

killing and that is a person's responsibility at

law, their criminal responsibility for their

conduct at the time of killing.

If you stopped it beforehand and there was no

killing, then you would probably have a crime of

conspiracy. You may have a crime of conspiracy but

the evidence of their capacity to formulate the

plan, if it is complex, and therefore not be a
party if they do not have that capacity or it is to
be more likely that they were not, is not a matter

that I would be troubled by at all, Your Honour.
That would be a relevant issue but once you get to

the act and then you are determining the question of the state of mind of the person at the time of the act, then the portion of the Code, Chapter IV,

Hawkins(2) 23/3/94

dealing with criminal responsibility, is the area

in which on~ considers the matter.

You are not talking about a person's

responsibility for the act but, really, you are

talking about their identity and the preliminary

steps by the Crown to proof of that person's

involvement in the matter. So you have situations

where the courts have admitted evidence of a

person's mental capacity to determine whether or

not confessional material should be admitted. So

that in the exercise of the court's discretion to

determine whether or not a person properly

understood lengthy and detailed questioning from

police officers, and would it be fair to that

person to admit that material as a full and frank

confession of their guilt; a preliminary matter.

DEANE J: There is, though - I am not suggesting it is

right - a narrower approach which is consistent

with much of what you are putting and that is that

if one comes to the question of capacity to commit

the offence, section 16 is applicable; in other

words, if you say, "I am simply mentally incapable

of committing that offence". Of course, when you

are in that area, as one of the judges below

pointed out, it is very difficult to distinguish
between incapable of forming an intent and

incapabie of understanding and so on. But once you

move out of that area and into the area of identity
or provocation or self-defence or diminished

capacity, you are in a different area where your

primary argument does not run.

MR BUGG:  The primary argument, we would say, is certainly

distinguishable from issues of identity and matters
of that nature. Getting into the area of capacity

is an interesting area looking at section 16

because there, if a person is incapable of

understanding or of knowing, in reality that means

they have no capacity as the Court of Criminal

Appeal in the case of O'Neill some almost 20 years

ago now and the application for special leave to

this Court was dismissed, said that under the final
limb of section 16, that is, "irresistible

impulse", as it is commonly called, the deprivation

of the power to resist must be in reality a total

deprivation.

There must be no power to resist because, if

there is any portion of power to resist, then that

person is criminally responsible. I suppose that

then begs the question in so far as capacity to

form a specific intent is concerned because if

there is no capacity to form a specific intent

there may still be a capacity to understand right

from wrong and understand the physical nature of

Hawkins(2) 46 23/3/94

the act, but it becomes a very blurred area and

that is why we say there should be a clear

definition of this issue of mental disease.

Otherwise, you reach a stage where in answer to a

proposition or a postulation from Your Honour

Justice Dawson yesterday afternoon, if the issue of

the person's capacity to perform a specific intent,

be it marginally diminished, be it substantially

diminished or whatever, should be open to the

jury's consideration with the assistance of expert

evidence as a matter of course because it is a

relevant issue in the trial.

You have no onus upon the accused, such as you have and such as this Court considered in a very

complex area in one of the judgments in Falconer.

Then all you need is a psychiatrist to enter the

witness box and say, "Look, certainly at that time

his mind would have been disordered, and it is

quite possible, marginally possible, that at that

time he really would have had to struggle to form

any intent at all, and it is my opinion that there

is a real possibility. I will not express it as a

probability but it is possible." There is no onus

upon the defendant. And the jury then has before

it evidence from a person with eminent

qualifications expressing an opinion in the realms

of possibilities.

That, I suppose, is the policy consideration

in terms of the logical extension of what the

appellant's argument is before you, and that,

Your Honour, is why I would say to what you

said yesterday afternoon is a good policy reason

why some definition should be maintained about the

use of that material. But we say there is a good

legal reason, and that is it is to be contained

within the scope of the Code as recognized and

commented upon by Justice Toohey in his judgment in

Falconer, by reference to the earlier decisions I realize that is the difficulty; that is,

dealing with that portion of the Tasmanian Code.

does section 15 only confine itself to the Act

under section 13? What is that presumption of a

sound mind? It is not a presumption of sanity,

although obviously in the column note that is the

word used. That is where we would seek to differ

from the judgments of Their Honours in the Court of

Criminal Appeal, where they equated the presumption under section 15 with the state of mind under

section 16. We would say "No". There is in fact,

for want of a better word, an easier presumption

from the Crown's point of view than that.

BRENNAN J:  Mr Bugg, there is one other way in which one can

construe this Code I suppose, or arguably, and that

Hawkins(2) 47 23/3/94

is that 15 provides a presumption nf sound mind

applicable to the issue of whether a specific

intent was formed or not, as well as to the issues

raised by section 16. But if there is a negation

of the presumption under section 15, in order to

raise a doubt as to the existence of a specific

intent, does that enliven the requirement of a

special verdict under section 381?

MR BUGG: That, Your Honour, is the path which clearly

illustrates the problem with this case. We do not

say it is a simply issue. Obviously, if it

enlivens a special verdict under section 381 there

would have, in my submission, to be a finding that

section 16 itself has been satisfied.

BRENNAN J: That means 381 is restricted to the section 16

situation.

MR BUGG:  Yes.

BRENNAN J: That means that section 15 is restricted to the

section 16 situation.

MR BUGG: Well, no, it is not. It is in the sense that

there is an onus cast upon a person seeking to

prove otherwise, in terms of section 16. But when

you say, "Is section 15 restricted to that?", we

say the presumption of soundness is not a

presumption that, having failed section 16, other

inferences can still be drawn from the mind of that

person. In other words, we say it is a

presumption - if you would fail under section 16

then the issue of that mental disease is gone and
there is a presumption upon which the Crown can

rely.

BRENNAN J:  An irrebuttable presumption of soundness of

mind which the Crown can rely on in order to

establish specific intent.

MR BUGG:	Yes.
DAWSON J: How does that work?	It sounds suspiciously like

a person intends the natural consequences of his

action.

MR BUGG:  No. The presumption - if I could go back to

yesterday afternoon - sorry, I will turn the

rear-vision mirror down in a moment. The

presumption as to the act being relied upon as to

the act being voluntary and intentional, it then

enables, as has been commented upon in three of the

judgments in Falconer, the jury to move to

consider, applying their own experiences to the
circumstances, whether a specific intent can be

inferred, if it is not proven on clear evidence.

Hawkins(2) 48 23/3/94

DAWSON J: In other words, there is no presumption, but

ordinary human experience tells you that if you

lift a gun and aim it at someone and pull the

trigger you intended to at least do grievous bodily

harm.

MR BUGG: That is right, as Your Honour Justice Deane said

in the judgment in Falconer. There is certainly a

link between the word "prove", in section 15, and

the special verdict provision of section 381. We

do not suggest that there is some reduced onus upon

an accused person if they seek to prove something

less than section 16 - sorry, a state of mind

satisfying section 16 - I am sorry to speak in

shorthand - but what we say is that if you do not

satisfy it by using that state of mind referable to

section 16 - and I am repeating myself now - then

if you do not satisfy section 16 you cannot then
rely upon that state of mind for some other
purpose. In other words, if the explanation for
the accused's conduct is a disease of the mind,

then let us examine what the Code says about that.

Just to examine, Your Honours, with you the

issue as far as the common law is concerned, we say

it is quite plain that the position has not changed

since Bratty and that, to an extent, is confirmed

by the case of Reg v S. But my learned friend said

yesterday that there was some criticism of that decision of the Court of Criminal Appeal in New

South Wales in the case of Youssef. I have

examined the report of that case, and it would be

my submission that certainly there is criticism of

the principle, but not a criticism of the reasoning

behind the decision. So, in other words, we would

say there has been no critical comment of the

validity of the decision in terms of its legal

foundation. The passage to which I would refer

Your Honours from Bratty, (1963) AC 386, commences at page 418 where approximately one-third of the

way down Lord Morris said - and I appreciate we are

dealing here with automatism, and whilst obviously

the entire passage is relevant, the key area of

that extract from the judgment is:

When the plea of insanity failed the

presumption of sanity remained and no medical

evidence was adduced which was at all directed

to the question whether on the assumption that

the appellant was sane he might yet for some

reason have acted unconsciously.

The passage, in my submission, is support for the

proposition that a defence of insanity or an

explanation for conduct which has its foundation on

a mental disease - in other words, "I should be

regarded differently within the criminal law

Hawkins(2) 49 23/3/94

because I suffer from a mental disease" - has only

one avenue in terms of the criminal law in 'i:asmaniu.

and, in my submission, that is so at common law as

well. I appreciate that Bratty was dealing with

the defence of automatism, but we say that its

principles are relevant to the position that we

take here.

DEANE J: If you confine your argument to complete

incapacity or complete exculpation, it obtains a
lot of support from considerations of onus of

proof, does it not?

MR BUGG:  Yes, it does.

DEANE J: If the accused says, "I couldn't have the specific

intent because I am mentally incapable of having

it", as I follow the onus of proof provisions, the

jury would then say, "Is it more probable than not

that his mentally incapacity was section 16

insanity? If it is, he is not guilty on the

grounds of insanity, but if we have a doubt about

specific intent because of his mental incapacity

that we are not persuaded on the probabilities that

it was section 16, we bring in a verdict of not

guilty." That would be mad.

MR BUGG:  I appreciate that, Your Honour, and, of course,

what the position is as far as the order in which

the jury is directed to consider the issue is one

of: has the Crown proven its case? Put to one

side this evidence of mental disease before you

consider.

DEANE J: But the order of considering is going to be

irrelevant in a case where the jury's conclusion is

that he did not have specific intent because of

mental incapacity, but they are not satisfied on

the balance of probability that it was section 16

incapacity. How does it work then?

MR BUGG:  I hesitate, Your Honour, because I just do not see

that situation arising with proper direction, and

that was the point I was endeavouring to make

yesterday afternoon when I was commenting upon the

standard form direction.

DEANE J: That is Justice Cox's point, is it, that if you

have that type of mental incapacity that precludes

intent you will come within the Dixon formula in

Porter's case?

MR BUGG:	Yes.
DEANE J:	I follow that, but here we are assuming that you

can have circumstances where mental incapacity not

within section 16 precludes a specific intent.

Hawkins(2) 50 23/3/94

MR BUGG:  Yes, that is why we say that it is important that

if you have m~ntal incapacity which is put to the

jury as giving rise Lo exculpation for the special

verdict under section 16 and it fails, then that

issue is no longer before the jury, because as

Your Honour says, the position one reaches is

someone being found not guilty by virtue of a mental

disease.

BRENNAN J: That is not correct. He is not found not

guilty; found not guilty of murder, but convicted

of manslaughter.

MR BUGG:  Yes, but that is confined to this case, but if it

was attempted murder, Your Honour, an outright

acquittal. If it was attempted rape, an outright

acquittal. The difficulty, of course, is what the

appellant seeks is not just a resolution of the

issue for this case, and it is always difficult

therefore to - as a proposition I understand that

Your Honour in relation to this particular matter:

"I am prepared to plead to manslaughter, but I do

not want to be found not guilty on the grounds of

insanity", which is the appellant's stated position

here.

BRENNAN J:  He is not seeking not guilty on the grounds of

insanity.

MR BUGG:  No, "I do not want to be found not guilty on the

grounds of insanity". That is what the

appellant - - -

BRENNAN J:	"I am prepared to accept conviction for manslaughter."
MR BUGG:	That is right. And the Crown says, "We are being

put in that position because we are confronted with

a person who has, we say, an unattainable insanity

defence, but who wants to use a portion of that defence to shift the onus from himself which he	carries under section 16 to create a reasonable
doubt about the question of specific intent."
That, of course, has been the criticism within
common law jurisdictions and to some extent in
Canada for the course which the appellant seeks in
this matter. Of course, that course is open if you
have diminished responsibility, and if you have
diminished responsibility where does the onus lie?
With the person claiming that his responsibility for his acts should be diminished because of a
mental disorder, not a mental disease, and that is
the terminology used under the Code from
Your Honour's home State.

The Court of Appeal in New Zealand considered

the question of a failed defence of insanity

Hawkins(2) 51 23/3/94

attributable to the ingestion of drugs in

Reg v Roulston, (1976) NZLR 644. The full text of

the relevant portion of the judgment commences at

page 647, and I would not, in light of the time

indication I gave Your Honours yesterday, seek to

read all that. The passage continues through to

page 649, and if I may just read the concluding

paragraph of that passage at the top of page 649,

which follows a consideration of Bratty and Cottle,

the court said:

It may well be that when the evidence in a

case is considered as a whole the initial

presumption of sanity will fail to lead to a
clear inference of mens rea and in that event
the Crown will have failed at that first stage

to take the case to the point where

consideration of the defence of insanity will

need to arise. But once, sanity being

presumed, the necessary intent is clearly to

be inferred, then the second stage of the

inquiry will be whether the accused has shown

in terms of s 23(2) -

and that is the equivalent provision to the

Tasmanian section 16 -

that by reason of disease of the mind he did

not appreciate either the physical or the

moral quality of his acts. If he fails to

show that this is more likely than not then

the provisional presumption of sanity will not

have been displaced, nor the consequential

inference of capacity and intention.

Of course, it is that consequential inference which

is the response I gave to Your Honour earlier this

morning.

The judgment of the Court of Criminal Appeal

in New South Wales in Reg v S, (1979) 2 NSWLR 1,

has been commented upon both by the appellant and

the respondent in the outline of submissions, but

the particular passage to which I refer

Your Honours, and I will not read it, is contained

at page 61 which follows His Honour

Justice O'Brien's consideration of the evolution of

the law as it then was in New South Wales. I say

"as it then was" because it was suggested by my

learned friend in his submissions yesterday that

there has been some criticism of the correctness of

that decision. But I invite Your Honours to

consider the judgment from the Court of Criminal

Appeal in Youssef, and there is no criticism of the

correctness of the decision, but rather a

suggestion that the continuing application of the

Hawkins(2) 52 23/3/94

evolution of the M'Naghten Rules in 1990 is no

longer appropriate.

In Tasmania, the Court of Criminal Appeal, and

I realizd that it is obiter, but in Snow v Reg,

(1962) Tas SR 271, in the joint judgment of the

former Chief Justice and Justice Cox, who I hasten

to add is not the current Justice Cox but his

father, at page 283 towards the end of the page:

Disease of the mind which might affect

the accused's capacity to form a criminal

intent or affect the voluntariness of his act

but which is not shown to have produced one of

the conditions prescribed bys 16 is

irrelevant to his legal criminal
responsibility. Similarly we think it to be
clear that intoxication affects criminal

responsibility -

et cetera. That has been the consistent approach

of the Court of Criminal Appeal in this State in

its interpretation of section 16 when it has been

called upon to so interpret that section.

The Court of Criminal Appeal in Williams v

Reg, (1978) Tas SR 98, a decision commented upon in

a number of the judgments in Falconer's case,

considered the question of insane and non-insane

automatism, and at page 105 of that case report His Honour Mr Justice Neasey summarized the law

under the Tasmanian Code in the second-last

paragraph on the page when he said:

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.

I realize that the response to that will be that

that is confined to "act" under section 13, but

His Honour Mr Justice Cosgrove, and the passage has already drawn to Your Honours' attention, at

page 115 of the same report, deals with the matter

in slightly more generous terms, but we would say

that that merely reflects the consistency in

approach from the court of this State to its

Hawkins(2) 53 23/3/94

interpretation of the relevance and effect of

section 16 within the Criminal Code.

I have referred in the outline of submissions

to that passage of the report of His Honour

Mr Justice Dixon's summing up in Porter, and I will

not read that to Your Honours, and Your Honours are

probably familiar with it in any event.

The Canadian position has been a matter of consideration both by the trial judge and by the

Court of Criminal Appeal, and the appellant seeks

some support from that position. Your Honours, I

did in brief outline yesterday speak of the

distinction that can be drawn from those decisions

by a consideration of the crime of first degree

murder in that country. By way of reference, and

for the transcript only, I refer Your Honours to

Aalders, 69 CCC (3d) 154. There is an interesting

consideration of that historical development of the

Criminal Code and the crime of first degree murder.

The Court will recall that yesterday I said I think it was from 1961 to 1968 the crime was on the

statute book. It was removed and not brought back

until 1978, and that will reflect obviously when

one looks at the dates of some of the decisions

referred to by the appellant, a difference in

approach which was given some direction from the

Supreme Court of that country. At page 175 of the case reported, Aalders, Your Honours will see where

there is an assessment of the current status of the

law, and the Court will remember I mentioned

yesterday there was some confusion in the

translation from premedite from the Quebec side of

the river.

The first case to which I refer Your Honours

is the Supreme Court decision of More,

(1963) 3 CCC 289. The appellant in that case had

been charged with first degree murder having, he	claimed in a suicidal mood, killed his wife, and	then thought about killing himself after being
through a state of serious depression following a
disastrous financial state of affairs within the
family. The Supreme Court upheld the appellant's
submission that evidence of his mental state which
would have assisted the jury in understanding
whether or not he had the capacity to plan or
deliberate about the murder - and that comes to Your Honour Justice Deane's question to me earlier
this morning - was a relevant issue. What is
interesting, in fact, is to read the very powerful dissent of Justice Fauteux at page 298 where, at
the foot of the page, the report reads:

Acceptance of the appellant's submission

that mental defect or disease not sufficient

Hawkins(2) 54 23/3/94

to render an accused legally irresponsible

under s 16 -

which is our equivalent -

may nevertheless operate to reduce the degree

of the crime charged is tantamount to

introducing in the Canadian law a new and

secondary test of legal irresponsibility -

and goes on. I refer Your Honours to that - I know

it is from a dissenting judgment - but there is an

interesting comment on it by Justice Cartwright,

the President of that Court, and I will

Your Honours take the Court back to that in a

moment. But whilst we are at that passage of the

judgment, if Your Honours would look at page 299

where His Honour considers the state of the law in

the United States, and I say that because we are

dealing, I know, with a 1963 decision, but it was

put yesterday that the position in the United

States should be gleaned from the case reference

from the appellant. What His Honour there says is:

In the United States, the tests of

irresponsibility of the various jurisdictions,

in cases involving insanity as a defense to

crime, are reviewed -

and after mentioning the reference to the review -

In most of the jurisdictions, it appears that where the law of the State includes specific

intent, deliberation or premeditation as

constitutive elements of a murder of first

degree, it is held that insanity, not

sufficient to require an acquittal, may not be

shown to negative intent, deliberation or

premeditation, and so reduce the crime to

There is a constitutional justification for the murder in second degree.	decision which was referred to by the appellant
yesterday and I invite Your Honours to read the
full text of that report, because it was there held that the law relating to a reversal of onus, in
effect, by imposing that full presumption contained
in our section 17 was, in fact, unconstitutional.
But going back now to His Honour
Justice Cartwright's comment, at page 291 the learned president says, two-thirds of the way down the page:

Since writing the above, I have had an

opportunity of reading the reasons of my

brother Fauteux and I wish to make it clear

that in my opinion the enactment -

Hawkins(2) 55 23/3/94

which is the first degree murder enactment -

has in no way affected the interpretation or

application of s 16. the evidence of the two

doctors -

and so on. So what His Honour was there giving an

assurance was that by applying the lesser standard
of mental disease under the Canadian Code to enable
the jury to consider whether or not the ingredients
of planning or deliberation had been proved beyond

reasonable doubt was not, as was asserted by

Justice Fauteux, an undermining and an

introduction, in effect, of a diminished

responsibility position. So the assurance given by

the president to the criticism in the powerful

dissent of Justice Fauteux, in my submission,

should be seen as an indication to this Court as to

just what the position was in the Supreme Court in

Canada in 1963.

It is important to consider that,

Your Honours, because many of the authorities cited

by the appellant in support of the position adopted

by the divisional courts in Canada refer in fact to

More as support for the position they have taken

but, in fact, in the judgment that is considered in

detail in the Court of Criminal Appeal, that is

Wright, in the judgment of His Honour

Mr Justice Prowse, Your Honours will see that at

the conclusion of the learned judge's consideration

of the law as it then was in Canada, he says, "I

find support for this position from More" and then

refers to another Supreme Court decision which I

will take Your Honours to in a moment, but I just
merely refer you also to McMartin v Reg, (1965)

1 CCC 142 which was two years later in another

Supreme Court decision. There is nothing in the

text of judgments in that case which, in my

submission, should in any way give support for the

position taken by the appeal courts from the

provinces which have been cited to Your Honours.

I refer Your Honours to the passage contained

at the top of page 148:

The proposed evidence was not directed towards

proving that the appellant was legally insane

at the time of the crime, but rather towards

showing that a psychiatric examination after

the trial had disclosed that he had long been

suffering from a disorder of the mind which

manifested itself in impulsive, unpredictable

and dangerous behaviour, and that his long

history of mental disorder was a relevant

circumstance proper to be considered, together

with all the other circumstances disclosed in

Hawkins(2) 56 23/3/94

the evidence, in determining whether or not

the murder was planned and deliberate -

and, of course, that is that additional factor that

was incorporated into the Code in 1961, ~emoved in

1968 and brought back in 1978.

So when the provincial appellate courts cite

More as authority for the proposition that that lesser - if a defence of insanity fails, the mental

disorder can still be applied in determining

whether or not the specific intent was formed. It

was not the specific intent relevant to the primary
crime but that additional factor that the

Parliament had incorporated to create the crime of

first degree murder.

I have referred the Court to Mulligan v Reg,

28 CCC (2d). I will not read from the text of that

report, bearing in mind the time, but I would

merely refer Your Honours to it and, in particular,

page 278. The case report commences at page 266.

At page 278 in the judgment of Justice Spence which

was followed by the majority - the relevant portion

of Justice Spence's judgment is on page 277 but

there is an interesting comment made by

Justice Dickson, as he then was, in his dissenting judgment which is reported in its entirety on

pages 278 and 279, and he says half-way down the

pay:

The predominant question is intent. A

rigid categorization of defences, keeping

medical evidence of insanity entirely separate

from evidence of drunkenness is not only

unrealistic but a departure from all that is

embraced in the phrase mens rea.

His Honour is there considering the combination of

effect of intoxication on a particular mind which, evidence of intoxication and state of mind and the	of course, we say does not infringe the postion
which we contend for in this matter.

The Supreme Court of Canada considered the

requirements of successfully raising the defence of

insanity under the Canadian Criminal Code in the

case of Chartrand v Reg, 26 CCC (2d) 417. I refer

Your Honours to half-way down page 420 where the

Court said, and this is in dealing with the failed

defence of insanity:

Chartrand was therefore able to distinguish

between right and wrong, and although he was

ill, he was technically sane. What the

witness adds on the subject of the inner

pathological process cannot be taken into

Hawkins(2) 57 23/3/94

consideration under our criminal legislation,

which does ~ot recognize the diminished

responsibility theory.

There is further reference to the passage from the

judgment of Borg which goes through to page 421,

half-way down the page and I merely draw that to

Your Honours' attention as well.

The Chartrand and More reports considered in

the light of the opening which I put to
Your Honours yesterday of the understanding of the

Canadian position, should be seen then in
considering the judgment of Justice Prowse in Reg v

Wright which, as I have said earlier, was commented

upon in detail in two of the judgments in the Court

of Criminal Appeal, and my learned friend said

yesterday that he would leave Wright's decision for

reply. I merely invite Your Honours to consider

from Wright, 48 CCC (2d), 334, the passage from the

judgment commencing with the reference to More at

page 343.

Having considered More and Bratty, His Honour

says half-way down page 345:

In my view, in the absence of a finding

of insanity, lack of intent cannot be based on
a lack of mental capacity to form the

requisite intent -

and goes on to expand upon that and concludes at

page 346 by saying:

I find support for this conclusion in the

Bratty case and the decisions of the Supreme

Court of Canada in Mulligan ..... and

Chartrand -

and, of course, he has already referred to More.

When the Court comes to consider those authorities

referred to by the appellant, Your Honours will see

that some of them either have no authoritative

backing for the assertions that are made by the
courts; or alternatively they rely upon More as the basis for saying in Canada that a crime of specific intent where a defence of insanity is raised which

does not satisfy the second stage of the test, that

evidence of mental disease can, in fact, be used by

the jury in determining whether or not the accused

had that specific intent, have no support from the

Supreme Court and have no support from the cases

which are cited.

The Supreme Court of Canada has not been

prepared - and I refer to Justice Cartwright's

judgment in More - to extend that use of the mental

Hawkins(2) 58 23/3/94

disease evidence to the actual crime of murder, but

merely to the additional factor, the aggravating

factor of first degree murder, and that is of

premeditation or planning and deliberation. It is

our submission that, in fact, the Prowse judgment

in Wright's case is correct. It was correctly

applied by the Court of Criminal Appeal in this

State.

BRENNAN J:  How do you account then for the passage on

page 346?

MR BUGG:  Your Honour, you are referring to the passage

prior to the, "I find support" paragraph?

BRENNAN J:  Yes .

MR BUGG: That, Your Honour, must be seen by reference to

the examples given by His Honour. He gave no

examples of actual mental state, but rather the
effect of the mental condition on motor control or

eyesight.

BRENNAN J:  I read what he says at the commencement of the

paragraph as saying that you are not concerned with

capacity when you are dealing with intent; you are

concerned with the fact of whether the intent was

formed.

MR BUGG:  Yes, but then you must read on, Your Honour, with

respect, because I submit that what His Honour says

there is qualified by the examples that he gives:

For example, if on the issue of insanity

evidence was adduced of the accused's lack of

motor control as evidence of insanity and the defence of insanity was rejected by the jury, then, if in relation to the issue of intent a

question arose as to whether -

et cetera. Then he goes on as to whether or not a

moose was shot and the person had an eyesight

defect based upon a mental disorder. It is that

level of example which qualifies the comment, and

of course, His Honour Mr Justice Zeeman in the
Court of Criminal Appeal, stopped short of

considering those examples to see whether or not in

fact, the extent of His Honour's concession, we

would say - we do not say it is a concession, I am

sorry, I withdraw that.

BRENNAN J: Those examples, in a sense, are a fortiori. If

His Lordship is there saying that you can look at

the evidence relating to the mental condition for the purpose of negativing deliberation or general

intent. A fortiori one would think you can look at

it for the purpose of denying specific intent, when

Hawkins(2) 59 23/3/94

those examples all go to the ques~ion of
voluntariness, or under your code, section 13 -
voluntary and intentional. It is a big step that

it takes in suggesting that it goes to section 13.

It is not a big step to say that it goes to

specific intent.

MR BUGG:  No, I do not, with respect, suggest that he is

saying it goes to section 13. The examples he

gives, in my submission, indicate the relevance of the second step of the deliberative process of the jury, and that is, if the Crown, relying upon the

presumption in section 15 satisfies the first

stage, that is the section 13 stage, then is there

a specific intent accompanying the act, then the

mental element of the crime, that is, the specific

intent - not the basic intent but the specific
intent - when that is considered by the jury, and

bear in mind in Canada, Your Honour, that the jury

is invited to consider first of all the basic
intent, then the defence of insanity, then the
question of specific intent which we say is

problematical anyway.

Then if you come to consider this issue of

specific intent, that evidence, even though

rejected as a defence of insanity may be relevant

in some circumstances, and here are two

circumstances where it would be relevant if you are

considering whether or not the act of the accused

evinces a specific intent, that is, to achieve a

particular consequence, because it would be

implicit from what His Honour said there that the

jury has obviously reached a conclusion that the

act itself, certainly in the latter example, the act itself was voluntary and intentional. There

would probably be defence of accident that may be

open as well.

In any event what he is saying is that if a

person was shot when the person had poor eyesight

as a result of a mental disorder, then that is not

to a section 13 basic intent. That is to a
specific intent because the act, and we have not

sought to canvass that issue, but we certainly are

ad idem from the judgments in Falconer as to what

Your Honours' joint judgment in Falconer as to the

meaning of the word, "act", and we have not sought

to say otherwise in this matter.

The appellant has referred the Court to the

Quebec Appeal Court's judgment in the case of

Reg v Allard, 57 CCC (3d). I will not be

referring to it today and invite Your Honours to

examine the passages from the judgment dealing with an analysis of the Supreme Court's consideration of the relevance of the defence of intoxication in its

Hawkins(2) 60 23/3/94

report in Wallen's case and the comments made by

the Quebec Appeal Court. There you will see that

the court was split and the opposing positions

taken in relation to the relevance of intoxication

to the two levels of intent, that is, the specific

intent to ground the crime of murder, that is, the

intention to kill or to inflict injury, our

equivalent of section 157(l)(a) and (l)(b), and

then that additional factor of planning and

deliberation and there was a difference of view

taken on the Supreme Court. It is interesting to

know that Justices McLachlin and L'Heureux-Dube

were together in a joint judgment on that matter,

but I merely refer Your Honours to it because it

will give some indication of what we say is the

basis for the evolution of a particular relaxing of

the provisions of the Canadian Code.

Your Honour Justice Deane, yesterday raised

the question of the relevance of a disease of the

mind under section 16 and the defence of

self-defence. I pass up to the Court an unreported

judgment from our Court of Criminal Appeal, the

unreported judgment reference is A68 of 1993. It

is the matter of Walsh v Reg, and I merely refer

Your Honours to the passage from the judgment at

the top of page 10 where the issue of self-defence

from an insane delusion arose at the trial because

of some evidence given by a psychiatrist. It was

there considered by His Honour Mr Justice Crawford

who delivered the judgment of the court, and the conclusion that His Honour came to at the top of

page 10 is similar to the response that I gave to

Your Honour yesterday when the question was raised.

The dilemma that is really imposed I suppose

upon the Crown in the position that was posed by

Your Honour Justice Brennan yesterday is one of

saying how far do you take cross-examination of the

expert who you know has expressed the opinion that

the accused fits squarely within section 16 and

should be treated accordingly by the criminal

justice system of this State, who then returns to

the witness box and gives a tailored opinion which

stops short of the second step of section 16, and

merely says, "This person was suffering from a
mental disease", and then describes the nature of the disease, and then relates it to a capacity to

form a specific intention which is then related to

the relevant provisions of section 157 of the

Criminal Code.

I invite Your Honours to read the passages

from the voir dire transcript reported at pages 20

through to 25 of the appeal book where Your Honours

will see how there is this development of the

expert's opinion. It is then abruptly cut short

Hawkins(2) 61 23/3/94

and he is handed over to be cross-examined. I

accept this was on a voir dire situation, there w~.s

no jury present. It begs the question, in my

submission, to leave the matter where my learned

friend, Mr Melick, suggested the Court should leave

it yesterday and say, "Well, look, whether or not a

defence of insanity is ultimately raised by

cross-examination, that would really be a risk we

would have to take." But, the appellant knows that

the Crown's position is that it rejects and would

oppose, by cross-examination, any suggestion that

at the time the accused was suffering from a mental

disease which then had the consequential effects
required under section 16.

It then becomes a question of whether or not the trial judge should ask the question, and what

is the trial judge's position when he is being
asked to rule in a voir dire situation on the

admissibility of evidence which is aimed
exclusively at raising some doubt about the

capacity of the accused to form a specific intent,

but is being deliberately cut short of the second

stage of section 16. That is the difficulty. How

do you dispute what a witness says about a state of

mind affecting capacity to form a specific intent

when you are in the position of trying to

cross-examine that particular witness - forgetting

Professor Jones at the moment, and I accept the

vulnerability of the Professor's evidence to cross-

examination but that really is not a matter that I

would seek to canvass in any detail before Your

Honours.

Just to respond to the matter raised by my

learned friend yesterday about the relevance of

section 17 and the injustice that is brought to an
accused person in the appellant's position by

virtue of a rigid interpretation of the provisions

of the Code by reference to the availability to an

accused claiming intoxication rather than someone

suffering some natural infirmity of the mind, I

would refer you to the provisions of section 17(3)

which I believe a copy of that section was passed

up to the Court yesterday afternoon and that, of

course, is the imposition of a statutory

presumption which I suppose in America and Canada

might be said to now be either unconstitutional or

in breach of the charter.

I suppose the ultimate problem with the

position which the appellant argues for is how a

jury verdict can be taken. I commented upon that

yesterday afternoon, but it is interesting to

examine the dissenting judge's attempt to lay a

foundation for receiving a jury verdict. That is

Justice Zeeman and that is at page 213 of the

Hawkins(2) 62 23/3/94

appeal book, and also the outline of submissions

from the appellant yesterday. In both cases, we

say, there is a difficulty and that is that a

person who may have had an opportunity for an

absolute acquittal is still confronted with the

prospect of being found not guilty on the grounds

of insanity prior to the jury considering that

position.

The order in which a jury should consider the

evidence where the issue of insanity is raised is

not a matter that appears to be one of any conflict
around this country and the outline of submissions

refers to the Court of Criminal Appeal decision in

Western Australia of Perkins. That is the position

adopted in this State and certainly, on my

researches, in all other jurisdictions and is one which enables the jury to consider the Crown case in its entirely and then move to the question of

insanity after such a deliberation.	Your Honours,
I have no other submissions to make.

MASON CJ: Thank you, Mr Bugg. Mr Melick?

MR MELICK:  Thank you, Your Honour. Your Honour, I just

want to start by clarifying some of the factual

issues in light of the questions raised from the

bench yesterday.

Upon the first trial there was no dispute, as

I remember, as to whether or not the accused man

suffered from a mental disease because the Crown's

own psychiatrist agreed, when he was called in

rebuttal, that he suffered a mental disease but

said it stopped short of insanity. Upon the first

trial there was evidence led which in fact

villified the character of the deceased man. It

showed his bizaare sexual practices with his two

wives, with the family pets and his sexual

activities towards his son when he effectively

raped him when he was six years old. That was put

as a basis for some of the conditions which he

suffered. I cannot recall now whether it was

agreed there were two mental diseases by all

psychiatrists or only one.

A result of that evidence being ventilated on

the first trial, it became obvious on the second

trial that if we were to lay a proper foundation

for the mental disease that evidence would be have

to be led again. An objection was raised to the

proprietary of leading that evidence to the jury if

it did not go to a fact in issue, that is, if the

evidence of mental disease could not be considered

in relation to specific intent. That is why what

seems to be the unusual course was taken on both

trials, the second and third trial, of having this

Hawkins(2) 63 23/3/94

evidence heard as a voir dire beforehand because

the Crown's position was, not unreasonably, that it

be inappropriate to allow that evidence villifying

the deceased man to go before the jury if it was

not admissible to an issue upon the trial.

Part of the problem as raised by Your Honour

Justice Dawson yesterday was why label it a mental

disease. Of course, if it was not a mental disease

we would have no problems and we could have led it

quite happily. However, because of the wideness of

the Porter definition the two psychiatrists called

on the first trial and also Professor Jones, were

all of the opinion it was a mental disease. Of

course I realize now with the benefit of hindsight

there an illogical process involved there because

we say it is a matter for the jury, and even though

the psychiatrists all thought it was a mental

disease perhaps the evidence should have been

admitted and let the jury make up their own minds

whether it was a mental disease or something that

fell short. We say it is not a relevant matter

upon this appeal but that explains why we have

always labelled it a mental disease because that is

what our experts have told us about it.

It also becomes relevant, of course, although

the accused person put in an unsworn statement on
the first trial he subjected himself to cross-
examination after tendering the unsworn statement.

That evidence was used on the second trial and I thought the third trial, but I now cannot recall.

I would urge the Court not to draw any inferences against the appellant because of the manner in which this matter was conducted. It was a matter really of attempting not to have inappropriate

evidence before a jury if it was not going to be

relevant, if the judge said, at the end of the day,

you have to ignore that evidence.

Just briefly responding to some matters raised

by my learned friend, we do not only distinguish

the common law cases on the basis that they are
dealing with the automatism, but also it deals with

them on the basis, as I said yesterday, of

section 16(l)(a)(i), which refers only to an act,

not to a consequence or to the nature and quality

of the act.

I will briefly distinguish Wright's case. I,

with respect, adopt the submissions of

Justice Brennan and would indicate that at

page 344, the intent referred to there by

His Lordship was, in fact, the section 13 intent,

or the basic intent, and that becomes far clearer

when one looks at the examples he puts on page 346

because they, in fact, go to that same intent. He

Hawkins(2) 64 23/3/94

says that in certain limited circumstances he can

see it becoming relevant. o.1ce again, it is only

relying on basic intent. We rely on the passage

at 291, Justice Cartwright in the Supreme Court

case of More v Reg.

We reject any submission or suggestion that we

are trying to introduce the law of diminished

responsibility to Tasmania. That is not what we

are attempting to do. The article referred to

yesterday from the Columbia Law Review makes it

quite clear that the question of mens rea and

diminished responsibility are completely separate,

and we are relying on the mens rea approach. What

we say is that the Tasmanian Criminal Code is a

Code, that in a trial such as this any evidence

relevant to the question of intent, including the

accused's mental condition, is admissible unless

expressly excluded by the Code. The Code does not

exclude that evidence, and if the drafters had

wished to they could have incorporated a similar

section to section 17(3) within section 16, but did

not.. We agree with my learned friend that

section 17(3) is restricted to section 17. It does

not spill over into section 16. So we say there is

absolutely no prohibition in the Code from using

this evidence.

There is one case I would briefly refer

Your Honours to, which is a bit of a two-edged

sword, but it makes quite clear the distinction

between diminished responsibility and the type of

evidence we are trying to place before the jury,

and that is the case of The People v

Joseph O'Mahony, (1985) IR 517. In that case, the

appeal against his conviction on the basis of

diminished responsibility was not left as well as evidence of his mental condition which had caused

him some problems as far as restraint was

concerned.	The relevant passage to which I wish to
refer Your Honours is at page 521 under Trial

Judge's Rulings. Ruling 3 was:

He left to the jury an issue as to whether

they were satisfied beyond a reasonable doubt,

having regard to the medical and other

evidence, that the accused was capable of

forming the intent to kill or cause serious

bodily injury and directed them that if they

were not so satisfied that their verdict

should be not guilty of murder but guilty of

manslaughter.

4. He refused to leave to the jury a defence

of diminished responsibility -

Hawkins(2) 65 23/3/94

and later in the judgment the judge made it quite

clear that they are two separate issues. We say

they are two separate issues and we do not rely

upon diminished responsibility, and nor are we

trying to introduce it into the Tasmanian Criminal

Code.

I am obviously aware of the passage at page 10

of Walsh's case, my learned junior and I both

having argued it, as did my learned friends.	We do
not agree with it, but the matter was taken no
further because the substituted verdict was

obtained in relation to insanity, and therefore

that case was closed. We say it has no direct

reference to the matter before this Court.

At the end of the day, my learned friend's

submissions seem to be based upon public policy

rather than anything stated implicitly in the Code,

or elsewhere, we say, in any law applicable to

Tasmania. It seems to be the equivalent of the

fear that seemed to be around when O'Connor's case

was first decided and was labelled "The Drunks'

Charter". I must confess to being a Crown

Prosecutor at the time and there was great fear

that if we had not been protected by the Code,
there would have been an outbreak of criminal

activities excused on the grounds of drunkenness.

But reaily, when one looks at what has happened

since O'Connor, and when we peer over the

battlements towards the mainland, there has not

exactly been an influx of worthy citizens trying to

escape from drunken criminals running around having
been exculpated by juries for their drunken acts,

because juries are just not that unwise.

The O'Connor principle seems to have worked

very well in the non-Code States.	In most cases
there will be an alternate verdict.	It will still
make the accused subject to criminal process.	In a
rare case such as attempted murder it would seem

difficult to envisage how a jury could be satisfied

about the lack of the preplanning on the basis that

my learned friend puts without having been

acquitted on the grounds of insanity first. But

even if that is not the case, and in those rare
cases an outright acquittal follows, there are

other options available in Tasmania. I hand up to

Your Honours one page from Sentencing in Tasmania.

My learned junior has just reminded me that

these provisions apply after conviction.	So even
if you have somebody who is convicted of a

relatively minor offence, because in a case of,

say, attempted murder, in most cases we would

submit that the alternate crime of assault would be

available as in the other example used by my

Hawkins(2) 66 23/3/94

learned friend, the alternate crime of attempted

rape, assault would also be available there.

But under the heading 10(3) Orders Under the

Mental Health Act, the procedures which are available in Tasmania are there outlined by

Mrs Warner, and make it quite clear that there are

other options available. It is not a question of
somebody escaping liability for a serious offence,

being convicted of a relatively minor offence and

then being shortly let free to do it again. If it

please the Court, I have no further submissions.

MASON CJ:  Thank you, Mr Melick. The Court will consider

its decision in this matter.

AT 11.43 AM THE MATTER WAS ADJOURNED SINE DIE

Hawkins(2) 67 23/3/94