Jones v The Queen

[1988] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S48 of 1988

B e t w e e n -

PHILLIP FRED JONES

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

WILSON J

BRENNAN J
DAWSON J
TOOHEY J

GAUDRON J

Jones

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 SEPTEMBER 1988, AT 11.49 AM

Copyright in the High Court of Australia

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MR P. HIDDEN, QC:  May it please the Court, I appear with

my learned friend, MR T. BUDDIN, for the applicant.

(instructed by John Bettens & Co)

MR M. GRAY, QC:  May it please the Court, I appear with

. my learned friend, MR P.J. BERMAN, for the respondent.

-~- (instructed by S.E. O'Connor, Solicitor for Public

Prosecutions)

WILSON J:  Yes, Mr Hidden?

MR HIDDEN:  Your Honours, might I hand up an outline of argument. Your Honours, again it must be said

at the outset that there is in this case, as

there was in the matter yesterday in which I

appeared, a measure of delay which is adverted

to, Your Honours, in paragraph 12 of the affidavit

of John Bettens, solicitor, and it appears at

pages 157 to 158 of the application book.

Your Honours, to what Mr Bettens has there

deposed, there can only be added that there was

at the time, in the public defender's chambers,

a similar problem of manning to which reference

was made in yesterday's application. Again we

must ask Your Honours to have regard to the fact

that this is a conviction of murder and that
the point we do submit is one of considerable
importance.and we would ask Your Honours to grant

the appropriate extension of time.

(Continued on page 3)

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BRENNAN J:	But if there were an order for retrial at the end of this, what is the state of the availability
of witnesses?

MR HIDDEN:  I am not able to say, Your Honour. I have no

reason to think they would be unavailable, but I

-~_am not able to say, Your Honour.

BRENNAN J: Well, then, are you in a position, then, to press

for the extension of time? The alternative is

that if the appeal were to succeed, the conviction

would be quashed; what order could be made effectively?

MR: HIDDEN: Well, it would be open to this Court to substitute

a verdict of manslaughter. Whether the Court would

be so disposed is another matter, but that order

would be open to the Court, as it would be to the

Court of Criminal Appeal. I can only say, Your Honours,

that we have no reason to believe that witnesses

would no longer be available. They were, as far as

I am aware, local Sydney residents, and the other

witnesses were police and, of course, expert witnesses,

who would, no doubt, remain available, Your Honours.

WILSON J:  Of course, I mean, this is the whole rationale behind

the fixing of times so that, in the event that an appeal is allowed and does succeed and the matter

calls for a retrial, it is in the public interest

that that take place without delay.

MR HIDDEN:  I appreciate that, Your Honours.

WILSON J: But, Mr Hidden, the Court will reserve the matter of

an extension of time~ - -

MR HIDDEN:	May it please the Court.
WILSON J:	- - - and invite you to pass to the merits of the

matter.

MR HIDDEN:  If the Court pleases. Your Honours, this is an

application for special leave to appeal against a

Appeal dismissing the applicant's appeal against his	decision of the New South Wales Court of Criminal
conviction of murder.

(Continued on page 4)

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MR HIDDEN (continuing): Your Honours, the judgment of

that court appears commencing at page 144

of the application book. The facts, in broad outline, are probably sufficiently summarized

there, Your Honours, commencing at the last

paragraph of page 144, where Their Honours said:

There was powerful Crown evidence to the

effect that the appellant had, during the

course of the evening, had an altercation

with Roache -

being the deceased -

The appellant then left the hotel in the

company of a man named Jurd, who was called

by the Crown. He returned to his home and

obtained a .22 rifle, which was equipped

with a telescopic sight. The rifle was

placed in the back of Jurd's car and the

two men drove back to the hotel. The

appellant then went back into the hotel,

leaving the rifle in the car. Later he

left in company with Jurd. As the7 were

driving back towards the appellants home

the appellant remarked to Jurd, "I can

get him from here". He then lifted the

rifle and discharged it into the hotel.

The bullet struck Roache went through

his throat and out the right side of his chest. He died very shortly thereafter.

The appellant, in his defence, entered the witness box and claimed, as has been

mentioned, that at the time of the

shooting he was at home in bed. There was,

however, virtually irrefutable evid~nce that

the bullet that had inflicted the fatal

wound had been fired by a rifle that was

found concealed in the roof structure of a

storeroom at the appellant's home. Likewise,

the empty cartridge case from which that

bullet had been discharged was found in

Jurd's car the following day. There were

fingerprints of the appellant on the rifle,

and he was evasive when first questioned

about the rifle, ultimately admitting

that it was his rifle and that he had concealed

it in the roof.

Your Honours, the other issue raised by the

trial, . of course, "was that of' diminished responsibility

and it was that issue which was taken to the

Court of Criminal Appeal and which brings us

here.

WILSON J:	Do you contest the expressed conclusion of the
Chief Justice, that it was a very strong case

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and it would have almost been - leaving aside

the question of diminished responsibility -
perverse for the jury not to have found that

it was the appellant who fired the rifle?

MR HIDDEN.._ Your Honour, for the purposes of this application

there is no issue with that conclusion.

BRENNAN J: What is the distance between the point of discharge

of the rifle and the deceased?

MR HIDDEN:  I am not able to inform Your Honour at the

moment, but perhaps that evidence can be found.

It was from the window of a vehicle outside a

hotel, through the window of the hotel into the

hotel. I am not able to - I do not even

know whether there was any evidence about that,

Your Honour, but if there was, we - - -

WILSON J: It would suggest that they had driven some

distance, having left the hotel, got back in

the car, because the statement of facts:

As they were driving back towards the

appellant's home the appellant remarked

to Jurd, "I can get him from here".

and there was a telescopic sight.

MR HIDDEN: Yes, Your Honour. In fact, I think the evidence

was that the appellant diverted Jurd back to the

vicinity of the hotel. I wonder if Your Honours

might allow my learned junior, while I proceed,

to find that part of the evidence?

WILSON J: Yes, certainly.

MR HIDDEN:  Your Honours, the substantial issue in the

appeal was that the learned trial judge declined

to put to the jury the issue of diminished

responsibility. Evidence had been called by

three expert witnesses: Dr Jolly, a psychiatrist;

Dr Samra, a general practitioner with a particular

interest apparently in nutritional matters; and

Professor Starmer, whose evidence related to

the effects of alcohol.	Now, Your Honours, all
but only upon the issue of intent. His Honour	that evidence was put to the jury by His Honour,
declined to put it to the jury on the issue of diminished responsibility. And the effect of the evidence, again for the purposes of this
application, is probably adequately expressed
by the Court of Criminal Appeal at page 146 of
the application book where Their Honours said:

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MR HIDDEN (continuing):

The evidence briefly was that the

appellant, prior to the shooting, had

the after effects of a longstanding

heavy alcohol consumption, which had led

to a degree of brain damage; he suffered,

also, from either hypoglycaemia or

hypoglycaemic disease, there apparently

being some distinction between those

two pathological conditions. He also

had some liver damage, again associated

with longstanding alcohol usage.

The medical evidence was to the

effect than an individual with the degree

of brain damage - and I note in passing that

it was but a slight degree - such as that

from which the appellant suffered coupled
with the hypoglycaemia or the hypoglycaemic

disease condition of the appellant, could

become irresponsible in consequence of a

consumption of a substantial quantity of

alcohol comparable to that which the

appellant had consumed on 25 April.

The evidence was, also, to the effect

that without the consumption of alcohol,

neither the brain damage nor the hypoglycaemic

condition, nore the liver condition, either

alone or conjointly, would have led to any

irresponsibility such as could fall within

the scope of s 23A(l) of the CRIMES ACT.

It was the super-imposition of this

substantial consumption of alcohol which,

taking the medical evidence at its highest,

could have justified the jury concluding

that there may have been a degree of

irresponsibility on the appellant's

part in relation to the shooting.

Your Honours, Their Honours then set out the terms

of section 23A(l) of the Act, which are no doubt

familiar, but may need to be examined with some

care. The section reads:

Where, on the trial of a person for

murder, it appears that at the time of

the acts or omissions causing the death

charged the person was suffering from such

abnormality of mind (whether arising from

a condition of arrested or retarded

development of mind or any inherent causes
or induced by disease or injury) as

substantially imparied his mental

responsibility for the acts or omissions

he shall not be convicted of murder.

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As Your Honours know, the section then goes on to

provide, that the accused bears the burden of proving

the defence and, if successful, the proper verdict

is manslaughter. So that, Your Honours, the issue

raised was this:  on the evidence the applicanthad

pre-existing organic problems, being a measure of brain

aamage from .. past alcohol usage, a hypoglycaemic

condition and liver damage, although it is not quite clear

what relevance that might have had. Those,

either alone or jointly, would not have made out

a case of diminished responsibility on the night

concerned, but the evidence was to the effect that,

having consumed a substantial amount of alcohol,

there was evidence that there was then an

abnormality of mind created within the meaning

of the section capable of substantially impairing

his mental responsibility for his acts.

DAWSON J:	What is "mental responsibility", Mr Blanch?
MR BLANCH:	What indeed, Your Honour.
DAWSON J:	No one has passed any observations about that point?
MR BLANCH:	No, Your Honour, I do not believe so, and the

authorities seem to go no further than this, that

abnormality of mind is what the jury considers

to be abnormal. What brings about the abnormality

of mind is a matter of expert evidence and it is

there that the words in brackets become important,

as they are in this case. There then becomes a

further jury question, "Did that abnormality

of mind substantially impair his mental

responsibility?", and Your Honours, to be honest,

I do not know of any authority which squarely deals

with the very question Your Honour has asked.

DAWSON J:  Does it mean mental capacity, and if so, mental capacity to do what?

(Continued on page 8)

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MR HIDDEN:  Your Honour, as I understand it and as it is

normally put to juries,to control his actions and to have regard to the consequences of his

actions. The third leg has always been considered

a jury question but just where the word "mental"

--~omes in, I do not think the authorities make

clear at all, Your Honour.

BRENNAN J:	But is it not something that was introduced in order to ameliorate the requirements, which
were regarded as strict requirement, of M'NAGHTEN's
case?
MR HIDDEN:	Yes, Your Honour, but perhaps not only for that

purpose. Let me say, Your Honours, it will be

necessary a little later in our argument to turn

to the history of the defence and in particular its

origins in Scotland.

BRENNAN J:  Well, whatever the history may be,in this case

what was the particular element of mental

responsibility which, in your submission, may have

been impaired by the consumption of alcohol

operating upon the pre-existing condition?

MR HIDDEN:  May I take Your Honours to the evidence about

that. The evidence, Your Honours, of Dr Jolly,

at page 11 of the application book, was this - it

is perhaps appropriate to start with the third

question on that page, Your Honours.

'tmile we are on that aspect of your evidence,

people who are merely intoxicated, having

just a large amount of alcohol, who have

not got brain damage and people who do have

brain damage, the sort of damage you have

been talking about, who ingest some quantity

of alcohol, is there likely to be a difference
in the behaviour of the two? A. I believe

those who are simply intoxicated, without

manner than those who are intoxicated with	brain damage, behave in a more predictable
brain damage.

(Continued on page 9)

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MR HIDDEN (contintring):

Q. You told us about people behaving

unpredictably. What sort of behaviour

are you talking about? A. Well from

my own experience every sort of erratic

and dangerous behaviour you can think of. you particularly ask me.

That sort of behaviour is not what you

would expect to be the product merely of

heavy drinking? A. That is so.

Q. Going back to our man with the brain damage and who has had a lot to drink, you talk about his capacity to plan, and you talk about his capacity to form an

intention to kill or harm, what would

you expect to be his sense of responsibility?

A. I would not expect him to form terribly

sensible judgments.

Q. What about his appreciation of

consequences? A. Very poor, in my

experience, very poor indeed.

Now, there is Dr Samra, at page 23 of the application

book, having given evidence of hypoglycaemia which

he found the applicant to be suffering from when he

saw him, I think, about a year after the offence

and who expressed the view that he was likelv to

have been suffering.from the disease

around the time the offence occurred, said this

at line 17, Your Honours:

It would be hard for people with hypoglycaemia to make accurate judgments

at that point of time and it would be

hard for people with hypoglycaemia to

concentrate or read a book or to really

indulge in intelligent conversation.

Q.	Can it cause erratic behaviour?
A.	I have seen erratic behaviour often

with hypoglycaemic disease. As a Yes-No,

Yes.

Q. Take a person in that condition who

has ingested a large amount of alcohol to

the extent that he is substantially

intoxicated. A. Right.

Q. Let's add to it the proposition that

he suffers from early brain damage induced
by alcohol. A. Right.

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Q. Now, what can you say about the

behaviour of a man in such a condition?

A. Any disease or chemical or drug that affects the brain has a cumulative effect

upon potential damage or misbehaviour or

whatever, so if you combine, as you said,

an organic brain disease due to whatever

cause, as well as toxicity, alcohol is

toxic to the brain, it removes inhibitions.

I think most people here would experience some mental effect of alcohol at some

stage. If you combined all three conditions,

the disease and two drugs, the sugar which

is acting as a drug an hour and a half later,

and the alcohol which is clearly a drug, then

the effect would be a cumulative one or

could be a cumulative one.

Q. And could that potentiate the erratic

behaviour of which you spoke? A. Well,

certainly it could.

WILSON J:	Why is there this emphasis on erratic behaviour
in this questioning?
MR HIDDEN:	I think in the context there, Your Honours, the

word was used by the d~ctor himself in describing

hypoglycaemic diseases generally.

WILSON J:  But it was also used in the earlier examination,

I thought, of Dr Jolly?

MR HIDDEN:  I think Dr Jolly spoke about unpredictable behaviour, Your Honour.

WILSON J: Every sort of erratic -

MR HIDDEN: Unpredictable behaviour.

WILSON J: Well, "erratic" the doctor says at line 18. I

just wondered whether that - - -

MR HIDDEN:	I am sorry. Is Your Honour returning to - - -
WILSON J:	- - - had special application to the facts of this

case. It did not immediately strike me that there

was anything erratic.

MR HIDDEN: Well, no, it does not.

WILSON J: It sounded a very cold-blooded killing.

MR HIDDEN: Well, on the Crown case, no, Your Honour, it did

not. Of course, the defence case was, that the - - -

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Jones	(Continued on page l0A)
WILSON J:	Expressed through an unsworn statement. Was

any evidence called?

MR HIDDEN:  No, he gave evidence, Your Honour.

WILSON _:_J_:_ He gave evidence on oath, did he?

MR HIDDEN:  Yes.

WILSON J: Yes.

MR HIDDEN:  The defence case was - and that is surmnarizing His Honour's surmning up. The defence case was

that, I suppose, either he did not do it or, if

he did, he had no memory of it and, indeed, part

of the defence case -and again, this is analysed
in the summing up- suggested a lack of motive for

having shot the man at the time the applicant

obviously did.

(Continued on page 11)

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MR HIDDEN (continuing): Part of the defence relied upon

evidence that while there had been an argument, and a

heated argument between the two at an earlier stage,

there had subsequently been an apology and everything was

okay. So that the diminished responsibility of

defence, although it did not necessarily rely on

--that portion of the evidence, had that view of the

-- evidence in its background, that,on one view of the

evidence, there appeared to be no proper reason for

shooting the man at the time the applicant did.

Now, Your Honours, I believe, on my learned friend's

list of authorities is the decision of - - -

BRENNAN J: Before you go to that - - -

MR HIDDEN:	Yes, Your Honour.
BRENNAN J:	- - -have we exhausted the evidence upon which this

application is based? Because, if so, I want to ask

you what is the mental element which was thus

established to have been diminished and which, if

taken to a further extent, would have deprived him of

mental responsibility?

MR HIDDEN: Well, Your Honour, as I understand it, the reduced - - -

BRENNAN J: There is lowered inhibitions, at page 23.

MR HIDDEN:  Yes. A reduced capacity:

to form terribly sensible judgments -

according to Dr Jolly; very poor appreciation of

the consequences of his actions, according to

Dr Jolly.

BRENNAN J: Well, the only relevance of that to criminal

responsibility would be if he did not appreciate that

when he pointed a gun through a telescopic sight at a

man and pulled the trigger that he may not kill the

person.

MR HIDDEN:  No, no, not so at all, with respect, Your Honour.

Diminished responsibility assumes that the intent to

kill or do grievous bodily harm has been made out.

BRENNAN J: But, looking at the mental element which affects,

somehow or other, there must be something diminished - - -

MR HIDDEN:	Yes.
BRENNAN J:	- - - which, if absent, would negative criminal

responsibility. What is the element which, being

diminished, would, if absent, negative criminal

responsibility in this case?

MR HIDDEN:  I suppose the lowered capacity to perform sensible

judgments, in the words of Dr Jolly.

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BRENNAN J:	But that is not an element of crime.
MR HIDDEN:	I submit it can be, under section 23A, Your Honour.

Section 23A assumes that otherwise the elements of

murder are made out.

BRENNAN- J; 23A deals with a particular qualified defence. The

condition on which 23A operates is that there is some

effect impairing mental responsibility. Mental

responsibility is to be ascertained, I should have

thought, from the general law, and perhaps from the

statutes when an offence is statutory. It may be a

question of will; it may be a question of intent;

it may be one of the elements of mind which is dealt

with in M'NAGHTEN Rules. But is it anything else?

MR HIDDEN:  I suppose it boils down, Your Honour, to the

capacity to control your emotions and your responses

to them.

BRENNAN J: You see, in M'NAGHTEN Rules - - -

MR HIDDEN:  The evidence is capable of suggesting that that was

present here. As I say, Your Honours, I turn, by way

of example, to the decision of REG V McGARVIE,

(1986) 5 NSWLR 270.

(Continued on page 13)

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MR HIDDEN·(continuing):  Your Honours, regretfully, that

decision barely refers to the evidence of

diminished responsibility which there was in

McGARVIE. It is more concerned with a particular

point as to what the words, "any inherent cause",

mean in section 23A. To that extent, Your Honours,

_-:.- I am in some little difficulty but - if Your Honours

would permit me to do this - I appeared for

McGarvie in her retrial and the evidence of

diminished responsibility was this: that over
a long period of time she demonstrated excessively

impulsive and selfish behaviour and, on the occasion

in question, she stabbed to death her mother

after quite a minor argument over a matter of

no great significance. The psychiatric evidence

was that she had a diagnosable- personality disorder

which could be deduced from the long.history

of selfish and impulsive behaviour and it was

that issue which went to the jury and there was

never any question in McGARVIE that that was

not a proper issue to go to the jury on diminished

responsibility. It went in the first trial and

it went again in the second.

The issue there, really, was - the diminished

responsibility there could only be explained in terms of a diminished capacity to control

her anger. The defence, as I have said, Your Honour,

went to the jury upon the assumption, of course,

that the intent to kill or do grievous bodily

harm had been made out and it was her diminished

capacity to,control her anger, to control her

impulses, to temper her emotions with reason,
which was the basis of the defence.

I submit, Your Honours, that that certainly is the kind of issue that section 23A raises.

It got to the jury, I suppose, because a psychiatrist

was able to say, "I see a pattern here which

indicates to me that there is something wrong".

There was certainly no suggestion that she was

psychotic and she was described as having a personality

disorder, only.

WILSON J: It was accepted that a mere personality disorder

did not raise questions about abnormality of

mind induced by disease or - - -

MR HIDDEN: It was accepted, Your Honour, that it was

an abnormality of mind from inherent causes and,
indeed, in the Court of Criminal Appeal, the

only issue was what does "inherent cause" mean

and it so happened that in the first trial the

learned trial judge directed the jury that "inherent

causes" means "inherited causes". The Court

of Criminal Appeal said that is not right.

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WILSON J:  On that reasoning, every psychopath could attract

the defence of diminished responsibility.

MR HIDDEN: It may be, Your Honour. It has happened before.

Indeed, in one of the English cases to which

reference was made in the case at bar, a psychopathic

-~-personality was one of the elements that went

to the jury on the issue of diminished responsibility.

WILSON J:  I can readily appreciate that incapacity to

control one's actions by reason of an abnormality
of mind of the required kind could come within

the section.

MR HIDDEN:  Yes, Your Honour. I suppose that the question

is, ''.How broad are the categories created by

the words in brackets?"

WILSON J:  Yes, and one could draw a parallel from the

mistakes in M'NAGHTEN's case and the consequences -
or in the Code - the West Australian Code or
in the Queensland Code~ of what would, given
a stronger link to insanity than mere abnormality

of mind, warrant the defence of insanity.

(Continued on page 15)

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MR HIDDEN:	Well, that may well be so, Your Honour, yes.
WILSON J:	Incapacity to distinguish between right and wrong,

incapacity to control one's actions - I forget the

third.

MR HIDDEN:- I mean, of course, it may well be, Your Honour,

that the defence is receiving applications in the

1980s that were never dreamed of when the section

was passed because psychiatry itself is refined

somewhat and disorders are being categorized with

greater frequency.

WILSON J:	It may be true of this Court too; it is receiving applications that may not have been dreamed of.
MR HIDDEN:	Your Honours, might I turn shortly to the

decisions upon which the Court of Criminal Appeal

relied in holding that the defence was rightly

taken from the jury in this case. Might we just

examine those very briefly in chronological order.

The first, Your Honours, was the decision of

REG V CLARKE AND KING, (1962) Crim. LR 837. It

is sufficient to say, Your Honours, that the

issue was not there squarely raised in the appeal.

It would seem there, Your Honour, there was medical

evidence that the appellant was probably a schizoid

psychopath but there had also been a considerable

consumption of liquor on the occasion in question.

On'the following page, Your Honours, at 838

the following is noted:

The court added that an analysis of Dr F's cross-examination showed that he was saying that

the abnormality of mind would not of itself produce

substantial impairment, but if a large amount

of drink was taken there might be substantial

impairment. This might have been a case where

a substantial impairment occurred as the result

of a combination of inherent abnormality of mind

and drink. The court was anxious to make it clear

that they had not considered what the result

would be in such circumstances because the

present case had not been conducted on the

lines of there being any distinction between

abnormality per se and impairment resulting
from the combined effect of abnormality and
drink. The court must not be taken to be ruling

that any abnormality of mind however slight and

producing however little impairment will

constitute a defence when that slight impairment

is increased substantially by drink: that was

a matter which remained to be considered on

another occasion.

Of course, I suppose, Your Honours, it is that

very matter which we are inviting Your Honours

to consider in this application. Then, Your Honours,

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in RV DI DUCA, (1959) 43 Cr App R 167. That,

again, Your Honours, was an appeal concerning the

trial judge's directions about diminished

responsibility; . the defence had gone to

the jury. Basically, Your Honours, the Court of

-Appeal held that there had been no miscarriage

because, in fact, the evidence of diminished

responsibility was virtually non-existence in

any event. At page 173, in the last paragraph,

the court said this:

The real question, however, as it seems to this

court, is whether there was any evidence at all

to go to the jury on this issue of diminished

responsibility. It is said that the appellant

had taken quite a lot of drink. That is

undoubtedly true. It is also said that on

the medical evidence drink can produce a

toxic effect on the brain, and it is argued

from there that a toxic effect on the brain

is in law an injury within the section. Whether

the transient effect of drink, even if it does

produce such a toxic effect on the brain, can

amount to an injury within the section is,

we think, very doubtful, but it is unnecessary

to come to a final conclusion on the matter

in the present case.

Of course, Your Honours, it does seem that in

DI DUCA what was being suggested was that

diminished responsibility might arise simply

from intoxication without more.

(Continued on page 17)

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MR HIDDEN (continuing):  Now, Your Honours, in another

context we might at a little later stage return
to DI DUCA.

Then, Your Honours, in REG V FENTON, (1975) 61 Cr App R 261, there again the defence of

diminished responsibility went to the jury and

the appeal was concerned with the learned

trial judge's directions. The evidence here

is perhaps a little closer to the present case,

Your Honours. At page 263 the court records that

five medical witnesses were called and they all

agreed that the appellant was suffering from

abnormality of mind. They all agreed that he

was a psychopath, or that he had a psychopathic
personality which seems to mean very much the
same thing.

In the next paragraph, Your Honours, the court summarizes the evidence of Dr Horton:

"He suffers, and I think all the doctors

agree, from a severely abnormal personality

which I myself feel is best described as

that of an aggressive psychopath with

marked paranoid traits."

Then there was the second ingredient, that is:

"the state of reactive depression, tension

and fear in which he had been certainly for

several weeks and probably for several

months -

up to the time of the relevant offence.	The
next ingredient was the:

"excessive quantity of alcohol with a

resulting state of disinhibition --

and then the fourth ingredient was simply a factual

matter arising of the circumstances in which one

of killings took place.

Now the Court said then, going on at about

point 6:

One of those factors, as I have indicated,

was the quantity of alcohol. There is no

doubt that alcohol was regarded as an important

ingredient because the jury later disclosed

in reply to an observation of the learned judge

that they were unanimously of the view

that the killings would not have occurred if

the appellant had not had so much to drink. The

judge, however, ruled that the effect of the
alcohol consumed by the appellant was to be
ignored since the effect of the alcohol did not
amount to an abnormality of mind due to inherent

causes. Accordingly the judge directed the

C2T34/l/JM	17	8/9/88
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jury that they must convict of murder if

satisfied that the combined effect of the

factors other than alcohol was insufficient

to amount to a substantial impairment in the

mental responsibility of the appellant.

Now, basically, Your Honours, the court held that

that ruling was correct. They did, however, at

the end say this at the end of that page:

On this (the first point taken in the appeal), we are in favour of the Crown. We

recognise that cases may arise hereafter where the accused proves such a craving for drink or

drugs as to produce in itself an abnormality

of mind; but that is not proved in this case.

The appeallant did not give evidence and we do not see how self-induced intoxication

can of itself produce an abnormality of

mind due to inherent causes.

Finally, Your Honours, that line of authority

was followed in REG V GITTEN~ (1984) 1 QB 698.

Again, diminished responsibility went to the jury

and the appeal was concerned with directions to

the jury, but it appears, at page 701, Your Honours,

his treating doctor:

was of the view that at the time of the

killing the appellant was suffering from

an abnormality of the mind which was a disorder of his personality induced by

"psychological injury." He took the

view that it was probably this, coupled

with the drink and provocation, that led

to his losing control.

Another doctor expressed the opinion that he

may have been:  ·

suffering from a depressive illness due

to inherent causes which substantially

diminished his responsibility.

(Continued on page 19)

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MR HIDDEN (continuing):  Yet another doctor said that it

was really only the drink and nothing else had

anything to do with it. I note in passing,

Your Honours, that we know no more about the

abnormality of mind which was a disorder of his

personality induced by psychological injury.
I do not think the report explains just what that

was. Basically the court there took the same view as had been taken in previous cases and at page 703,

at the bottom of the page,	FENTON is referred to,
and the court said:

The jury should be directed to

disregard what, in their view, the effect

of the alcohol or drugs upon the
defendant was, since abnormality of mind
induced by alcohol or drugs is not
(generally speaking) due to inherent causes

and is not therefore within the section.

Your Honours, that was the line of authority

relied upon by the learned trial judge in this

case and by the Court of Criminal Appeal in holding

that the defence of diminished reponsibility was

properly not put.

Your Honours, we observe at the outset that the

authority is entirely English and that there appears

to be no relevant authority in New South Wales, or

from this Court, nor, as far as we are aware, in

any other State where diminished responsibility

is a defence.

WILSON J:	Anything in New Zealand or Canada?
MR HIDDEN:	Not that we have found, Your Honour.

Your Honours, our submissions in short - and

we will develop them in some greater detail

later - are these: whether intoxication standing

alone could qualify as diminished responsibility

we do not invite Your Honours to decide.	The
case here is one not of intoxication standing alone,

but of intoxication in combination with, and to an

extent bringing into play the effects of,

pre-existing organic conditions.

DAWSON J:  Is it correct to say that that condition was not a

substantial impairment of mental responsibility,

but only a slight impairment?

MR HIDDEN:  Is this the brain damage, to which Your Honour

refers?

DAWSON J:	The totality of his mental condition.
MR HIDDEN:	Including the alcohol?
DAWSON J:	No, without the alcohol.

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MR HIDDEN: · No. It seems to be accepted, and is certainly

accepted by the Court of Criminal Appeal, that

without the alcohol there was not enough to

amount - - -

DAWSON J:	There was no substantial impairment?
MR HIDDEN:	That is so.  The alcohol was essential to

prove the substantial impairment within the

section, that is so. Your Honours, our

submissions will be that there is no reason why

line of authority has to be read in the light of other English authorities on the relevance of

the combination of alcohol with existing organic
or psychiatric diseases could not create an abnormality
of mind which qualifies under one of the sources

set out in the section in brackets in the section.

intoxication in criminal proceedings generally and

should be seen as part of a policy attitude towards

intoxication and crime which is not shared in

this country and has been expressly rejected

by this Court in O'CONNOR.

(Continued on page 21)

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MR HIDDEN (continuing): Thirdly, Your Honours, we will

submit that authority does establish that a

defence under the M'NAGHTEN Rules can be made

out when the trigger, in fact , is alcohol and

that it is incongruous that if that be so, the

same could not be true of the defence of

diminished responsibility.

Now, Your Honours, it is perhaps necessary

to turn to the history of this defence not, hopefully,

in undue detail. Your Honours, there is a useful

article by Professor T.B. Smith entitled

Diminished Reponsibility and it appears in

(1957) Crim. LR 354. Certainly, Your Honours, it seems that diminished responsibility was a cormnon

law development of the Scottish courts throughout

the 19th century. I think, in particular,

Your Honour, the origins are ascribed to a

decision of DINGWALL referred to at page 356 of

the article, a decision in 1867.

Scotland apparently distinguished between

murder and culpable homicide which is roughly

equivalent to what we call manslaughter and

the learned author recounts there:

Dingwall was indicted for the murder by

stabbing of his wife - with whom his

relations had usually been friendly. There

was no proof of premeditation. Though the

panel -

by which the Scots mean the accused apparently -

was not certifiably insane, it was established
that his mind had been weakened by successive

attacks of disease, particularly of delirium

tremens and possibly also by epilepsy and

sunstroke. The presiding judge (who was

sitting with Lord Neaves) considered that

there was evidence of such approximation

to insanity that the jury would not be

violating the law if, on that account, they

returned a verdict of culpable homicide (the

Scottish equivalent of "manslaughter" in

English law).

And the jury did so. The learned author goes on:

In a number of subsequent murder trials

during the nineteenth century and early

twentieth, some Scottish judges, and

especially Lord Deas, referred to DINGWALL

and charged juries to the effect that proof of weakness or aberration or mind which did not amount to insanity would justify the

reduction of the quality of the crime from

murder to culpable homicide.

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MR HIDDEN (continuing):

A verdict to this effect was, Lord Deas

said, the equivalent in Scottish practice

to a verdict of murder in the second degree

or murder with extenuating circumstances

in other countries. In several of the

cases in which this direction was given

there was evidence of a weakening of the

mind by alcoholism.

Of course, it is interesting to observe, Your Honours,

that is, at page 357, in Scotland, the law, the

defence of diminished responsibility is not confined

to murder and can be mounted in other charges.

From page 357, under the heading, "Modern Formulation

of the Law", there is an account of the development

of the defence in Scotland. At page 360, the

learned author considers intoxication and diminished

responsibility. I am sor~y, that invblves~

Your Honours, my returning to a somewhat earlier

point. At page 358, in the last paragraph, the

learned author refers to the decision of CARRAHER

which he says:

is another case of great importance.

The pannel, who was charged with murder by stabbing the deceased with a chisel, was defended on a plea of diminished

responsibility. This defence had two

aspects. First, it was said, the

accused was a case of psychopathic

personality - which in itself should

be regarded as bringing him within the

ambit of diminished responsibility;
while secondly and alternatively, it was

contended that psychopathic personality

associated with the drink the accused had

consumed should be accepted as justifying

this defence. He was convicted of murder

after Lord Russell had charged the jury	that unless the jury found evidence of	illness due to alcoholism, they should
dismiss from their minds the question
of the drink consumed by the accused.

(Continued on page 23)

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MR HIDDEN (continuing):

At the hearing of the appeal, counsel for

Carraher moved unsuccessfully that a

psychiatrist should be appointed as

assessor to sit with the Court, as was

permitted by the CRIMINAL APPEAL (SCOTLAND)

ACT, 1926. Lord Normand, again giving the

judgment of the court, stressed that trial

by judge and jury was not to be -

I am sorry, Your Honours, that part is of no

particular significance -

and considered that the medical evidence

at Carraher's trial regarding "psychopathic

personality" was "descriptive rather of

a typical criminal than of a person of the
quality of one whom the law has hitherto

regarded as being possessed of diminished

responsibility." He also considered that

diminished responsibility induced by drinking
could not be accepted as a valid defence,
and observed "I am of opinion that the plea

of diminished responsibility, which as was

said in KIRKWOOD's case, is anomalous in

our law, should not be extended or given
wider scope than has hitherto been accorded
to it in the decisions."

Returning then to page 360, Your Honours, the learned author says:

The relation between intoxication and

diminished responsibility was, as stated,
considered in CARRAHER; and it was held
in this case that an accused who could not
be shown to be within the category of
diminished responsibility when sober, could
not be brought within that categoty by proof

that he had taken drink. This proposition

was recently reaffirmed by Lord Hill Watson

in MacLEOD. It may be noted, however, that

it was largely through the doctrine of
diminished responsibility that the effects
of drink were taken into consideration at

all by Scottish criminal law. Hurne held

in effect that intoxicaiton was irrelevant

as a defence. "The law of Scotland views

this wilfull distemper with a quite different

eye from the other (scil. insanity) which

is the visitation of providence; and if
it does not consider the man's intemperance
as an aggravation, at least sees very good
reason why it should not be allowed as an

excuse, to save him fra:n the ordinary pains of his

transgression." Lord Deas, who played the leading part in developing the doctrine of diminished responsibility

in Scots law apparently considered persistent alcoholism
as an element irnparing responsibility, but did not accept
drunkenness per seas a defence at all.

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MR HIDDEN (continuing):

In BROWN, however, Lord McLaren expressed

different views - namely, that an accused

suffering from temporary insanity caused

by drink was not in law responsible for

his act, and, further, that in crimes

requiring a special intent such as murder,

proof of intoxication might negative the

existence of the intent to kill or inflict

kill, and thus the quality of the crime	such grave injury as should be expected to
would be reduced to culpable homicide.
The modern law regarding drunkenness as a
defence in Scottish criminal law is
substantially the same as that laid down
in D.P.P. V BEARD.

Now, of course, Your Honours, there the author

strays into what is now classified as a separate

question, that is, the effect of intoxication

upon intent. Now, Your Honours, that last

proposition must be read in the light of the

later decision, Your Honours, of

BRENNAN V H.M. ADVOCATE, (1977) Scots Law

Times, 151.

BRENNAN J: Where is this taking us, Mr Hidden?

MR HIDDEN:  Your Honour, where we are getting is this,

that we are seeking to establish that the

exclusion of the temporary effect of alcohol,

as an element in diminished responsibility, is

part of a policy of the criminal law in the

British Isles and is consistent with decisions

about the effect of intoxication on other areas

of the criminal law. That policy has been rejected

by this Court in REG V O~CONNOR, and we are submitting,

Your Honours, that the English decisions, and in

particular the English decisions relied upon by

the Court of Criminal Appeal here, have to be viewed

in the light of the differing policy between the

two countries.

BRENNAN J:  But you are dealing now with questions of common

law.

MR HIDDEN:	Yes.
BRENNAN J:	Or in Scotland of the Scots law, not of the

statute.

MR HIDDEN:	I am looking to the development of the defence.
BRENNAN J:	But we have not touched the statute yet, have we?
MR HIDDEN:	No.

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BRENNAN J:  And it is only in England· that you will find a

statute, is it not?

MR HIDDEN:  Yes. Your Honours, perhaps to that we should

now turn.

BRENNAN-J:  Do not let me take you out of your course, but

I just wanted to understand. It seems to me, for

example, that if one is looking just at the

ordinary defence of insanity in Scotland one might

look at a range of subjects. There might be all sorts of questions of judicial policy as to whether you take intoxication into account, but

if it is a question of the interprecation of a

particular statute, then it seems to me o6e· looks

at the statute. In this country, for example,

as you have been speaking, I have compared the

Queensland section 304A with the New South Wales one,

and there is a dramatic difference. The Queensland

one speaks of the specific capacities of which

the insanity section speaks.	The New South Wales
section does not.	We need to know what it is

that we are talking about, do we not?

MR HIDDEN:  Yes. Very well, Your Honour. It is possible to

pursue that immediately. If we stay with the

article, Your Honours, section 2 of the HOMICIDE

ACT in England is there set out at page 363:

Where a person kills or is a party to the killing of another, he shall not be

convicted of murder if he was suffering

from such abnormality of mind (whether

arising from a condition of arrested or

retarded development of mind or any
inherent causes or induced by disease or

injury) as substantially impaired his

mental responsibility for his acts and
omissions in doing or being a party

to the killing.

Your Honours, there is some difference in the

verbage, but we would submit that it is, in all

relevant respects, the same. The learned author

does go on to say in the last paragraph:

Mr Silverman -

who apparently was introducing the bill -

tried unsuccessfully at the Bill stage to

have deleted from section 2(1) the words

"whether arising from a condition of
arrested or retarded development of mind

or any inherent causes or induced by

disease or injury."

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MR HIDDEN (continuing):

The Government insisted on these words,

however, presumably to ensure that the defence

of diminished responsibility should be confined

to cases which could be supported by medical

evidence.

Now, Your Honours, as I said, our primary submission

is, it does no violence to the language of the section

to say that hypoglycaemia, brain damage, coupled with

and maybe triggered off by intoxication at the

relevant time, fall within the words "inherent causes"

within the section or within the words "injury "

in the section, or both, and the only authority that

they do not appears to be the English cases. The

English cases, in so far as they refer to the words
in brackets at all, simply say, well, alcohol,

temporary alcoholism, does not qualify as an inherent

cause.

DI DUCA touches on the question whether the toxic

effect of alcohol could qualify as an injury under the

section, says it is unlikely that it could, but does

not decide the point.

GAUDRON J:  Mr Hidden, you ran together the expression

"couple with" and "triggered by". Now, it may be
that there is a difference if it is triggered by.

Do you assert that there is any such difference?

MR HIDDEN:  Your Honour, with respect, I withdraw the words

"triggered by". The evidence simply said -

GAUDRON J:  Yes. My next ques~ion was going to be,

did the evidence ..... triggered by?

MR HIDDEN:	The evidence simply said the combined effect of the three. That is all the evidence was ·about, and
I suppose it does not amount to an assertion that
anything was triggered by the alcohol. Yes,
the evidence related to the combined effect of the
three.  (Continued on page 27)

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MR HIDDEN (continuing): So that , Your Honoum, we would

submit, as a matter of plain English and statutory

interpretation, there is no difficulty in ascribing

the combined effect of those things to one of the

causes in parenthesis in the section, either inherent

causes because certainly the organic conditions

pre-existing must qualify as that or injury, or both,

an4-there is nothing to suggest that the words

have to be considered disjunctively. One clearly could

have an abnormality of mind arising from any number or

combination of the sources set out in parenthesis in

the section.

It is perhaps not necessary for us,

Your Honours - - -

DAWSON J: You are not suggesting that drunkenness comes within

any of the descriptions in the section, are you?

MR HIDDEN: Well, Your Honour, maybe intoxication standing

alone could amount to injury. We would submit that that question can be allowed to remain open in the context of

this case.

DAWSON J:  If it is not an abnormality of mind, you can

put drunkenness to one side and all you are left

with, are you not, is an abnormality of mind which

did not substantially impair the applicant's mental

capacity? My difficulty is to see how, that being

so, you could put them together and produce an

abnormality of mind which substantially impairs

mental capacity.

MR HIDDEN: I am sorry, I just did not hear the last?

DAWSON J: Drunkennes apart, there was no abnormality

of mind which substantially impaired the applicant's

mental capacity within the meaning of the section.

MR HIDDEN:	That seems to be so, Your Honour, yes. -
DAWSON J:	My difficulty is in seeing how, if you then put the

two together, drunkennes together with the mental

abnormality which he did have, you produce a

mental abnormality which is of the required

substantial kind.

T43 MR HIDDEN: I am sorry, is Your Honour here referring to

whether it qualifies from one of the causes set

out in parenthesis?

DAWSON J: What I am really saying - I put it to you

plainly - drunkenness cannot convert an abnormality

of mind which does not substantially impair the

applicant's mental .capacity into an abnormality

of mind which substantially impairs his mental responsibility.

MR HIDDEN:  We would submit it can, Your Honour.

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DAWSON J:  Yes, that is the question, is not it?

MR HIDDEN:  Yes. We would submit it can. Your Honours,

might we -

WILSON J:  This ~ay be an appropriate time at which to

agj_pµrn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

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UPON RESUMING AT 2. 16 PM:

WILSON J:  Yes, Mr Hidden?

MR HIDD"EN"":  If the Court pleases. Your Honours, arising

out of the question put by Your Honour

Mr Justice Dawson just before the adjournment,

might I take Your Honours back, for a moment,

to the judgment of the Court of Criminal Appeal

and, in particular, to pages 146 and 147 of the
application book. Perhaps, starting with page 147

where the Court, having quoted section 23A(l) says:

By that section, the abnormality of mind

which is capable of giving rise to the defence

of diminished responsibility must arise

from one of the limited categories that

the legislature has classified, that is
to say, arising from a condition of arrested

or retarded development of mind, or from

any inherent causes, or induced by disease

or injury. These three generalised categories

do not include a temporary state of alcoholic

or narcotic intoxication. This does not

of course exclude disease or injury in the

form of brain damage arising out of past

alcohol or drug usage. And plainly it would

include a hypoglycaemic condition.

Their Honours led up to that by saying, at page 146 -

I think I have already referred to this passage,

Your Honours - in the last complete paragraph:

The evidence was, also, to the effect

that without the consumption of alcohol,
neither the brain damage nor the hypoglycaemic

condition, nor the liver condition, either

alone or conjointly, would have led to any

irresponsibility such as could fall within

the scope of section 23A(l) of the CRIMES

ACT.

Your Honours, perhaps that is not an entirely

accurate summary of the effect of the evidence

because Your Honours will recall that Dr Jolly

and Dr Sumra said, in effect, that what was

significant in their view was the combination

of the three factors. I think Dr Jolly confined

himself to the brain damage and the consumption of alcohol on the night; Dr Sumra spoke of the

brain damage, the hypoglycaemia and the consumption

of alcohol on the night.

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MR HIDDEN (continuing):  But perhaps significantly, Your Honours,

Dr Jolly at page 12 of the application book was

asked this in cross-examination, at line 14: And in fact if he took a gun when he was sober and shot another person, you would

not say his responsibility -

I assume it should read "his responsibility" -

for that act was diminished? A. I am not

certain, the way I see it, that one can take

it in that degree of isolation. There are

a whole set - there would also be a set

of surrounding circumstances and with

brain damage one is always looking at how

the brain damage diminishes the responsibilities
in connection with the set of circumstances.

Q. Assuming that the man had taken a gun and shot somebody with the amount of brain damage

that you say was there in regard to this

accused, you would not be prepared to say

that his responsibility was diminished,

would you? A. I would not be prepared to

rule it out absolutely. I would want to

know the circumstances before I gave an

opinion.

Q. You would not say it was more probably than not? A. I couldn't say one way or the

other.

Q. You could not say one way or the other?

A. Indeed.

I do not believe that Dr Sumra was cross-examined in a similar way, but I take Dr Jolly to be saying,

or the three things and isolate them, singly or really, that you cannot just look at the .two things

in combination, and say would they, as isolated,

have fulfilled the requirements of the section.

You are really looking at a complex entity on that

night consisting of a number of constituent elements,

but you can only speak of the end result, the end

result of intoxication, brain damage and hypoglycaemia and

say that complex entity - the question is does that

complex entity give rise to the defence under the

section.

(Continued on page 32)

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MR HIDDEN (continuing): Perhaps, Your Honours, it is

simply not possible to say, "Well, let's take

the alcohol out of it''and look in isolation at

the hypoglycaemia and the brain damage and say

would they suffice under the section.

WILSON-:r:- Medical evidence is very tentative, is it not?

Hesitant.

MR HIDDEN:  Your Honours, it is not the strongest diminished

responsibility defence we have seen mounted,
Your Honour, no, but material there to go to the

jury, remains our submission,and was properly a

matter for the jury.

DAWSON J:  But what if the section requires you to separate

these elements out, difficult as it might be?

MR HIDDEN:  Yes, indeed. I appreciate that, Your Honour, and,

indeed, the English cases said that it must be done.

Well, Your Honour, we then return to our primary

submission that the section does not so require the

entities to be filtered out and, in that respect,

we ask Your Honours not to follow the English line

of authority.

DAWSON J:  You see, it may be conceded for the purposes of

argument that the applicant was suffering from an

abnormality of the mind at the time he fired the

shot.

MR HIDDEN:	Yes, Your Honour.
DAWSON J:	But if it was alcohol which was the real cause, it

was not an abnormality of mind within the meaning

of the section.

MR HIDDEN:  Well, we would say it could be, Your Honour.

DAWSON J: Yes, well it is back to the same

MR HIDDEN: Exactly, Your Honour, yes. In other words,

putting aside whether alcohol standing alone could

ever give rise to a relevant abnormality of mind,

we would say, none the less, in this case, looking

at the parenthesized etiology, as some judges like

to put it, in the section - would Your Honours

just bear with me a moment while I return to it -

then one has here a complex of things which are

capable of qualifying as inherent causes, perhaps,

if one refers to the brain damage and the

hypoglycaemia, certainly capable to that extent

of qualifying as disease. It may be the Court
of Appeal in England left the question open that

the toxic effect of alcohol on the brain might

qualify as injury.

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WILSON J: Injury?

MR HIDDEN:  Yes, Your Honour. In DI DUCA that question

was left open. I think the court said, "We doubt

that it could. It was put to us that it could;

we doubt that but we don't decide that now."

-_;-Maybe it could. So that on one view of it it

is possible to say, "Well, there's a word in there
to cater for everything in the evidence." Another

view of it is to say, "Well, provided the

evidence establishes in part something attributable

to those words in brackets, then it doesn't matter

if there is something else that isn't within the

brackets." In other words, the question arises:

does the section necessarily mean whether arising

from one of those things and from nothing else,

or whether arising only from, or solely from, the

things mentioned in the brackets.

It may be, Your Honours, and we would submit

it is a sensible interpretation of the section,
provided the evidence discloses some material
capable of being comprised by the words in the
brackets, then it matters not that there is

other material bearing on the defence which

might not qualify within the brackets. Indeed,

Your Honours, what do the brackets really mean?

It is perhaps appropriate at this stage to take Your Honours to a decision of the New South

Wales Court of Criminal Appeal in REG V PURDY,

(1982) 2 NSWLR 964. Now, Your Honours, in

PURDY the majority, comprised of Mr Justice Glass

and Mr Justice Maxwell - or with whom Mr Justice Maxwell

agreed - certainly held that the aetiologies,

as there: described, the sources or causes set

out in the brackets are exhaustive in effect and

for abnormality to qualify as diminished you have

got to fit it into one of them or some of them.

Mr Justice Roden, in a dissenting judgment,

Your Honours, took a different view which Your Honours

may feel has considerable force.

(Continued on page 34)

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MR HIDDEN (continuing):  Mr Justice Roden said this about the

words in the brackets - page 967, Your Honours -

His Honour says, under letter B:

The construction of the words appearing in

parenthesis in section 23A received some

attention during argument, and I wish to

refer to that matter.

I would not wish to associate myself with ..... the BYRNE construction.

That was a reference to REG V BYRNE, an English

decision in the early sixties on diminished responsibility

to which the majority referred:

I doubt its validity and whether it should

be adopted here. I take that position for

the following reasons.

(1) It would be necessary for the words to

drive me very strongly to that conclusion,

and to allow no other, before I would be

prepared to attribute to the legislature, as the

BYRNE construction does, an intention that an

accused person, who at the relevant time suffered

an abnormality of mind such as substantially

impaired his mental responsibility for the act

causing death, might not be entitled to the
benefit of the section because of the source or

the cause of that abnormality.

(2) For that to have been the intention of the

legislature, it would be necessary that there

were some categories of abnormality of mind, or

of sources or causes oJ abnormality of mind,

which the legislature intended to exclude. Having

regard to the sources and causes covered by the

-oords appearing in parenthesis in the section, I

find it difficult to imagine what they might be. His Honour goes on:

(3) If the words in parenthesis did not appear,

the two requirements of the section would be (i)

that there was an abnormality of mind, and (ii)

that it substantially impaired etc.

(Continued on page 35)

C2T48/l/VH	34	8/9/88
Jones
MR HIDDEN (continuing):

The effect of the words in brackets might be either1 to limit the operation of the section to certain specified types of abnormality of mind only, or to make

- -	it clear ("for the avoidance of doubt")
that it was not intended that the section
apply only to abnormalities of a limited
class, eg inherent as distinct from caused
by injury. In referring to the language in order to determine which of those
interpretations is to be preferred, two matters seem to me to be relevant, viz:
(i) The use of the word "whether suggests
the latter intent rather than the former,
for which a formula of words incorporating
"provided that" or something similar would
be more appropriate; and
(ii) The sources and causes which are included seem on the face of it uto cover
the field", so that either there is no
abnormality of mind which would not be covered by the words· in brackets, or if
there is, it is difficult to resist the
conclusion that its exclusion was unforeseen and unintended.

Your Honours thaty we would submit, is a sound and sustainable view of the section and of the

reason for inclusion of the. words in brackets.

It is in a minority view, admittedly, Your Honours,

but one which, we would submit, might ~ommend itself

to this Court, if it is necessary to determine that

question.

Your Honours, there is, of course -

relatively speaking there is a dearth of relevant

authority on this section, apart from the English

cases already referred to.

BRENNAN J:  There is a Queensland case, is there not, of

REG V MYERS, (1985) 2 Qd R 138?

MR HIDDEN:  Forgive me, Your Honou~ I believe there is, and

I believe I discarded it for some reason.

WILSON J:	I can assure you there is.
MR HIDDEN:	It followed FENTON, I think, did it not,

Your Honour?

BRENNAN J:  It did.

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MR HIDDEN:  I know for some reason, Your Honours, we

considered that it was of little relevance in

this argument. I am not quite sure why we did.

BRENNAN-1:	Yes.
MR HIDDEN:	But, Your Honours, if we have failed to refer

to a relevant authority, we apologize. It was

not intended.

BRENNAN J: Yes. Well, I am going only on the headnote

where it was:

Held: That alcohol (or drug) induced

intoxication does not fall within any

of the categories of abnormality of

mind specified ins. 304A.

which is the - - -

MR HIDDEN:  Which is the English - the same effect as the English authority, Your Honour.

BRENNAN J: Well, which is the Queensland - closest analogy

to the New South Wales' provision but which differs

in one material particular, to which this is not

relevant, I think.

MR HIDDEN:  Yes. Your Honour, it may be - and Your Honour

can perhaps enlighten me - that MIERS was a case

where only alcohol was relied upon and that there

was no other organic or psychiatric disability

claimed. I honestly do not recall, Your Honour.

I remember the name but, for some reason, I

elected not to refer to it.

BRENNAN J: Yes. There have been attempts at suicide, I

think - - -

MR HIDDEN:

Yes. Well, Your Honours, basically our submission

otherwise is that which we have already foreshadowed

and that is that, looking at the line of authority

generally on the place of alcohol in the criminal

law, one can see a difference in policy between the

British Isles and Australia and there are some

passages in REG V O'CONNOR to which I would wish

to take Your Honours.

The other is this, Your Honours: that it does seem incongruous that the consumption of alcohol at

the relevant time would have to be placed out of any
regard in diminished responsibility in the light of

the fact that it does not have to be for the defence

under the M' NAGHTEN Rules. Your Honours, in the

D.P.P. V BEARD that situation was referred to.

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MR HIDDEN (continuing):  Your Honours, that was a decision

of the House of Lords reported in (1920) AC 479.

Your Honours, for relevant present purposes its

facts are unimportant but there, Your Honours,

Lord Birkenhead reviewed the law thus far developed

__ in England concerning the place of alcohol in

criminal liability, tracing through the cases from
the old days of the 18th century where, in fact,

alcohol was no defence at all,in some respects

an aggravating factor. At page 500 of the report

His Lordship came to the conclusions to be drawn

as to the then state of the law. It is really

only the first of them which immediately concerns

us, Your Honours. There, in the middle of the

page His Lordship says:

insanity, whether produced by drunkenness or

otherwise, is a defence to the crime charged.

The distinction between the defence of insanity

in the true sense caused by excessive drinking

and the defence of drunkenness which produces

a condition such that the drunken man's mind

becomes incapable of forming a specific

intention, has been preserved throughout the

cases. The insane person cannot be convicted

of a crime -

a reference to authority -

but, upon a verdict of insanity, is ordered to

be detained during His Majesty's pleasure. The

law takes no note of the cause of the insanity.

If actual insanity in fact supervenes, as the

result of alcoholic excess, it furnishes as

complete an answer to a criminal charge as
insanity induced by any other cause.

His Lordship refers to some early cases b_ut then more significantly, Your Honours, at page 501, to

the case of REG V DAVIS, where he says:

the prisoner was charged with wounding with

intent to murder, Stephen J thought (and I

agree with him) that insanity, even though

temporary, was an answer. The defence was that

the prisoner was of unsound mind at the time

of the conunission of the act, and the

evidence established that he was suffering

from delirium tremens resulting from over-

indulgence in drink. Stephen J said: "But

drunkenness is one thing and the diseases

to which drunkenness leads are different

things; and if a man by drunkenness brings on a state of disease which causes such a degree of madness, even for a time, which would have

relieved him from responsibility if it had

C2T51/l/MB	37	8/9/88
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been caused in any other way, then he

would not be criminally responsible. In
my opinion, in such a case the man is a

madman, and is to be treated as such, although

his madness is only temporary .... If you think

there was a distinct disease caused by

drinking, but differing from drunkenness,

and that by reason thereof he did not know

that the act was wrong, you will find a verdict

of not guilty on the ground of insanity.

Now, Your Honours, that view of the law, of course, has never been in doubt, Your Honours and, of course,

was affirmed subsequently,without having to go to

it, in A.G. FOR NORTHERN IRELAND V GALLAGHER,

which I cannot i!Illllediately put my hands on,

Your Honours. I do not think it is necessary

to go to it, Your Honours. That is reported,

Your Honours, in (1963) AC 349. So that,

Your Honours, the M'NAGHTEN Rules or the defence

under the M'NAGHTEN Rules that has long been recognised

can arise where a state of mind is brought about temporarily by drink, provided that state

of mind amounts to a disease of the mind, at

least for the time being.

BRENNAN J: The problem about this, Mr Hidden - and I do not

want to come back to what we have already discussed -

if you were minded to raise a defence of insanity in

this case, one of the gravest difficulties that

you would face, apart altogether from the question

of aetiology, is whether there is anything to

suggest that there was any lack of capacity to

form a view as to the wrongness of the Act or of

its nature or significance?

MR HIDDEN:  Well, no, Your Honour, there was evidence to

that effect, I would submit. There was evidence from which it was open to the jury to draw that conclusion.

WILSON J:  From the medical evidence to which you have

drawn our attention?

MR HIDDEN:  Yes. We would submit that there was evidence

from which the jury was entitled to draw the
conclusion, that there was - the 'man' S!. mental

responsibility for his actions was substantially

diminished or impaired, or whatever the words of

the section are, substantially impaired. That

arises from the medical evidence as to the effect

of brain damage, hypoglycaemia and alcohol.

C2T51/2/MB 38 8/9/88

Jones
WILSON J: Hypothesizing that it might produce conduct which

might be thought to be "erratic" or "unpredictable"

or - what was the third?

BRENNAN J:	" Uninhabited".
MR HIDIIBN-:	Dr Jolly referred to "a lower capacity to form

terribly sensible judgments; appreciation of

consequences, very poor, very poor indeed."

WILSON J:  But you have got to read "sensible judgments"

in a particular way, perhaps, to accord with

the totality of Dr Jolly's evidence. You could

say every violent criminal demonstrates an incapacity

to form a sensible judgment but you would not

necessarily say that was then capable of pointing

to an impairment of mental responsibility.

MR HIDDEN: No, Your Honour, that is probably so. There

would have to be more than just the fact that
he is a violent criminal who does not share the

moral sense of the rest of us.	But there is,
here.

WILSON J:  The course of events leading up to the killing

was that there was an altercation in the hotel;

the applicant left the hotel with a friend, named

Jurd; they drove to Jurd's house - - -

MR HIDDEN:	To the applicant's house.
WILSON J:	To the applicant's house to get the rifle?
MR HIDDEN:	The applicant got the rifle, yes.

WILSON J: And he tried it out in the house? Well, there

is a suggestion that it was tried out to make

sure it would work. I saw it somewhere - - -

MR HIDDEN:  I do not recall that. I can be corrected if

I am wrong.	I think that was yesterday's case,
Your Honour.

WILSON J: Forgive me. I withdraw that but, anyway, they

drove to the applicant's house in order to get

the rifle and returned to the hotel?

MR HIDDEN:  They drove to the applicant's house and got the rifle, Your Honours. The purpose of the

drive is perhaps a matter of inference.

WILSON J:  Was any other purpose suggested?

MR HIDDEN. Not that I recall, Your Honour. Certainly

there was evidence that when the rifle was obtained

he said to his wife, "We're going rabbit shooting".

Presumably the jury would not have accepted that.

C2T52/1/SDL	39	8/9/88
Jones

WILSON J:  Yes.

MR HIDDEN:  But then the curious sequence of events is: they

go back to the hotel where they remain for some

time. Jurd goes to his car and sleeps and it

would seem quite some time later the applicant

--=- - comes out to the car and wakes him up and says,

"Let's go", but then, as Jurd drives off, says,

"Look, the brea thalyzer 's down there; turn round,

we'll go another way", and it is at that point

they stop at the set of lights roughly adjacent

to the door of the hotel through which the applicant

fires the weapon.

WILSON J:  And there was a police road-block or something

suggesting a random breath testing - - -

MR HIDDEN:  I do not think so, Your Honour, no. I think

the Crown's suggestion is that the applicant

was tricking Jurd to get him back to the vicinity

of the hotel so he, the applicant, could fire

the shot. The curious aspect was the long gap

between the arguments, which was early in the

evening, and the shooting, which was getting

on to midnight, I think, Your Honour. And, of

course, as we remarked earlier, Your Honours,

I think there was evidence from the applicant

with some support from my witnesses that, in
the interim, after they originally returned from

the home, there was an apology between the two

men and all seemed well.

BRENNAN J:  In those circumstances, Mr Hidden, there does

not, as at present advised, seem to me to be

anything to suggest that the act done by the

accused was not voluntary or intended.

(Continued on page 41)

C2T52/2/SDL	40	8/9/88
Jones

MR HIDDEN No, well, no, thus far, Your Honour,

no. I mean, those issues were put to the jury in

any event.

BRENNAN J: Yes, I appreciate that, but nothing to suggest that

there was any impairment of a capacity to act

voluntarily or to form an intent and, let me go on

---to follow the other elements, nor anything to suggest

any impairment of the capacity to know the nature

and quality of the act he was engaged in or that it

was wrong.

MR HIDDEN: Well, that is more problematic, Your Honours.

I mean, M'NAGHTEN did not arise, of course.

BRENNAN J: Well, I just wonder whether, having put those

four propositions, that is, the two limbs of M'NAGHTEN,

voluntariness and intent, we have not exhausted
mental responsibility for the crime.

MR HIDDEN:  That is right, yes, Your Honour, that is the other area remaining. We submit no more than that there was

material to go to the jury on that issue and it was

taken from them.

BRENNAN J:  Yes.

MR HIDDEN: It.: might not hav.ebeen the most overwhelming material,

but it was there.

BRENNAN J: That is the point I am making.

MR HIDDEN:  Yes. So, 1 Your Honours, we have referred to the

significance that intoxication may have in the insanity

defence. In REG v O'CONNOR, (1979-1980) 146 CLR 64,

of course, this Court considered exhaustively the

law relating to intoxication and criminal

responsibility except in the context of diminished

responsibility unfortunately, and significantly

departed from the line of English authority which had
held that intoxication could not avail in defence to

an offence of basic intent as opposed to an offence

of specific intent.

This Court pointed out that the English authorities

were strongly based upon reasons of policy from which

this Court departed. Of course, in particular,

Your Honours, it is not necessary to go to this in

any detail, but in particular this Court differed from

the view of the House of Lords in DIRECTOR OF PUBLIC

PROSECUTIONS V MAJEWSKI, which the Court , and in particular

Sir Garfield Barwick, considered in detail. There is
a passage in the judgment of Sir Garfield Barwick,

the significance of which is not entirely clear but it

may provide some assistance. At page 71, just below

the middle of the page, the then Chief Justice said

this:

C2T53/l/VH	41	8/9/88
Jones

The state of drunkenness or intoxication can

vary very greatly in degree. A person may

be intoxicated in the sense that his personality

is changed, his will is warped, his disposition

altered, or his self-control weakened, so that

whilst intoxicated to this degree he does act

voluntarily and intentionally which in a sober

state he does -

I think it means"acts" -

voluntarily and intentionally which in a

sober state he would or might not have done.

His intoxication to this degree, though conducive

to and perhaps explanatory of his actions, has

not destroyed his will or precluded the formation

of any relevant intent. Indeed intoxication to

this degree might well explain how an accused,

otherwise of good character, came to commit an
offence with which he is charged.

Intoxication to the stated degree might have rendered an accused less aware of what he was

doing, or of its quality, significance or

consequence. But, if voluntary, his acts remain

his:  and he intends to perform them. So long

as will and intent are related at least to the physical act involved in the crime charged, and saving for the moment the case of a crime of

so-called specific intent, the fact that the

state of intoxication has prevented the accused

from knowing or appreciating the nature and

quality of the act which he is doing will not

be relevant to the determination of guilt or

innocence.

(Continued on page 43)

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MR HIDDEN (continuing):

Apart from provisions as to diminished

responsibility where such provisions

are available, it is only where the lack

of appreciation of the nature and

quality of what is voluntarily and

intentionally done is due to a disease

of the mind that such lack of

appreciation bears on guilt:  and

then only for historical reasons on
the nature of the verdict to be returned.

Your Honours, on one interpretation - we appreciate, Your Honours, that O'CONNOR was

not dealing with diminished responsibility or,

indeed, even with murder. O'CONNOR was dealing

with offences generally, and the relevance of

intoxication where the offence is not one of

specific intent. But it is interesting that

the Chief Justice, having referred to the fact

that intoxication may prevent the accused from

knowing or appreciating the nature and quality

of the act which he was doing, which the Chief

Chief Justice seems to be using there in a general

sense, not in the technical ~'NAGHTEN sense,

then goes on to say:

Apart from prov is ion as to diminished

responsibility where such provisions

are available, it is only where the lack

of appreciation of the nature and

quality of what· is voluntarily and

intentionally done is due to a disease

of the mind that such lack of

appreciation bears on guilt:

the implication being that where diminished

responsibility is available, then intoxication

impairing, or leading to a lack of appreciation

voluntarily and intentionally done may bear on	of the nature and quality of what is otherwise
guilt, at least on murder. In other words, perhaps
going back a little earlier to the passage just quoted at page 71, a person who is intoxicated in the sense that:

his will is warped ..... his self-control

weakened, so that whilst intoxicated to

this degree he does act voluntarily and

intentionally which in a sober state

he would or might not have done.

Your Honours, it may be that that would classify,

under section 23A, as an impairment of mental

responsibility for his acts and the question for

the jury would be whether it is substantial.

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But, of course, here Your Honours still we

are talking about alcohol without more.

All Your Honours are asked to decide in this

case, with respect, is that on the peculiar facts

of this case where there was medical evidence

relating to a combination of factors, one of which

was alcohol, which we say raised sufficient material

to go to the jury on the question of diminished

responsibility, then that issue ought to have

been left, and there is no reason in law why,

on the unusual facts of this case the material
should, as a matter of law, have been taken from

the jury.

Your Honours, just two other matters.

Your Honour Justice Brennan asked a question
very early 1n the piece as to the distance over

which it is believed the shot was fired. Your Honours,

there is no evidence directly on that, in that there

was apparently no evidence of anyone who estimated

it, but there was evidence from which an estimate
could have been made. if one looks at certain

photographs and a plan of the street and the

interior of the hotel, and if Your Honours wish it we

can take Your Honours to that in some detail. Suffice

it to say that I think we are agreed that about

14 yards is an appropriate estimate, and that is

rather reinforced, Your Honours, by the fact that

Your Honours might recall from the summing up there

also was an issue arising from the fact that the

rifle was bent and the Crown case was that the

applicant admitted having bent it after the incident
in question.

The accused's case was that he did not know when it was bent, and it may well have been bent

when he fired the shot, and there was an issue

about that, and indeed technical evidence was

called in the defence case to render the accused's

alleged admission improbable.

(Continued on page 45)

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:MR HIDDEN (continuing):  But significantly, it was put

to the ballistics expert, Detective Sergeant Milligen,

summed up at page 110 of the application book.

Detective Milligen was asked in cross-examination
what the margin for error would be in the light
of the bent barrel of the rifle at 14 yards. Apparently his

-~-evidence was that he had fired something in the order of 16 inches to the left and 11 inches below.

Now, clearly, Your Honours, that estimate of

14 yards was based upon somebody's estimate of the

likely distance of the actual shot.

Your Honours, the only other matter to which

we would wish to refer Your Honours, and indeed

we are grateful to our learned friends for this
who discovered it, is an unreported decision

of the Court of Criminal Appeal of 1 May 1986

of REG V MARTIN BERNARD THIEL. Now, Your Honours,

we became aware of it only yesterday, as, I think,

did the Crown. Might we hand up to Your Honours

some copies of this?

No authority is referred to .in. it

whatsoever. THEIL apparently was a case where

a murder trial had been run on the basis of

diminished responsibility and it came to the

Court of Criminal Appeal by a petition under

section 26(a) of the CRIMINAL APPEAL ACT.	The
Court notes:

Very briefly, the murder charge arose

out of the appellant strangling a female

friend with whom he had an intimate

association. In his unsworn statement at

the trial, he said that there had been

an altercation between them, and that

in the state of intoxication, to which he

was then subject, he had a flashback to a

trauma inflicted upon him in Germany in

his childhood when a woman attacked him. He

lost control of himself and strangled the victim. The appellant called psychiatric evidence

at the trial for the purpose of raising the

issue of diminished responsibility.	The
Crown in reply called countervailing

psychiatric evidence. The psychiatrist called

by the Crown said that there was a lack of

adequate information to found diminished

responsibility. The relevant information,

which was identified by him as lacking, was

the degree of alcoholic predisposition to

which the appellant was subject.

Apparently the jury asked a question about that very matter and there was at the time no evidence

to assist them. The court goes on:

It has now been ascertained that the appellant was in fact treated for alcoholism

C2T55/l/JM 45 8/9/88

Jones

whilst in custody awaiting trial and

further material confirmatory of his state

of alcoholism is placed before the Court

in affidavit form.

-~The psychiatrist called by the Crown apparently

then said:

" ... one has to say in the light of the
evidence not known to me before that it is

more probable than not that at the crucial

time of the homicide the accused suffered

from an abnormality of mind because of

past history of chronic alcohol addiction

which has substantially impaired his

mental responsibility at the time."

The c.ourt was of the view then, in the light of

that fresh material, it should intervene and a verdict

of manslaughter was substituted.

Your Honours, no authority is referred to there,

but the authority does at least seem to embrace

this: that if all evidence had been available

then the evidence in the case would have been

a past history of alcoholism, together with

intoxication at the relevant time during which

the flashback occurred and there seems no suggestion

that intoxication at the relevant time would have

had to have been placed out of mind by the jury

in determining whether the defence was made out.

That is where the relevance of it ends, Your Honours.

Those are our submissions, if the Court pleases.

(Continued on page 47)

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WILSON J: Thank you, Mr Hidden. The Court will retire

for a few minutes to consider the course it

should take.

AT 2. 5 2 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.57 PM:

WILSON J:	The Court need not trouble you, Mr Gray.
MR GRAY:	May it please Your Honour.

WILSON J: The question whether a combination of ingestion

of alcohol with slight brain damage and/or other

pathological condition not in themselves sufficient

to substantially impair an accused person's mental

responsibility is capable of attracting a defence of diminished responsibility under section 23A of

the CRIMES ACT ((1900) New South Wales, is an

important question which in an appropriate case

might warrant the grant of special leave. However,
the Court is not persuaded that the medical evidence

considered in the context of all the circumstances

is capable of establishing a substantial impairment

of the mental responsibility of the applicant for

the act of killing.

The case is, therefore, not an appropriate one

for the grant of special leave. That being so, it

is sufficient simply to refuse the application for

an extension of time in which to make the application

for special leave to appeal and there will be an

order to that effect.

MR HIDDEN:	May it please the Court.
WILSON J: The Court will now adjourn until 10.15 am tomorrow

morning.

AT 2.59 PM THE MATTER WAS ADJOURNED SINE DIE

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