QUESTION of LAW RESERVED (NO. 1 of 1997) No. SCCRM-97-143, SCCRM-97-250 Judgment No. S6444
[1997] SASC 6444
•18 December 1997
QUESTION OF LAW RESERVED FOR THE FULL COURT
(NO 1 OF 1997)
Full Court: Matheson, Duggan and Nyland JJ
DUGGAN J
Perry J has reserved for the consideration of the Full Court a number of questions of law arising out of the above matter. The questions relate to the Mental Impairment provisions in Part 8A of the Criminal Law Consolidation Act, 1935 (the Act) which came into effect on 2nd March 1996.
Before answering the questions it is convenient to summarise the effect of the new provisions. They provide a code for dealing with the issues of mental competence to commit an offence and mental fitness to stand trial. Although they replace the common law concepts of insanity and unfitness to stand trial, it is clear that the legislation has borrowed heavily from the common law principles.
Under the new legislation the term “mental incompetence” is substituted for “insanity”. Section 269C provides:
“A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment -
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; or
(c) is unable to control the conduct.”
“Mental impairment” replaces the old concept of disease of the mind. It is defined in s269A(1) to include -
“(a) a mental illness; or
(b) an intellectual disability; or
(c) a disability or impairment of the mind resulting from senility.”
“Mental illness” is defined as meaning “a pathological infirmity of the mind (including a temporary one of short duration)”.
The most significant departure from the test contained in the M’Naghten Rules is the addition of a third limb or consequence of mental impairment, namely, inability to control the relevant conduct. There is a presumption of mental competence to commit an offence unless the contrary is proved. (s269D)
Section 269B provides as follows:
“(1) An investigation under this Part by the Supreme Court or the District Court into -
(a).... a defendant’s mental competence to commit an offence or a defendant’s mental fitness to stand trial; or
(b) whether elements of the offence have been established,
is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a judge sitting alone.
(2) The same jury may deal with issues arising under this Part about a defendant’s mental competence to commit an offence, or fitness to stand trial, and the issues on which the defendant is to be tried, unless the trial judge thinks there are special reasons to have separate juries.
(3) Any other powers or functions conferred on a court by this Part are to be exercised by the court constituted of a judge sitting alone.”
The procedure which the Act provides for dealing with these issues represents a significant departure from the common law procedure whereby, in a case where insanity was raised, all issues were dealt with at the same trial. The new procedure for dealing with mental competence to commit an offence identifies three issues which may call for determination, namely, the objective elements of the offence, the subjective elements of the offence and the accused’s mental competence to commit the offence.
A “subjective element” of an offence is defined as “voluntariness, intention, knowledge or some other mental state that is an element of the offence”.
An “objective element” of an offence is defined as “an element of an offence that is not a subjective element”.
The issue of mental competence may be raised by the defendant or the court may direct an investigation into the issue on its own initiative or on application by the prosecution. (s269E(1)) Once raised it must be separated from the remainder of the trial. The trial judge has a discretion to proceed first with the trial of the objective elements of the offence or with the trial of the mental competence of the accused. (s269E(2))
If the trial judge decides to proceed first with the trial of the accused’s mental competence to commit the offence the procedure in s269F must be followed. The court must hear “relevant evidence and representations”. Then, if the court is not satisfied on the balance of probabilities that the accused was at the time of the alleged offence mentally incompetent to commit the offence, it must “proceed with the trial of the offence in the normal way”. (s269FA(3)) If the court is satisfied on the balance of probabilities that the accused was at the time of the alleged offence mentally incompetent to commit the offence, it must record a finding to that effect. (s269FA(4)) In the latter event the court must then hear evidence and representations relevant to the question whether it should find that the objective elements of the offence are established. (s269FB(1)) If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt the court must record a finding to that effect (s269FB(2)) and find the accused not guilty of the offence but declare him or her to be liable to supervision under this Part of the Act. If the objective elements are not established the court must find the accused not guilty of the offence and discharge the accused. (s269FB(3))
If, on the other hand, the trial judge decides to proceed first with the trial of the objective elements of the offence it must first hear evidence and representations on that issue and, if satisfied that the objective elements are established beyond reasonable doubt, it must record a finding to that effect. (s269GA(2)) If not so satisfied it must record a finding that the accused is not guilty of the offence and discharge the accused.
If the court records a finding that the objective elements are satisfied it must then hear evidence on the question of the accused’s mental competence to commit the offence. If satisfied on the balance of probabilities that the accused was at the time of the alleged offence mentally incompetent to commit the offence it must record a finding that the accused is not guilty of the offence and declare the accused to be liable to supervision under this Part of the Act. (s269GB(3)) If the court is not so satisfied it must proceed to consider whether the evidence establishes the subjective elements of the offence beyond reasonable doubt. If the subjective elements are established beyond reasonable doubt the court must record a finding of guilty of the offence “and proceed to deal with the accused as if a finding of guilt had been made in the normal way”. If not so satisfied it must record a finding that the accused is not guilty of the offence. (s269GB(4))
These steps are summarised for easy reference in the flow charts set out below.
Trial of Mental Competence First
The court hears evidence and representations on the issue of
mental competence (s269FA(1))
If not satisfied of If satisfied of mental
mental incompetence the incompetence court
trial of the offence proceeds determines whether
in the normal way. (s269FA(3)) objective events of
offence are established.
(s269FB(1))If satisfied that objective If not satisfied that
elements are established objective elements are
the accused is found not established the accused
guilty of the offence but is found not guilty of the
declared to be liable to offence and discharged.
supervision. (s269FB(3)) (s269FB(3))Trial of Objective Elements First
The court hears evidence and representations on the
issue of the objective elements (s269GA(1))
If objective elements not If objective elements are
established the accused established court hearsis found not guilty and evidence and representations
discharged. (s269GA(2)) on the issue of mental
........... competence. (s269GB(1))
..
...........If satisfied of mental If not satisfied of mental
incompetence the accused incompetence court
is found not guilty but determines whether
declared to be liable to subjective elements of
supervision. (s269GB(3)) offence are established.
.. (s269GB(4))..
If satisfied that subjective If not satisfied that
elements are established subjective elements are
the accused is found guilty established the accused
of the offence. (s269GB(4)) is found not guilty of the
.. offence. (s269GB(4))The questions reserved for consideration and the answers I would give are set out in the remainder of these reasons.
Is it open for the court to record a finding of mental incompetence pursuant to s269FA(5) in the absence of the jury and before a jury is empanelled?
Section 269FA(5) provides as follows:
“The court may, if the prosecution and the defence agree -
(a).... dispense with, or terminate, an investigation into a defendant’s mental competence to commit an offence; and
(b).... record a finding that the defendant was mentally incompetent to commit the offence.”
Prior to the enactment of this provision it was necessary for a jury to hear evidence and deliver a verdict even if there was no dispute between the prosecution and the defence that the accused was insane within the meaning of the M’Naghten Rules at the time of the offence. In the interim report of the Review of Commonwealth Criminal Law (Principles of Criminal Responsibility and Other Matters) July, 1990) a similar measure was recommended as a convenient way of avoiding the necessity of a trial in such cases. The United Kingdom Law Commission has made a similar recommendation. It would seem that s269FA(5) was enacted so as to dispense with what was often an unnecessary formal procedure.
The investigation referred to in s269FA(5) is that which is required by s269B which states:
“(1) An investigation under this Part by the Supreme Court or the District Court into -
(a).... a defendant’s mental competence to commit an offence or a defendant’s mental fitness to stand trial; or
(b) whether elements of the offence have been established,
is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a judge sitting alone.
(2) The same jury may deal with issues arising under this Part about a defendant’s mental competence to commit an offence, or fitness to stand trial, and the issues on which the defendant is to be tried, unless the trial judge thinks there are special reasons to have separate juries.
(3) Any other powers or functions conferred on a court by this Part are to be exercised by the court constituted of a judge sitting alone.”
Section 269FA(5) enables the court to dispense with or terminate such an investigation, thus excluding the involvement of a jury. Counsel for both the Director of Public Prosecutions and the accused were in agreement with this reading of the provisions and I would answer the first question “Yes”.
It is convenient to deal with questions 2, 3 and 4 together. The questions are -
Do the words “elements of the offence” where they appear in Part 8A of the Act, and in particular (but not only) having regard to the definitions appearing in s269A(1), mean, and are they limited to, one of the individual matters which have to be proved by the prosecution before the defendant can be convicted of the offence charged?
When a question is raised in the context of a plea of self-defence as to the genuine belief of the accused under the repealed s15, is the genuine belief a “subjective element” of the offence within the meaning of the definition in s269A(1)?
In the course of the hearing of “evidence and representations” pursuant to s269FB, is it open to the defendant to adduce evidence relating to his mental state at the time of the alleged commission of the offence as though he was raising a plea of self-defence under the repealed s15?
The reference to “s15” relates to the self-defence provisions which were contained in the Criminal Law Consolidation Act at the time of the alleged offence.
The circumstances which gave rise to these questions are set out in the case stated. The accused is charged with the murder of an elderly neighbour. According to the prosecution case he battered the deceased to death with a steel pipe. The accused has a psychiatric history extending back beyond the date of the alleged offence. Furthermore, in a psychiatric report tendered before Perry J, Dr Lucas expressed the opinion that at the time of the alleged offence the accused was suffering from paranoid schizophrenia which led to the result that he did not know that his conduct at the relevant time was wrong. Dr Lucas added “There is a strong suggestion that to a considerable, perhaps near total, extent he was unable to control his conduct”.
The defence raised the issue of mental competence and Perry J decided to proceed first with the trial of that issue. He also exercised his power under the Act to direct a psychiatric examination by another psychiatrist. In a report provided to the court that psychiatrist, Dr Raeside, concurred with the view of Dr Lucas. He said that the accused suffers from schizophrenia marked by paranoid delusions, auditory hallucinations and psychotic thought disorder. He said in his report:
“I ... believe that whilst it is possible that Mr Flavel may have had some understanding of the wrongfulness of his actions, his mental state was so disturbed such as to make it much more probable that his understanding was grossly impaired. ...
It is also probable that Mr Flavel was unable to control his behaviour at the time of the offence, as a direct result of his mental illness.”
He expressed the conclusion that the defendant
“... has a mental impairment defence available to him. I would concur with the opinion offered by Dr Lucas..”
It was on the basis of these reports that the prosecution agreed to the recording of a finding that the accused was mentally incompetent to commit the offence. However counsel for the prosecution argued before Perry J that it would be necessary to empanel a jury in order for the consensual procedure provided for in s269FA(5) to take place. Since the stating of the case the prosecution has acknowledged that a jury is not required for this purpose.
Both counsel also informed Perry J that the killing of the deceased by the accused was not in dispute. It was conceded on the accused’s behalf that he had assaulted the deceased with a steel bar and that the deceased died from injuries sustained in the assault.
However Mr Tilmouth QC, for the accused, advised his Honour that if his client had come to trial in the normal way he would have raised self-defence. Reliance would have been placed on a delusionary belief held by the accused. This belief was referred to in the report of Dr Lucas. The report was not placed before this court but reference is made to it by Perry J in the case stated where it is said:
“According to Dr Lucas, the defendant indicated to him that before the assault, he believed that the deceased had caused a mandarin tree in the defendant’s garden to turn black; that he thought the deceased was ‘some sort of warlock or devil’; that he thought the deceased was ‘plotting against me and the family and others’; and that the deceased represented a ‘risk of harm to his family’. In the words of Dr Lucas (report page 10):
‘His conduct appeared to have been driven by a feeling of a need to act so as to protect himself and his family and to put an end to what he falsely believed to have been brought about by Mr Rocca.’
When I raised the question with both counsel, they conceded that, as a matter of law, a plea of self-defence could be raised on the basis of a delusionary belief. See Walsh (1992) 60 A Crim R 419, Wang (1990) 2 NZLR 529, Gillman (1994) 62 SASR 460 at 465 and Grant Self Defence (1994) 16 Adel LR 309. ”
It is this issue which led Perry J to pose the second, third and fourth questions in the case stated. Mr Tilmouth argued before this court that the prosecution was required to prove that the accused’s act was unlawful and that unlawfulness must be regarded as an objective element of the offence to be proved by the prosecution in the course of a trial on that issue under this Part of the Act. A successful plea of self-defence would render the accused’s actions lawful and so the accused was entitled to raise self-defence at a trial of the objective facts. Mr Millsteed QC, for the Director of Public Prosecutions, submitted that self-defence could not be raised on the trial of the objective facts. He argued that the issue was neither an objective nor a subjective element of the offence under the Act and, in the alternative, he submitted that if unlawfulness was an element of the offence, it was a subjective rather than an objective element having regard to the definitions contained in the Act.
The interpretation of the relevant provisions in the Act cannot be divorced entirely from the common law as it had developed up until the passing of the Act. The test for mental incompetence draws heavily on common law concepts and expressions, and although the procedures introduced by the legislation represent a marked departure from that which was in existence before the Act was passed, the previous law is of some assistance in determining the legislative intention in introducing some of the new procedures.
The legislation is clear in one respect: in whatever order the issues are tried a finding of mental incompetence, coupled with a finding that the objective elements have been proved beyond reasonable doubt, will result in a verdict of not guilty and a declaration that the accused is liable to supervision under the Act. There is no need for the subjective elements to be proved in order to achieve this result.
The exclusion of those matters referred to in the Act as subjective elements from the matters to be proved before making an order for supervision is based on a policy decision made by the legislature. In this respect the legislation addresses a difficulty which was encountered at common law, particularly in relation to the issue of voluntariness. In The Queen v Radford (1985) 42 SASR 266 at 272 King CJ said:
“The problem in the present case is but another instance of a problem which has troubled the courts increasingly over the past thirty-five years, namely the relationship between involuntariness and insanity and the manner in which that relationship is to be worked out in the practical administration of justice. It is a problem which has arisen only in the last thirty-five years. Until the English case of R v Harrison-Owen [1951] 2 All ER 726, the question of involuntary act as a ground for escaping criminal liability does not appear to have arisen apart from insanity. The authorities since that time, however, leave no room for doubt that involuntary action, whether resulting from insanity or the effect on a sane mind of external factors, excludes criminal liability. Involuntariness is not to be confused with irresistible impulse where the act is willed although the mind is unable to control it (The Queen v Harm (1975) 13 SASR 84); but if the act is performed involuntarily, in the sense of without the exercise of the will, there is no criminal liability whether or not the cause is insanity. Since 1951 the courts have had many opportunities to consider the issue of involuntariness and to explore its relationship to the defence of insanity.
Certain points which are pertinent to the present case have been settled by authority. If evidence is called by the defence to raise the issue of involuntariness, or automatism as it is often called, and that evidence is such that a jury could properly find insanity, the issue of insanity must be left to the jury: The Queen v Joyce [1970] SASR 184. Similarly the fact that the evidence is open to an interpretation which would amount to insanity does not relieve the judge of the obligation of leaving automatism to the jury if the evidence is also reasonably capable of leading to that conclusion: Bedelph v The Queen (1980) 1 A Crim R 445, per Green CJ at p447. Where the evidence is capable of leading to either conclusion both should be left to the jury: The Queen v Cottle [1958] NZLR 999.
A further point which is conclusively, if perhaps somewhat illogically and inconveniently, established by authority is that if the involuntary character of the conduct in question is referable exclusively to disease of the mind, the applicable law is that relating to insanity: The Queen v Cottle (supra), Bratty v Attorney-General for Northern Ireland [1963] AC 386, The Queen v Joyce (supra) especially per Bray CJ at p194. The rule produces an incongruity arising from the special verdict required by s292 of the Criminal Law Consolidation Act where an acquittal is by reason of insanity. The incongruity was pointed out as long ago as 1957 in a paper delivered by Sir Owen Dixon to the Tenth Legal Convention of the Law Council of Australia (Australian Law Journal vol. 31 p255) and has since frequently been referred to in the various cases. If the conduct which would otherwise be criminal is involuntary, the accused is entitled to acquittal unless the involuntariness results from disease of the mind. If it results from disease of the mind, the accused is guilty unless the evidence proves on the balance of probabilities that the conduct resulted from a defect of reason caused by the disease of the mind in consequence of which the accused did not understand the nature and quality of his actions or did not know that they were wrong. The incongruity is intensified by the differing burdens of proof.
This incongruity produces real problems in the conduct of a trial in which there is evidence fit for the consideration of the jury as to both insanity and non-insane automatism. The two principal problems relate to the definition of disease of the mind, and to the directions to be given as to onus of proof and as to the manner in which the jury is to approach its task.”
The policy considerations which flow from the dilemma referred to by King CJ were commented upon by Lord Denning in Bratty v Attorney-General from Northern Ireland [1963] AC 386 at 410:
“Again, if the involuntary act proceeds from a disease of the mind, it gives rise to a defence of insanity, but not to a defence of automatism. Suppose a crime is committed by a man in a state of automatism or clouded consciousness due to a recurrent disease of the mind. Such an act is no doubt involuntary, but it does not give rise to an unqualified acquittal, for that would mean that he would be let at large to do it again. The only proper verdict is one which ensures that the person who suffers from the disease is kept secure in a hospital so as not to be a danger to himself or others. That is, a verdict of guilty but insane.”
This reasoning, however, did not apply to every mental state. In Hawkins v The Queen (1994) 179 CLR 500 the High Court held that, although evidence of mental disease was properly rejected in relation to the issue of voluntariness, its relevance could not be denied to the further issue of specific intent. The accused was charged with murder under the Criminal Code (Tasmania). Insanity was not raised by the defence and the trial judge ruled inadmissible medical evidence to the effect that the accused was suffering from a mental disease which may have affected his capacity to form an intention to kill or cause bodily harm. After referring to the insanity provisions under the Code the joint judgment of the High Court continued (p512):
“Although the evidentiary presumption of sound mind is of general application, there is a reason why rebuttal of that presumption by evidence of mental disease, which is necessarily admissible on the issue of insanity, cannot be taken into account in determining whether an act is voluntary and intentional. Mental disease, by itself, is no excuse for the doing of an incriminated act but s16 [the insanity provisions] provides an excuse (‘not criminally responsible’) when, and only when, the consequence and measure of the mental disease are as prescribed by pars (a) and (b) of s16(1). It would destroy that limitation on the defence to allow evidence of mental disease to destroy the inference that an act is willed when it is done by a person of sound mind Reg. v Falconer (1990) 171 CLR at p43. If it were otherwise, the practical consequence of destroying that inference would be the outright acquittal of an offender although that offender, if he was suffering to any extent from a mental disease, was not suffering to the extent prescribed by pars (a) and (b) of s16(1). That is a sound enough reason to reject evidence of mental disease in determining the issue of the voluntariness of an act done by a person presumed to be of sound mind. But there is no such reason for excluding evidence of mental disease in determining whether an act done by a person who is criminally responsible for the act was done with a specific intent. In such a case, the actor is liable in any event to conviction for an offence constituted by the doing of the act but is liable to conviction for a more serious offence only if the prosecution establishes the intent which is the additional element in the more serious offence. The presumption of sound mind is not the equivalent of a presumption that a person intends the natural, or natural and probable, consequences of his act Smyth v The Queen (1957) 98 CLR 163. The reference in s17(3) to the ‘presumption that a person intends the natural and probable consequences of his acts’ was not advanced by counsel for the respondent as a presumption of general application. In Snow v The Queen [1962] Tas SR 271 at p288, that presumption was said to be a ‘presumption of fact capable of rebuttal by an advanced degree of drunkenness’. It does not affect the general question whether an inference of specific intent should be drawn from the circumstances of the case, though it may restrict the effect of a lesser degree of drunkenness on the drawing of an inference of intent. What a person who is criminally responsible for his act intended when he did the act is an issue which must be determined by the jury as an inference from all the evidence which is relevant to that issue and no presumption of law exists to relieve the jury of that duty Thomas v The Queen (1960) 102 CLR 584 at p596 per Kitto J. The prosecution is entitled to invoke the presumption of sound mind but not to exclude any evidence which is relevant to rebut it.”
These cases explain the inspiration for excluding the consideration of some elements, including voluntariness, from certain stages of the procedures set up under the new legislation, although if the word “intention” in the definition of “subjective element” is to be given a wide meaning, the amendments take the matter further than Hawkins’ case would allow.
If the issue of mental competence is tried first pursuant to s269FA(1) and the court is satisfied that mental incompetence is established, there is no room for the accused to contest the subjective issues referred to in the legislation. The court proceeds directly to determine whether the objective elements of the offence are established and, if they are, there must be a declaration that the accused is liable to supervision. A similar situation occurs if the objective elements are tried first pursuant to s269A(1). If the objective elements are established, the issue of mental competence is the next issue to be tried. If mental incompetence is established the court must declare the accused liable to supervision. But the crucial question for the purposes of this part of the case stated is what is included in the categories of subjective and objective elements respectively. In particular it is necessary to decide whether the issue of self-defence is an element of the offence for the purposes of the legislation and, if so, into what category it is to be placed.
In my view there is good reason for rejecting Mr Millsteed’s argument that self-defence has no place in either category. If the court embarks on the trial of mental competence first and is not satisfied that mental incompetence has been established, “the court must proceed with the trial in the usual way”. (s269FA(3)) This would involve proof by the prosecution of the definitional elements of the offence and the consideration of any defence (including self-defence) raised by the accused. If, on the other hand, the objective elements are tried first and established and if mental incompetence is not established in the second stage of that enquiry, the court must then go on to consider the subjective elements. If they are established then the accused is to be found guilty of the offence. (s269GB(4)) In other words if this alternative is adopted guilt can be established by proving the subjective and objective elements of the offence. If the Crown argument is correct, self-defence could not be raised at any stage of this particular procedure. I do not think that this anomaly can be explained by reason of the fact that the procedure could be conducted in an alternative manner which would avoid this result. The choice of the order of events is not left to the accused; the trial judge is given a discretion in the matter. In my view parliament did not intend that a person could be found guilty of an offence without being given the opportunity to raise recognised defences. I appreciate that the phrase “an element of an offence” is more often than not used to describe an element in the definition of an offence, but in my opinion the concept of “element” is wider. In the joint judgment of Wilson, Dawson and Toohey JJ in Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 657 there is a reference to “the definitional and defence elements of the crime”.
It follows from this reasoning that self-defence must be regarded as being either a subjective or an objective element for the purposes of the legislation. The next question concerns the category into which self-defence should be placed. The definitions provided by the Act are not particularly helpful in this regard. However the use of the terms “objective” and “subjective” and the inclusion of “voluntariness, intention, knowledge or some other mental state” as subjective elements suggest a distinction between actions and state of mind. And when regard is had to s15 of the Criminal Law Consolidation Act, 1935 as it was at the time of the alleged offence, it is clear that the core of the defence, whether in relation to a charge of murder or some lesser offence, is the accused’s genuine belief in the matter. It is true that some objective considerations are imported into the tests, but the primary focus is on the mental state of the accused.
The proper categorisation of self-defence in the general law was discussed in Zecevic’s case (supra). Counsel for the appellant in that case argued that it was sufficient for an accused person to hold an actual belief that self-defence was necessary, whether that belief was reasonable or not. The argument was supported by the submission that the defence “is a negative condition of the offence and is therefore an integral part of it”, a proposition argued by Professor Glanville Williams in Text Book of Criminal Law 2nd ed (1983) pp137-138. The argument was rejected, but that is not to say that self-defence is not concerned in large part with the accused’s mental state.
The definition of subjective elements encompasses every mental state which qualifies as an element of the offence. It would seem that the rationale for excluding them from consideration after mental incompetence has been established rests on the assumption that the cause of any involuntariness, lack of intention or other similar exculpatory factor is likely to be the result of the mental incompetence. This causal connection may or may not exist as a matter of fact; involuntariness may have been due to other causes unconnected with mental incompetence as is recognised in cases such as The Queen v Cottle (supra). However, given the intent of the legislation that such mental states are not to be relied upon to support a complete acquittal if mental incompetence is established, it is not difficult to appreciate that the same policy reasons can be applied to self-defence. In the present case, for example, it would appear that the accused might want to rely for a defence on a delusional belief which was due to mental impairment as defined by the Act. In that event the policy of the legislation would require that evidence which supports a finding of mental incompetence (and in this case succeeds in establishing it) is not to be used to support a defence which would lead to a complete acquittal or a reduction of the offence from murder to manslaughter. If self-defence was an objective element for the purposes of the legislation the pursuit of such a result could not be prevented.
Finally, there is another provision in the legislation which throws some light on the content of the definition of “objective element”. I have pointed out that Part 8A also deals with the issue of mental fitness to stand trial. An order for supervision under the Act cannot be made under this heading unless the court is satisfied on the balance of probabilities that the accused is mentally unfit to stand trial in accordance with the test which is set out in the legislation. However it is a further precondition to the making of such an order that -
“(a).. the objective elements of the offence are established beyond reasonable doubt; and
(b).... there is, on the evidence before the court, no defence to the charge that could be established on the assumption that the defendant’s mental faculties were not impaired at the time of the alleged offence.”
(s269MB(2) and s269NA(2))
The content of sub-paragraph (b) is a clear indication that defences such as self-defence are not included in the phrase “the objective elements of the offence”. It follows that the state of mind which would attract the defence of self-defence is a subjective element of the offence for the purposes of Part 8A.
For these reasons I would answer this group of questions as follows:
Question 2 “No”.
(This answer is given on the assumption that the words “individual matters” in the question refer to the essential elements of the offence and do not include exculpatory defences).
Question 3 “Yes”.
Question 4 “No”.
(a) Does the word in s269FB(3) “offence” mean the offence charged to the exclusion of any lesser or alternative offence of which the accused might be convicted if the trial was conducted other than under s269F?
(b).... Is it open for a jury empanelled to try the objective elements of the offence pursuant to s269FB, to find that the objective elements of the offence charged were not established, but the objective elements of some other offence not charged were established?
In this case does the word “offence” in s269FB mean only “murder” to the exclusion of “manslaughter”?
It is convenient to deal with these questions together.
There is no mention of alternative verdicts in Part 8A. The legislation refers throughout to the proof of the objective elements of the offence. Section 269FB(3) provides:
“If the court finds that the objective elements of the offence are established, the court must find the defendant not guilty of the offence but declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.”
It is true that under the system in place before the passing of the present legislation juries were instructed to decide whether the prosecution had proved the alleged offence beyond reasonable doubt before going on to consider whether the defence had established entitlement to the special verdict of not guilty on the grounds of insanity. (See The King v Porter (1933) 55 CLR 182 at 184). If the offence was not proved, the accused was entitled to an acquittal. In a murder case there would have been no bar to the jury returning a verdict of manslaughter if the offence of murder was not proved, but the jury found manslaughter to have been committed and rejected the defence of insanity.
In Perkins v R [1983] WAR 184 at 189 Burt CJ considered whether it was appropriate to ask the jury to specify the offence on which they have acquitted the accused in those cases where the verdict was not guilty by reason of insanity. His Honour said:
“Furthermore, I am of the opinion although it does not appear to be the practice and I know of no authority on the point, that in a case such as the present, that is to say, on an indictment charging wilful murder the jury if they acquit the accused ‘on account of such unsoundness of mind’ should be asked to say whether they for that reason have acquitted him of wilful murder, murder or manslaughter. It may be that upon an indictment charging wilful murder the jury -
(a).... find and find beyond reasonable doubt that the accused unlawfully killed the deceased;
(b)are not persuaded to that standard of persuasion that he did so intending to cause that death; and
(c).... find upon the balance of probabilities that when he did the act which caused the death he was insane and deprived of one or other of the capacities spoken of in s27 of the code,
and if that be the position the accused is entitled to an unqualified verdict of not guilty of wilful murder and, ignoring the verdict of murder simply to make the point, the jury would bring in a s653 verdict specifically related to the crime of manslaughter. It is, I think, important that the Executive should know the true position and it is more important that there should exist no ground for supposing that a man has committed, although not criminally responsible for, a crime for which the jury has found him to have been not guilty.”
However that may be, the position is different under the present legislation in this State. It is unnecessary for the jury to find that the accused committed an offence before embarking on an enquiry as to the mental competence. The special verdict can be returned if the objective elements of the offence charged are proved. In the case of murder and manslaughter the objective elements are the same. There is no provision in the legislation for the consideration of any alternative offence in the circumstances contemplated by s269FB and the common law provisions do not apply to those circumstances.
I would answer these questions as follows:
Question 5(a) “Yes”.
Question 5(b) “No”.
Question 6 “Yes”.
I will deal with questions 7 and 8 together.
Does the “term” referred to in s269O(2) refer to the head sentence of imprisonment which would have been appropriate in the event of a conviction for the offence in question, or to the non-parole period which might properly have been set in those circumstances?
What meaning and application does the word “term” have where it appears in s269O(2) in circumstances in which, in the event of a conviction for the offence of which the objective elements have been established, it would have been appropriate to impose a suspended term of imprisonment, a fine, or other penalty short of custodial term of imprisonment?
Division 4 of Part 8A of the Act deals with the disposition of persons declared to be liable to supervision under this Part. Section 269O provides as follows:
“(1) The court by which a defendant is declared to be liable to supervision under this Part may -
(a) release the defendant unconditionally; or
(b) make an order (a ‘supervision order’) -
(i) committing the defendant to detention under this Part; or
(ii)... releasing the defendant on licence on conditions decided by the court and specified in the licence.
(2) If a court makes a supervision order, the court must fix a term (a ‘limiting term’) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established. 1
(3) At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
1 The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant’s mental impairment.”
Section 5(2) of the Act provides that a note to a section or subsection forms part of the text of the Act unless the note clearly has no substantive effect.
Mr Millsteed submitted that the expression “period of imprisonment” in s269O(2) refers to the head sentence and not to any non-parole period which might have been imposed. Mr Tilmouth submitted that it refers to the non-parole period which would have been appropriate and that the phrase “the aggregate period of imprisonment and supervision” refers to the non-parole period coupled with the period of supervision the person would have been subjected to after release on parole if he had been found guilty and sentenced for the offence.
The phrase “the period of imprisonment” in subsection (2) refers to the sentence of imprisonment which would have been passed by the court if the accused had been convicted. This cannot be anything other than the head sentence. The fixing or extending of a non-parole period is included in the definition of “sentence” in the Criminal Law (Sentencing) Act 1988, no doubt for purposes such as the appeal process. However s32 of the Sentencing Act makes a clear distinction between the sentence of imprisonment and the consequential order fixing a non-parole period. The approach to the task of sentencing “is to impose a sentence appropriate to the offence in all the circumstances and then but only then, to fix a minimum term in the light of the duration of the sentence imposed”. (R v Governor of Her Majesty’s Gaol at Pentridge; Ex Parte Cusmano [1966] VR 583 at 587. See also Power v The Queen (1974) 131 CLR 623).
Section 269O refers to “the aggregate period of imprisonment and supervision” and Mr Tilmouth argued that this must refer to the aggregate of the non-parole period and the time which the accused would be likely to serve under supervision on parole after release. He submitted that this was an argument in favour of construing the word “imprisonment” as being a reference to the non-parole period. However if this argument were correct, the court would be involved in making an estimate as to the length of time a person was likely to be on parole. In my view the legislature did not intend that the court should endeavour to estimate the time during which a particular accused might be subject to supervision as a parolee. This is a matter which, in many cases, can only be properly assessed at the expiration of the non-parole period and, in any event, it is an exercise beyond the common experience of the courts. In my view the most likely explanation for the inclusion of the words in parenthesis in subsection (2) is that the drafter has overlooked the fact that a sentence of imprisonment followed by a bond with supervision is no longer a sentencing option in this State. I would answer question 7 as follows:
“The head sentence”.
Question 8 seeks guidance on the fixing of the limiting term in the event that a suspended term of imprisonment, a fine or some other penalty short of a custodial term would have been appropriate if the accused had been convicted of the relevant offence. The application of these provisions to suspended sentences gives rise to some difficulty. A sentence may be suspended on a bond which does not contain a condition for supervision. I do not accept the argument that the accused in those circumstances is subject to supervision simply because non-compliance may result in enforcement proceedings. If it would not have been appropriate to order a period of supervision as part of the bond, then the only way in which subsection (2) could be applied is by reference to the head sentence which would have been imposed before it was suspended. If the case is one in which the court would have directed supervision as part of the bond then a literal interpretation of the subsection would allow either the head sentence or the period of supervision to be chosen in fixing the limiting period. However, as the head sentence is central to all suspended sentences and must be fixed as a true sentence appropriate to the circumstances of the offence and offender (Wood v Samuels (1974) 8 SASR 465; Weetra v Beshara (1987) 46 SASR 484 at 491) I think it provides a more appropriate guide to the limiting period than a period of supervision.
In a case where a non-custodial sentence incorporating a period of supervision as part of a bond would have been appropriate, then that period will provide the only determinant for the limiting period
A fine is not a custodial penalty and in my view unconditional release would be appropriate in a case in which a fine would have been ordered if the offence had been proved in the normal way. The same applies to any other non-custodial sentence which would not require supervision.
I would answer Question 8 as follows - “If neither a custodial sentence nor a period of supervision would have been directed as part of the penalty which would have been imposed if the accused had been convicted of the offence, then an unconditional release would be appropriate.
In the case of a suspended sentence the head sentence should be the sole determinant in nominating the limiting term for the purposes of subsection (2). (The head sentence includes a sentence in respect of which no non-parole period has been fixed).”
Do the words in s269FB(1) “the court must hear evidence and representations put to the court”, and in particular the word “representations”, signify that the court is at liberty to take into account matters put to the court other than matters supported by oral or documentary evidence formally tendered at the hearing?
In my view the word “representations” is used to mean submissions to the court.
I would answer the question as follows -
“Representations” refers to submissions by counsel on evidence which is properly before the court in accordance with the ordinary rules of evidence.”
By way of summary, therefore, I would answer the questions as follows:
Question 1 “Yes”.
Question 2 “No”.
(This answer is given on the assumption that the words “individual matters” in the question refer to the essential elements of the offence and do not include exculpatory defences).
Question 3 “Yes”.
Question 4 “No”.
Question 5(a) “Yes”.
Question 5(b) “No”.
Question 6 “Yes”.
Question 7 “The head sentence”.
Question 8 - “If neither a custodial sentence nor a period of supervision would have been directed as part of the penalty which would have been imposed if the accused had been convicted of the offence, then an unconditional release would be appropriate.
In the case of a suspended sentence the head sentence should be the sole determinant in nominating the limiting term for the purposes of subsection (2). (The head sentence includes a sentence in respect of which no non-parole period has been fixed).”
Question 9 - “Representations” refers to submissions by counsel on evidence which is properly before the court in accordance with the ordinary rules of evidence.”
Matheson J
I would answer the questions in the way proposed by Duggan J. I agree with his reasons therefor.
Nyland J
I agree with the answers proposed by Duggan J. I would, however, like to make a brief comment with respect to the answers to Questions 5(a) and 5(b).
Section 269FB(3) refers to the offence and not an offence. Accordingly, it would seem that Parliament intended to exclude the consideration of any lesser or alternative offence of which the accused might be convicted if a trial was conducted other than under s269F. Although, as Duggan J has said, the objective elements of murder and manslaughter are the same, there are a number of other offences in which a lesser alternative charge is encompassed within the objective elements of the major charge. An obvious example is a charge of rape. On the basis of the present legislation it would seem that an impaired person charged with rape would be entitled to be acquitted, and therefore released, if the jury was not satisfied that penetration had occurred, notwithstanding that the objective elements of the alternative offence of indecent assault had been established. This seems to me to be a curious result. Nevertheless, the legislation in its present form does not appear to allow for the consideration of any such alternative offence. I therefore agree with all the answers proposed by Duggan J for the reasons he has expressed.
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