QUESTION OF LAW RESERVED (NO 1 OF 2021)

Case [2021] SASCA 148

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

QUESTION OF LAW RESERVED (NO 1 OF 2021)

[2021] SASCA 148

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Livesey)

9 December 2021

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INTOXICATION - INDUCING INSANITY OR MENTAL IMPAIRMENT

William Robert Delany (the defendant) is charged with various offences, including murder. 

The defendant had been diagnosed with schizophrenia and, at the time of the offending, he was the subject of a Level 1 Community Treatment Order. The defendant’s illness was treated by monthly injections of an antipsychotic drug but at the time of the offending, the defendant had not received an injection for some three months. In the days before the offending, the defendant consumed a large amount of methylamphetamine.

While the parties accepted that the defendant was mentally incompetent at the time of the offending, the question arose as to whether the defendant should be dealt with under the intoxication or mental impairment provisions of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The answer to this question turns on the interpretation of the phrase “substantially caused by” in s 269C(2) of the CLCA. Accordingly, the following three questions of law were reserved for consideration by this Court:

1. If the defendant is found to be mentally incompetent to commit the offences with which he is charged and, at the time of the offending is found to be intoxicated as a result of self-induced intoxication, must the Court be satisfied on the balance of probabilities that the self-induced intoxication be the primary cause of the mental impairment at the time of the conduct alleged to give rise to the offending before the prohibition contained in s 269C(2) of the CLCA is enlivened?

2. Within s 269C(2), does the term “substantially caused” mean the primary cause?

3. Within s 269C(2), can there be more than one cause of mental impairment?

Held per Kourakis CJ, agreeing with Livesey JA and Lovell JA as to the answers to the questions of law reserved:

1.      No.

2.      No.

3.      Yes.

Held per Lovell JA, agreeing with Kourakis CJ and Livesey JA as to the answers to the questions of law reserved, but finding:

1.“Intoxication” as defined in s 269A(1) cannot be a “mental impairment” for the purposes of Part 8A and in particular s 269C.

Held per Livesey JA, answering the questions of law reserved:

1.The term “substantially caused by” in s 269C(2) of the CLCA does not mean that the self‑induced intoxication must be the primary cause of the mental impairment.

2.Section 269C(2) of the CLCA recognises that there may be more than one cause of mental impairment.

3.The issues raised by s 269C of the CLCA are to be addressed by the Court as a question of fact in each case, determined with the benefit of benefit of admissible expert opinion evidence, without being governed by the views expressed by those experts. The Court, not expert witnesses, is entrusted with the determination of these issues.

Criminal Law Consolidation Act 1935 (SA) s 267A, s 268, s 269A, s 269C(1), s 269C(2), s 269C(3), s 269D, s 269FA; Criminal Procedure Act 1921 (SA) s 153, s 154, referred to.

M’Naghten (1843) 10 CL & Fin 200; R v Porter (1933) 55 CLR 182; R v Stapleton (1952) 86 CLR 358; Clark v Ryan (1916) 103 CLR 486; Dasreef v Hawchar (2011) 243 CLR 588; R v Falconer (1990) 171 CLR 30; Royall v The Queen (1991) 172 CLR 378; Swan v The Queen (2020) 269 CLR 663; Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367, discussed.

Adbel-Hady v Magistrate Freund [2007] NSWSC 1247; Adler v Australian Securities and Investments Commission (2003) 179 FLR 1; AE Terry’s Motors v Rinder [1948] SASR 167; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; Andressen v Bendigo & Adelaide Bank Ltd [2018] SASCFC 30; Application for Reservation of Questions of Law (No 2 of 1999) (1999) 106 A Crim R 423; Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313; Attorney General’s Reference (No 3 of 1998) [2000] QB 401; Attorney-General (SA) v Moyle (No 2) (2019) 134 SASR 257; Attorney-General for State of South Australia v Brown [1960] AC 432; Australian Education Union v Department of Education (2012) 248 CLR 1; Australian Gas Light Co v Valuer General (1940) 40 SR (NSW) 126; Australian Securities and Investments Commission v King (2020) 94 ALJR 293; Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1; Australian Slate Quarries Ltd v Commissioner of Taxation (Cth) (1923) 33 CLR 416; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Badawi v Nexon Australia Pacific Pty Ltd (2009) 75 NSWLR 503; Bell v Commissioner of Taxation [2012] FCA 1042; BHP Billiton Ltd v Hamilton (2013) 117 SASR 329; Black-Clawson International Ltd v Papierwerke Waldhorf-Aschaffenburg Aktiengesellschaft [1975] AC 591; Campbell v The Queen (1980) 2 A Crim R 157; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Cody v JH Nelson Pty Ltd (1947) 74 CLR 629; Comcare v Martin (2016) 258 CLR 467; Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; Commissioner of Taxation (Cth) v Broken Hill South Ltd (1941) 65 CLR 150; Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Dainford Ltd v Lam (1985) 3 NSWLR 255; Director of Public Prosecutions (Cth) v Gee (1999) 110 A Crim R 1; Director of Public Prosecutions (Vic) v Davis [2017] VSCA 341; Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4; DPP v Soliman [2012] VCC 658; Eastman Photographic Materials Co v Comptroller-General of Patents, Designs and Trade Marks [1899] AC 571; El-Haddad v The Queen (2015) 88 NSWLR 93; Em v The Queen (2007) 232 CLR 67; Fittock v Legal Profession Conduct Commissioner (No 2) (2015) 124 SASR 300; Forge v Australian Securities and Investments Commission (2004) 213 ALR 574; Fox v Repatriation Commission (1997) 45 ALD 317; Gullquist v Victorian Legal Services Commissioner [2018] VSCA 259; Guthrie v Spence (2009) 78 NSWLR 225; Hasan v The Queen (2010) 31 VR 28; Hawkins v The Queen (1994) 179 CLR 500; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47; Hembury v Chief of the General Staff (1998) 193 CLR 641; Hope v Bathurst City Council (1980) 144 CLR 1; I & L Securities v HTW Valuers (2002) 210 CLR 109; Industry Research and Development Board v Bridgestone Australia Pty Ltd (2001) 109 FCR 564; Klosowski v The Queen [2021] SASCA 85; Kosian v The Queen (2013) 40 VR 335; Makita v Sprowles (2001) 52 NSWLR 705; Maloney v Motor Accident Commission (2013) 117 SASR 189; March v Stramare (E and MH) Pty Ltd (1990-1991) 171 CLR 506; Maunsell v Olins [1975] AC 373; McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; Mercer v Australia and New Zealand Banking Group Pty Ltd (2000) 48 NSWLR 740; Mizzi v The Queen (1960) 105 CLR 559; Moti v The Queen (2011) 245 CLR 456; Murphy v The Queen (1989) 167 CLR 94; Northern Territory v Griffiths (2019) 269 CLR 1; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509; Palser v Grinling [1948] AC 291; Pepper v Hart [1993] AC 593; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v AM [2021] SASC 64; R v Arnold (1724) 16 How St Tr 765; R v Bonython (1984) 38 SASR 45; R v BS [2020] SASC 138; R v Caldwell [2019] SASC 117; R v Childs (2007) 98 SASR 111; R v Connolly (1958) 76 WN (NSW) 184; R v Davis (1881) 14 Cox CC 563; R v Fowler (1985) 39 SASR 440; R v Gee (1999) 72 SASR 593; R v GK (2001) 53 NSWLR 317; R v Hallett [1969] SASR 141; R v Hennessy [1989] 1 WLR 287; R v Hennigan [1971] 3 All ER 133; R v Humphrys (Question of Law Reserved (No 1 of 2019)) (2019) 135 SASR 226; R v Kemp [1957] 1 QB 399; R v Lado [2020] SASC 223; R v Lipman [1970] 1 QB 152; R v Lloyd [1967] 1 QB 175; R v Meddings [1966] VR 306; R v O’Connor (1979) 146 CLR 64; R v Peters (1886) 16 QBD 636; R v Radford (1985) 42 SASR 266; R v Riley [2020] NSWCCA 283; R v Royall (1991) 172 CLR 378; R v RTW (No 2) [2000] SASC 252; R v Shields [1967] VR 706; R v Stiles (1990) 50 A Crim R 13; R v Stones (1995) 56 SR (NSW) 25; R v Sullivan [1984] AC 156; R v Vallance [1964] SASR 361; R v Weeks (1993) 66 A Crim R 466; R v Willoughby (No 2) [2017] SASC 191; R v Willoughby (No 3) [2018] SASC 6; R v Windle [1952] 2 QB 826; R v T [1999] SASC 429; Ramsay v Walton (1961) 108 CLR 642; Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557; Re Chapman & Jansen (1990) 100 FLR 66; Re Queensland Co-Operative Milling Association Ltd (1976) 25 FLR 169; Re Question of Law Reserved (No 1 of 2018) [2018] SASCFC 128; Redman v Return to Work [2021] SASCA 25; Sodeman v The King (1936) 55 CLR 192; South Australia (in Right of the Department for Education) v Van Hattem (No 2) (2020) 137 SASR 299; South Australia v Roberts (2018) 130 SASR 274; South Australian Fire and Emergency Services Commission v Workers Compensation Tribunal (2009) 105 SASR 1; South West Water Authority v Rumble’s [1985] AC 609; South Australia (In right of Dept For Education) v Van Hattem (No 2) (2020) 137 SASR 299; Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 28; Taylor v Public Service Board (NSW) (1976) 137 CLR 208; The Queen v A2 (2019) 373 ALR 214; Trade Practices Commission v Arnotts Ltd (No 5) (1990) 92 ALR 527; University of Tasmania v Cane (1994) 4 Tas R 156; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; Victoria v Commonwealth (1975) 134 CLR 81; Wacando v The Commonwealth (1981) 148 CLR 1; Williams v Spautz (1992) 174 CLR 509; Wong v Silkfield Pty Ltd (1999) 199 CLR 255, considered.

QUESTION OF LAW RESERVED (NO 1 OF 2021)
[2021] SASCA 148

Court of Appeal: Criminal – Kourakis CJ, Lovell and Livesey JJA

  1. KOURAKIS CJ:     I have had the advantage of reading the judgment in draft of Livesey JA.  My reasons can therefore be brief. 

  2. The answers which must be given to the stated question are necessarily trite.  They are:

    1.No. 

    2.No. 

    3.Yes.

  3. Whether or not a mental impairment is ‘substantially caused by’ self‑induced intoxication is a question of fact. Whether or not a mental impairment ‘is primarily caused by’ self‑induced intoxication is a quite different question of fact. No gloss can be put on the plain words of s 269C(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). A mental impairment which is primarily caused by self‑induced intoxication will always be substantially caused by self‑induced intoxication, but the converse is not true.

  4. I wish to emphasise, however, that the subject matter of the enquiry is not whether the overall mental state of the defendant at the time of the offending was substantially caused by self-induced intoxication. A person’s emotional and cognitive functioning may be affected contemporaneously by multiple medical conditions, disabilities and/or intoxicants. The issue arising under s 269C(2) of the CLCA is whether the particular mental impairment in consequence of which the defendant:

    ·did not know the nature and quality of the conduct;

    ·did not know that the conduct was wrong; or

    ·was totally unable to control the conduct (the prescribed incapacities);

    ·was substantially caused by self-induced intoxication.  

  5. The phrase in s 269C(2) of the CLCA ‘the mental impairment at the time of the conduct alleged to give rise to the offence’ is a reference to the mental impairment in consequence of which the defendant suffers one or more of those prescribed incapacities. Other conditions, including self-induced intoxication, which, even though adversely affecting the defendant’s mental functioning at the time of the commission of the objective elements of the offence, did not result in a prescribed incapacity, are irrelevant to the issue arising out of s 269C(2) of the CLCA.

  6. Before attempting to provide a little more helpful, but still limited, guidance on the application of s 269C of the CLCA it is as well to bring to mind the origins of the enlightened approach of the common law and statutory regimes to offenders suffering from major psychiatric conditions over the last two centuries.

  7. The 19th century statement of the common law insanity defence in M’Naghten’s case[1] is a signal example of the adaptation of the common law to changing social conditions and its incorporation of emerging scientific learning.  In the 18th century, the verdict of not guilty on the grounds of insanity was reserved for those accused so totally deprived of understanding, memory and appreciation of the nature of their act that they were ‘no more than a wild beast or a brute or an infant’.[2]  More generally in Europe, offenders were only excused if they suffered from extreme forms of mental illness then known as ‘dementia’ or ‘furore’.  A series of bizarre and violent crimes committed in Europe in the first half of the 19th century attracted the attention of the public and the nascent field of forensic psychiatry.[3] 

    [1]     R v M’Naghten (1843) 10 CL & Fin 200.

    [2]     R v Arnold (1724) 16 How St. Tr. 765.

    [3]     ‘About the concept of the dangerous individual in 19th century legal psychiatry’ Foucault.

  8. Rationalism and utilitarianism dominated intellectual, academic and public life in the 19th century.  There were great reforms of government institutions, and advances in the regulation of public health, workplace safety and policing.  When, in June 1943, Daniel M’Naghten, a Scotsman suffering paranoid delusions of conspiracy between Tory politicians, Jesuits and Catholic priests, mistakenly shot Edward Drummond while intending to assassinate the Conservative Prime Minister, Robert Peel,[4] he inserted himself into the centre of a confluence of transformative political, legal and medical movements. 

    [4]     Robert Peel was the instigator of the police reforms to which I referred and the source of the British colloquialism ‘Bobbies’ referring to police officers.

  9. M’Naghten was tried at the Old Bailey over just two days in March 1843.  Lord Chief Justice Tindall presided over the trial by jury alongside Justices Williams and Coleridge.  A large sum of money found on M’Naghten at the time of his arrest, but released to fund his defence, allowed the engagement of one of London’s leading barristers, Alexander Cockburn (later Lord Chief Justice Cockburn).  The prosecution was led by the Solicitor General, Sir William Follett, the Attorney-General being otherwise engaged, prosecuting Fergus O’Connor and 57 other Chartists, a movement which had influenced M’Naghten’s political thinking. 

  10. The prosecution accepted that M’Naghten suffered ‘partial insanity’, by which it was meant that he suffered from, and was motivated by, persecutory delusions but nonetheless knew that he was acting criminally and was therefore culpable in law.  Cockburn’s defence relied heavily on the work of the American psychiatrist Isaac Ray, who was the superintendent of several institutions for the insane in the United States and who had recently published his treatise on the medical jurisprudence of insanity in 1838.  Cockburn called three doctors in M’Naghten’s defence who testified that his delusions had deprived him of all restraint over his actions and left him with no capacity to discern right from wrong.  The prosecution declined to produce any contrary medical evidence by way of rebuttal.  Follett made a brief closing speech in which he conceded that he could not press for a verdict against M’Naghten. 

  11. Lord Chief Justice Tindall in his summing up directed the jury that if M’Naghten ‘was not sensible … that he was violating the laws of both God and man then he would be entitled to a verdict in his favour’.   His Lordship instructed the jury that on that question the medical evidence was all on one side, and that if the jury were to find M’Naghten not guilty on the ground of insanity proper care would be taken of him.  The jury, without retiring, returned a verdict of not guilty on the ground of insanity. 

  12. Accordingly, M’Naghten was saved from the gallows but spent the rest of his life in asylums in which the conditions of detention and forms of treatment were, by today’s standards, primitive.  His health declined over time and he died prematurely at the age of 52.  He was thought to be an intelligent man; when asked soon after his trial whether he thought he must have been out of his mind when he shot Drummond, he answered ‘such was the verdict – the opinion of the jury after hearing the evidence’.  However, by the time he was moved from Bethlem to Broadmoor Asylum in 1864 he was described as an imbecile.

  13. There was considerable disquiet and displeasure over the verdict.  As a result, on 6 March 1843 the Lord Chancellor, at the request of the House of Lords, formulated questions for the Full Bench of the Court of Common Pleas on the common law test for insanity and the admissibility of medical opinion evidence on that question. 

  14. The Judges, albeit expressing some reluctance to answer abstract questions of law, stood firm against the reaction to the verdict given in M’Naghten’s trial and elucidated the reformed common law test for insanity on which it rested.  The answers, of all but one of the Judges, were given by Lord Chief Justice Tindall.  His Lordship affirmed that ‘partial insanity’ was not sufficient to support a verdict of insanity and that every person was presumed to be sane.  However, an accused who proved that he or she was labouring under a defect of reason, from disease of the mind, as not to know the nature or quality of his or her act, or that it was wrong, was entitled to a verdict of not guilty on the ground of insanity.  Lord Chief Justice Tindall was careful to explain that putting the test in terms of an awareness only that the act was ‘against the law of the land’ would elevate ignorance of the law to an excuse.  It was those answers given in response to the Lord Chancellor’s request which came to be described as the M’Naghten rules.  They governed the common law insanity defence in Australia until late 20th century statutory codifications in most Australian jurisdictions.  The Judges also expressed the view that even though the opinions of medical experts could strictly not be given in a trial on the ultimate factual questions, in cases in which there was little dispute over the underlying facts it was often convenient to allow them to do so.

  15. The M’Naghten rules marked the commencement of the humane, utilitarian and therapeutic response of the common law, and liberal democratic societies generally, to mentally incompetent offenders.  However, much time passed before the legal test for mental incompetence was more closely aligned to developments in psychiatry and before the conditions of detention were improved.

  16. The summing up of Dixon J in R v Porter[5] summarised in the judgment of Livesey AJ showed, with respect, much modern insight into the nature of psychotic illnesses.  It also applied the 20th century concept of the ‘standards of reasonable people’ to the knowing right from wrong limb of the test thereby superseding the ‘laws of God or the laws of the land’ controversy.

    [5] (1953) 55 CLR 182.

  1. The transfer of the power to order conditional release from the Executive to this Court, first effected by the Criminal Law Consolidation (Detention of Insane Offenders) Amendment Act 1992 (SA), necessarily strengthened the influence of psychiatric learning over the timing and terms of release on licence of detainees.  It further advanced the therapeutic disposition of offenders suffering from psychiatric illnesses.

  2. From early in this century the increasing frequency of drug abuse disorders, particularly addiction to methylamphetamine and other mind-altering drugs, amongst sufferers of major psychiatric illnesses (referred to as comorbidity) raised questions about the appropriateness of applying Part 8A of the CLCA when they offended.

  3. In 2014 a report of the South Australian Sentencing Advisory Council (the Council) entitled ‘Mental Impairment and the Law’ considered the growing controversy over comorbidity but recommended against a requirement that a mental illness was the predominant cause of the mental precluding impairments affected largely by self‑induced intoxication.  The Council recommended that the defence of mental incompetence should continue to be available to a defendant suffering from a mental impairment in consequence of which he or she did not know the nature and quality of his or her conduct, that the conduct was wrong or was unable to control the conduct.  The Council was concerned ‘about the effects of diverting people with comorbid mental illnesses and substance abuse disorders out of mental health facilities and into prison, where there was a lack of adequate services to deal with such offenders.[6]  The Council’s recommendation is consistent with the longstanding rationale of the insanity defence which is to treat, and not punish, offenders whose mental impairment results in a prescribed incapacity.

    [6]     [2.306]–[2.317].

  4. The Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (SA) (the 2017 Amending Act) adopted a nuanced approach to the comorbidity issue. The Bill introduced by the then Attorney-General, would have precluded the defence of incompetence if self‑induced intoxication had played any part in the mental impairment suffered by the defendant at the time of the offence.  The rationale for that proposal could only have been the moral opprobrium attached to drug use which is commonly viewed as voluntary, irresponsible and hedonistic behaviour.  However, it is the experience of judges, lawyers and psychiatrists that drug use is, as often, a crude attempt by the psychiatrically ill at self-medication.  It is also well understood that major psychotic illnesses often deprive sufferers from the insight necessary to appreciate the importance of taking prescribed medication.  If enacted, the provision would have reverted to a punitive response to mental illness in many cases of drug abuse disorder related comorbidity.

  5. However, the Bill was significantly amended in the Legislative Council. For that reason, much of the Attorney-General’s second reading speech on the introduction of the Bill, and some of the submissions to the Council ahead of its 2014 report do not assist the proper construction of subsections (2) and (3) of s 269C of the CLCA.

  6. Even though influenced by notions of culpability, the amendments as finally enacted remain firmly utilitarian. The conferral of the discretion on this Court by s 269C(3) of the CLCA to order that a defendant be dealt with under Part 8A of the CLCA is a pragmatic and insightful response to the problem of comorbidity. The pre‑condition to the exercise of the discretion, that the mental impairment was substantially caused by self‑induced intoxication, must be understood in the context of that discretion, and in turn informs the proper exercise of that discretion.

  7. Before explicating the relationship between the enlivening condition and the discretion conferred by s 269C(3) of the CLCA an important extension of the conditions encompassed by the term ‘mental impairment’ should be noted. The express exclusion of intoxication from the definition of mental impairment was repealed. It was necessary to do so to give effect to the purpose of the 2017 Amending Bill as first introduced, which was to exclude all cases of comorbidity from a therapeutic Part 8A disposition, and for the purpose of conferring a discretion in those cases of comorbidity in which self-induced intoxication substantially caused the impairment.

  8. The reports in this case and the institutional experience of this Court in its criminal jurisdiction do not allow for great certainty or precision on the neurological relationship between mental illness and intoxication.  However, it can be accepted that self-induced intoxication may cause or contribute to a mental impairment in consequence of which an offender lacks a prescribed capacity in at least four ways:

    (a)the intoxication may operate on an otherwise healthy mind so dramatically as to deprive it, temporarily, of a prescribed capacity

    (b)chronic long-term self-induced intoxication might cause a mental illness

    (c)the intoxication might exacerbate a mental illness howsoever caused and

    (d)the intoxication might operate concurrently with, but independently of, a mental illness.

  9. The condition in (a) was expressly excluded from the statutory definition of mental illness before the 2017 Amending Act and had never been recognised by the common law as a sufficient foundation for the insanity defence. The condition in (b) was treated as any other mental illness before the 2017 Amending Act. It would have been excluded as a sufficient condition for the mental incompetence defence by s 269C(2) of the CLCA without extending mental impairment to include self-induced intoxication. So too with the condition in (c). Section 269C(2) of the CLCA can be applied to categories (b) and (c) without extending mental impairment to include mere intoxication because, in both of those categories, the intoxication causes or exacerbates a mental illness, other than a temporary disorder resulting from the consumption of a drug. It is the condition in (d) which necessitated the extension of the definition of mental impairment. I illustrate why below.

  10. Assume that D did not know right from wrong when he offended. Assume also that at the time of the offending D suffers a major psychotic illness which compromised his capacity to know right from wrong, and that self-induced intoxication also compromised that capacity independently of the illness. If the intoxication was not a mental impairment as defined, the tribunal of fact would be bound to disregard it when applying s 269C(1) of the CLCA but may, nonetheless, be satisfied that D’s incapacity to know right from wrong was a consequence of the major psychotic illness. In those circumstances s 269C(2) of the CLCA could have no application because the mental impairment (the major psychotic illness), on this constructional premise, was not caused at all by intoxication.

  11. An incapacity to know right from wrong is a loss of a single and indivisible faculty. However, that incapacity may be caused by both a major psychotic illness and self-induced intoxication even though the conditions are physiologically distinct. If intoxication alone were not included as a mental impairment, it could never be an impairment for the purposes of subsection (1), and therefore the impairment, in consequence of which the defendant does not know right from wrong, could never be substantially caused by intoxication. In short, a Part 8A disposition would be attracted whenever a mental illness is a cause of the loss of capacity to know right from wrong, irrespective of the part played by a state of self-induced intoxication which operated independently of that mental illness.

  12. The process of statutory construction which brings about the result that self‑induced intoxication is a mental impairment rests on several considerations.  First, the definition of mental impairment is inclusive and not comprehensive. 

  13. Secondly, it is necessary to include intoxication as a mental impairment for subsection (2) to achieve its apparent purpose and apply to all of the examples of comorbidity identified above. 

  14. Thirdly, it gives effect to the repeal of the express exclusion of self‑induced intoxication from the definition of mental illnesses. I acknowledge that even without the express exclusion of intoxication it is arguable that mental impairment does not include mere intoxication, having regard to the pathological infirmity which is a shared characteristic of the impairments which are expressly included. However, there is no satisfactory explanation for the decision to repeal the exclusion of intoxication by the 2017 Amending Act at the same time as the enactment of s 269C(2) of the CLCA other than that it was considered necessary to do so for that subsection to achieve its purpose.

  15. I acknowledge that the inclusion of intoxication as a mental impairment does not sit easily with the connotation of the conditions which are expressly included, all of which are pathological infirmities, and that, paradoxically, the inclusion of this long-excluded condition is for the sole purpose of its subsequent exclusion by s 269C(2) of the CLCA. Parliament may have achieved its purpose in a more direct way. It might have separately enacted that, in the event of concurrent intoxication operating independently of a mental impairment, Part 8A was excluded. It will often be possible to imagine an alternative provision by which Parliament might have made its intention clearer, but that is not a persuasive enough reason to construe s 269C of the CLCA in a way that misses such a large part of the legislature’s target.

  16. I interpolate here that the reasoning which leads to the inclusion of self-induced intoxication as a mental impairment does not readily apply to a mental impairment caused by a pharmacological insult which is not self-caused, nor to psychological shock.  However, that is a question for another day.

  17. I turn to the discretion conferred by s 269C(3) of the CLCA. A drug abuse disorder may be a symptom of a psychiatric illness, which can be brought under control by treating the illness, or it may be driven by an antisocial personality or other criminogenic traits which are resistant to treatment. In other cases in which self-induced intoxication substantially caused the impairment, the underlying mental illness may have resolved by the time of sentencing. The conferral of the discretion on the Court is not intended to punish offenders for taking drugs, but does recognise that in some cases of comorbidity there may be little utility in a Part 8A disposition. The manifest purpose of s 269C(3) of the CLCA is to allow the Court to make a judgment, in cases of comorbidity, on whether the rehabilitation of the offender is best assisted, and the protection of the community is best advanced, by a therapeutic or punitive disposition. It is for that reason that the application of Part 8A is subject to the discretion of the Court only when the relevant mental impairment is substantially caused by self‑induced intoxication, and not whenever it played any, even a minor, part in its causation. It is for that reason, too, that the discretion is enlivened whenever the mental impairment was substantially caused by self-induced intoxication and not only when it is primarily caused by it.

  18. The culpability of the defendant arising from his or her voluntary ingestion of drugs or alcohol remains a relevant consideration but its weight will necessarily be limited for several reasons.  First, the premise of the insanity defence is that persons who are not aware of the nature of their acts are not criminally responsible.  Secondly, drug abuse by sufferers of major psychiatric illnesses is, as I earlier observed, often driven by a misguided desire to alleviate the illness’ symptoms.  Thirdly, defendants will seldom foresee that their drug taking will result in the commission of the crime charged.  True it is that in a general sense they are likely to appreciate in varying degrees that drug taking may exacerbate their illness but the offence for which they are to be sentenced is not the negligent self-management of their illness. 

  19. The expert opinion evidence put before the Court on a contested case of self‑induced intoxication should identify the way in which the mental illness suffered by the defendant on the one hand, and any self-induced intoxication on the other, might result in any one or more of the prescribed incapacities. Only on a consideration of that evidence, and a careful comparison of the way in which the illnesses on the one hand, or the self‑induced intoxication on the other, did or did not affect a prescribed incapacity, can a factual conclusion be reached on whether the mental impairment was substantially caused by self‑induced intoxication. Self‑induced intoxication which causes agitation, disinhibition or compromises reasoning might have been part of the context in which a defendant acted but yet not have contributed at all to the mental impairment which deprived the defendant of an appreciation of the nature of his or her conduct, or of the ability to control it. The expert evidence which will assist a court to resolve the issues arising out of the application of s 269C of the CLCA is likely to come from the fields of psychiatry and psychology (in particular neuropsychology and neuropsychiatry), neuroscience and pharmacology.

  20. If the relevant mental impairment was substantially caused by self‑induced intoxication, the expert evidence on the relative contributions of the illness or the intoxication, and the degree to which treatment of the illness might still be effective, notwithstanding any co-existing drug abuse disorder, will inform the exercise of the discretion conferred by s 269C(3) of the CLCA.

  21. The existence of a mental impairment resulting in any one of the prescribed incapacities, and whether or not that impairment was substantially caused by self‑induced intoxication, are questions of fact for the jury or the judge as the case may be. Section 269C(3) of the CLCA confers the discretion to order the application of either Part 8 or Part 8A on the judge. Nonetheless, in accordance with the usual practice in Part 8A hearings, and contemporary statements of the law of evidence on the admissibility of opinion evidence, it is time to go further than Lord Chief Justice Tindall and hold that expert psychiatric opinion evidence can be given on the ultimate questions of fact, if the intermediate facts are not in dispute or assumed facts are identified. Opinions on the utility of a disposition pursuant to Part 8A may also be given. However, the tribunal of fact, and the judge exercising the discretion may, and indeed must, reach independent conclusions on those questions and may reject the opinion of an expert, even in the absence of expert evidence to the contrary.

  22. Finally, it is appropriate to step out how the discretion conferred by s 269C(3) operates within the trial procedure prescribed by s 269F of the CLCA.

  23. If an investigation under Part 8A of the CLCA commences with a trial of the mental competence of the defendant to commit the offence, then it will proceed in the following way. Evidence and submissions on the defendant’s mental competence to commit the offence will be received and the Judge or jury, as the case may be, will decide whether the defendant was mentally incompetent to commit the offence. The Court will then either record a finding that the defendant was mentally incompetent or that the presumption of mental competence has not been displaced. In the event of the latter, the trial will proceed ‘in the normal way’. Evidence of the objective and mental elements of the offence will be received. At the conclusion of that trial, whether the verdict is one of guilty or not guilty, there is no inconsistency or tension between the verdict and the earlier recorded finding of mental competence.

  24. If the finding is that the defendant was mentally incompetent the Judge will determine pursuant to s 269C(2) of the CLCA whether or not self‑induced intoxication substantially caused the relevant mental impairment. If the Judge finds that the mental impairment was not substantially caused by self‑induced intoxication, the Part 8A investigation will proceed. If the Judge determines that the mental impairment was substantially caused by self‑induced intoxication but nonetheless exercises the discretion in s 269C(3) to order that Part 8A applies, again the Part 8A investigation will continue. If the objective elements of the offence are made out, a record of the finding to that effect must be made by the Court, and the Court must find the defendant not guilty of the offence but declare the defendant to be liable to supervision under Part 8A. If the objective elements are not made out the defendant must be found not guilty of the offence and discharged.

  25. If, on the other hand, the Judge decides that, notwithstanding the finding of mental incompetence, Part 8 should be applied, the trial will proceed in the normal way. If, at the conclusion of that trial, the defendant is convicted, and therefore liable to punishment, there will be an apparent inconsistency and some tension with the recorded finding of mental incompetence. However, it has always been the case under the common law that a defendant may be convicted, notwithstanding insanity or mental incompetence caused by self-induced intoxication. Equally, it is, for the reasons discussed earlier, the manifest purpose of the 2017 Amending Act that, notwithstanding mental incompetence which is the consequence of comorbidity, a defendant will be found guilty and criminally liable unless the Judge favourably exercises the discretion conferred by s 269C(3) of the CLCA.

  26. LOVELL JA: I have had the advantage of reading the draft judgments of both Kourakis CJ and Livesey JA.

  27. The factual background leading to the questions to be answered is set out in the judgment of Livesey JA and I gratefully adopt it.

  28. A person’s mental competence to commit an offence is presumed.[7] That presumption is rebuttable and s 269C of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) provides the mechanism whereby that issue can be determined. That section relevantly states:

    [7]     Criminal Law Consolidation Act 1935 (SA) s 269D.

    269C—Mental competence

    (1)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; that is, the person could not reason about whether the conduct, as perceived by reasonable people, is wrong; or

    Note—

    Paragraph (b) adopts the test as stated and excludes from consideration whether the defendant could reason with a moderate degree of sense and composure as set out in R v Porter (1936) 55 CLR 182.

    (c)     is totally unable to control the conduct.

    (2)If, on an investigation under this Division, a person is found to be mentally incompetent to commit an offence and the trial judge is satisfied, on the balance of probabilities, that the mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self‑induced intoxication (whether the intoxication occurred at the time of the relevant conduct or at any other time before the relevant conduct), the person may not be dealt with under this Part but may (if appropriate) be dealt with under Part 8.

    (3)However, despite the fact that the judge is satisfied that the person’s mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self‑induced intoxication, the judge may nevertheless make an order that the person be dealt with under this Part after taking into account—

    (a)     the time and circumstances of when and how the intoxication caused the mental impairment; and

    (b)     the interests of justice; and

    (c)     whether the making of such an order would affect public confidence in the administration of justice.

  1. The questions of law referred in this case raise significant issues about the interpretation of s 269C. In particular, the meaning of the expression “that the mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self‑induced intoxication” in s 269C(2) requires consideration of the use of that expression in the context of the suite of changes introduced in 2017.

  2. The question arises as to what is meant by the expression “mental impairment” and whether intoxication falls within that definition. Whether mental impairment includes intoxication within its definition affects the interpretation of s 269C and in particular the meaning to be given to the phrase “substantially caused by” in s 269C(2).

  3. I am unable to agree with the interpretation of s 269C of Kourakis CJ and Livesey JA. I do not consider that “intoxication”, as defined, falls within the definition of “mental impairment”. My reasons follow.

    Legal Principles

  4. In assigning legal meaning to the words of a provision, the court starts with consideration of the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose. That is, the process begins with the text but, as the meaning of words can never be acontextual, the process must also begin by examining the context.[8] The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[9] Context, in its widest sense, and the purpose of the statute, inform the interpretative task throughout.[10] -  Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[11] A statutory offence provision is to be construed according to the ordinary rules of construction; courts do not employ a different regime of construction or interpretation simply because conduct is proscribed as an offence.[12] The language of a penal provision should not be unduly stretched or extended and any real ambiguity as to meaning should be resolved in favour of an accused. However, any ambiguity that calls for such resolution is one which persists after the application of the ordinary rules of construction.[13]

    [8]     The Queen v A2 (2019) 373 ALR 214 at [163] (Edelman J).

    [9]     Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 47 (Hayne, Heydon, Crennan and Kiefel JJ).

    [10]   The Queen v A2 (2019) 373 ALR 214 at [124] (Bell and Gageler JJ) (in minority on the result).

    [11]   Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 47 (Hayne, Heydon, Crennan and Kiefel JJ).

    [12]   The Queen v A2 (2019) 373 ALR 214 at [163] (Edelman J).

    [13]   The Queen v A2 (2019) 373 ALR 214 at [52] (Kiefel CJ and Keane J).

    Is Intoxication a “mental impairment” for the purpose of Part 8A?

  5. As mentioned, whether intoxication falls within the definition of “mental impairment” affects the interpretation of s 269C(2) and the meaning of the phrase “substantially caused by”.

  6. Turning to the question of the actual text “mental impairment” is defined in s 269A(1) of Part 8A of the Act as:

    mental impairment includes –

    (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 in s 269A(1) as:[14]

    mental illness means a pathological infirmity of the mind (including a temporary one of short duration) 

    “Intoxication” is also defined in s 269A(1) as:

    intoxication means a temporary disorder, abnormality or impairment of the mind that results from the consumption or administration of a drug

    [14]   The definition also includes the following note: “A condition that results from the reaction of a healthy mind to extraordinary external stimuli is not a mental illness, although such a condition may be evidence of mental illness if it involves some abnormality and is prone to recur (see R v Falconer (1990) 171 CLR 30)”.

  7. There are a number of factors that strongly suggest that “intoxication” does not fall within the definition of “mental impairment”.

  8. Although the definition of “mental impairment” is non-exhaustive, intoxication, as defined, does not fall within any of paragraphs (a), (b) or (c) of the definition. To qualify as a “mental illness” under paragraph (a), as defined, the illness must be “a pathological infirmity of the mind” even if temporary.  Intoxication does not fit within that definition as it is defined as meaning a temporary disorder, abnormality or impairment of the mind not a pathological infirmity of the mind. “Intoxication”, as defined, is to be distinguished from a pathological condition caused by, for example, an offender’s continual use of an intoxicant over a period of time. Such abuse of an intoxicant may lead to a pathological condition. That, however, is different to being temporarily intoxicated.

  9. Nor does intoxication fit within the conditions described in paragraphs (b) or (c) of the definition of “mental impairment”. Thus intoxication, as defined, is not included specifically within the definition of “mental impairment”. Intoxication can only be a “mental impairment” if, despite not falling within the specific criteria, it can be said to fit within the definition of “mental impairment”.

  10. The categories contained within the definition “mental impairment” constitute a common category or genus. Whether a particular condition, not specifically included in the definition of “mental impairment”, is a mental impairment depends upon the condition being of the same genus as those included within the definition. The conditions mentioned in the definition of “mental impairment” all have a “pathological” component to them. Mental illness does by definition, and senility and cognitive impairment do by the nature of those conditions.  Intoxication, as defined, does not have a pathological basis.  As the definition of “mental impairment” is non-exhaustive, other conditions may fall within the concept of “mental impairment”. However, such conditions must have a “pathological” basis; intoxication, by definition, does not. That strongly suggests that intoxication, a temporary impairment of the mind, does not fall within the definition of “mental impairment”.

  11. The division in the Act between Part 8, that part dealing with intoxication, and Part 8A, that part not including intoxication specifically as a mental impairment, suggests that intoxication, as defined, is to be treated differently from a “mental impairment”. Intoxication, as mentioned, is to be dealt with under Part 8.

  12. Section 269C(2) directs the trial judge’s attention to what part, if any, of the mental impairment, at the time of the alleged conduct, was “substantially caused by self-induced intoxication”. That is, the subsection directs the court to resolve, as a factual question, the relationship between the underlying mental impairment and self-induced intoxication as at the time of the alleged conduct. While a court is not bound by a minute syntactical dissection of legislation, if a word in the section has a particular definition, the words of that definition can be, and should be, read into the substantive enactment. The substantive enactment should be construed in context, bearing in mind its purpose and the mischief that it was designed to overcome.[15]

  13. Section 269C(2) reads, in part:

    … the trial judge is satisfied, on the balance of probabilities, that the mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self‑induced intoxication …

    (emphasis added)

  14. Assuming intoxication falls within the definition of “mental impairment”, and it is the only operative mental impairment, then the expression “mental impairment” can be replaced with the word “intoxication” when construing the meaning of s 269C(2). If that is done the section would read:

    … the trial judge is satisfied, on the balance of probabilities, that the intoxication at the time of the conduct alleged to give rise to the offence was substantially caused by self‑induced intoxication …

  15. This factual question raised in s 269C(2), assuming intoxication is the mental impairment, requires the trial judge to consider whether intoxication was substantially caused by self-induced intoxication. Such a question makes no sense. Intoxication does not cause intoxication. This very strange result strongly suggests that intoxication was not intended to come within the definition of “mental impairment”.

  16. Further, if intoxication fell within the definition of “mental impairment”, and it was the only condition operating as a mental impairment, then an accused, having been found mentally incompetent, would, under the operation of ss 269C (2) and (3) be then excluded from Part 8A and dealt with under Part 8 of the Act. That is, intoxication would be included by s 269CA(1), only to be excluded by ss 269C(2)–(3). Such an odd result strongly suggests that intoxication was not intended to come within the definition of “mental impairment”.

  17. The meaning of the text requires consideration of its context. This includes the general purpose of the provision and the mischief the provision seeks to remedy. Section 269, initially enacted in 1995, was significantly amended by the Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (SA) (“the 2017 amendments”).

  18. The common law and the history leading to the enactment of s 269C is important to understanding its purpose and the mischief intended to be remedied by the 2017 amendments.

    Common law

  19. From early times the common law resisted intoxication being an excuse for criminal conduct. Blackstone said:[16]

    As to artificial, voluntarily contracted madness, by drunkenness or intoxication, which, depriving men of their reason, puts them into a temporary phrenzy; our law looks upon this as an aggravation of the offence, rather than as an excuse for any criminal misbehaviour.

    [16]   Blackstone, Commentaries on the Laws of England, Book IV, Ch 2, S III, p 25.

  20. In the older cases, alcohol was usually the intoxicant discussed. It was accepted, however, that the law applied to all intoxicants.[17] Over time the rigidity of the old rule that drunkenness was never a defence to crime was gradually relaxed by judicial decisions. It came to be accepted that intoxication was relevant to the question of intention.

    [17]   R v Lipman [1970] 1 QB 152.

  21. At common law, as discussed by both Kourakis CJ and Livesey JA, the legal criteria relating to the defence of insanity was set out in the case of M’Naghten.[18] The Judge’s answers to the questions posed in that case eventually became known as the M’Naghten Rules.  The M’Naghten Rules use the expression “disease of the mind”. Courts subsequently considered it important to distinguish between a “disease of the brain” and a “disease of the mind”. It was not necessary, for example, for an accused to establish that “the brain had been affected in any way, either by degeneration of the brain cells or any other way.”[19] However, it remained necessary to establish that an accused was suffering from a disease of the mind. The expression “disease” of the mind meant states of drunkenness, intense passion and other conditions “attributable either to the fault or to the nature of man” were excluded.[20]

    [18]   M’Naghten (1843) 10 CL & Fin 200.

    [19]   R v Kemp [1957] 1 QB 399 at 407.

    [20]   R v Connolly (1959) 76 WN (NSW) 184 at 185 (Owen J) quoting Sir Owen Dixon “A Legacy of Hadfield, M’Naghten and Maclean” (1957) 31 Australian Law Journal 255 at 260.

  22. In R v Connolly, Heron J observed:[21]

    Drunkenness is no excuse for crime, but delirium tremens caused by drinking and differing from drunkenness, if it produces such a degree of madness, even for a time, as to render a person incapable of distinguishing right from wrong, relieves him from criminal responsibility. … Drunkenness is one thing and the diseases to which drunkenness leads are different things. If a man by drunkenness brings on a state of disease which causes a degree of madness, even for a time, which would have relieved him from criminal responsibility if it had been caused in any other way, then he would not be criminally responsible.

    [21] (1959) 76 WN (NSW) 184 at 185.

  23. Thus, at common law, intoxication, considered in isolation, could not found a “defence” of insanity. Intoxication was, and remains, relevant to the question of intention. Drunkenness could lead to a finding of insanity if it had caused a disease of the mind. Severe intoxication could also raise the question of whether an offender’s conduct was voluntary but that is a different concept to “disease of the mind.” The distinction between the relevance of intoxication to insanity and its relevance to voluntariness was important for two reasons. First, if an accused was found “insane”, they, at common law, could be detained during the pleasure of the Executive. Secondly, the onus of proof in relation to the defence of insanity rested upon an accused, unlike the question of voluntariness whereby the prosecution had to establish, beyond a reasonable doubt, that the accused’s act was voluntary.

    Statutory change

  24. The enactment of Part 8A of the Act, including s 269C, provided a scheme for the management of persons who were held to have been mentally incompetent to commit the offence. As discussed by Livesey JA, the Part 8A scheme is not punitive but enables a court to provide a regime that provides appropriate care, support and rehabilitation services to mentally impaired offenders. This may include detention in an appropriate facility, the detention also serving the purpose of protecting the community while an offender undergoes the appropriate treatment. An offender may be released on licence but under the supervision of a suitably qualified person and subject to their direction about appropriate treatment. Many different types of conditions may be imposed when an accused is released on licence. The options available under Part 8A simply have no relevance to an accused, who offended simply while intoxicated, that is suffering from a temporary impairment of the mind. Consistent with intoxication being a temporary condition, Part 8 of the Act is silent in relation to the question of treatment. Again, this strongly suggests that intoxication, as a temporary condition, was not intended to fall within the definition of “mental impairment”.

    The 2017 amendments to Part 8A

  25. The 2017 amendments deal with the issue of self-induced intoxication and its relationship with mental impairment. Prior to the enactment of the 2017 amendments, intoxication was specifically excluded as a “mental impairment”. Consistent with the common law, intoxication was not relevant to the question of mental incompetence. It was relevant only to “voluntariness” as set out in Part 8 and/or intention. Against that background, it is important to consider the mischief that the 2017 amendments sought to remedy.

  26. The 2017 amendments introduced, through ss 269C (2) and (3), the concept of self-induced intoxication. For s 269C(2) to be enlivened, the court must have already found, under s 269C(1), that a “mental impairment” existed and that in consequence of the mental impairment the accused did not know the nature and quality of the conduct or did not know the conduct was wrong or was totally unable to control the conduct. Subsection (2) mandates that the trial judge enquire into the relevance, if any, of self-induced intoxication in causing the mental impairment. If the mental impairment was substantially caused by intoxication, the trial judge, under subsection (3), can deal with the issue in a number of ways.

  27. The very structure of the 2017 amendments demonstrate the mischief Parliament sought to remedy, namely the affect self-induced intoxication may have on the established mental impairment. To read into the new structure of s 269C that the mental impairment itself could be constituted by intoxication alone simply serves no purpose. Intoxication was, prior to 2017, by definition, not a “mental impairment”. As described earlier, to define mental impairment such that intoxication could be the sole applicable species of a mental impairment would mean that Parliament, through the 2017 amendments, intended a substantial change to the way in which the law dealt with intoxication. However, having made that substantial change, the operation of ss 269C(2) and (3) immediately reverse the substantial change. Intoxication as a mental impairment is, as a result of the operation of subsections (2) and (3), to be dealt with, as it always was, under Part 8. To achieve the result that intoxication alone should be dealt with under Part 8, the convoluted interpretation should be rejected and the simpler interpretation preferred.

  28. The 2017 amendments deleted the phrase “but does not include intoxication” from the definition of “mental impairment”. However, it does not follow that by simply deleting the phrase “but does not include intoxication” from the definition of “mental impairment” that intoxication is therefore now included in the definition of “mental impairment”. The context in which the amendment was made is highly relevant.

  29. When Part 8A was originally introduced, “intoxication” was not defined nor mentioned at all in s 269C. At that time, the definitions of “mental impairment” and “mental illness”, respectively, were in identical terms to the current definitions. By amending Act No. 39 of 2000, the definition of “mental impairment” in Part 8A was amended by adding the words “but does not include intoxication” to paragraph (c) of s 269A(1). Intoxication was clearly already irrelevant to mental impairment. This amendment was evidently made out of an abundance of caution.

  30. As the words “but does not include intoxication” were deleted from the definition of “mental impairment”, the 2017 amendments simultaneously introduced a new definition of “intoxication” into s 269A(1) (Part 8A). The 2017 amendments also introduced a definition of “intoxication” into s 267A(1) (Part 8) for the first time, the definition being identical to the new definition introduced into s 269A(1). The 2017 amendments also introduced ss 269C(2)–(3) and the concept of self-induced intoxication. Given that s 269C(2) now dealt with intoxication, and its role in the operative conditions of the mental impairment at the time of the alleged conduct, it was prudent to remove the words “but does not include intoxication” from the definition of “mental impairment” to avoid confusion in the interpretation of intoxication within s 269(2). The removal of that phrase, and the simultaneous addition of a definition of “intoxication” inconsistent with the definition of “mental impairment”, reinforces the point that Parliament was addressing the contribution of intoxication to an already established mental impairment. The amendments were not seeking to add intoxication to the meaning of “mental impairment”.

  31. On the question of comorbidity of conditions, I accept that there could be two comorbid conditions, for example, two different mental illnesses that may independently of each other lead a court to find, provided the criteria were met, an accused mentally incompetent. That is, I accept that there may be more than one operative condition leading to a finding of mental incompetence. However, in my opinion, intoxication, as an independent comorbid condition, cannot be one of them. The fact that intoxication alone may lead to a finding of mental incompetence says nothing about the effect of intoxication on the comorbid condition.

  1. Assume, by way of example, that an accused suffered a major psychotic illness which compromised their capacity to know right from wrong and that self-induced intoxication independently compromised their capacity. Excluding intoxication as an independent comorbid condition does not mean that intoxication may not have had a role in contributing to the major psychotic illness. Section 269C(1) is not directed to an analysis of the cause of the major psychotic illness. The question of fact to be decided under s 269C(1) is whether the accused suffered the major psychotic illness leading to his capacity being compromised. Section 269C(2) requires the court to inquire whether intoxication had a contributory role in the psychotic condition at the time of the alleged conduct. If intoxication had no contributory role in the psychotic illness at the relevant time, s 269C(2) will not operate and the accused will fall to be dealt with under Part 8A (as Parliament intended). If the self-induced intoxication substantially caused the psychotic illness, s 269C(2) will operate and the accused may, subject to subsection (3), be dealt with under Part 8 (as Parliament intended). The contribution of intoxication to the remaining comorbid condition still falls to be assessed under s 269C(2). Excluding intoxication as an independent cause of the mental impairment does not impinge on the operation of s 269C(2). Indeed, that is the mischief Parliament sought to remedy – the effect of intoxication on any mental impairment that led to a finding of mental incompetence.

    Summary

  2. Prior to the 2017 amendments intoxication was not relevant at all to the question of mental incompetence. The definition of “mental impairment”, after the 2017 amendments, does not specifically include “intoxication”. By defining intoxication as it has, Parliament did not intend that it be a condition that fell within the definition of “mental impairment”. Intoxication, as a stand-alone condition, cannot be dealt with in any sensible way under any of the wide powers available to the Court under Part 8A. The mischief to which the 2017 amendments were directed was the issue of the contribution of intoxication to the underlying mental impairment at the time of the alleged conduct. The amendments were not directed at the problem of intoxication alone; that remains to be dealt with under Part 8. Given the legislative history, and the mischief to which the amendments were aimed, intoxication does not fall within the definition of “mental impairment”. I am, respectfully unable to agree with the interpretation proposed by Kourakis CJ and Livesey JA.

    “Substantially caused by” self-induced intoxication

  3. If the mental impairment was substantially caused by self-induced intoxication, the trial judge may exercise the discretions outlined in s 269C(3).

  4. Before considering the meaning of “substantially”, it is necessary to consider the meaning of “caused by”. At law, there is no one overarching definition of causation. It depends on the context in which the expression “causation” is used.

  5. Legal causation differs from philosophical and scientific notions of causation.[22] Legal questions are asked and answered with a view to attributing legal responsibility for a particular event. The law recognises that concurrent or successive events may each amount to the cause of that event. Thus, a person may be responsible for an event if their conduct is one of a number of conditions sufficient to have produced that event. In its statutory context here, “caused by” means the trial judge is to investigate the link (if any) between the mental impairment and the effect of self-induced intoxication. Section 269C(2) of the Act presupposes, by use of the expression “mental impairment”, that there exists, at the time of alleged conduct, a mental impairment independent of intoxication. To put that another way, to be considering the question posed under s 269C(2) the court must have already found that there existed a mental impairment, which led to the prescribed consequences in s 269C(1). The question, therefore, becomes to what extent the underlying mental impairment was, on the occasion in question, caused by self-induced intoxication. “Caused by”, in this context, means to what extent self-induced intoxication contributed to the underlying mental impairment, as at the time of the alleged conduct.

    [22]   March v Stramare(E and MH) Pty Ltd (1990-1991) 171 CLR 506 at 509 (Mason CJ).

  6. Parliament has used a somewhat clumsy expression when using the phrase “substantially caused by”. It could have used the expression “significantly (or substantially) contributed to”, thereby making the purpose of the inquiry clear. The use of that expression does not override what I consider to be the clear intent of the 2017 amendments.

  7. I consider, as Kourakis CJ and Livesey JA have concluded, that there can be more than one operative cause of a mental impairment. However, in my opinion, for the purpose of determining the question of mental incompetence, intoxication, as defined, cannot be one of them.

  8. I turn to the question of the meaning of the word “substantially” in its statutory context. As observed by Livesey JA, the word “substantially’ is protean in nature and much depends on its statutory context. Importantly, the operation of s 269C generally involves the attribution of legal responsibility for various acts. It must, in this context, mean material or significant. Adverbs used in a phrase often add emphasis rather than precision. That is so in this case. The intention of the 2017 amendments, and in particular the discretions invested in the trial judge under s 269C(3), demonstrate that the inquiry under s 269C(2) is directed to the question of whether intoxication, at the time of the alleged conduct, has substantially contributed to the underlying mental impairment. If Parliament had intended that intoxication be the primary or predominant cause, it would have said so. Parliament, while emphasising that the cause or contribution must be substantial, did not specify that it be the primary or predominant cause of the mental impairment. The statutory inquiry focusses on an evaluation of the relative importance that the role of self-induced intoxication, if any, had in causing the already determined mental impairment, as at the time of the alleged conduct.

  9. Like Livesey JA, I would answer the questions amended questions stated as follows:

    1. If a defendant is found to be mentally incompetent to commit the offences with which he is charged and, at the time of the offending is found to be intoxicated as a result of self-induced intoxication, must the Court be satisfied on the balance of probabilities that the self-induced intoxication be the primary cause of the mental impairment at the time of the conduct alleged to give rise to the offending before the prohibition contained in s 269C(2) of the Criminal Law Consolidation Act 1935 (SA) is enlivened?

    No.

    2. Within s 269(2), does the term “substantially caused” mean the primary cause?

    No.

    3. Within s 269C(2), can there be more than one cause of mental impairment?

    Yes.

    LIVESEY JA:

    Introduction

  10. It is accepted that the defendant was mentally incompetent when, on 19 August 2019, he stabbed Mr Nathan Clark in the chest with a screwdriver more than fifty times.  Mr Clark died.  The defendant then attacked Mr Benjamin Stretton by hitting him over the head two or three times with a brick. After he attacked Mr Stretton, the defendant pushed Mr Mark Knight over and sprayed him with a fire extinguisher. The defendant did not know these men before the day he attacked them.

  11. The defendant had been diagnosed with schizophrenia, but for some months he had stopped taking his prescribed medication. In the days before the killing, he took a lot of methylamphetamine.  The defendant has been charged with various offences, including murder.

  12. The issue is whether the defendant should be dealt with under Part 8––Intoxication, or under Part 8A––Mental impairment, of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). Subject to the exercise of the power conferred by s 269C(3), that issue turns on s 269C(2) of the CLCA and whether the Court is satisfied on the balance of probabilities that the defendant’s mental impairment was “substantially caused by” his intoxication.

  13. Under s 268 in Part 8, a defendant affected by self-induced intoxication to the point of criminal irresponsibility may be found guilty of the charged offence or a lesser offence, whereas under s 269O in Part 8A, a defendant who is mentally incompetent to commit an offence may be subjected to a supervision order and committed to detention or released on licence (subject to conditions).

    A case stated to the Court of Appeal

  14. Where a defendant can show that he or she was “mentally incompetent” within the meaning of s 269C(1) that defendant may have what is often described as a “defence”. Where, however, s 269C(2) applies, the defendant cannot rely on the s 269C(1) defence. Because s 269C has not previously been considered by this Court, a case was stated pursuant to s 153 of the Criminal Procedure Act 1921 (SA), reserving for this Court’s consideration questions of law antecedent to the trial of the defendant.

  15. The question posed for this Court is essentially whether s 269C requires that self-induced intoxication be the primary cause of mental impairment. For the reasons that follow, the answer to that question is that self-induced intoxication need not be the sole or primary cause of mental impairment. In every case, it will be a question of fact whether the defendant’s mental impairment was substantially caused by self-induced intoxication at the time the objective elements of any offence were committed.[23]

    [23]   As to the objective and subjective elements of murder, see R v Willoughby (No 2)[2017] SASC 191, [5]-[9] (Hinton J); R v Caldwell [2019] SASC 117, [4]-[5] (Hinton J) and R v BS [2020] SASC 138, [6]‑[9] (Lovell J) (attempted murder).

  16. Whilst that question of fact might usually be answered with the assistance of opinions from psychiatric and other experts, it is not for the experts to answer the question posed by the statute. Whether the Court is satisfied on the balance of probabilities that defendant’s mental impairment was “substantially caused by” the defendant’s intoxication remains a matter for the Court. 

  17. These reasons are set out as follows:

    Background

    The legislative scheme

    History of the mental competence provisions

    The M’Naghten Rules

    Development of the law in Australia

    Part 8A of the CLCA

    Codification of the common law in 1996

    269C Mental competence

    Sentencing Advisory Council Report

    The 2017 reforms

    Deliberations in the Legislative Council

    Consideration of the Questions of Law Reserved

    The expert opinion evidence

    Mental impairment … substantially caused by self-induced intoxication

    The statutory purpose

    The statutory context – the operation of Part 8A

    Mental impairment

    Self-induced intoxication

    The s 269C(3) power

    The statutory context – the operation of Part 8

    The statutory context - summary

    The text of s 269C(2) of the CLCA

    Answers to the Questions of Law Reserved

    Background

  18. The defendant, William Robert Delany, is charged with the offences of murder,[24] aggravated causing harm with intent to cause harm,[25] assault causing harm,[26] aggravated serious criminal trespass in a place of residence and aggravated assault.[27]

    [24] Contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA).

    [25] Contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA).

    [26] Contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA).

    [27] Contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (aggravated serious criminal trespass in a place of residence); contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (aggravated assault).

  19. The conduct the subject of these charges occurred on 19 August 2019. 

  20. In 2012, the defendant was diagnosed as suffering from a schizophreniform psychosis. In 2015, he was diagnosed with paranoid schizophrenia with a differential diagnosis of schizoaffective disorder.

  21. Since 2012, the defendant has been treated (and at times, hospitalised) for these conditions and, at the time of the alleged offending, he was the subject of a Level 1 Community Treatment Order.[28] The defendant’s illness was treated by monthly injections of the antipsychotic drug, apriprazole.  It was not disputed that the defendant last received an injection of apriprazole on 9 May 2019, more than three months before the events the subject of the charges.

    [28] Made pursuant to s 10 of the Mental Health Act 2009 (SA).

  22. The uncontested evidence demonstrates that, in the days and hours before the alleged offending, the defendant consumed methylamphetamine.  There was also evidence of cannabis consumption. Approximately 7 hours after the alleged offending, blood samples were taken from the defendant which established that there was then present in his blood:

    ·0.48mg/L of methylamphetamine

    ·0.05mg/L of amphetamine

    ·3 micrograms/L of THC

    ·96 micrograms/L of carboxy THC

    ·0.014mg/L of apriprazole

  23. Professor Jason White, a pharmacologist, provided a “back calculation” for the concentration of methylamphetamine in the defendant’s blood, being approximately 0.81mg/L at the time of the offending. It was Professor White’s opinion that this concentration is relatively high and would be expected to result in very pronounced effects including agitation, delusions and hallucinations. Professor White added that the defendant was at a heightened risk of experiencing these psychotic effects from methylamphetamine use due to his pre‑existing mental illness.

  24. Professor White also expressed the view that the concentration of apriprazole in the defendant’s blood was low and considerably less than the concentration expected of someone taking the normal therapeutic dose.

  25. On 18 May 2020, the defendant was arraigned in the Supreme Court and pleaded not guilty to all offences.[29]

    [29]   The defendant was again arraigned and pleaded not guilty to each count before Livesey J on 7 September 2020.

  26. Prior to the defendant’s arraignment, the defence obtained a report from a forensic psychiatrist, Dr Craig Raeside. In that report, dated 4 May 2020, Dr Raeside stated that, in his opinion, the defendant had a “mental competence defence” to all charges. Dr Raeside expressed the view that the defendant’s presentation, which he observed over the course of the week following the alleged offending, was entirely consistent with a relapse of paranoid psychosis as a result of chronic schizophrenia. Dr Raeside stated that the evidence suggested a relapse of schizophrenia due to non-compliance with medication, aggravated by illicit drug use.

  27. When turning to the application of s 269C(2) of the CLCA, Dr Raeside expressed the view that it was unlikely that the defendant would have simply been experiencing the ongoing effects of a drug induced psychosis, particularly given his extensive history of prior psychotic illness and the amount of time he remained acutely psychotic in hospital after the effects of the illicit substances had worn off. While Dr Raeside took the view that the illicit drugs consumed by the defendant were a factor which contributed to his overall psychosis, he did not think the drugs were a substantial cause of either the psychosis or the offending. He expressed the opinion that the defendant’s psychosis would have rendered him unable to know that his conduct was wrong.

  28. At the arraignment, the parties were in agreement that, in light of Dr Raeside’s report and the circumstances of the offending, a Judge of the Supreme Court should investigate the defendant’s mental competence to commit the offences with which he had been charged. As the defendant was contending that he was mentally incompetent to commit all of the charged offences, the Court accepted that there should be an investigation of mental competence to commit the offences and, pursuant to s 269WA of the CLCA, the preparation of a further psychiatric report was ordered. In consequence of that order, another forensic psychiatrist, Dr Owen Haeney, provided a report dated 29 July 2020.

  29. Dr Haeney was of the view that the defendant suffered from schizophrenia, which was frequently complicated by illicit drug use. Whilst methylamphetamine and cannabis are commonly associated with drug-induced psychosis, Dr Haeney was of the opinion that the defendant developed schizophrenia as a primary psychotic illness and that the defendant’s use of drugs exacerbated that illness. Dr Haeney considered that, at the time of the offending, it is more likely than not that the defendant did not know that his conduct was wrong.

  30. Dr Haeney also considered the application of s 269C(2) of the CLCA. He acknowledged that the defendant would have been heavily intoxicated at the time of the offending, and that it was not possible to fully disentangle the contribution made to the offending by the defendant’s illness and substance misuse. However, on balance, he was of the opinion that the defendant’s mental impairment at the time of the alleged conduct was not substantially caused by his self-induced intoxication.

  31. The parties were agreed that the defendant committed the offences in the course of suffering a psychotic episode, that at the time of the offending the defendant was suffering a relapse in his schizophrenia and, that at around the time of the offending, the defendant had consumed the illicit substances detected in his blood, with the effects described by Professor White. The parties were also agreed that the evidence established, on the balance of probabilities, that the defendant was mentally incompetent, and that self-induced intoxication was not the substantial or primary cause of the defendant’s impairment.

  32. On 7 September 2020, and as is common, the defendant elected to have the matter dealt with by a Judge sitting alone rather than a jury, pursuant to s 269B(1) of the CLCA.[30]  In addition, on the joint application of the parties, the Court ordered that there be an investigation of the defendant’s mental competence to commit the offences with which he was charged.  

    [30]   See, for example, R v AM [2021] SASC 64, [4] (Nicholson J).

  33. In the course of submissions, the issue of the proper construction of s 269C(2) of the CLCA arose. It was not clear exactly what legal test had been applied by the forensic psychiatrists when they prepared their opinions. Whilst the parties drew attention to s 269FA(5),[31] they acknowledged that, ultimately, the question was one for the Court to determine.[32]

    [31] By s 269FA(5): “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”.

    [32]   See, for example, R v AM [2021] SASC 64, [5] (Nicholson J).

  34. Soon after, consideration was given to stating a case. The question whether self‑induced intoxication need only be substantially caused, or must be the substantial or primary cause, of the mental impairment apparent at the time of the conduct the subject of the charges is one which must not only be determined in this case but is also of wider importance and thus fit for consideration by the Court of Appeal.  Accordingly, the trial was adjourned, pending the decision of the Court of Appeal.  The trial will resume before a different Judge.

    The legislative scheme

  35. Before addressing the historical context, some features of the present legislative scheme should be noticed. Part 8A of the CLCA provides for the detention or release on licence of defendants who suffer from mental impairment. Section 269C provides:

    269C—Mental competence

    (1)     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; that is, the person could not reason about whether the conduct, as perceived by reasonable people, is wrong; or

    Note—

    Paragraph (b) adopts the test as stated and excludes from consideration whether the defendant could reason with a moderate degree of sense and composure as set out in R v Porter (1936) 55 CLR 182.

    (c)      is totally unable to control the conduct.

    (2) If, on an investigation under this Division, a person is found to be mentally incompetent to commit an offence and the trial judge is satisfied, on the balance of probabilities, that the mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self-induced intoxication (whether the intoxication occurred at the time of the relevant conduct or at any other time before the relevant conduct), the person may not be dealt with under this Part but may (if appropriate) be dealt with under Part 8.

    (3)     However, despite the fact that the judge is satisfied that the person's mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self-induced intoxication, the judge may nevertheless make an order that the person be dealt with under this Part after taking into account—

    (a) the time and circumstances of when and how the intoxication caused the mental impairment; and

    (b)     the interests of justice; and

    (c) whether the making of such an order would affect public confidence in the administration of justice.

  1. The starting point is, regrettably, that by selecting the word “substantially”, Parliament used a word that is well-recognised as protean in nature, taking its colour from the context in which it appears. In A E Terry’s Motors v Rinder, Mayo J considered the phrase “substantial part” in the Landlord and Tenant (Control of Rents) Act 1947 (SA), explaining that the word “substantial”:[184]

    … is not a word with a fixed meaning in all contexts … Used in a comparative setting … it suggests a dichotomy into the substantial part, and the not-substantial … between the essential and the sub-ordinate or incidental… It is an unsatisfactory medium for carrying the idea of some ascertainable proportion of the whole … 

    [184] AE Terry’s Motors v Rinder [1948] SASR 167, 180.

  2. In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union,[185] when discussing the use of the term “substantial” in the context of s 45D of the former Trade Practices Act 1974 (Cth), Bowen CJ explained:[186]

    … the word is quantitatively imprecise; it cannot be said that it requires any specific level of loss or damage. No doubt in the context in which it appears the word imports a notion of relatively, that is to say, one needs to know something of the circumstances of the business affected before one can arrive at a conclusion whether the loss or damage in question should be regarded as substantial in relation to that business.

    [185] Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367.

    [186] Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367, 374-375.

  3. According to Deane J, in the same case:[187]

    The word “substantial” is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase “substantial loss or damage”, it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v Grinling ([1948] 1 All ER 1 at 11; [1948] AC 291 at 317) where, after holding that, in the context there under consideration, the meaning of the word was equivalent to “considerable, solid or big”, he said: “Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case.…” (see also Terry's Motors Ltd v Rinder [1948] SR (SA) 167 at 180 and Granada Theatres Ltd v Freehold Investments (Leytonstone) Ltd [1958] 1 WLR 845 at 848).

    [187] Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367, 382.

  4. As will be seen, the parties approached the question of construction in broadly similar ways, ranging from the use of the word “substantial” in different legislative contexts, to dictionary definitions. Whilst of assistance, none of these could be said to be directly on point. As well, there is a danger in selecting alternative words where these are not the words used in the provision. Nonetheless, the word “substantially”, when used in the phrase “substantially caused by”, is so imprecise that it is difficult to confidently identify the statutory intention without pointing to other words that convey and explain that intention and, thereby, the nature of the factual inquiry posed by s 269C(2).

  5. The defendant submitted:

    1. For a defendant’s consciousness to have been impaired by intoxication to the point of criminal irresponsibility at the time of the alleged offence, as required by s 268, the intoxication must be the primary causative factor for the impairment of the defendant’s consciousness. Section 268, unlike s 269C(2), does not state that the impairment be “substantially” caused by intoxication but, rather, “impaired by intoxication”.

    2. The requirement of Part 8 that the defendant’s consciousness be impaired by intoxication to the point of criminal irresponsibility at the time of the alleged offence, supports an interpretation that section 269C(2) in Part 8A requires that the mental impairment at the time of the conduct alleged to give rise to the offence be substantially or primarily caused by intoxication before the prohibition in that section can operate.

    3. Part 8A of the CLCA adopts a therapeutic approach to the treatment of mentally ill offenders. Such offenders may use or abuse drugs or alcohol just as those who are not mentally ill may. It is entirely consistent with the intention of Parliament in enacting Part 8A that those offenders with diagnosed mental illnesses are dealt with pursuant to Part 8A, even where the offender may have used or abused intoxicating substances. One obvious reason for this is that mentally ill offenders may not be capable of rational decisions about their ingestion of such substances, just as they may not be capable of reasoning about whether their conduct is wrong.

  6. The Solicitor-General, for the Director of Public Prosecutions (SA), submitted:

    1. The concept of “substantiality” is ambiguous and may have various shades of meaning; it takes on different meanings according to its usage and context.[188]

    2. In different statutory contexts, the concept of substantiality has been taken to be referable to either qualitative importance or to quantitative size. The concept may have the following meanings:

    ·Material: meaning more than trivial or minimal; not ephemeral.[189]

    ·Significant: meaning not merely material, but considerable, large, weighty or big.[190]

    ·Primary: meaning the single largest or the greatest; that of highest rank or importance.[191]

    ·Predominant: meaning prevailing; the major or ascendant power, authority or influence.[192]

    3. As the term “substantially” is not defined, it is appropriate to consider dictionary definitions.[193] These include “material or important”,[194] and “[h]aving substance; not imaginary, unreal or apparent only; true, solid, real; of solid worth or value; weighty, sound.”[195]

    4. After referring to a number of authorities,[196] it was submitted that the plain meaning of the words “substantially caused” could only be other than material or significant if contextual or purposive factors spoke to the contrary, and they did not.[197]

    [188] Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union and Ors (1979) 27 ALR 367, 382 (Deane J); Mercer v Australia and New Zealand Banking Group Pty Ltd (2000) 48 NSWLR 740, [26] (Mason P); Dainford Ltd v Lam (1985) 3 NSWLR 255, 268 (Powell J); University of Tasmania v Cane (1994) 4 Tas R 156, 162-163 (Wright J); Wong v Silkfield Pty Ltd (1999) 199 CLR 255, [27] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).

    [189] Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367, 372 (Bowen CJ).

    [190] Palser v Grinling [1948] AC 291, 316-317 (Viscount Simon); Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367, 382 (Deane J); Wong v Silkfield Pty Ltd (1999) 199 CLR 255, [27] (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ).

    [191] Fox v Repatriation Commission (1997) 45 ALD 317 (Kiefel J) and South Australia v Roberts (2018) 130 SASR 274, [106] (Parker J).

    [192] See generally, Fox v Repatriation Commission (1997) 45 ALD 317 (Kiefel J); South Australia (in Right of the Department for Education) v Van Hattem (No 2) (2020) 137 SASR 299 (Parker J) – considering the meaning of the phrase “the significant contributing cause”.

    [193] R v Peters (1886) 16 QBD 636, 641 (Lord Coleridge CJ).

    [194] Macquarie Dictionary (online ed) ‘substantial’ (def 1-3, 6 and 8).

    [195] The Compact Oxford English Dictionary (2nd ed, 1991) ‘substantial’ (def 10 and 15).

    [196] Annexure A of the Director’s Written Submissions referred to the following cases: Palser v Grinling [1948] AC 291, 316-317 (Viscount Simon); R v Lloyd [1967] 1 QB 175, 180 (Edmund, Davies, Fenton, Atkinson and Lyell JJ); R v Hallett [1969] SASR 141, 149 (Bray CJ, Bright and Mitchell JJ); R v Hennigan [1971] 3 All ER 133, 135 (Lord Parker CJ); Re Queensland Co-Operative Milling Association Ltd (1976) 25 FLR 169, 183 (Woodward P); Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union and Ors (1979) 27 ALR 367, 374 (Bowen CJ), 382 (Deane J); Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557, 562 (Lockhart J); Dainford Ltd v Lam (1985) 3 NSWLR 255, 268 (Powell J); R v Royall (1991) 172 CLR 378, 412 (Deane and Dawson JJ); University of Tasmania v Cane (1994) 4 Tas R 156, 162-163, 166, 169 (Wright J); Hembury v Chief of the General Staff (1998) 193 CLR 641, 650-651 (McHugh J); Wong v Silkfield Ltd (1999) 199 CLR 255, 266-267 (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ); Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 28, [13] (French J); Mercer v Australia and New Zealand Banking Group Pty Ltd (2000) 48 NSWLR 740, 745-749 (Mason P); Adbel-Hady v Magistrate Freund [2007] NSWSC 1247, [31] (Rothman J); Badawi v Nexon Australia Pacific Pty Ltd (2009) 75 NSWLR 503, [80]-[85] (Allsop P, Beazley and McColl JJA); Guthrie v Spence (2009) 78 NSWLR 225, 251-252 (Campbell JA); El-Haddad v The Queen (2015) 88 NSWLR 93, [64] (Leeming JA); Fittock v Legal Profession Conduct Commissioner (No 2) (2015) 124 SASR 300, [107] (Sulan, Blue and Nicholson JJ); Gullquist v Victorian Legal Services Commissioner [2018] VSCA 259, [98] (Dixon J); Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4, [52] (Fiannaca J).

    [197] Cody v JH Nelson Pty Ltd (1947) 74 CLR 629, 647 (Dixon J); Maunsell v Olins [1975] AC 373, 382 (Lord Reid).

  7. Construing the words used in s 269C(2) in their proper context, it may first be noticed that the statutory test represents the striking of a provisional balance between those cases where defendants may, prima facie, be subjected to criminal liability under Part 8 and those cases where defendants are to be subjected to the more flexible orders and therapeutic approach available under Part 8A. The striking of that balance is explicitly made subject to the exercise of the power conferred by s 269C(3).

  8. Secondly, the word “substantially”, when used in the phrase “substantially caused by”, is directed to what the Court must determine as a question of fact.  The question is addressed by having regard to the plain ordinary meaning of that word and the evidence adduced in each case. The use of the words “caused by” posit a test of causation:[198]

    Causation in a legal context is always purposive.[199] The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose.[200] It has been said more than once in this Court that it is doubtful whether there is any “common sense” approach to causation which can provide a useful, still less universal, legal norm.[201]

  9. That test is directed to the determination, as a matter of fact, whether the statutory causation test is satisfied. If it is, then the case is to be addressed under Part 8 unless an order is made under s 269C(3).

  10. Thirdly, the use of the passive phrase “substantially caused by” may be contrasted with the use of the definite article in the phrase “the substantial cause”.  This suggests, and strongly, that the provision does not require that the court identify only one cause.  It is in the very nature of mental impairment that its causes may be multi-factorial.  That is apparent from the decided cases as well as the Sentencing Council Report.  To search for one cause is unrealistic. In a different statutory context, it has been accepted that the use of the word “by” was intended to operate in a factual context where there will “rarely be a sole cause”.[202] It is much more likely that Parliament intended that the words “substantially caused by” in s 269C(2) would operate in a factual context where there will rarely be only one cause of “mental impairment”. The same may be said about “the primary cause” where, depending on the circumstances, the inter-relationship between underlying mental illness and self-induced intoxication may be very complex. There may be no primary cause of mental impairment. There may be a number of causes of a defendant’s mental impairment apparent and operating at the time of the relevant conduct. It is unlikely in the extreme that the Parliament would pose a test that is at odds with the understanding of mental impairment and illness disclosed in the decided cases and the Sentencing Council Report.

    [202] I & L Securities v HTW Valuers (2002) 210 CLR 109, [25] (Gleeson CJ), a case where the Court considered s 82(1) of the former Trade Practices Act 1975 (Cth) and the availability of compensation when: “person who suffers loss or damage by conduct of another person that was done in contravention” of that Act.

  11. Fourthly, the presence of s 269C(3) militates against the search for the sole or primary cause. Self-induced intoxication need not be the sole or primary cause of mental impairment. That is not the inquiry required under s 269C(2). Indeed, if s 269C(2) required that the defendant’s self-induced intoxication be the sole or primary cause of mental impairment, it is difficult to imagine a case where s 269C(3) would operate. Giving s 269C(2) that kind of meaning would render s 269C(3) otiose because if the sole or primary cause of mental impairment was self-induced intoxication to the point of criminal irresponsibility, the case is naturally one for Part 8.

  12. Fifthly, what is required is not a comparative evaluation between the roles of underlying mental illness and self-induced intoxication in producing the defendant’s mental impairment.  That does not mean that a clear understanding of the defendant’s mental illness is not important.  Plainly it is.  However, the statutory test does not require that the Court determine which of the two or more apparent causes may be the more important or significant in causing mental impairment.  The Court is not required to rank the causes of mental impairment in any artificial or abstract manner.[203] The statutory inquiry is narrower, focusing on an evaluation of the relative importance of the role of the defendant’s self-induced intoxication in causing the defendant’s mental impairment. That is, was the defendant’s mental impairment at the time of the relevant conduct substantially caused by self-induced intoxication? As was explained in a different context:[204]

    … there is little to be gained, but there is a risk of confusion, if the members of a jury are introduced to the sophisticated notions of causation that tend to bedevil the law of torts. Nevertheless the jury must be told that they need to reach a conclusion as to what caused the deceased’s death. That does not mean that the jury must be able to isolate a single cause of death; there may be more than one such cause …In that event it is inevitable that the jury will concentrate their attention on whether an act of the accused substantially contributed to the death.

    [203] See, for example, Campbell v The Queen (1980) 2 A Crim R 157, 161 (Burt CJ); McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579, 595 [52] (Gaudron J).

    [204] Royall v The Queen (1991) 172 CLR 378, 423 (Toohey and Gaudron JJ), addressing the directions to be given to a jury on the test of causation in a murder trial.

  13. As this passage shows, juries are often directed to consider causation questions by reference to whether, for example, the conduct of the accused substantially or significantly contributed to injury or death.  A direction given in these terms is intended to exclude causal connections which are merely trivial or insignificant.  For example, in Swan v The Queen, the High Court approved a direction in these terms:[205]

    The trial judge said that causation, by substantial or significant contribution to the death… did not require that the acts of the appellant were the only cause of death, the most important cause of death or even the only important cause of death.

    [205] Swan v The Queen (2020) 269 CLR 663, [24]-[26] (Bell, Keane, Nettle, Gordan and Edelman JJ)

  14. It may be assumed that, by requiring that self-induced intoxication be a causal factor in a defendant’s mental impairment, in particular the requirement that it be substantially caused by it, the Parliament had in mind at least the typical causation question arising in a criminal trial.[206] Because it is necessary to try and give meaning to every word used in s 269C(2),[207] it might be said that the role of the word “substantially”, when used in the phrase “substantially caused by”, is more than pleonastic, intended to emphasise a causal connection that is neither trivial, coincidental nor insignificant,[208] being something more than merely the setting for some other cause.[209]

    [206] Royall v The Queen (1991) 172 CLR 378, 398 (Brennan J), 411-412 (Deane and Dawson JJ), 423 (Toohey and Gaudron JJ) and 444 (McHugh J); R v Hallett [1969] SASR 141, 149–150 (Bray CJ, Bright and Mitchell JJ); R v Moffatt (2000) 112 A Crim R 201, [66]-[71] (Wood CJ at CL, with whom Foster AJA and Adams J agreed); R v Ford [2016] SASC 112, [7] (Blue J).

    [207] Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355, [71] (McHugh, Gummow, Kirby and Hayne JJ).

    [208] R v Moffatt (2000) 112 A Crim R 201, [71] (Wood CJ at CL, with whom Foster AJA and Adams J agreed).

    [209] R v Hallett [1969] SASR 141, 150 (Bray CJ, Bright and Mitchell JJ).

  15. Finally, and having regard to the statutory context and the Sentencing Council Report, which reveal the prevailing community view that the defendant affected by self-induced intoxication is more culpable that the defendant affected by underlying mental illness, the causal effect identified in s 269C(2) is one of substance, that is to say one of importance or materiality. The inquiry under s 269C(2) addresses the extent to which the mental impairment was caused by self‑induced intoxication. That is, was the causal effect of self-induced intoxication of importance or material to the manifestation of the defendant’s mental impairment preceding or at the time of the relevant conduct? Whilst that necessarily reflects on what was done and apparently why it was done, the statutory inquiry focusses on the likely effects of intoxication on the defendant’s mental state, being the mental impairment that gives rise to the conclusion that there is mental incompetence.

  16. In a case such as the present, that will bring into focus factual questions relating to the likely effects of any pre-existing or underlying mental illness without self-induced intoxication, the likely effects of self-induced intoxication without mental illness, and then the likely effects of self-induced intoxication on the defendant’s underlying mental illness. The relevant factual questions will include whether the mental impairment can be explained by mental illness alone or whether it is more likely explained by the combination of mental illness and self-induced intoxication, including whether the mental impairment would not likely have manifested at that time and to the same extent without the effects of self-induced intoxication.[210]

    [210] See, generally, the discussion of causation in criminal cases, particularly the utility of the “but for” test in the criminal law, albeit that “the causal link … must be sufficiently cogent to justify attributing causal responsibility, i.e. legal responsibility, to that person. Causation-in-fact is not causation-in-law …”: Royall v The Queen (1990) 172 CLR 378, 440 (McHugh J).

  1. The resolution of these factual questions will usually be assisted by expert opinion evidence which explains the likely effects of mental illness, the likely effects of self-induced intoxication, and the likely effect of the combination of mental illness and self-induced intoxication on the defendant’s mental impairment.  The focus is on the time immediately preceding or at the time of the relevant conduct, and on the mental impairment which gives rise to the conclusion of mental incompetence. The experts can likely assist when determining whether the defendant’s mental impairment manifested when it did, and to the degree that it did, because of self-induced intoxication. Expert evidence on these matters will assist to determine whether self-induced intoxication was an important or material cause of the defendant’s mental impairment at the time of the relevant conduct. Nevertheless, the experts must be invited to address these matters in a structured way, on clearly exposed factual assumptions and with clearly exposed reasoning.  That is necessary even where the parties are agreed because the Court, whether with a jury or without a jury, may not agree with the experts’ views.[211] The opinions of experts will not, however, usually be required or admissible to address whether the case does or does not ultimately meet the s 269C(2) statutory test.

    [211] Ramsay v Watson (1961) 108 CLR 642, 645 (Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ), Mizzi v The Queen (1960) 105 CLR 659, Kosian v The Queen (2013) 40 VR 335, [55] (Redlich and Coghlan JJA and Dixon AJA).

    Answers to the Questions of Law Reserved

  2. For these reasons the questions stated should be answered as follows:

    1.If the defendant is found to be mentally incompetent to commit the offences with which he is charged and, at the time of the offending is found to be intoxicated as a result of self-induced intoxication, must the Court be satisfied on the balance of probabilities that the self-induced intoxication be the primary cause of the mental impairment at the time of the conduct alleged to give rise to the offending before the prohibition contained in s 269C(2) of the CLCA is enlivened?

    No.

    2.Within s 269C(2), does the term “substantially caused” mean the primary cause?

    No.

    3.Within s 269C(2), can there be more than one cause of mental impairment?

    Yes.


Details
AGLC
QUESTION OF LAW RESERVED (NO 1 OF 2021) [2021] SASCA 148
Case
[2021] SASCA 148
Decision Date

CaseChat Overview and Summary

In *Question of Law Reserved (No 1 of 2021)*, the Supreme Court of South Australia considered questions of law reserved concerning the defence of mental impairment in criminal proceedings. The defendant, William Robert Delany, faced charges including murder, aggravated causing harm with intent to cause harm, and assault, stemming from events on 19 August 2019. The defendant had a history of diagnosed schizophreniform psychosis and paranoid schizophrenia, for which he was receiving treatment. In the period leading up to the alleged offending, the defendant consumed methylamphetamine and cannabis.

The court was required to determine the application of Part 8A of the *Criminal Law Consolidation Act 1935* (SA), specifically concerning mental impairment and self-induced intoxication. The central legal issues revolved around whether intoxication, as defined by the Act, could constitute a "mental impairment" for the purposes of the defence, and the interpretation of the phrase "substantially caused by" in relation to the relationship between self-induced intoxication and mental impairment. The court also considered the role of expert evidence in determining these factual issues.

The court held that "intoxication" as defined in s 269A(1) of the Act cannot be a "mental impairment" for the purposes of Part 8A, particularly s 269C. Regarding the causation element, the court clarified that the term "substantially caused by" in s 269C(2) does not require self-induced intoxication to be the primary cause of the mental impairment, acknowledging that multiple causes of mental impairment can exist. Furthermore, the court affirmed that the issues raised by s 269C are questions of fact to be determined by the court in each case, based on admissible expert opinion evidence but not governed by it, with the ultimate determination resting with the court.

The questions of law reserved were answered as follows: Question 1 was answered "No," Question 2 was answered "No," and Question 3 was answered "Yes."

Orders

Orders of the court

Held per Kourakis CJ, agreeing with Livesey JA and Lovell JA as to the answers to the questions of law reserved:

1. No.

2. No.

3. Yes.

Held per Lovell JA, agreeing with Kourakis CJ and Livesey JA as to the answers to the questions of law reserved, but finding:

1. “Intoxication” as defined in s 269A(1) cannot be a “mental impairment” for the purposes of Part 8A and in particular s 269C.

Held per Livesey JA, answering the questions of law reserved:

1. The term “substantially caused by” in s 269C(2) of the CLCA does not mean that the self‑induced intoxication must be the primary cause of the mental impairment.

2. Section 269C(2) of the CLCA recognises that there may be more than one cause of mental impairment.

3. The issues raised by s 269C of the CLCA are to be addressed by the Court as a question of fact in each case, determined with the benefit of benefit of admissible expert opinion evidence, without being governed by the views expressed by those experts. The Court, not expert witnesses, is entrusted with the determination of these issues.

Background

Background to the litigation

These reasons are set out as follows:BackgroundThe legislative schemeHistory of the mental competence provisionsThe M’Naghten RulesDevelopment of the law in AustraliaPart 8A of the CLCACodification of the common law in 1996269C Mental competenceSentencing Advisory Council ReportThe 2017 reformsDeliberations in the Legislative CouncilConsideration of the Questions of Law ReservedThe expert opinion evidenceMental impairment … substantially caused by self-induced intoxicationThe statutory purposeThe statutory context – the operation of Part 8AMental impairmentSelf-induced intoxicationThe s 269C(3) powerThe statutory context – the operation of Part 8The statutory context - summaryThe text of s 269C(2) of the CLCAAnswers to the Questions of Law ReservedBackground The defendant, William Robert Delany, is charged with the offences of murder,[24] aggravated causing harm with intent to cause harm,[25] assault causing harm,[26] aggravated serious criminal trespass in a place of residence and aggravated assault.[27] [24] Contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA).[25] Contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA).[26] Contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA). [27] Contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (aggravated serious criminal trespass in a place of residence); contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (aggravated assault). The conduct the subject of these charges occurred on 19 August 2019. In 2012, the defendant was diagnosed as suffering from a schizophreniform psychosis. In 2015, he was diagnosed with paranoid schizophrenia with a differential diagnosis of schizoaffective disorder. Since 2012, the defendant has been treated (and at times, hospitalised) for these conditions and, at the time of the alleged offending, he was the subject of a Level 1 Community Treatment Order.[28] The defendant’s illness was treated by monthly injections of the antipsychotic drug, apriprazole. It was not disputed that the defendant last received an injection of apriprazole on 9 May 2019, more than three months before the events the subject of the charges.[28] Made pursuant to s 10 of the Mental Health Act 2009 (SA). The uncontested evidence demonstrates that, in the days and hours before the alleged offending, the defendant consumed methylamphetamine. There was also evidence of cannabis consumption. Approximately 7 hours after the alleged offending, blood samples were taken from the defendant which established that there was then present in his blood:·0.48mg/L of methylamphetamine ·0.05mg/L of amphetamine ·3 micrograms/L of THC·96 micrograms/L of carboxy THC·0.014mg/L of apriprazole Professor Jason White, a pharmacologist, provided a “back calculation” for the concentration of methylamphetamine in the defendant’s blood, being approximately 0.81mg/L at the time of the offending. It was Professor White’s opinion that this concentration is relatively high and would be expected to result in very pronounced effects including agitation, delusions and hallucinations. Professor White added that the defendant was at a heightened risk of experiencing these psychotic effects from methylamphetamine use due to his pre‑existing mental illness.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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