Reg v Falconer

[1990] HCATrans 97

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P2 of 1990

B e t w e e n -

THE QUEEN

Applicant

and

MARY SANDRA FALCONER

Respondent

Application for special leave

to appeal

MASON CJ

BRENNAN J

Falconer

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 MAY 1990, AT 10.05 AM

(Continued from 9/S/90)

Copyright in the High Court of Australia

ClTl/1/PLC 25 10/5/90

MASON CJ:  Yes, Mr Solicitor.

MR PARKER: If it please Your Honours, continuing the development

of our second submission, could I ask Your Honours to

turn back to the CRIMINAL CODE and perhaps whilst

Your Honours are doing that, could I iust mention

that the answer of the respondent referred to me

by Justice McHugh yesterday is, in fact, in the

papers.	I thoug~t they had not been included,
that passage,and it is as pages 50 to 51.	I am
sorry I had been mistaken there.
In the Code Your Honours will see that section 26 uses the terminology "sound mind".	In
o r n a t u r a 1 men t a 1 i n f i rm i t y 11 and t he re a re t h en	section 27, what is spoken of is "mental disease

described the three capacities which it is said

that the mental disease or infirmity must deprive,

one of those three. They are a "capacity to

understand" what the person is doing, "capacity

to control" actions, a "capacity to know that

he ought not to do the act", moral iudgment,

the notion of malice at common law.

It is informative though, in view of the change

of language in the concepts, to notice that

section 653 of the Code provides the special verdict
that is to be returned by a iury satisfied that

section 27 has been made out and, in terms, that

is a verdict that he was of "unsound mind at the

time" so that if a person is from "mental disease
or natural mental infirmity" deprived of one of
the three capacities, it would appear for the

purposes of the Code that he is then of unsound

mind.

TOOHEY J:	So section 26, Mr Solicitor, would have no
consequences even if the contrary were proved unless those consequences would answer one of the
descriptions in section 27, is that the submission? (Continued on page 27)

ClTl/2/SH	26	10/5/90
Falconer

MR PARKER:	I do not quite follow that, sir, I ~m sorry.
TOOHEY J:	I may not have put it very clearly. Well, if
section 27 were not there then section 26 one '
would assume was designed to have certain '.
consequences if the contrary, namely, the person
was not of a sound mind had been proved, but
I take your argument to be that section 26 has
to be read down so that there are no consequences
by reason of showing unsoundness of mind, unless
those consequences answer one or other of the descriptions in section 27.
MR PARKER:	Our submission will be to that effect, perhaps

put a little differently, if it please Your Honour,

that when one comes to understand the working of

23, 26 and 27 and to reconcile them, 26 seemed

to be in aid of and for the purposes of section 27,

and that importantly the concept of soundness of

mind, both in 26 and in section 653, have a

relationship and are substantially explained by

the notions that are spelt out in section 27.	In
other words, it is seen that a mind, which from
mental disease does not have one of those

capacities, is an unsound mind. This would suggest

that, in our submission, that a mind which is

not affected by mental disease or natural mental

infirmity and which possesses those three capacities

is, for relevant purposes, a sound mind.

TOOHEY J: Well that is to read section 26 down, is it not?

MR PARKER:  Yes. Now that position and that construction of

those provisions, of course, is consistent with the

first answer in the M'Naghten Rules and if I could

remind Your Honour of the precise terms of that,

that is every man is presumed to be sane and to

posses a sufficient degree of reason to be

responsible for his crimes, until the contrary is

proved to the satisfaction of the jury. (Continued on page 28)

CIT2/l/CM	27	10/5/90
Falconer

MR PARKER (continuing):  So that, in our respectful submission,

one can glean from these provisions that a sound mind is one not suffering from mental disease or

mental infirmity,and which possesses the three

capacities referred to in section 27. Next, and

involved in that, the onus under section 26 of

displacing the presumption of sound mind is one

which all authorities clearly accept is an onus

on the accused in a criminal trial. That, of

course, is a position consistent with the

M'Naghten position.

TOOHEY J:	Mr Solicitor, is there anything in the material
emanating from Sir Samuel Griffith,or otherwise,
at the time of the introduction of the Code to show why those particular expressions "sound mind" and
"not criminally responsible" were used?
MR PARKER:	Not in the materials, if it please Your Honour.

I did turn out,and perhaps I could give

Your Honours the reference to it, the 1897

draft of the Code which is published by the

Government Printer of Queensland with explanatory

comments by Sir Samuel and at pages 13 and 14 he

deals with these provisions and, although I will

not attempt to read them all now and perhaps I

might have this copied and have it passed later

to the Court.

MASON CJ:	Yes, if you would.
MR PARKER:	I am afraid I do not have the copies now, but it

does appear that Sir Samuel saw those three

capacities as probably reflecting the common law

at the time anyway.

(Continued on page 29)

C1T3/1/JL	28	10/5/90
Falconer

MR PARKER (continuing):  The point I would turn to now, if

it please Your Honours, is section 27 and the

second of those capacities because it is one that

is not normally or not enunciated in the ordinary

common law M'Naghten situation and it is the

capacity to control the actions. The express reference

to that capacity, in our respectful submission,

necessarily must mean that a person who had not

that capacity would not have been acting in the

exercise of his will.

The existence of this capacity in section 27

therefore requires, in the case of the Code, the

conclusion that section 27 is not intended to

excuse a person who has proved on all what perhaps

Justice Dawson was putting to me yesterday, might

be all the normally relevant evidence, who has been

proved on all the evidence beyond reasonable doubt

to have acted in the exercise of his will.	The
two are in complete opposition.

BRENNAN J: That argument does not account for reflex actions

which clearly fall within section 23. The bee

which stings the driver in the eye is a case where

he has no capacity to control his reflex action

which swings the car on to the wrong side of the

road but it is not a case of insanity, and the

reason is, of course, because the causation of

the capacity has to be in mental disease or

natural mental infirmity.

MR PARKER:  I am sorry, my argument then was inadequately

developed. I am speaking in the context of a

mind that is from mental disease deprived of that

capacity and in that context, and in that case

then, in our submission, it necessary follows

from that express reference in section 27 that

the Code cannot have intended in section 23

that there should be consideration of the evidence

which demonstrated that from mental disease

there was not that capacity when the person is
required to have proved against him that he acted

in the exercise of his will.

DAWSON J; That is providing its own definition, is it not?

You work backwards. If the person has an

incapacity to control his actions and if it is not

caused by something external such as a bee sting

then it must be a disease of the mind. That is the

way you reason it, is it not?

ClT4/l/LW	29	10/5/90
Falconer

MR PARKER:  That is not the reasoning that we would apply for the moment, if it please, Your Honour.

DAWSON J: Well, it seems to me it is.

MR PARKER:  I would develop later what is "disease of the mind".

I am assuming for the moment a person who from

disease of the mind has not this capacity and then

asking, "In such a case, what is the intended

interrelationship with sections 23 and 27?". Our

submission is that it must necessarily follow in that

case - - -

DAWSON J: Yes, but it is part of your argument that you cannot

have a lack of capacity which is not a disease of the

mind unless it is caused by something external, is

it not? In other words, it is central to your

argument that you keep the two compartments watertight and you do that by starting - by

reasoning backwards.

MR PARKER:  I do not believe this is our argument,

Your Honour - - -

DAWSON J: It is not the way you put it.

MR PARKER:  No. And, at the moment, in part, the development

of my submission may be suffering from the fact that

I have not yet turned to "disease of mind". What I

am attempting to do at the moment is to demonstrate

to Your Honours from the terms and format of the

Code what, in our respectful submission, is its

intended and proper working in the interrelationship

of these provisions.

DAWSON J: Well, I do not want to detain you, but could I just

ask you this question? Do you say you can have a

lack of capacity to control actions which is purely

a state of mind which is not due to mental disease

or mental infirmity? (Continued on page 31)

ClTS/1/DR	30	10/5/90
Falconer

MR PARKER (continuing):  I am not sure what you mean by

"state of mind". I accept, for example, the position

of a bee sting and the reflex action as - - -

DAWSON J:  Can you have, on your argument, a lack of

capacity to control your actions which is purely
in the mind which is not a state of mental disease

or natural mental infirmity?

MR PARKER:	Yes, you can, if it please Your Honour and the essence of the question is, what causes that, what
you have referred to as "state of mind".

DAWSON J:  Yes. Can you give me an instance?

MR PARKER:  A person who is concussed from a blow on the

head with a bat or a ball.

DAWSON J:  Yes, I see what you are saying but you cannot have

a state of mind that is subject to no external cause
in those circumstances which is not a mental infirmity

or mental disease.

MR PARKER:  If the cause of the disordering of the mind is

the internal working of the mind itself and it is the

personality and psychology of the person, in our

respectful submission, that is a disease of the mind

for the purposes of these provisions. If there is an

identifiable, external cause which directly produces

and affects the working of the mind, then that is not

a disease of the mind. It is a condition of the

mind caused by that external force such as the blow -

DAWSON J:	You would have to say external, physical cause.
MR PARKER:	I would be saying that, if it please Your Honour, and that, in our submission, is in accordance with
the authorities which I will turn to in a time.

BRENNAN J:  When you come to section 26, you will have to

deal with conditions, for exanple, of spasticity

and decide whether or not spasticity which affects

the capacity to control actions falls

with.in mental disease or natural mental infirmity.

MR PARKER:	Yes, there are a number of such conditions which have not yet been examined and probably will need
to be examined in the light of some more detailed
medical knowledge than I would presume to have and
spasticity would certainly be one of those.

ClT6/l/JH	31	10/5/90
Falconer

MR PARKER (continuing):  Our next submission with respect to

these provisions is that section 26 is critical to

the interworking of sections 23 and 27. Firstly,
the presumption of sound mind assumes a mind with

the relevant capacities, as we have submitted, and

that is consistent with M'Naghten and common law

position; secondly, it is not merely an evidentiary

presumption. Unless section 27 is satisfied, the

presumption in section 26 is intended to support

conviction.	The presumption is one which will
satisfy the persuasive burden of proof.	Npw, that

position is again consistent with the M'Naghten
position and the section in 26 ·was drawn, in our

submission, on that assumption and following that

position.

Thirdly, because of the existence of section 27,

the ability to displace the presumption which

section 26 necessarily expressly preserves, is for

the purpose and solely for the purpose of enabling

an accused to establish the defence under section 27.

Again, that is consistent with the position

under the M'Naghten principles. Now, that analysis

involves and, in our submission, it also supports
the proposition that evidence which, when properly
veiwed, can be seen in truth to raise mental disease
or natural mental infirmity, or the consequences of
such conditions on the volition or the intention of
the accused is evidence which can only be considered

for the purposes of section 27.

In our submission, in other words, it is the

scheme of these sections that the presumption of
the soundness of mind in section 26 is intended to

be the basis upon which the jury is to consider the

issues of volition and intention, the section 23

issues.

(Continued on page 33)

ClT7/l/HS	32	10/5/90
Falconer

MR PARKER (continuing):  The underlying reason, in our

submission, is the intention to be discerned

from the provisions that an accused may only be

excused from criminal responsibility because of

mental disease or natural mental infirmity if he

can establish to the iury's satisfaction the

defence of unsoundness of mind under section 27

and to allow the evidence of what is in truth

mental disease or its effects to enter into a

consideration of section 23 issues would be to

defeat that intention of section 27.

DAWSON J:	I do not understand that I am afraid, still,
Mr Solicitor.  What if you have exactly the same
mental condition caused in two people for different reasons; one by a blow on the head and the other
simply by some psychological force?  Do you say
they are different?
MR PARKER:	Yes, the result is quite different in the two

cases, in our submission. If the cause of the
disorder of the mind is the external physical force,

the blow, then the position comes to be resolved in
common law language on the basis of non-insane

automatism.

DAWSON J: Despite the fact that the mental condition in medical

terms is identical?

MR PARKER:  Yes. The result is identical. The cause 1s

different.

DAWSON J:	No, the mental condition is identical.
MR PARKER:	Yes.

TOOHEY J: It seems to me, Mr Solicitor, you build in the answer

to the question in the way in which you formulate it.

Why does it have to be expressed in terms of mental

disease or natural mental infirmity? I mean, what

if there is an act which occurs independently of the

exercise of the will but not by reason of any mental

disease or natural mental infirmity? Why should not

section 23 be given effect to?

MR PARKER: It is, in our submission. If there is a lack of

those capacities not attributable to mental disease

or natural mental infirmity, then that evidence is

admissible and relevant for the purposes of section 23.

The difference is that when the lack of those capacities

is attributable to mental disease or natural mental
infirmity, the presence and the purpose and the object

of section 27 require, in our submission, a different

approach or else section 27 is defeated.

ClTS/1/SH	33	10/5/90
Falconer

MR PARKER (continuing): It is a matter of reconciling the

two competing schemes of section 23 and 27, and

of course section 26, in our submission, is put there

very deliberately to enable that reconciliation to

be made.

TOOHEY J:	You appear to be saying at one stage, if I understood
you correctly, that section 23 would only operate
where there had been some external force, or external causation which - - -
MR PARKER:	Not only then, if it please Your Honour, section 23

operates in every case. The evidence that is to be considered by the jury in assessing section 23 does not include evidence of the effects of a mental

disease or natural mental infirmity. It is in no way a submission that 23 does not operate, it operates in

every case.

TOOHEY J:	But the consequences are markedly different, are they
not, I mean a defence under section 27 leads to a
verdict under section 653?
MR PARKER:	Yes.
TOOHEY J:	A defence under section 23 leads to an acquittal,

if you know what I mean.

MR PARKER:  Yes, and it is our submission that section 27

reveals as its policy that where there is mental

disease or natural mental infirmity, that an

accused can be acquitted only on the basis of the

section 27 defence and the section 653 verdict.

BRENNAN J: That it is applicable to indictable offences,

but it is an absolute acquittal for summary

offences?

MR PARKER:  Yes, it is. It is an absolute acquittal in those

situations because there is no procedural provision

equivalent to section 653, yes.

BRENNAN J: Well, Mr Solicitor, why do you put it on the basis

that the evidence is not admissable? .Why is it not

that the evidence is admissable but if the evidence

is to be relied on by the jury then it can be

relied on and the jury acquit on that basis, then

it is a 653 case in the cases which fall within

section 26?

ClT9/l/JL	34	10/5/90
Falconer

MR PARKER: Well, if it please Your Honour, I perhaps used

"admissible" slightly inaccurately. It may be
admissible in the trial, because if it is evidence

of mental disease or natural mental infirmity or

raising that and demonstrating its affects, it

would be admissible certainly where the accused

was seeking to pursue that defence. It would

not be relevant though and this is perhaps more

accurately the way I should have put it, to the

jury's consideration of section 23. The reason

I put it that way is, firstly, that that is the

concluded position at common law and I will be

turning to some of the cases at the moment, the

position that has been clearly established in

many decisions. Secondly, it is a much more

practicable and satisfactory position. If it were

otherwise the law, whether it be common law,

M'Naghten or the Code, would be asking of a jury

that they try and determine intention and volition

of a mind that is necessarily disordered and

deranged. In our respectful submission, that is

something that can fairly be seen to be an

impracticable task to set a jury. They may, from

their knowledge of themselves and the ordinary

people with which they mix, be able to judge with

some degree of satisfaction what would be the

reasoning processes and what might be thought to

be the intention of a mind that had its capacities;

but if they are being asked to try and look into

the mental processes of a mind necessarily disordered

and to try and determine those, in our respectful

submission, one is asking them to do something which

their experience and their knowledge does not equip

them to do, which logic would not allow them to

do and which, in the vast majority of cases, expert

evidence could not help them to do, - - -

DAWSON J:  But you do ask them to do that.

MR PARKER:  - - - so that there is a very serious policy reason

why that would be an unsatisfactory approach. It

is asking the jury to do something that is

impracticable.

DAWSON J:  But you do ask them to do that. I mean, if the

psychiatrist can draw no distinction between the

mental state of a person who, in certain circumstances,

who has been psychologically affected only and

the person who has had a blow on the head, then in

the case of the blow on the head you are asking

them to do just that.

MR PARKER:  Your Honour is right. In answer to Justice Brennan I was

pointing out that in the great majority of cases where these

provisions would apply and certainly in those cases where there

was clearly serious mental illness, mental derangement, the

task that the approach suggested by Justice Brennan ~ld require
the jury to take would be one that would be impractical and

one could not be confident of the jury's capacity to do it.

CITl0/1/CM	35	MR PARKER, QC 10/5/90
F;:i 1 C'nnPr

MR PARKER (continuing):  I do accept that as we have developed

these provisions there are some cases - those where
there is the non-insane automatism cases - a jury
has to try and tackle that task. That is inherent in

the cases, inherent in my submissions.

BRENNAN J: Well, this is a problem which arises because of

the reverse onus with regard to insanity and it

arises whether under the Code or under the common law

because you have got mens rea with an onus on the

Crown, you have got an example of an onus on the

defence but the problem is how to sort it out and

why is that if one admits evidence on the question

of "will" - I leave intention aside - on the

question of "will" and the judge, as a matter of

law, rules that the condition of mind which is

revealed by that evidence does or does not fall
within section 26, he does not then simply direct

the jury that, if accepting his direction of law

that this is not a case of unsoundness of mind,

they look at section 23. If it is a case of
unsoundness of mind then they are bound to consider

it on the basis of section 27 or not at all?

MR PARKER:  If one followed the course Your Honour is considering

one would necessarily run into the situation that

with a mind that was disordered and lacked the

capacity, in the vast majority of cases one would

immediately - or be likely to find that a jury

could not be satisfied beyond reasonable doubt of

the presence of volition; not every case but in the

majority and certainly in those cases where the

person's capacity to control their actions was

effected.	Now, that would mean, of course, acquittal
outright in those cases.	One would not then come

to the special verdict contemplated by section 27

because there had been no proof of the offence. In our respectful submission, that would seem

to give to section 27 an extremely circumscribed

operation. That is, that it is, as it were, a

secondary level of excuse and that is not the way

that the equivalent M'Naghten provisions have been
seen to operate and not the way that section 27

has been seen to operate generally in the cases

until perhaps the present decision under review and

a South Australian decision - no other Code case.

DAWSON J:  But you have also got to remember that this case is

a case primarily about the admissibility of evidence

and that does not answer the question, if the

evidence is admissible either in relation to 23 or in

relation to 27 it must be admitted.

ClTll/1/DR	36	10/5/90
Falconer

MR PARKER:  I agree with that, if it please Your Honour.

It must be admitted if it is tendered for that

basis. I would respectfully submit that if

an accused tenders evidence for a purpose on a

basis and expressly says, "I am not tendering

this evidence on an alternative basis in which

its admissibility might be justified - - -

DAWSON J:  I do not see that that follows.

If it is either admissible on the basis of 23 or 27, then it is admissible. If the accused says, "I am tendering it on the basis of 23;

I do not want to have anything to do with 27

because I might be put away at the ~overnor's
pleasure if I succeed on that, so I reject

that, but I am putting it on the basis of 23",

it is equally admissible even though in logic
it might be admissible either in relation to one

or in relation to the other.

MR PARKER:  Yes, I can only say with respect to that,

Your Honour, that if this were being tendered

in the trial before the jury Your Honour would be

right. One must appreciate here that there was

a voir dire, the purpose of which,convenient

practical purpose, was to decide whether the commissioner would be prepared to allow this evidence in for the purposes of section 23.

That was the intended purpose of the procedure

followed and the conclusion he reached is to

be understood in that limited framework.

No, this, in his view, was raising a disease

of the mind, therefore, it would not be

admissible if it was intended to be used
solely for the purposes of section 23 and

it inherently is involved in that that it would

not be relevant to section 23. We would

respectfully submit that he is right in both

of those views and it is not a criticism of the

decision that he reached that he did not say,

"But I will admit it because it is relevant to

section 27" when there was a voir dire solely

for the purpose of him deciding whether or not he

would allow it as relevant to section 23.

DAWSON J:  Thdt does raise another question which is, perhaps,

a subsidiary question but may nevertheless be

troubling, whether a judge can shut out consciously

evidence which does go to insanity even though the

accused says he does not want to raise it for the
purposesof establishing insanity; in other words,

whether the judge can shut his mind to evidence of

insanity when it is offered to him.

ClT12/l/LW	37	10/5/90
Falconer

MR PARKER:  Yes, but in a purely formal sense, this evidence

was never tendered in the trial proper so, in a
formal sense, that issue has never arisen. This

evidence was merely tested on a voir dire for the

limited purpose of determining its admissibility

for the purposes of section 23.

TOOHEY J:	Well, Mr Solicitor, how was the trial then run following that decision by the commissioner?	Was
a section 23 argument mounted?

MR PARKER:	Yes, on the other evidence.
DEANE J:	Section 653 seems to indicate that insanity is

always at large even if no one alleges it.

MR PARKER:  It is certainly the position under the Code, if

it please Your Honour, that it has now been

accepted - although in the earlier days there was controversy about this but I believe it now to be
clear that insanity may be raised by an accused or

raised from the evidence and if it is open on the

evidence it becomes an issue in the trial. I may

be seeing this too technically but if the jury,

having been brought back and the trial proper

continued and my learned friend sought to tender

this evidence again, there might be soundness in

criticism of the commissioner if he simply said, "I

won't admit it" because then he would be faced in

the trial proper with the issue whether this should

be admitted as relevant to section 27.

DAWSON J:	Should he not have said on the voir dire to the accused, "Well, now look I don't think the evidence
is admissible under section 23 but that doesn't exclude it; I think it's admissible under section 27. Now, it's up to you whether you lead it or not".
MR PARKER:	One might think, perhaps, for thoroughness that

could be said. I would have thought it was entirely

unnecessary.. The very way in which the is sue was

posed for the voir dir~ I would have thought, revealed

that those representing the respondent knew

precisely what they were doing and why and that they

did not want this evidence tendered for the

purposes of section 27.

DAWSON J:  It would be a difficult question for them to

decide but they may well decide even so that they

wanted the evidence in, notwithstanding that it

raised the question of a direction on insanity.

MR PARKER:  Yes. I do not think I can put it any clearer, if

it please Your Honour. This evidence, in our

submission, is relevant and admissible to mental

disease and its effects for the purposes of section 27

and if that were a live issue in the trial, there is

no question that the evidence was properly to be considered by the jury.

ClT13/l/JH	38	10/5/90
Falconer

DEANE J:	But how can you distinguish the way you do between
section 23 and 27 at the stage of admitting evidence?
I mean, if the evidence fails to go so far as to prove a section 27 case, it may well in terms of
weakened mental capacity be extremely relevant on
a section 23 case?
MR PARKER:	The answer to that, in our submission, is that the

test or the discrimen is not whether it is strong

enough to establish and prove a section 27 defence

but whether it is evidence about mental disease or

natural mental infirmity and its effects. If it is,

then section 27's proper intention is that that

evidence dealing with that condition and those effects

is relevant only to the issue whether the accused can

demonstrate that he is entitled to be excused from

criminal responsibility by satisfying the requirements

of section 27.

DEANE J:  I do not follow that. I mean, say, for example, the

evidence was not accepted as on its own excluding

voluntariness but something else was added such as

your hit on the head which would obviously have a

much more likely effect on somebody who was on the

brink of section 27 than it would on a normal

person. Why could it not be led? The defence docs not have to spell out the precise case it is making if the evidence it is tcnderin~ is relevant to a

section 23 defence if it does not reach a	section 27
situation.

MR PARKER: If Your Honour is asking me in the context why

cannot the evidence be led, my answer is it can be

led. If Your Honour is asking me what use can then

be made of the evidence, it is different.

DEANE J:	No, but once you say it can be led regardlcffi of
section 27, we have reached the stage that the evidence in this case was wrongly excluded and none the less the Crown is trying to appeal.

MR PARKER:  The evidence can be led. It is admissible. I do

not question that, if it please Your Honour. I

would, with respect, suggest there must be some fault

in reasoning that would suggest that a commissioner,

when asked to determine on a voir dire whether certain

evidence will be admitted by him for the purpose of

section 23 only, whether he then can be said to be

in error if he allows himself to rule on that question

to assist the defence.

The defence, for reasons which may or may not be

sound or may or may not be obvious were not prepared to lead this evidence for the purposes of section 27.

Cl Tl4/l /SH	39	10/5/90
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BRENNAN J:	I can well understand the force of what you say in terms of the practical conduct of the trial raising
an issue in a particular form to get a judicial
determination.  Let it be assumed that the evidence
was admitted without specificity as to the ground
on which it was admitted. There would have come a stage, would there not, on which the judge would
have had to rule, as a matter of law, whether the
evidence which was so led fell within the jury's
consideration for the purposes of section 23 or,
on your argument, alternatively and exclusively
section 27.
MR PARKER:	Yes.
BRENNAN J:	Now, if the judge had ruled the latter of those

and the jury had acquitted on the grounds of insanity,

would there have been a right of appeal?

MR PARKER:	A right of appeal?
BRENNAN J:	Yes, against the verdict of insanity?
MR PARKER:	Yes, there is in Western Australia.
BRENNAN J:	Well then, does it not come back again to the question

I asked you earlier; let the evidence be in - the

question that always has to fall for determination by

the trial judge as a matter of law is whether the

condition revealed in the evidence is one which

falls within soundness or unsoundness of mind?

MR PARKER:  Yes. In our submission, that is the critical issue

which determines the use that can be made of the

evidence. If it is evidence that is seen to have

as its cause, the condition described in the evidence

as its cause "mental disease or natural mental

infirmity", then it is our submission that it may not

be used for the purposes of section 23. If, though,

it is evidence which is seen to have as its cause

something which is not mental disease or natural

mental infirmity, then it may be used for the

purposes of section 23 and that on the cases is a

question of law which must be determined by the judge

at the point that he is directing the jury, and the

form that his directions would take and the evidence

that he would direct them to ignore or to have regard

to in looking at section 23 and then looking at

section 27 would depend upon the view he took of

that question of law.

(Continued on page 41)

ClTlS/1/HS	40	10/5/90
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DAWSON J:  Nowi if it is a mixed question of fact or law it could
be eft to the jury but he would then have to expla~ - - _

MR PARKER:  Yes, indeed. The legal issue is clear for the

judge and he may have to leave alternative positions

to the jury for their consideration and determination

and that certainly does arise in some trials.

TOOHEY J:	What is not clear to me, Mr Solicitor, is this,
when the conunissioner came to charge the jury from what you said earlier the defence ran a defence of
act occurring independently of the will.
MR PARKER:	I may have overstated the position, certainly the

issue was raised whether there was an intention, yes,

and I believe it may not have - - -

TOOHEY J:	Well, it is not quite the same thing.
MR PARKER:	My learned friend suggests it was not advanced on
the basis of lack of volition to the jury. The

need for the jury to be satisfied of volition was
necessarily put to the jury, of course, but the

defence, for these purposes, was limited to that of

lack of intention and then it went to provocation

and those other matters.

TOOHEY J:	Although, leaving aside the evidence of the
psychiatrists, the evidence that was adduced and
particularly the evidence from the accused itself
might have been available to run a defence based on
section 23.
MR PARKER:	Yes.
TOOHEY J:	If that be so, it is hard to see then on what basis
the evidence of the psychiatrist was excluded.
Putting it the other way, if the evidence of the psychiatrist was excluded,presumably it was not relevant to any issue at the trial or any issue
that could be raised~in which event the question of
section 23 would not have arisen at all, presumably.
MR PARKER:	In our respectful submission the reason for decision

and the reason for its irrelevance to section 23

is that it was evidence of the condition of the

accused that was attributable to mental disease,

because it - - -

TOOHEY J:	But the two psychiatrists expressly disavowed that,
did they not?
MR PARKER:	Beg your pardon sir?

TOOHEY J: The two psychiatrists expressly disavowed that?

ClT16/l/JL	41	10/5/90
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MR PARKER:  Oh yes, and,inour respectful submission, the notion

that what psychiatry calls mental illness or mental

disease is what section 27 is about is, in our

respectful submission, fundamentally wrong and I am

corning to thatandupon our submissions on that

will, of course, determine whether the commissioner

rightfully took the view that this evidence was not

relevant tosection 23 but his reason for saying it

was not relevant to section 23 was because it was

evidence of mental disease and its effects. As

such it would be relevant only to the issues raised

by section 27 in such a case, that evidence not

being relevant to determinations of volition and

intent under section 23, because they are to be

determined on the presumption of a sound mind.

BRENNAN J:  Mr Solicitor, you said a little while ago that the

defence that was raised was one based on intention

rather than volition but looking at page 155, the learned commissioner at all events was clearly of

the view that this problem was being canvassed before

him on the basis of section 23, not on the basis

of 301.

MR PARKER: Indeed, sir, we were speaking of two different

points as I understood it. I was asked about the

basis upon which the defence was ultimately left to

the jury. The commissioner, here, is ruling on a

voir dire in the course of the trial when he is

asked to say whether he would see this evidence as

admissible and irrelevant to section 23.

BRENNAN J: I am sorry. Yes.

TOOHEY J:  By a quick read of the charge to the jury, in

particular at page 178, the closest the commissioner

appears to have come to section 23 was in the second

paragraph on that page which he directed the jury,

as a matter of law, that there was nothing:

which provides a defence of accident.

There may be something else that I have not picked up.

(Continued on page 43)

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MR PARKER:  I will have that looked through, Your Honour,

to see if there is more. Page 179, I understand -

it is outlining the defence case.

TOOHEY J:	But that is relating to intentions, is it not?
MR PARKER:	Yes, intention and provocation were the issues

agitated by the defence to the jury and the

charge is in the light of that. So volition

fell out of consideration in light of the ruling of the commissioner because the evidential basis in the psychiatric evidence~ because of his

ruling that that was not relevant, a ruling

which, in our submission, is correct.	But I see
I am moving very slowly.	I had better move along
a little more quickly.

DAWSON J:  One question before you speed up, Mr Solicitor.

Why then was the accused allowed to give evidence without restriction? She, after all, was describing

the same mental state as the psychiatrist was

going to describe in psychiatric terms.

MR PARKER:  There is no question, if it please Your Honour,

that this evidence was admissible in the trial

and had there been a voir dire for the question

"Is this evidence admissible?", it would have been

admitted.

DAWSON J: Well, all right, why did that not raise the

question of· insanity if what you say is right

and the judge should have left it to the jury?

MR PARKER:	I would have thought the answer might be, if it please Your Honour, that there was no sufficient
evidence there that could possibly found a defence which could possibly satisfy the onus
that is required to be established by section 27, that
there was here a mental disease affecting those
capacities.
DAWSON J:	And the reason was because the judge shut out

the evidence which would have in expert terms

established that point.

(Continued on page 44)

ClT18/1/LW	43	10/5/90
Falconer

MR PARKER:  No, the reason was that it was never tendered to

the judge in the course of the trial. It was

only put to the judge on a voir dire for a

different and limited purpose. If the defence had

then having had that ruling -the jury come back -
sought to tender the same evidence, it would

properly be admitted, but the use that could be made of it,at the end, would have been only for the purposes of section 27 and not for the purposes

of section 23. Could I turn, Your Honours, to

give you an insight into some of the cases, one,

common law and one,code, to indicate that the

submission we have been putting, are a position

that has received acceptance. The unfortunately

exhaustive analyses are rare in this field in the

cases.	The most exhaustive that I have seen
attempted is	the decision of the New South Wales
Court of Criminal Appeal	in the decision of the

REG VS. It is one that got omitted from

our cases, I am sorry by that -on our list and

in our submissions, the R.LG V S,(1979) 2 NSWL~ 1.

The effective judgment is that of Mr Justice O'Brien,

the Chief Justice and Mr Justice Slattery concurring.

It was a case concerning an offence of discharging

a firearm with intent to avoid apprehension, so there

was a specific intention in the elements; a verdict

of not guilty, because of mental illness was returned;

questions were reserved at the instance of the Crown

and the matter came before the court. Now the

decision is - you will see from page 5 that every

known case of which I am aware was cited to the

court. The decision of Justice O'Brien extends from

page 6 to page 67 and I will not attempt now in the

time to at all traverse the details of it.

Can I take Your Honours though to page 61,

where after a most exhaustive consideration of

every known case, near the top of the page, the

first new paragraph.

(Continued on page 45)

CIT19/l/CM	44
Falconer

MR PARKER (continuing):

All these casea are authorities for the
view that, where there is evidence of a

defect of reason from disease of the

mind, the rule in M'Naghten's case is the

relevant rule, and the prosecution begins

with the presumption that the accused is

sane, and possessed of a sufficient degree

of reason to know the nature and quality

of the act he is doing, and that he is

doing what is wrong, until he proves the

contrary; that this is not a mere

evidential burden, but the persuasive

burden of proof; and, if the form in which

the nature and quality of his act is

raised is that, because of his insanity,

he did not appreciate what he was doing,

so that he did not intend the

consequences of his act, it is upon him

to prove that specific claim to lack of

mens rea due to insanity. If the jury were

required to take into account all the

evidence, including that relating to

insanity, in determining whether the

prosecution had established its case

beyond reasonable doubt, including the intention alleged as an element of the

offence which is denied by the accused by

reason of insanit¥, the first limb of the

rule in M'Naghten s case disappears. It is

absorbed into the case for the prosecution.

Or, as Moffitt J, as he then was, said in

RV TSIGOS, when dealing with a lack of

knowledge of the nature and quality of an

act by reason of alleged unconsciousness:

"Where the explanation for the

unconsciousness of the action, should it

prove to be so, is disease of the mind, any

acquittal depends on establishing a defence

under the M'Naghten Rules and cannot be

obtained by reversing the onus of proof and

relying on the same material to raise a

doubt as to whether the act complained of

was the conscious act of the accused.

If the foregoing represents a proper

application of principle, it seems clear that

once facts are established by the prosecution

which, in a sane man, would satisfy the jury,

to the prescribed standard, that all the

elements of the offence were present, the

onus passes to the accused to establish,

on the probabilities, that, due to mental
illness, there was no mens rea with the actus

reus, that is to say that, due to mental illness,

he did not know the nature ..... and it is only men the

jury turns to this aspect of its task that the evidence of

rrental illness is properly to be taken into accmmt by it.

ClT20/l/JH	45	10/5/90
Falconer

We would respectfully adopt that as the position

at common law and the extensive reasoning that led

His Honour to that.

BRENNAN J:  Do you include in that, 'intention alleged as an

element of the offence being a specific intention"?

MR PARKER:	Yes .
BRENNAN J:	That problem does not, I suppose, arise

specifically in this case, does it, because we are not concerned here with the 'intention to kilT'but with the 'voluntariness of the act of killing"?

MR PARKER:  This is a case which involved'intention to kill"

although attention is not focused on it. There is

a specific intention here and'intentiorl' lurks in

this case.

BRENNAN J:	I appreciate that but the problem seems to be -
MR PARKER:	And our submission is that the position we are

putting about volition is precisely the same with

respect to 'intention''.

BRENNAN J:  Yes, the difficulty with'intentiorl' is that it is

a different state of mind, or it has been seen to be
a different state of mind, and it involves

problems of mistake, deception and appreciation which

are different from that of .control of actions and it does

not seem to me to follow that because your argument

may have some attraction in the context of section 23,

that it necessarily has the same attraction with

respect to "specific intention" under section 301.

(Continued on page 47)

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MR PARKER:  Our submission is that for the reasons

indicated and, bearing in mind that 27 is to

operate with respect to cases that involve

specific intention as well as others in the

application of section 23 to them, that the

same considerations in the end should prevail

and they certainly have done in the cases to

which we would refer.

BRENNAN J:	Yes.
MR PARKER:	Could I iust add to that reference, at page 63D

of the report - Your Honours will have noticed

that at 61C to D, there was quotation from

Mr Justice Moffitt - that is taken up again at 63D:

When outlining the conclusions that he

adopted from HILL V BAXTER, BRATTY's case and

RV KEMP, Moffitt J., as he then was (and on

this aspect of his judgment Walsh J. concurred

and Taylor J., was of the same opinion) had

this to say in RV TSIGOS:  "The conclusions

set forth in the foregoing paragraph are

supported by the speeches in BRATTY's case,

supra, and are in accord with views expressed

in an article written by Sir Owen Dixon and

commented upon by Owen J., appearing in

31 ALJ 2 5 2 at p. 2 6 2 . "

So that there has been a breadth of acceptance of

that citation from TSIGOS.

A quick index, if it please Your Honours, of the long judgment, pages 20 to 30 are an historical

background review; 30 to 39, HADFIELD's case and

the TRIAL OF LUNATICS ACTS; 40 to 45, M'NAGHTEN;

45 to 50, WOOLMINGTON; 53 to 61, the cases on

automatism; 63 to 64, PANTELIC expressly not

followed, a decision relied upon in the Court of
Criminal Appeal in this case.	WISEMAN was not

referred to the court; it clearly on a parallel

of reasoning with the view taken of PANTELIC

would similarly not have been followed; and

pages 64 to 67 review the text writers.

Turning now to a Code State, WILLIAMS V REG,

(1978) Tas SR 98, a decision of the Court of Criminal

Appeal. The leading judgment of that is of

Mr Justice Neasey. There was a defence of

automatism to murder. Gross personality disorder

was advanced as the basis for the automatism. As

far as the report reveals, there was no evidence that

this condition was due to mental illness in the

psychiatric sense. Rather, it was advanced as a

personality disorder. On that basis, the defence

ClT21/l/SH	47	10/5/90
Falconer

of sane automatism was sought to be raised. The

trial judge left insanity; did not leave non-insane

automatism.

DEANE J: Mr Solicitor, if one tries to tie down what this

case is about as distinct from getting in the wider

field, is it whether temporary automatism caused by

shock and stress in a sane person is mental disease

for the purposes of section 27?

MR PARKER:  Nearly so, Your Honour.

DEANE J: Well, why nearly so?

MR PARKER:  Your precise formulation of the medical evidence

there we would -

DEANE J:	No, I was trying to identify the legal question which
the case involves.
MR PARKER:	Yes, it is whether

DEANE J: Now, is that legal question as I put it to you?

MR PARKER: It is whether a state of mind would lead into

unconsciousness. the consequence of - - -

(Continued on page 49)

ClT21/2/SH	48	10/5/90
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DEANE J:  No, as I put it was whether temporary automatism

in a sane person caused by the combination of shock

and stress is mental disease for the purposes of

section 27?

MR PARKER:  No, if it please Your Honour, because the words

in your question "in a sane person" is based upon

a wrong premise. In issue is what was the condition

of the person at the moment of the action.

DEANE J:	Well, I will say in a medically sane person.
MR PARKER:	Yes, a person otherwise sane for medical purposes.

DEANE J:  Yes, I will accept that. So that is the question?

MR PARKER:	That is an aspect of the question, yes.
DEANE J:	Why is it only an aspect of the question?

Why is it not the question?

MR PARKER:  Well, the further issue is what use may be made

of evidence, even if it is of evidence of such a

condition and its consequences.

DEANE J:  But if that quesstion be answered against you,

that is the end of the case.

MR PARKER:  If this is not a mental disease, that is the end

of the case. If it is a mental disease there is the

further question that many of Your Honours are

agitating with me, nevertheless should not this

evidence be relevant to section 23?

DEANE J:	Yes.
MR PARKER:	In the decision of Justice Neasey at page 102 -

the Tasmanian Code provisions are, of course, not

precisely the same as the Western Australian and

Queensland, but I do not see any disticntion that

would be relevant for present purposes:

Applying that treatment of s. 13(1)

to the present case, it is in my view
clear that it was reasonably open to
the jury on the basis of the psychiatric
evidence, if they were inclined to accept it,

to be left in doubt as to whether the

appellant's act of stabbing the victim was

a voluntary and intentional act. The medical

evidence amounted, I think, to an opinion

that the appellant at the time he did this

act, if he did it, was probably totally

unaware that he was so acting or even

unaware that he was acting at all. If

that was so, his act would not have

been a voluntary and intentional act.

C1T22/1/HS	49	10/5/90
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His mind would not have directed

his conduct towards the performance of

it, and it would not have been preceded

or accompanied by a volition to do it.
That does not mean, however, that the defence of automatism should necessarily

have been left to the jury. Whether it

should have been left or not depends partly

upon whether the same evidence raised an

issue of insanity.

He reviews a number of cases and then at page 104 at the foot of the page:

These cases say in substance that where the

evidence tends to show an unconscious act due

to disease of the mind the defence raised is

insanity and not sane automatism. The

question might be thought to arise whether,

for this to be the result, the evidence must

be sufficient to show "disease of the mind"

of such a description as to satisfy the full scope of the M'Naghten formula, or

whether evidence of "disease of the mind"

falling short of that is enough. In my

opinion these cases show that it is sufficient

to exclude a defence of automatism if the

evidence tends to show "disease of the mind"

merely, so to speak.	The reason for that
lies in the presumption of sanity.	As

Lord Morris of Borth-y-Gest said in BRATTY's

case, when the plea of insanity fails the

presumption of sanity remains. A requirement

that the Crown prove beyond reasonable doubt
that the accused's act was voluntary and

intentional is therefore a requirement which

relates to a mind presumed to be sane.

A mind suffering from that which amounts

to a "disease of the mind" within the meaning

of the M'Naghten Rules is not a same mind

for the purpose of a defence of automatism.

Then lower down the page:

To surrmarize, the law in my op1n1on is that if the
only explanation of unconscious conduct offered by the
evidence is a state of mind properly to be described in
corrmon law terms as a defect of reason from disease of

the mind, or in terms of s. 16 of the Code, ''mental

disease", then the only "defence" which may succeed
if the jury is satisfied of its existence on the

balance of probabilities is that of insanity. The same evidence should not be left to the jury to be

considered by them in relation to whether
the prosecution has proved the relevant

conduct to have been voluntary and intentional.

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MR PARKER (continuing):  The other judges in the case were

to similar effect, although much shorter. That

position revealed in those cases, in our submission,

also necessarily forms the basis of the many

common law cases which have held that where the

evidence raises it as a disease of the mind that

same evidence cannot support a defence of

automatism and BRATTY, SULLIVAN, HENNESSY, RABEY

and the South Australian case of JOYCE which we
have noted are all to that effect. If I may now

turn - - -

McHUGH J:  But that judgment in WILLIAMS seems to equate

automatism with understanding. Insanity is

concerned with understanding but automatism is

really concerned with the capacity to control the

motor - - -

MR PARKER:  Automatism, relevantly, can strike at whether

the act was a conscious act or willed act - an

act in the exercise of will - and at whether or

not there was an intention to achieve a consequence

that was an element.

McHUGH J:  I cannot help but thinking that behind all this

argument in this case there are deeper questions

concerning free-will and determinism. The evidence

upon which the accused relies, in this particular

case, is really it treats the accused as a conflict-

ridden, non-responsible human being for her actions

whereas the Code and perhaps the common law treats

human beings as rational persons responsible for

their actions unless they come within the boundaries
of insanity or, leaving aside the question of the

involuntary act in the strict sense of the word.

MR PARKER: In our submission, although I do not want to

develop it extensively, the common law - certainly

the Code in its formulation - involves some policy

line-drawings and, in a little while when I turn to

intoxication, under the Code one will see those
lines drawn very sharply and that what the Code

is doing is determining the circumstances in which

a person will be excused from criminal responsibility

and their limited circumstances where the mind is

not working as that of a sound mind.

(Continued on page 52)

ClT23/l/DR	51	10/5/90
Falconer

MR PARKER (continuing):  And somebody who does not quite come

within those circumstances, in our submission,

as a matter of policy is treated as of sound mind

and a significant justification of that is to

enable the law to more reasonably protect community
against some types of actions of individuals and
some actions and to preserve some sort of workable

control over the readiness with which black out

and unconsciousness is advanced in defence and,

these days,automatism and so on.

I agree with Your Honour that there are some

deep policy considerations. I am very concerned,

Your Honours, that I seem not to be making the

progress in time that I had hoped so I will try

and hasten more quickly.

I turn now, if it please Your Honours, to

our third submission and the meaning of "mental

disease." We would rely upon the decision of

Sir Owen Dixon in the case of PORTER, 55 CLR 182,

although for time sake I will not read it

exhaustivel~ Could I indicate to Your Honours that

commencing on page 186, two-thirds of the way down

the page, in the middle of the paragraph,

His Honour commences an explanation of the policy

and purpose of the law which, in our submission,

is extremely important. In it His Honour makes

points, for example, that insanity

for the purposes of the criminal law is different

from medical sciences understanding, as that may be

from time to time, the criminal law and insanity,

for that purpose, is not concerned with the treatment

of people and mental illness and conditions. It is

different from the purposes of the civil law when

they may be looking to legal capacity for various

purposes, et cetera; it is different, I would

interpolate from his reasoning, from the purposes

of the mental health laws, they are definitions and

purposes for dealing with people who may, for their

protection or others, need detention or treatment,

even though many people acquitted under section 27 would also be subject to the mental health regime.

(Continued on page 53)

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MR PARKER (continuing) : It is wrong, in our respectful submission, to

regard the two as intended to deal with the same

thing and for the same purposes. Nor does His

Honour stress, particularly at 187, is the

criminal law with respect to insanity concerned

whether insanity, however defined, is ongoing.

A person, he says, may be sane immediately before

and immediately after. The issue is his or her

condition at the moment of the offence.

This is, in our submission, and adopting his

reasoning, because the essential purpose is to

determine the circumstances when a person should

not be criminally responsible for conduct which

in others would be punishable. The passage

most usually referred to, or the two passages
which have come to be accepted, I believe, in virtually
all Australian jurisdictions with some qualifications
in some cases which I will mention in a moment,

are at pages 188, firstly, the first new paragraph:

The next thing which I wish to emphasize

is that his state of mind must have been one

of disease, disorder or disturbance. Mere

excitability of a normal man, passion, even

stupidity, obstuseness, lack of self-control,

and impulsiveness, are quite different things

from what I have attempted to describe as a

state of disease or disorder or mental

disturbance arising from some infirmity,

temporary or of long standing.

Now, clearly here we are not concerned with any of those matters:

If that existed it must then have been of such

a character as to prevent him from knowing the

physical nature of the act he was doing or

of knowing that what he was doing was wrong.

And over in the middle of page 189:

I have used the expression "disease, disorder or

disturbance of the mind". That does not mean

(as you heard from the doctor's replies this

morning to certain questions I asked him) that

there must be some physical deterioration of

the cells of the brain, some actual change

in the material, physical constitution of the

mind, as disease ordinarily means when you are

dealing with other organs of the body where

you can see and feel and appreciate structural

changes in fibre, tissue and the like.

You are dealing with a very different thing -

with the understanding. It does mean that
the functions of the understanding are through

some cause, whether understandable or not, thrown

into derangement or disorder.

ClT25/l/LW	53	10/5/90
Falconer

And in that respect His Honour is reflecting precisely, almost, what is the modern primary

meaning of the word "disease" - and if I could

just give Your Honours a reference to the

Shorter Oxford English Dictionary, the first

definition given is obsolete; the second is:

A condition of the body, or of some part or organ of the body, in which its functions are disturbed or deranged.

And he is drawing a distinction between that and

a further particular meaning, that is, a morbid

physical condition, a departure from a state

of health, especially when caused by structural

change. In our respectful submission,

His Honour's conclusions first are an apt use

of language when one is looking at mental disease.

Your Honours will note it is not a mental disease

although a number of the common law cases seem

often to use that. It is a state of mental

disease, that is, in our respectful submission, a
condition in which the functions of understanding
are through some cause thrown into derangement or

disorder.

(Continued on page 55)

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Falconer

MR PARKER (continuing):  Could I add to that reference some

words of Sir Owen,20 years later or so, in an

article which is reported at 31 ALJ 255. The

article is A Legacy of Hadfield, M'Naghten and Maclean

and at page 260, right-hand column, only about

seven lines from the top:

The reason why it is required that the defect of reason should be "from disease of the mind", in the classic phrase used

by Sir Nicholas Tindal -

that is in M'Naghten -

seems to me no more than to exclude

drunkenness, conditions of intense passion
and other transient states attributable-

either to the fault or to the nature of man.

In the advice delivered by Sir Nicholas Tindal

no doubt the words "disease of the mind"

were chosen because it was considered that

they had the widest possible meaning. He

would hardly have supposed it possible that

the expression would be treated as one

containing words of the law to be weighed like
diamonds. I have taken it to include, as well

as all forms of physical or material change

or deterioration, every recognizable disorder
or derangement of the understanding whether

or not its nature, in our present state of

knowledge, is capable of explanation or

determination.

That passage was adopted by Mr Justice Owen in

the R V CONNELLY, (1959)WN(NSW) 184 at page 185.

In our respectful submission, the policy considerations

in Mr Justice Dixon's assessment of what insanity

186 and 187 of PORTER, are a compelling and persuasive-	is for the purposes of the criminal law, at pages
"persuasive, even compelling" -and that it should be
seen that these provisions are not intended to
deal with and just to deal with, although they include those cases who have,in medical terms,
mental illness and therefore require detention for
their protection or the protection of others. These,
27 in the M'Naghten Rules, primarily have as their
objection the determination in circumstances in
which somebody should be excluded from criminal
responsibility.

Now, in the Code, the views of Sir Owen are

given added emphasis by section 28. This deals with

intoxication and also stupefaction caused by drugs,
and what it does is to apply section 27 to those

conditions so that where a mind is disordered by

intoxication without intention, unintended intoxication,

CIT26 /1 /r.M c:; c:; MR P~DV~D nr 10/~ /On

if a mind is disordered unintentionally by

intoxication, section 27 is applied for the purposes

of determining criminal responsibility. That means,

a person whose mind is disordered by intoxication,

cause without intention and who is thereby deprived

of one of the capacities, is acquitted on the basis
of unsoundness of mind, a verdict under section 653 is
returned. Apart from a hangover, that person, in

our respectful submission, clearly has no need of ongoing mental treatment of any type or detention

for the protection of himself or the community.

These provisions strongly demonstrate that sections 27 and 28 were intended to determine and draw lines where people would be excused from

criminal responsibility due to certain ffiental conditions; certain disordering of the mind.

(Continued on page 57)

CIT26/2/CM	56
Falconer

MR PARKER (continuing):  Now, in the case of intoxication

and drugs -Your Honours will realize the section

goes on over the page - lines are drawn about a person

who intentionally gets intoxicated. That person does
not have the benefit of section 27 so that such a

person is not excused from criminal responsibility

but if he has not intended to be intoxicated, he is.

Further, and here there is a distinction drawn in the cases of intoxication and stupefication of drugs

where the offence involves a specific intention

and the third paragraph of section 28 provides that

in those cases the affect of the intoxication may be considered in determining whether or not there was a

specific intention.

In our respectful submission, if Your Honours

consider the operation and effect of section 28, it

would, we submit, very strongly demonstrate that

section 27 is not directed at 'mental illness' in the

psychiatric sense but at "excuse from criminal

responsibility", that it is clearly a line-drawing

exercise on bases of discerned general policy and

that the submissions we have made as to its proper

operation and the effect of the presumption of

section 26 are substantially supported.

BRENNAN J:  But what about the last paragraph of section 28?

That distinguishes between "intent" and "will", does

it not?

MR PARKER:  Yes, for the purposes of intoxication and treats

them differently from - - -

BRENNAN J:  Now, if that is the policy in the case of section 28,

why is it not the policy in the case of section 26?

MR PARKER:  In our respectful submission, what that does is

reveal that there was dissatisfaction with the operation of that policy for mental disease or

disorder· due to those reasons, it was thought that

when you came to "disorder due to intoxication", then

there ought to be a different rule prevail and that

rule was then the subject of specific provision;

it reveals that.

Could I mention, while we are at section 28,

that it does appear to qualify the application of

some of the common law cases to the Code. For

instance, cases of the effects of an injection of

insulin come to be dealt with under section 28 because

it does deal with stupefaction by drugs so that if a

person who is injected with insulin and suffers some

derangement of the mind as a consequence falls to be

dealt with under section 28 and would have the

protection because the diabetic who takes insulin

is not doing it with the intention of becoming

stupefied. However, it produces a strange result in

ClT27/l/JH	57	10/5/90
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the case of a person who suffers from the effects

of an anaesthetic,where that person has consented

to the anaesthetic, because such a person does

intend the drugs to stupefy him and it would appear
in that case that such a case is not able to come

within the exclusion from criminal responsibility

that at common law is extended to such cases;

a quirk of the Code which nobody has yet
discerned, the matter has never been raised and

may well be an area where there is warrant for

some amendment, but there it is.

Could I mention in conjunction with the

operation of section 28 -could I give you a reference

to the Queensland Court of Criminal Appeal in

REG V KUSU, (1980) Qd R 136, which affirm the

operation of section 28 in its terms and

distinguish it from the common law position in the

case of O'CONNOR?

(Continued on page 59)

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MR PARKER (continuing):  Now, of course, many of the cases

proceed on a more limited basis of an understanding

of mental disease. A number of cases, including the

judgments of the Court of Criminal Appeal jn this

case proceed on the basis that - associRtc insanity with the mental health laws and those consequences,

looking for a treatable disease or somebody who is

a danger and needs detention. It is a natural

enough error, perhaps, given the language used but

for the reasons we have submitted, it is a wrong

error.

Could I mention in particular - - -

BRENNAN J: Mr Solicitor, before you go on, must we decide

whether KUSU was rightly decided in this case?

MR PARKER:	I do not believe so, Your Honour.
BRENNAN J:	We are concerned only with number 3?
MR PARKER:	Yes, we are, but the point is to let Your Honours

know how section 28 is seen to work in that decision.

BRENNAN J:	Yes.
MR PARKER:	Yes, but we rely on section 28 for its terms in aid

of our construction of section 27.

Could I give you a reference to Mr Justice Sholl in CARTER, (1959) VR 105 at 110, where he clearly is

not happy at Sir Owen Dixon's breadth of understanding

of mental disease and would like to limit it to some

degree and one will see that in a number of cases,

that there is a prevailing concern that the law may

do a disservice to the community if a wide meaning

is given to mental disease because those who do

serious criminal acts will avoid conviction,

especially having regard to the apparent ease with

which those defences can be contrived and the

ne~essary vagueness and inconsistency of psychiatric

science.

(Continued on page 60)

ClT28/l/SH	59	10/5/90
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MR PARKER (continuing):  To the extent that those considerations

are relevant, we would submit, it is fair to

observe that the growing vogue of automatism and

dissociated states from people not treatable

under the MENTAL HEALTH ACT should cause a

reappraisal of that line of thinking. We would

not adopt that line of reasoning and submit that

the contrary result is the proper one.

Could I mention, just so that it does not go

unnoticed, that those cases that deal with sleep
walking are not section 27 or 28 cases at all

because there is no disorder of the mind. It is

simply a mind at rest not functioning due to the

natural state of sleep and we are not dealing

with disorder but a natural non-functioning. So,

sleep-walking cases fall fairly and squarely within

section 23.

Cases, such as the present, where there is

not an external physical factor causing the mind

to malfunction but the mental processes of the mind

become disordered because of the way in which the

mind itself functions as it struggles with

psychological stress and emotional tension, and

that is the basis of the evidence as we see it here,
are cases in which the disorder of the mind is
attributable to its own internal processes. True
there are anterior circumstances, there always are

in one's reactions to things and others. There has

got to be something that triggers and produces

psychological stress and tension,some outward

reactions, but they are not relevantly the cause, those

pressures from social interchange with others. What

is relevantly the cause is the way in which the mind

and personality or that individual react to those

social circumstances - the verbal and, perhaps, physical contact with others - and that, in our

submission, is what relevantly distinguishes cases

of this type from those cases of concussion from a

hit on the head, where there is an obvious direct

external physical cause to the mind being deranged.

In these cases there is, in truth, in the relevant

meaning as understood by Sir Owen Dixon,a mental

disease because there is a disordering of the
ordinary functioning of the mind because of the way
the mind, itself, reacts to social,emotional and
physical interchanges with other people and other

events.

(Continued on page 61)

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DEANE J:	What about hypnosis?
MR PARKER:	Hypnosis is, we would think it is - there is a line

there and, again, it may be a case where more

detailed medical evidence and analysis is needed, but

we would see it as not mental disease. There is a

clear external physical thing which is directly

playing on and affecting the functioning of the mind

so it is not disordering from some condition within

itself and its own functioning; it is disordering

because of the hypnotic force directly applied -

however that happens, I just do not know - from an

external, identifiable source.

DEANE J: Well, what about shock - - -

MR PARKER:	Shock, if it please Your Honour, is - - -
DEANE J:	- - - in the case of a crime of omission?

MR PARKER:  Yes. Shock is more near the borderline but, as I

would understand it, it too is the way which the

psychiatric and psychological and emotional processes

of the individual and that mind reacts to the

external event so that it, too, is mental disease.

Now, could I, in that course, ask Your Honours to

turn to the REG V SULLIVAN, a decision of the House

of Lords, (1984) 1 AC 156. The man was kicked

in the head by the appellant who was suffering from

a seizure due to psychomotor epilepsy. He gave

evidence that he had no recollection of the incident;

medical evidence was strong that he was probably

in the post-ictal stage of the seizure when the

appellant would make automatic movements of which

he was not conscious. So, it is epilepsy and a

seizure.

Turning to page 172 of the report, in the

speech of Lord Diplock with which each of their

other Lordships concurred - at 172B:

First it is submitted the medical evidence in'

the instant case shows that psychomotor

epilepsy is not a disease of the mind, whereas

in BRATTY it was accepted by all the doctors

that it was.

Perhaps just emphasizing the vagaries of medical

science.

The only evidential basis for this submission

is that Dr. Fenwick said that in medical

terms to constitute a "disease of the mind"
or "mental illness", which he appeared to
regard as interchangeable descriptions,

a disorder of brain functions ..... must be

prolonged for a period of time usually more

ClT30/l/DR	61	10/5/90
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than a day; while Dr. Taylor would have it

that the disorder must continue for a minimum

of a month to qualify for the description

"a disease of the mind".

The nomenclature adopted by the medical

profession may change from time to time;
Bratty was tried in 1961. But the meaning
of the expression "disease of the mind" as
the cause of "a defect of reason" remains

unchanged for the purposes of the application

of the M'Naghten Rules. I agree with what

was said by Devlin J. in REG V KEMP that

"mind" in the M'Naghten Rules is used in the

ordinary sense of the mental faculties of reason, memory and understanding. If the effect of a disease is to impair these

faculties so severely as to have either of the consequences referred to in the latter

part of the rules, it matters not whether

the aetiology of the impairment is organic,

as in epilepsy, or functional, or whether

the impairment itself is permanent or is

transient and intermittent -

Your Honours will see, of course, a number of

concepts are dealt with there. At G to Hon that

page:

I do not regard that learned judge as

excluding -

and he is referring to Devlin in KEMP -

the possibility of non-insane automatism

(for which the proper verdict would be a

verdict of "not guilty") in cases where

temporary impairment (not being self-induced

by consuming drink or drugs) results from

some external physical factor such as a

blow on the head causing concussion or the

administration of an anaesthetic. (Continued on page 63)

ClT30/2/DR	62	10/5/90
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MR PARKER (continuing): At 173E:

My Lords, it is natural to feel reluctant

to attach the label of insanity to a sufferer

from psychomotor epilepsy ..... even though

the expression in the context of a special

verdict of "not guilty by reason of insanity"

is a technical one which includes a purely

temporary and intermittent suspension of the

mental faculties of reason, memory and

understanding resulting from the occurrence

of an epileptic fit. But the label is

contained in the current statute, it has
appeared in this statute's predecessors

ever since 1800. It does not lie within the

power of the courts to alter it.

So Their Lordships clearly are stepping away from

notions of medical mental illness, from conditions

and all that that implies, in our respectful

submission,are substantially supporting the approach

of Sir Owen Dixon and, of course, they do the

case is important because it brings together some

earlier decisions about external, physical factors,

such as a blow to the head and the distinction,

in our submission, is supported on the basis that

there the cause is not the working of the mind, but

the cause is this identifiable, external, physical

factor, which directly impinges upon the mind's

working. In HENNESSY,(1989) 1 WLR 287, the Court

of Appeal dealt with the defence of automatism

caused during a state of hypoglycaemia; caused or

contributed to by:

stress, anxiety and depression.

The charge was taking a conveyance without authority, contrary to the THEFT ACT. At 291A

the Court of Appeal appreciates the issue, precisely,

perhaps, as we would see it:

The defence to these charges accordingly was

that the appellant had failed to take his

proper twice a day dose of insulin for two
or three days and at the time the events in
question took place he was in a state of

automatism and did not know what he was doing.
Therefore it is submitted that the guilty

mind, which is necessary to be proved by the

prosecution, was not proved, and accordingly

that he was entitled to be acquitted.

Page 294, we can go to directly, at C:

In our judgment, stress, anxiety and

depression can no doubt be the result of the

CIT31/l/CM	63
Falconer

operation of external factors, but they are
not, it seems to us, in themselves separately

or together external factors of the kind

capable in law of causing or contributing

to a state of automatism. They constitute

a state of mind which is p_rone to recur.

They lack the feature of novelty or accident, which is the basis of the distinction drawn

by Lord Diplock in REG V SULLIVAN ..... It does

not, in our judgment, come within the. scope

of the exception of some external physical

factor such as a blow on the head or the

administration of an anaesthetic.

Tbe Court of Appeal in that passage,if it please the Court,appears t

be looking to what is the cause of the condition
and we would see that as supporting strongly the

position we have taken,And the only other main

case is the decision of the Supreme Court of Canada

in RABEY V REG,(1980) 54 CCC (2d) at page 1.

(Continued on page 65)

CIT31/2/CM	64
Falconer

:tv1R PARKER (continuing): This was decided, of course, before

the House of Lords in SULLIVAN and before

HENNESSY. Pages 1 to 2 are the facts. They are

very similar to the evidence in the present case,

if the evidence in the present case is read at its

height: an emotional break-up between a young man

and his girlfriend; he felt rejected by her,

et cetera. That caused, at the top of page 2,

in the minds of the psychiatrists, "a psychological

blow", the equivalent of "a physical blow", and

then there was "triggered" a dissociative state

when the next day the girl said something further
when they were in contact which showed further

rejection of him. That triggered the dissociative

state from the mental condition that had come

from this psychological blow and he then acted in a

dissociative state as an automaton was the burden

of the medical evidence.

The Code provisions of Canada are set out at

page 6 and are not materially distinguishable,

including the presumption of sanity and the use of

the phrase "disease of the mind" and the incapacities.

At page 7, the judgment of the majority was given

by Mr Justice Ritchie - and this is the one that

I am reading from - and they substantially followed

the reasonings of Mr Justice Martin in the court

below, the Court of Appeal in Ontario.	They quote
from that at page 7:

In general, the distinction to be drawn

is between a malfunctioning of the mind arising

from some cause that is primarily internal to

the accused, having its source in his
psychological or emotional make-up, or in some
organic pathology, as opposed to a

malfunctioning of the mind which is the

transient effect produced by some specific

external factor such as, for example,
concussion.	Any malfunctioning of the mind,

or mental disorder having its source primarily

in some subjective condition or weakness

internal to the accused (whether fully understood

or not), may be a "disease of the mind" if it

prevents the accused from knowing what he is doing,
but transient disturbances of consciousness
due to certain specific external factors do not

fall within the concept of disease of the mind.

And again, the next quotation on that same page:

In my view, the ordinary stresses and

disappointments of life which are the common

lot of mankind do not constitute an external

cause constituting an explanation for a

ClT32/l/LW	65	10/5/90
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malfunctioning of the mind which takes
it out of the category of a "disease of

the mind".

In the middle of that quotation:

therefore, that, in the circumstances of this

case, the dissociative state :inwhich the

respondent was said to be, constituted a

"disease of the mind".

Now I should draw Your Honour's attention to the

passage that follows then in the quotation:

I leave aside until it becomes necessary to decide them, cases where a dissociative

state has resulted from emotional shock

without physical injury, resulting from such
causes, for example, as being involved in a

serious accident although no physical injury

has resulted; being the victim of a murderous

attack with an uplifted knife ..... seeing a

loved one murdered or seriously assaulted, and

the like situations. Such extraordinary

external events might reasonably be presumed to
affect the average normal person without

reference to the subjective make-up of the

person exposed to such experience.

Now that passage was a reservation of that point

which was not raised in that case. The facts of that

case,closely parallel to ours,was certainly not seen

as giving rise to any such possibility.

(Continued on page 67)

ClT32/2/LW	66	10/5/90
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MR PARKER (continuing):  The case was decided before SULLIVAN

and HENNESSY which would be decisions which would,

in our submission, strongly tend against the

development of any such possibility and, of course,

those possibilities have in themselves very great

legal and practical difficulties because it starts

to require line drawing between the degrees of

seriousness of the shock upon a person and whether

that might have an effect upon a normal person
which is different from the shock or the effect that

it had upon this individual and there arc very

significant difficulties in all of that.	The
reservation is there; in our submission, it

any case since whether in Canada or elsewhere.

clearly has no application to the present case.

The primary decision squarely, in our submission,

co v c rs this pr cs en t case . Th c r c was a dissent ; th c

court was divided four:thrcc. There was a dissent

and most of the report is that dissent of

Mr Justice Dickson, and their approach was that

mental disease should be given a more limited
meaning relating to mental illness and mental

treatment and therefore this condition was not

mental disease.

DEANE J: Well, they adopted much the same approach as

Mr Justice Sholl and rejected Justice Dickson's

approach.

MR PARKER:  I think so, yes. The law in Canada is now settled,

of course, by this decision in the course taken by the majority; that is, the position for Canada and the two earlier Canadian cases of KAY and SPROULE

referred to in the court below in our present case

have been displaced by the operation of that decision.

Could I just mention - not to take Your Honours

to it again - REG V JOYCE, (1970) SASR 184 where a

similar position was taken.

Turning very quickly to the decision of the

court below, if it pleases Your Honours, can I just

go, not in any disrespect, to the decision but because of time, to the passages that we say reveal the errors

and content ourselves with that. I will deal essentially

with the reasoning of the learned Chief Justice with
whom Mr Justice Kennedy concurred; Mr Justice Wallace's

reasoning took a slightly different path but to much

the same result and to similar effect on essential

issues. At page 194C:

The rationale of the distinction -

between 11 insane 11 and "non-insane automatism" is

described as:

ClT33/l/SH	67	10/5/90
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lies in the need to protect the community

from the recurrent conduct of persons

suffering from a disease of the mind.

There is cited in support of that a passage from

SULLIVAN which appears not to be dealing with that

issue at all. There can, of course, be found in a

number of cases support for that proposition but for
the reasons we have submitted it is a misconception
of the position.

At page 196A, His Honour has difficulty with the proposition:

that any particular factor which expert

medical evidence suggests may cause or
contribute to automatism should be incapable
in law of causing or contributing to automatism.

For what we have submitted, that should be seen in a different light. In dealing with RABEY, which

commences at page 197 and goes through to 199 - at

page 199C:

(Continued on page 69)

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MR PARKER (continuing):

It seems that both the majority and the minority in RABEY recognised the possibility

that a psychological blow which created an

extraordinary degree of emotional stress or

shock or psychological disturbance could

create a state of non-insane automatism.

In our respectful submission, that fails to evaluate the facts in that case and what was the gravamen

of the decision of the majority and equates their
reservation of a possible extreme exception as

relevant to the facts of this present case and

reads that reservation, in our submission, far too

hopefully.

Then at page 199D to 200B, His Honour adopts

the reasoning of the Chief Justice of South Australia

in RADFORD, (1985) 42 SASR 266. The relevant passages are

set out in the reasons. I will not take Your Honours

separately to RADFORD but, in our respectful submission,

the error in them is this:

The significant distinction -

this is the last few words of 199 -

is between the reaction of an unsound mind

to its own delusions or to external stimuli

on the one hand and the reaction of a sound

mind to external stimuli, including stress

producing factors, on the other.

This assumes that a normally sound mind remains,

relevantly to section 27, sound when disordered by virtue of a dissociative state and. £or the

submissions that we have advance~ that is a wrong

assumption. And it equates "unsound mind"in further -
as that quotation is read, with"mental illness"and

is considering mental illness in its relevance to

mental health authorities as the gravamen and

purpose of the defence of insanity. For those reasons,

in our respectful submission, it misconceives the

true function of section 27 and of the defence of

insanity and it ought not to be followed. It was,

of course, adopted by His Honour the Chief Justice,

at 200B and forms essentially the basis for his

final decision, and at page 202B:

In the present case the medical evidence

was that the appellant was sane, although

the question whether she was suffering from
"mental disease" within the meaning of

s. 27 ..... was not explored.

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His Honour, there is taking simply the medical

psychiatric view of sanity and applying that to the

issue and they are quite distinct, in our submission.

For present purposes, I am prepared to

assume that the defence raised should be

classified as non-insane automatism.

It is because the psychiatrist said she was sane and because of the reasoning of the Chief Justice

of South Australia in RADFORD -they seem to be the

two matters in that and for the reasons we have

submitted that is how the decision below is in

error.	They are the submissions, if it please the
Court.

BRENNAN J:  Mr Solicitor, before you sit down, could I ask you

whether it is your submission that a person is

of unsound mind when that person has an impaired capacity to, and I take the words in section 27:

understand what he is doing,or ..... to control

his actions, or ..... to know that he ought not

to do the act or make the omission.

When that impairment is a occasioned by a permanent

or by a transient and endogenous condition of the

mind?

MR PARKER:  Yes.

BRENNAN J: Those are two bases?

MR PARKER:  Yes.

(Continued on page 71)

ClT34/2/JL	70	10/5/90
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MR PARKER:	Yes, or, of course, a natural mental infirmity.
BRENNAN J:	Well, that would be part of a permanent condition.
MR PARKER:	Yes.
BRENNAN J:	Thank you.
MR PARKER:	If it please the Court.
MASON CJ:	Thank you, Mr Solicitor. Yes, Mr Singleton?
MR SINGLETON:	Perhaps, sir, I had better just make it clear

what the defence advanced in this case was and how

it developed. The defences were one of an unwilled

act - that is a section 23 - an end oecurring by

accident and also the question of provocation if the

intent was established.

Certainly, the question of defence under

section 27 never arose based on the medical evidence

of two senior psychiatrists, one of whom had seen the respondent within only a matter of hours of her being admitted to the main mental institution at Graylands

in Perth. She had been taken there, sir, as a result of -

upon discovery by the police, by the ambulance driver,

to a doctor, to a Fremantle hospital and because of
her state of - as she appeared which was consistent with,

perhaps, post-traumatic shock and she remained there

for some 10 days or so.	She was in trance-like state
when she was seen.	The medical evidence then was
to the effect that -

MASON CJ:  You do not need to summarize the evidence, do you,

it has been summarized and we have read the judgments.

MR SINGLETON: 

True, sir, but I do wish, because there was

some areas which I think was not emphasized and I
wish to emphasize it to Your Honours, was that

she was in a depressed state and a state of emotional

tension and that was the condition she was in, clearly,
on the morning of the arrival of her husband.

It was advanced that in that state, subjected to physical acts and assaults and the taunting of

word, that triggered her dissociated state and it was

those areas that Their Honours in the court below

viewed as being external factors which could have been

the reason for her dissociated state. In that sense

the court below was of the view that that evidence
was appropriate to be placed before the tribunal of
fact to determine whether or not this lady was in a

dissociated state through the psychological blow. It

was not a case of simple depression and stresses of

the everyday life; it was· something more than that.
Indeed, it was our submission as it is, indeed, here

that one really cannot distinguish between that type

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of psychological blow and the physical blow which

has been often talked about, certainly in recent
years, which results in the concussed state.

An examination of the authorities will show that

from 1951 when the matter first came really to light

as a question to be raised and subsequent thereto

was a description of internal and external factors

and that seemed to be the test.

(Continued on page 73)

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MR SINGLETON (continuing):  It is only recently in the

area of SULLIVAN and HENNESSY that the external

fact seems to have the added emphasis by the word

"physical". It was our submission then, and is now,

that perhaps it is an unfortunate choice by the

courts in early days - and perhaps we will take

from BRATTY onwards - that the choice of terminology

internal and external has been used because it has

allowed a development of what is external and

clearly it is our submission that the use of the

terminology "internal factors" goes to the question

of the disease of mind, whether the dissociated

state, if established, has developed from internal

causes rather than from something other than.

Your Honours will observe in your reading of those cases to which you have been referred and which

are on our lists that in many of them, indeed, if not
in most, there has been an attempt by the appellant

to escape from the insanity provisions of the

appropriate legislation and to bring himself under

an involuntary act. You .will find that in most there

is a consciousness by the appellant, a consciousness

of what he has done, what he did, and sometimes has

attempted to explain it by being in a dark stupor or having had a black out; but there has been evidence in most of those cases of a consciousness of what he

has been up to, what he has done, and that is quite

distinct from this case when, but for a comment or two,

"I shot him", "I must have shot him", "I didn't mean

to do it", there is no explanation whatsoever, a

complete lack of knowledge of the events.

The early cases all can be sheeted home to an

organic problem, pathological problem, certainly not

a situation like the respondent here is described.

She is described in medical terms, of course. Whilst

it is being criticized in a court of law for such
terminology to be used, nevertheless, it is accepted

in this sense; she was sane, she was not of unsound

mind before or after. There is no evidence suggested

by other side that she was of unsound mind.

She gives no explanation as to the events and

that is under examination by police and is under

examination by medical people and under examination

in the court. She cannot explain, and there is no

evidence to explain, the events that occurred at the
time of the fatal shooting and so the psychiatric

evidence that was sought to be adduced was on the

basis not that she was in a dissociated state,

because the psychiatrists state, "We cannot say
that because we were not there and we can only give
our opinions based on what she tells us, from the
evidence we hear, and upon what we know of this
condition", and they have given evidence that she

demonstrates, in classic signs, a consistency with

ClT36/l/HS	73	10/5/90
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a person who was at the time of the event in a

dissociated state.

TOOHEY J:	Mr Singleton, looking at the grounds of appeal as they were advanced to the Court of Criminal Appeal, although they are not there in a complete form
except by reading the decision of the Court of Criminal Appeal - I do not think they are included
in the appeal book.  At any rate, at page 187
there seems to be the relevant ground:

The learned Commissioner erred in

refusing the appellant leave to adduce

evidence that would support her

contention that at the time of the

shooting she was not acting

voluntarily.

Can we take that to be the ground of appeal that is

relevant to this application?

(Continued on page 75)

ClT36/2/HS	74
Falconer

MR SINGLETON: To this application before this Court?

TOOHEY J: Yes, I mean not because it is the ground advanced

in the application itself, but it is the ground

with which the Court of Criminal Appeal was

concerned, that has given rise to the present

application.

MR SINGLETON: Yes,sir.

TOOHEY J:	Nbw that,r·asm.nne,is a reference to the evidence of the two psychiatrists, because in a sense the
accused did give evidence herself to support her
contention, but I still cannot see in the charge to the jury anything that would suggest that the
section 23 defence, other than the second paragraph of section 23 relating to specific intent,
was ever put to the jury.

MR SINGLETON: No,sir. The question - - -

TOOHEY J:	Was that because it was thought to have been
completely shut out by the ruling on the voir dire or for some other reason?
MR SINGLETON:	Yes, clearly,sir, and it made it somewhat

difficult, once the question of accident, which was

also denied, the defence of accident and this

evidence was shut out, ·basically one was left with

simply a defence of no intent, boosted to some

degree by provocation of which the accused could

not possitively advance, because the accused said,

"I did not shoot him because he taunted me. I

did not shoot him because he provoked me 11 , because

she said that she had no recollection after a

certain event and that the shooting, if she had

done it and she accepted she must have done it,

was done when she was in - well, the evidence of

the psychiatrist was it was consistent when she was

in a state of unconsciousness, in mind that is,

conscious in being, that her mind was not there, it

was unconscious.

TOOHEY J: Yes, well, my question is really directed at trying

to understand exactly how the trial proceeded once

the ruling on the voir dire had been given?

DAWSON J:	You see, it does raise the problem that I put to the Solicitor. In fact, she was able to give
evidence in non-expert terms; the same evidence as was excluded from the psychiatrist 1 s evidence.

MR SINGLETON:  Yes, and that worried, in the course

of argument before the court below, worried and

indeed, as it comes out in the judgment of the

CIT37/l/CM	75
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Chief Justice, worried him considerably, that

if there was medical evidence that could be

advanced, that gave support to what the accused

was trying say, but was unable to say, and was at least

consistent - - -

DAWSON J:  ~edical evidence in support of what the accused

did say.

MR SINGLETON:  What the accused did say and then said that,

if she was in a dissociated state it is consistent -

it is an explanation as to how the killing could

have occurred; equally consistent with a killing,

as proposed by the Crown, being an intentional

killing and that there you have, not saying that

she was in a dis.ssociated state, but there you

have what might be described as an explanation,

other than the intentional killing, which really

was a matter that should go before the jury for the

jury to determine it as whether she was; whether

they believe her or not; and if they believe her,

and they accept the psychiatric evidence that she

could well have been in that state, then that could

well have been the explanation for the shooting and

her inability and so she was entitled to an

acquittal. And, of course, in that, just touching

on some matters that Your Honours have mentioned, had

we been allowed to adduce that evidence of the

two psychiatrists, under cross-examination by the learned Crown prosecutor, or indeed from evidence that they gave led by counsel representing her,

at the end of the day, whether we liked it or not,

whether we were advancing it or not, the learned

trial judge may well have been in a position where

he had no option but to place before the jury the

provisions of section 27 as well as 23, if not 23.

(Continued on page 77)

CIT37/2/CM	76
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McHUGH J: Well, can a trial judge put a defence of insanity

to the jury against the wishes of counsel

for the accused?

MR SINGLETON:  Yes.

McHUGH J: Is there any authority for that?

MR SINGLETON: It is the case of RV HOLMES, (1960) WAR 122,

which is mentioned on our list, where His Honour

Sir Lawrence Jackson - Mr Justice Jackson as he then

was - expressly, I think, put that situation to

a jury, that they could come to a conclusion

even though learned counsel, Mr Lavan - later

Mr Just ice Lavan - did not advance it and specifically

did not want it advanced, the Court of Appeal

said quite rightly, it could be advanced if there

was evidence of it.

McHUGH J:  Not "could be" but "should be".

MR SINGLETON:  Should be, I am sorry. And, indeed, there are

a number of authorities that support that proposition

and there is also another one on our list of

MEDDINGS -

McHUGH J: There are many authorities with other

defences such as self-defence, provocation and

so on but a verdict of not guilty on the ground

of insanity has such consequences for the accused

that strikes me as somewhat odd.

MR SINGLETON:  Yes. It is also that situation, sir, in

the matter of RV MEDDINGS, (1966) VR 306, which is

a decision of the Supreme Court of Victoria.

But I think it is well-founded that where there is

such evidence a judge should place it before the

court.

That, of course, as has already been observed -

once that evidence was not before the jury,

the question then came for counsel to decide whether

to call it and proceed upon a section 27 defence.

And, of course, that really is the case in,

certainl~ HENNESSY and, I think, SULLIVAN where

both courts said that it really was a disease

of the mind and it was not a question of non-insane

automatism and they were endeavouring to escape the

provisions of that finding of insanity by seeking

to advance non-insane automatism. The moment

the court ruled that non-insane automatism was
applicable then really their defence rested in the
provisions of insanity - I am not too sure about

SULLIVAN but certainly in the case of QUICK,

mentioned,and in HENNESSY pleas of guilty were

then entered because they did - - -

ClT38/l/LW	77	10/5/90
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McHUGH J: The same in SULLIVAN.

MR SINGLETON: SULLIVAN as well. QUICK was the same and QUICK

later appealed against that decision and that

appeal was upheld. That was an insulin case

as well but in that case he over-dosed on

insulin rather than under took insulin, but

over-dosed upon prescription and got into a

state of automatism and the court distinguished

between those other cases and his case.

We see section 23 as being not connected with

section 26 or section 27. We see section 23 as

really a threshold situation whereas section 27

really comes into play down the line of the evidence.

The prosecution would seek to establish, firstly,

that the act was done; the accused did the act; that he had the relevant intent and that the end

result was achieved and so, therefore, in this

case, she wilfully intended to kill and did kill

the deceased person, and so they are the elements

to be established. They do not have to prove that

she was sane because that is presumed at law

unless the contrary is proved which throws a legal

burden upon her to establish that she was of

unsound mind at the time to escape criminal

responsibility.

(Continued on page 79)

ClT38/2/LW	78	10/5/90
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MR SINGLETON (continuing):  To establish that unsoundness of

mind and thereby avoid criminal responsibility, as

is demonstrated by the provisions in section 653 of

the CRIMINAL CODE, she must establish that she has

lack - incapacity in one of those three limbs bv virtue of a mental disease or a natural mental·

infirmity. So, she has to show that there is a

lack of capacity and we would distinguish that from

section 23,"involuntary act".

When you look at the capacities or lack of

capacity under section 27:

He is in such a state of mental disease or

natural mental infirmity as to deprive him

of capacity to understand what he is doing -

and I think it was in the PORTER case, where

Mr Justice Di:rnn, as he when was, gave an example

of the person snapping a twig; what he believed to

be a twig, which turned out to be a neck. If he

had a capacity to know what he was doing; that is,

that he was snapping something, but he did not have
the capacity to understand what he was doing; but

there was a capacity which was defected through

disease or natural mental infirmity; where he was

deprived of the:

capacity to control his actions -

"Look, I did my best. I did my darndest not to

do what I did but I couldn't control my action."

He knew what he was doing. He might have known it

was wrong but he never had the capacity to control

his actions due to mental disease or whatever.

And the third limb -

BRENNAN J:  There are two senses of that, are there not?

MR SINGLETON:  Beg your pardon, Your Honour?

BRENNAN J: There are two senses in which that can be used.

One is that you regard actions as meaning no more

than the muscular contractions and the other is that

you treat actions as muscular contractions in the

circumstances in which they take place.

MR SINGLETON:	Yes.
BRENNAN J:	So that you can regard an action 1n one sense as

pulling a trigger and, in another, as killing somebody.

Now, what do you say 23 has to say?

MR SINGLETON:  23?

ClT39/l/SH	79	10/5/90
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BRENNAN J:	Yes.	What is the act which has to occur

independently of the exercise of the will to attract

23?

MR SINGLETON:  Well, in this context - what we arc talking about -

we arc saying that whilst the respondent may well have

taken the shot gun and done other things with it to

the observer, that she was acting voluntarily and

inferentially intentionally, exercising and demonstrating

all the motor skills, that the mind did not have a
capacity to know that it was right or wrong or to
control or to know what she was doing in that the
mind was in a state of unconsciousness as, indeed,
the psychiatrists described being a mind blank in
the sense that it is not a mind going with the

will, not a mind going with the act whereas in - - -

DAWSON J:	Do you say that the actual physical act of pressing the trigger was involuntary?
MR SINGLETON:	That might be a voluntary act but· it is involuntary

in the sense that the mind docs not go with the act.

I am saying voluntary - - -

DAWSON J: What, do you say that it is no more than the twitching

of a muscle?

MR SINGLETON:  Yes.

GAUDRON J: Do you? Or do you put it really as -

MR SINGLETON:	No, I am saying that it is - - -
GAUDRON J:	similar to th2 s).cc'Y,rn~. 1:in~ cases, t1-ic :ninc1 has gone.

MR SINGLETON: That is right. It is an involuntary act in the

sense that the mind is not going with the act.

GAUDRON J: It is absent - - -

MR SINGLETON: It is absent, as in the case of a concussed

person.

GAUDRON J:	Yes, or a sleepwalker who has no external cause.
MR SINGLETON:	Or a sleepwalker, yes, although my learned friend

says no external force there because he says the

mind is completely unconscious. Well, I say that

what w~ are submitting is the psychiatrists arc

saying i;-,hen a person is a dissociated state; the

mind is not functioning at all, not functioning

in a disorganized way or malfunctioning, I should

say, as 27 contemplates. In this sense, in this

case, it is not functioning even though it may give

the appearances of. Now, a blow to the head produces

the oedema which affects the brain which affects the

mind and the mind malfunctions or non-functions.

ClT39/2/SH	80	10/5/90
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DAWSON J: While you are interrupted, Mr Singleton, could I

ask you this: once the judge indicated that if

this evidence was led he would treat it as evidence

of insanity - - -

MR SINGLETON: If led, yes.

DAWSON J: - - - if it was your choice then - and I am not

criticizing it - not to lead the evidence even

though you nevertheless	still contended it was
relevant to section 23.

MR SINGLETON: At the trial?

DAWSON J: At the trial.

MR SINGLETON: Well, of course, the evidence - I am sorry,

I do not follow you there, sir. It was my choice - when I say it was my choice, it was -

DAWSON J:  Let me put it this way: you did not regard the

judge as ruling that the evidence was inadmissible,

but once he indicated that he would treat it if

led as evidence of insanity, that is, under 27,

you chose not to lead it, is that correct?

MR SINGLETON:  Under instructions - upon advice, yes.

DAWSON J: Well, yes, I am not criticizing you at all - it

might have been a wise choice but it was your

choice.

MR SINGLETON:  Yes.

GAUDRON J: But, is that right or is it when he said, "it was

only evidence of insanity'that you chose not to -

there is a difference.

MR SINGLETON: In effect, Your Honour, he did not say that

at all. It was his choice to have voir dire - and

At the end of it he said, "I reject this evidence as	there are some missing pages from there, I notice.	supporting a proposition of non-insane automatism".
What is not there - I came back at him - if I may
use that expression - and said that - we talked
about the external factors which the Court of
Criminal Appeal in their judgments has talked about
and I talked about that psychological blow is just
as real as a hit on the head and he said that was
his ruling and one could not adduce that evidence
in support of a section 23 defence. I was then
left, as Your Honour has indicated, with making a
choice to advance the evidence on the basis of
insanity and no other or not to advance it at all.

DEANE J: But this was not just a psychological blow; this

was a case of a combination of psychological blow

and blow on the head. I mean, the climax of what

ClT40/l/DR	81	10/5/90
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happened, at page 92, is when the deceased hit her: across the face, side of the face -

on the side that was not deaf and she then just went
all funny, on the evidence, and the psychiatrist

gave - one at least said he had heard her give that

evidence.

l1R SINGLETON:	Both actually heard them give the evidence.
DEANE J:	But one referred to the evidence of the physical
blow.

MR SINGLETON: That is correct and also Dr Finlay-Jones gave

significant importance to that statement of hers

that she felt "funny" - or began to feel funny.

As he said it was well-documented in people in

dissociative states - or entering dissociative states -

that they described their position as "feeling funny".

That is what we did maintain was the basis of the

evidence; it should be admissible for a trier of
fact to give what weight to it as they should - as

they see fit - because whilst the evidence indicated

that she was in a state of quite severe depression,

up to for several days and on that Sunday morning

because of his sudden arrival; because of his change

of moods pleading for her to get the girls to

withdraw the charges - and it was not just an

allegation in the sense that she overheard the

confession - in the changing moods; the
attempting to strike and striking her; the assault

upon her of a sexual connotation and a suggestion

to her; the striking of her again; the taunting

about the girls' evidence - or the girls not being

believed - and the reaching for her hair which was
of considerable significance to her as she gave

her evidence that she had been subjected over the

her to the ground, there assaulting her to the years to him grabbing her by the hair and pulling	point that she then had, for some time, had her
hair cut short much in the man style so he could
not grab it. That was the last thing she remembers.

(Continued on page 83)

ClT40/2/DR	82	l1R SINGLETON, QC	10/5/90
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MR SINGLETON (continuing):  Just on that, on the question of

fact, my learned friend said to you yesterday that

the shotgun was normally kept in the wardrobe
behind clothes. This wardrobe - you might have got

the view that it was a separate wardrobe in the

bedroom. This wardrobe-bathroom complex was a long

room which was simply separated by open archways;

not all that long, less than the length from where I

am to the front of the bench. There was a shower,

then there was a vanity basin, an archway and a

walk-in wardrobe where there were clothes and that

is where she normally kept the shotgun and that is

where the papers were. So, it was in that position

where she was reaching for the papers;which was the

last thing she remembers. The next thing she

remembers was the gun at her feet and the man on the

ground. They were the external factors, sir, that

we said operated on this woman's mind - that is what we

had proposed to say - that could have sent her into a

dissociated state and that is what the psychiatrist

said, putting all those things together, accepting

her condition as it was in giving those factors,

that could really - it certainly was consistent with and certainly could have sent her into a dissociated

state at that time.

MASON CJ:  Yes, well I think we have heard enough about the

facts, Mr Singleton.

MR SINGLETON:  Yes. In general, sir, the submissions that we

made then and the submissions we make now as

being appropriate was that the judgment of the

Court of Appeal below is a proper judgment and one

that should be supported and accepted by this Court.

I will not take a great deal of time because many

of the matters have been canvassed already by my
friend and it is a matter of interpretation by

Your Honours as to whether the court below has

correctly interpreted those decisions or not.

MASON CJ:  And, in essence, you rely on the dissenting

judgment of Chief Justice Dickson in RABEY's case?

MR SINGLETON:  Yes, you have that decision and, of course, it

is also,-I think we mentioned the other case of

REG V RABEY which, I think, preceded - which was

the Court of Appeal; it is reported at 37 CCC 477-478

and 482 and I will just quickly read that. It is at

the bottom of the page, sir, of page 477 where

Mr Justice Martin said:

In general, the distinction to be drawn is between a malfunctioning of the mind arising

from such cause that is primarily internal

to the accused, having its source in his

psychological or emotional makeup, or in some

ClT41/l/JH	83
Falconer

organic pathology, as opposed to a

malfunctioning of the mind, which is the

transient effect produced by some

specified external factor such as, for

example -

and that is all he is giving, is example -

concussion. Any malfunctioning of the

mind, or mental disorder having its source

primarily in some subjective condition or

weakness internal to the accused (whether

fully understood or not) may be a 'disease

of the mind' if it prevents the accused
from knowing what he is doing, but

transient disturbances of consciousness
due to certain specific external factors do
not fall within the concept of disease

of the mind.

Then again, at page 482 of that decision in the

last paragraph of that page:

In my view, the ordinary stresses and

disappointments of life which are the
common lot of mankind do not constitute an
external cause constituting an explanation

for malfunctioning of the mind -

and we do not disagree with that -

which takes it out of the category of a

'disease of the mind'. To hold otherwise

would deprive the concept of an external

factor of any real meaning. In my view, the

emotional stress suffered by the respondent

as a result of his disappointment with

respect to Miss X cannot be said to be an
external factor producing the automatism

within the authorities -

and my leared friend said this case is much·. akin to

ours; we would say that it was quite totally

different to ours -

and the dissociated state must be considered

as having its source primarily in the

respondent's psychological or emotional

make-up. I conclude, therefore, that in the

circumstances of this case, the dissociative

state in which the respondent was said to be,

constituted a "disease of the mind".

ClT41/2/JH	84
Falconer
MR SINGLETON (continuing):

"I leave aside, until it becomes necessary

to decide them, cases where a dissociative

state has resulted from emotional shock

without physical injury, resulting from

such causes, for example, as being involved

in a serious accident although no physical

injury has resulted; being the victim of

a murderous attack with an uplifted knife -

notwithstanding the victim has managed to escape

physical injury -

seeing a loved one murdered or seriously

assaulted -

and the like situations.

Such extraordinary external events might

reasonably be presumed to affect the average

normal person without reference to the

subjective make-up of the person exposed

to such experience."

And, I think, it was Mr Justice Malcolm, the

Chief Justice, touched on the subjective, as indeed, objective in the person who moves into dissociated

mind.

Interesting, in that case of RABEY, there

never was any evidence adduced to show that Rabey

was suffering from a disease of the mind. It was

a case where the judges simply came to the,conclusion -

no normal person would react like this - ergo it

follows he must have been suffering from a disease of

the mind. There was no such evidence adduced. And,

very brieflY, sir, we would adopt the views of

Mr Justice Sholl in CARTER, and we would simply say

that His Honour, as he then was Mr Justice Dixon

in RV PORTER, recalling to mind that it was in 1933

that he wrote this and the first area of automatism

started to come before the courts in 1951 and was

developed later. So, he would not be contemplating-

I would with respect - the situation that we are

dealing with. He then talks there:

as a state of disease or disorder or mental disturbance arising from some

infirmity.

Some illness, and again he is saying no more,

we would say than what the C.ode in fact says. And

in our situation we say that no situation occurs

and that my learned friend's attempt to extend the
provisions of section 27 into what is clearly a matter

of section 23 is too far-reaching.

C1T42/l/JL	85	10/5/90
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MR SINGLETON (continuing):  On the question of presumption ,

I would simply refer Your Honours,and not read it,

to the matter of BRATTY,in particular Lord Denning

at pags 413 and 414, when he is talking about

the presumption under our section 27 and h~ talks about a

presumption of voluntariness under our section 23

but does not resile from the fact that it is for
the Crown to prove that it was a voluntary act

when the issue is raised, not to the same standard

under section 27, but where the issue is raised

as to the act being involuntary. Can I just

mention,sir, that my learned friend said that

REG V S,(1979) NSWLR, disagreed with the case of

PANTELIC. That is not quite, with respect, the

case as I see it. That was a case, REG VS, of

trying to escape the insanity provisions by

advancing that because of a disease of the mind,

the Crown were unable to prove intent, and there

have been a couple of cases of that nature too.

In other words, trying to get away from the

insanity by, either using automatism or saying, "You

have failed to prove intent because of my

unsoundness of mind'; and that was not PANTELIC' s

case at all, and, really at page 53, I suppose,

it is summed up in the case of REG VS:

The distinction in the respective burdens

of proof arises acutely where the accused alleges a state of mind involving lack of

consciousness or adequate appreciation of his

act, and there is a dispute as to whether or

not this state of mind is founded on a defect

of reason from disease of the mind. This must,

of course, be resolved upon a correct understanding
of the meaning of a disease of the mind.

what it does do in the WISEMAN case, it

So it does not detract at all from the PANTELIC case. but

criticizes the way the WISEMAN direction was
put to the jury.	The the WISEMAN direction was,

in effect, leaving it to the jury, "Do youfind he

was suffering from a disease of the mind? Do YO'J.

find whether he was suffering from - that the act was

involuntary because he was in a state of

unconsciousness; he was in a disassociated state?"

One, you find him not guilty because of unsoundness

of mind. Two, you find him not guilty and he is

entitled to an acquittal, or, three, you find him

guilty. And, finally,sir, because - I simply

give you my submissions and you have those comrortably

MASON CJ: Yes, we do have the advantage of your submissions.

MR SINGLETON:  And I simply say this that- I think it was

in answer to a question yesterday by Your Honour

CIT43/l/CM	86	MR SINGLETON,	10 / 5 /9 0.
Falconer

Mr Justice McHugh about in the insanity

position do you find him guilty of unsound mind

full stop, or do you look at the wilful. murder;

murder and manslaughter and my learned friend

said you do. And that is correct. I think it

was the former Ghief Justice of Western Australia said that he 11 is entitled to verdicts, as to in the case of PERKINS, which is not on the list,

wilful murder, murder and manslaughter and

whichever one you find it proven, then you make

of unsoundness of mind 11 • the finding that he is not guilty on the grounds

(Continued on page 88)

CIT43/2/CM	87
Falconer
MR SINGLETON (continuing):	That happened recently in a matter

I was involved in where the man was found not guilty of wilful murder, not guilty of murder, not guilty

of manslaughter due to unsoundness of mind. There

is a copy of that case if Your Honours would like

to see that.

MASON CJ:	Yes, Mr Singleton.
MR SINGLETON:	That is all I have to say, sir.
MASON CJ:	Yes, Mr Solicitor.
MR PARKER:	I have nothing in reply, if it please the Court.
BRENNAN J:	Mr Solicitor, before you do resume, however,

could I just ask you this one question. Looking

at section 27 there are two limbs of it, as it were;

one is the mental disease or natural mental infirmity,

and the other is the capacity. Admittedly, one

would think, capacity or absence of capacity must

be coincidenced in time with the act which is said

to constitute the offence but not necessarily does the natural mental infirmity have to exist at that time. Why is it not that the natural mental infirmity

which is spoken of there is a condition of mind

of such a kind that whereas the normal mind would
be proof against whatever buffeting it receives, the

mental infirmity is one which is not subject to the

buffeting in the ordinary course of events without

producing some such incapacity? That might not be

very clear. What I have in mind is this: why does

one look for an organic, as distinct from a

functional blow - if the mind is such that it is

normal, by all relevant standards, and the funcitonal

blow occurs, as Mr Singleton would submit in this

case, and the absence of capcity follows, why does

one have to say that that is due to a natural

mental infirmity?

MR PARKER:  Well, you do not. One would have to say that it

is due to mental disease.

BRENNAN J:  Even if a normal mind might well react in the

same way?

(Continued on page 89)

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MR PARKER:  There are a number of issues involved in all of

that. Firstly, the only relevant time for the

purpose of section 27 is the time of the act, expressly so. Natural mental infirmity is by its nature a condition that is prolonged. It is

a naturally occurring condition so it is there

for some time. That does not seem to draw or

throw any light on the nature of a mental

disease. The distinction between mental disease

and natural and mental infirmity is that in a

disease there is a disordering of what would be

its ordinary functioning and capacity. In the

case of natural mental infirmity the mind may

simply not have the capacity to perform that

function at all. It simply has not developed in

a way that would enable it to do those things.

You will realize that in M'Naghten they

manage, I think, to cover both realms under

disease of mind and include in them natural

mental infirmity. But it seems, in my respectful

submission,that natural mental infirmity is

primarily directed at a mind which through

incompleteness, inadequacy of development,

et cetera, just has not the natural capacity to

do these things at all.

MASON CJ: The Court will consider its decision in this matter.

AT 12.56 AM THE MATTER WAS ADJOURNED SINE DIE

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