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Week 6 PowerPoint PPT Presentation

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Week 6. Insanity s26 and s27 Code. Falconer. Mary Falconer convicted of wilful murder of her husband in the Supreme Court of WA Evidence from two psychiatrists called to establish non-insane automatism excluded Appeal to CCA allowed and retrial ordered

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Week 6

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Week 6


s26 and s27 Code


Mary Falconer convicted of wilful murder of her husband in the Supreme Court of WA

Evidence from two psychiatrists called to establish non-insane automatism excluded

Appeal to CCA allowed and retrial ordered

Special leave to High Ct sought against the Court order quashing conviction and ordering a new trial

Leave granted, appeal dismissed and order of CCA affirmed.


  • Appealed to High Ct :

    • wh the involuntary acts performed in a state of dissociation resulting from emotional tension are excused by virtue of the operation of s23

    • also examining the relationship between s23, s26, and s27

    • and the application to the Code of the common law decisions dealing with automatism and insanity

M’Naghten Rules

‘the accused must prove that they were labouring under such a defect of reason, from disease of the mind,

1. As not to know the nature and quality of the act [they] were doing

2. Or if they did know it,

3. That [they] did not know [what they] were doing was wrong.’

s26 Presumption

  • Every person is presumed to be of sound mind, and to have been of sound mind

  • [ie criminally responsible]

  • at any time which comes in question, until the contrary is proved.

S27 Insanity

not criminally responsible …. the act or making the omission … mental disease or natural mental infirmity ... deprive the person of capacity

to understand what the person is doing, or ….

to control their actions or

know that they ought not to do what they are doing

  • Duty of judge where evidence of insanity raised

  • As to the evidence required for s27

  • As to when the issue of insanity may be raised - Code s613, s645 and acquittal under s647

  • Proceedings under the Mental Health Acts

  • S613 want of understanding of the accused person - before trial and relates to fitness to stand trial

  • s645 accused person insane during trial - where fitness questioned once the trial has commenced

S27 Elements

  • The accused must be in such a state of mental disease or natural mental infirmity

  • so as to deprive the accused of

  • the capacity to:

    • understand what they are doing or

    • control their actions or

    • know that they ought not do what they are doing.

What is a disease of the mind?

Foy’s Case: Philp,J

Wide definition - includes 244 ‘any disorder or derangement of the understanding - any destruction of the will’ or

‘an abnormal mental state, no matter how caused or how transient’

See also Bratty v Attorney-General (Northern Ireland) [1963] AC 386

Lord Denning ‘any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind.’

Radford v The Queen

  • Current (internal/external) test for ‘disease of the mind’

  • Radford arguing s23 act independent of will

  • trial judge refused to leave this issue to the jury

  • Radford not arguing insanity

  • Appeal allowed

  • There must be underlying pathological infirmity of the mind

  • with expert medical evidence being essential

  • whether sufficient evidence amounting to insanity is a question of law for the judge

Mental illnesses and states of mind classified under s27

  • Reactive depression

  • schizophrenia

  • epilepsy

  • hyperglycaemia

  • arteriosclerosis

  • delirium tremens

Natural Mental Infirmity?

  • R v Rolph [1962] Qd R 262

  • Congenital defects including arrested or retarded development

Emphasis on deprivation of one of the three capacities

  • To understand what they are doing

  • To know they ought not do what they are doing

  • Note the difference between these capacities of understanding and knowing and the remaining capacity

  • The deprivation of the capacity to control their actions

  • Need to show that the accused was suffering from the condition, and thus totally deprived of one of the capacities because of the condition

R v Porter Dixon J 188

  • If the mental disorder existed then it must have prevented him from

    • knowing the physical nature of the act - so little capacity for understanding [the killing] that it is no more than ‘breaking a twig’ or

    • of knowing what he was doing was wrong, that is ‘wrong according to the everyday standards of reasonable people’

In regard to knowing right from wrong - Michaux

  • Medical evidence that schizoid and with severe state of personality disorder

  • Also outward actions

  • Connolly,J 162 ‘the jury was entitled to weigh the expert testimony in the light of the whole of the circumstances’

Is evidence of insanity relevant to issue of intent?

  • Where evidence of insanity insufficient for the defence itself, is the evidence still relevant to intent?

  • Hawkins v The Queen 1994

  • Applied in Qld in R v Wilson [1998] 2 Qd R 599

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