Diminished Responsibility and Intoxication Semester 2 Week

accused must be in such a such a STATE of ABNORMALITY (whether arising from a condition of arrested or retarded development of the mind or inherent causes or induced by disease or injury)  so as to SUBSTANTIALLY IMPAIR  the CAPACITY to, (a) UNDERSTAND what they are DOING; or (b) CONTROL their ACTIONs; or (c) KNOW that they OUGHT NOT DO what they are doing.

S27 compared to s304A 1. When do you use it? All offencesOnly applies where accused charged with murder

2. Description of relevant state of mind arising from - Mental disease or natural mental infirmity State of abnormality (whether arising from - a condition of arrested or retarded development of the mind (=nmi) –or inherent causes (=nmi) –or induced by disease or injury)

S27 compared to s304A Natural mental infirmity = disease = (however cts have said covers defects of the mind caused by trauma) natural mental infirmity = arrested or retarded development of mind disease or injury inherent causes

3. In regard to the effect on their capacities Requires proof that person charged deprived of any one of the three categories of capacity Requires proof that any one of the three categories has been substantially impaired

Abnormality of the Mind Mansfield 271 Refers to ‘natural mental infirmity’ in s27 and says that he thinks it means the same as ‘arrested or retarded development of mind’ in s304A

Hanger 288 Referred to an earlier description by Lord Justice Parker in Byrne [1960] 2 QB 396 ‘so different from that of ordinary human beings that the reasonable man would term it abnormal’

BUT ADDED ‘I do not believe that such a description would be an adequate direction to a Queensland jury. I would think it necessary to remind juries that normal people in the community vary greatly in intelligence; in their capacity to reason; in the depth and intensity of their emotions; in their excitability; and their capacity to exercise self-restraint, etc etc the matters calling for mention varying with the facts of the particular case; and that until the particular quality said to amount to abnormality of mind, goes definitely beyond the limits marked out by the varied types of people met day by day, no abnormality exists.’ (Mansfield however had thought the Byrne 1960 test as accepted in Rose 1961 was appropriate)

Whitworth Hanger’s statement adopted by Thomas J 447 ‘not a subterfuge for the angry, the selfish or the vindictive’ Case stresses the needs for links so that there is abnormality of mind arising from prescribed causes leading to impairment of capacity. Thomas notes the excluded factors 462

As to meaning of ‘substantially’ Biess 485 Matthews J ref’d to English case of Lloyd and quoted ‘substantially’ as ‘being something between trivial or minimal and total’.

‘Provided there is evidence (to be gathered from the whole of the evidence and not necessarily by considering the medical opinion alone) of such impairment it is for the jury to say whether it is substantial …’ (Lloyd – substantial does not mean total. … substantial does not mean trivial or minimal …. It is something in between’)

As to the relationship between various sections 23,27,28,304A Milloy issues raised on appeal in light of Falconer ruling on s23

Holbrook Evidence led of intoxication (alcohol, LSD) together with other evidence of underlying condition (thyrotoxicosis) Possible to argue in one fact scenario but here there was a lack of independent evidence of condition at the time

Intoxication

28.(1) The provisions of section 27 apply to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his or her part by drugs or intoxicating liquor or by any other means. (2) They do not apply to the case of a person who has, to any extent intentionally caused himself or herself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not and whether his or her mind is disordered by the intoxication alone or in combination with some other agent.

(3) When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.

Definition of Intoxication See Haggie v Meredith Scott J Definition of ‘stupefy’ taken from OED:‘to make stupid or torpid; to deprive of apprehension, feeling or sensibility; to benumb, deaden. To become stupid or torpid; to grow dull or insensible.’ ‘Intoxicate’: OED‘to stupefy, render unconscious or delirious, to madden or deprive of the ordinary use of the senses or reason, with a drug or an alcoholic liquor; to inebriate, make drunk.’

Kusu ‘s28 covers the whole field of liability’ BUT note Macrossan dicta and Griffith CJ in Corbett and Auld

Intoxication - and crimes of specific intent The main issue is whether the person did in fact form an intention NOT whether the accused was capable of forming an intention Crump Dearnley