Criminal Law 20002nd Semester Part 4

Week 5-7 Accident, Acts Independent of Will, Insanity,

Diminished Responsibility, Intoxication

S23 [Titled Intention - Motive]

includes the two excuses of accident and acts independent of will:

No criminal responsibility for

§ s23(1)(a) acts independent of will - an excuse resulting in acquittal s646

§ s23(1)(b) events occurring by accident - an excuse resulting in acquittal s646

Note also

– s23(1) Qualification which excludes the use of s23 where offences are based on criminal negligence

– s23(1A) ‘eggshell skull’ provision

– s23(2) excluding the operation of the common law doctrine of mens rea (guilty mind)

– s23(3) declaring motive immaterial for criminal responsibility (still evidence of intention)

Insanity S26, S27 Defence

s26 Everyone presumed sane

s27(1) provides defence of unsoundness of mind

s27(2) where suffering from delusions, criminal responsibility limited as if reality was the same as delusion

Intoxication s28

s28 (1) applying s27 insanity provisions only where the intoxication is involuntary

s28(2) insanity provisions do not apply where the person is to any extent intentionally intoxicated

s28(3) intoxication can be considered when the offence has an element of intent to cause a specific result

Diminished Responsibility s304A

s304A (1) in relation to murder

Where person in a state of abnormality of the mind impairing 3 capacities

s304A(2) onus of proving diminished responsibility on the defence

Some Preliminary Matters

• Intention: s23(2) immaterial to the accused’s criminal responsibility unless it is a stated element of a Code offence

• Fault elements are stated within the offences

• There is no need to consider the common law doctrine of Mens rea

Motive is also not material to criminal responsibility under the Codes - separate from intent - but still useful as evidence

Qualification regarding negligentacts and omissions

Section subject to the express provisions in the Code relating to Negligent Acts and Omissions ie

where the offence charged is based on the negligence provisions then s23 excuses cannot be used

Point of difference between the excuses

• S23(1) (a) ACT independent of will

• S23(1) (b) EVENT which occurs by accident

s23(1)(b)A person is not criminally responsible for an Event which occurs by accident

S23(1)(b) Accident

• ‘an event which occurs by accident’ (the result)

• evidential onus rests with the accused

• the Crown must negative the excuse beyond a reasonable doubt

• Test stated by Gibbs J in Kaporonovski restated in the positive in Taiters

Kaporonovski Test (for determining wh event occurred by accident)

• Not intended by the accused (subjective)

• Not foreseen by the accused (subjective)

• Not reasonably foreseen by an ordinary person (objective)

All three aspects of the test must be satisfied before excuse can be successfully raised

McTiernan ACJ and Menzies J

* The EVENT 23(1)(b) = grievous bodily harm suffered by the person

* The ACT 23(1)(a) = the forcing of the glass against and into the person’s face

Taiter’s formulation of test for determining if event occurred by

accident

338 ‘The Crown is obliged to establish that the accused intended that the event in question should occur or foresaw it as a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome.’

Taiters•If outcome certain or even just more probable than not, then not accidental.

•If there is a substantial likelihood although something less than a preponderance of probability that a particular outcome will occur and the risk of the outcome is voluntarily accepted by the one acting, it should not, if it results, be called accidental.

•something which a reasonable [person]might think of as no more than a remote possibility which does not call to be taken into account and guarded against can, when it happens, be fairly described as accidental.

Accident _______________________Not accident

Certain

More probable

than not

Substantial likelihood

Likely

Possible

Remote possibility

What about the ‘eggshell skull’ cases?

• According to the s23(1A) amdt ‘97 you take the victim as you find them

• Therefore, if the person has some defect or sensitivity which contributes to the severity of the event that occurs then that is irrelevant

• The rule from Martyr’s case has been restored

S23(1)(a) Act independent of will

Three views of ‘act’

Wide view Dixon J Vallance Act + consequence eg all acts + results

**Narrow Menzies J Vallance

***Physical action eg firing the gun*****

Intermediate Barwick J Timbu Kolian Totality eg striking of blow on

child’s head

Narrow View

Falconer 39:

'bodily movement over which an accused has control and its contemporaneous and inevitable consequences'.

Firing of the rifle

wielding of the stick

pushing of the hand holding the glass

Independent of the person’s will

‘A choice consciously made to do an act of the kind done’

SO

where there is no choice

where there is no consciousness

THEN

act may be independent of will

Test to distinguish sane automatism s23 and insanity s27

Radford v The Queen

internal - ‘an underlying pathological infirmity of the mind be it of long or short duration and be it permanent or temporary which can be properly termed mental illness’

external - ‘as distinct from the reaction of a healthy mind to extraordinary external stimuli’

Identified Categories

reflex or muscular spasm

somnambulists or sleep walkers

concussion

hypoglycaemia

dissociative states caused by psychological blow, stress, anxiety and/or fear

But not

Weak personality traits which fall below the standard of a healthy mind, as does a propensity to surrender to anxiety or stress.

Excitability, passion, stupidity, obtuseness, lack of self control, impulsiveness