Defences: Automatism and Substantial Impairment

Criminal Laws, S2 2014, Class 7

Revision
1.) According to the Law Lords in MNaghtens Case, when will
a defence of insanity be made out?
2.) According to which standard is wrongfulness judged?
3.) What are the consequences of establishing a defence on
the grounds of insanity?
4.) When will a defendant be considered fit to plead a case,
and how does this test differ from the defence of insanity?
5.) What are forensic patients, and what procedures govern
their detention?

Sane Automatism: Bratty, Falconer,

Woodbridge
1.)
2.)

What is automatism?
What burden lies on the accused in establishing a defence of
automatism, and what must the Crown establish in response?
3.) What evidence or circumstances will support a defence of
automatism, and why is this evidence important?
4.) How would a court distinguish between sane automatism and
insane automatism (insanity defence)?
5.) If sane automatism and insane automatism are both raised on the
facts, how should the question of involuntary conduct be put to
the jury?
6.) What policy considerations guide the different consequences for
defences of sane and insane automatism?

Possible Causes of Automatism

Dissociation (e.g. due to PTSD: Donyadideh)
Hypo/hyperglycaemia
Relevance of external factor test
Epilepsy
Sleepwalking
Policy considerations
Concussion

Substantial Impairment
23A Substantial impairment by abnormality of mind
(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:
(a) at the time of the acts or omissions causing the death concerned, the persons
capacity to
understand events, or to judge whether the persons actions were
right or wrong, or to control
himself or herself, was substantially impaired by an abnormality of mind arising from an underlying
condition, and
(b) the impairment was so substantial as to warrant liability for murder being reduced
to manslaughter.
(2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to
warrant liability for murder being reduced to manslaughter is not admissible.
(3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the
intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced
intoxication are to be disregarded for the purpose of determining whether the person is not liable to be
convicted of murder by virtue of this section.
(4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of
this section.
(5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder
is to be convicted of manslaughter instead.

(8) In this section: underlying condition means a pre-existing mental or physiological condition, other than a
condition of a transitory kind

Substantial Impairment
Differential diagnoses
Medical vs legal/community standards
Abnormality of mind
Section 23A(1)
Byrne
Incapacity vs Difficulties
Causes of Abnormality
Need not be permanent but must be more than of an
ephemeral or transitory nature (NSWLRC report)
Directions to jury
If reasonably available on evidence, even if not raised by
accused: Cheatham

Substantial Impairment: Reform Debate

Arguments for and against retaining defence?

Infanticide
22A Infanticide
(1) Where a woman by any wilful act or omission causes the death of her child, being a child under
the age of twelve months, but at the time of the act or omission the balance of her mind was
disturbed by reason of her not having fully recovered from the effect of giving birth to the child
or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding
that the circumstances were such that but for this section the offence would have amounted to murder,
she shall be guilty of infanticide, and may for such offence be dealt with and punished as if she had
been guilty of the offence of manslaughter of such child.
(2) Where upon the trial of a woman for the murder of her child, being a child under the age of twelve
months, the jury are of opinion that she by any wilful act or omission caused its death, but that at the
time of the act or omission the balance of her mind was disturbed by reason of her not having fully
recovered from the effect of giving birth to such child or by reason of the effect of lactation consequent
upon the birth of the child, then the jury may, notwithstanding that the circumstances were such that
but for the provisions of this section they might have returned a verdict of murder, return in lieu thereof
a verdict of infanticide, and the woman may be dealt with and punished as if she had been guilty of the
offence of manslaughter of the said child.
(3) Nothing in this section shall affect the power of the jury upon an indictment for the murder of a child
to return a verdict of manslaughter or a verdict of not guilty on the ground of insanity, or a verdict of
concealment of birth.

Infanticide (cont)
Offence/defence
Burden of proof
Arguments for repeal
Diminished responsibility
Out-dated/paternalistic views