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8.4 - Mental Impairment

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Commencement Information

  1. The defence of mental impairment was created by s20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the Act).
  2. Section 20 commenced operation on 18 April 1998, and applies to any offences that it is alleged were committed on or after that date.
  3. The common law defence of insanity was abrogated by s25 of the Act, but continues to apply to any offences it is alleged were committed before 18 April 1998 (Schedule 3 clause 7(1)). However, a verdict of not guilty on account of insanity is to be taken for all purposes to be a finding of not guilty by reason of mental impairment under Part 4 of the Act (Schedule 3 clause 7(2)).

    When can the Defence of Mental Impairment be Raised?

  4. The question of mental impairment may be raised at any time during the trial by the defence or the prosecution (s22(1). See, e.g., R v Hassan [2004] VSC 85).
  5. If the prosecution wishes to raise the issue of mental impairment, they require the leave of the trial judge (s22(1)). As long as there is admissible evidence on the issue, the trial judge has a very broad discretion to grant leave (R v Alford (No.2) [2005] VSC 405).

    Pre-empanelment Consent Hearings

  6. Depending on the circumstances, it may be possible to deal with the issue of mental impairment without empanelling or charging a jury (s21(4). See, e.g., R v Whelan [2006] VSC 319).
  7. According to s21(4), if prior to the jury’s empanelment the prosecution and the defence agree that the proposed evidence demonstrates that the accused committed the conduct constituting the offence,[1] and will also establish the defence of mental impairment, the trial judge may hear the evidence and:
  8. The judge must be satisfied that the evidence establishes the defence of mental impairment on the balance of probabilities (R v Whelan [2006] VSC 319).

    Establishing Mental Impairment

  9. A person is presumed not to be suffering from a mental impairment until the contrary is proved (s21(1)). This provision reflects the common law presumption of sanity (Sodeman v R (1936) 55 CLR 192; R v Porter (1933) 55 CLR 182).
  10. The onus of rebutting the presumption of sanity rests on the party raising the question of mental impairment (s21(3)). In most cases it will be the defence that raise the issue, and who will be required to prove that the accused was mentally impaired. However, the burden will rest on the prosecution if they raise the issue under s22 (with the judge’s leave).
  11. The defence of mental impairment must be proved on the balance of probabilities (s21(2)(b)). This reflects the standard of proof that existed under the common law (Sodeman v R (1936) 55 CLR 192; R v Porter (1933) 55 CLR 182).
  12. Apart from some limited circumstances in which a judge may determine the issue (see "Consent Hearings" above), determining whether or not an accused suffered from a mental impairment is a question of fact for the jury (s21(2)(a)).
  13. When mental impairment is in issue, if a jury finds the accused not guilty they must specify in their verdict whether they have done so on the basis of mental impairment (s22(2)(b)).[2]

    What is the Defence of Mental Impairment?

  14. People will have a defence to what would otherwise be a criminal act if, at the time they committed the act, they were suffering from a mental impairment that had the effect that they either:
    1. did not know the nature and quality of what they were doing; or
    2. did not know that their conduct was wrong (s20(1)).
  15. If the defence of mental impairment is established, the appropriate verdict is "not guilty because of mental impairment" (s20(2)). The effects of such a verdict are specified in s23 of the Act.
  16. Unlike most other Australian jurisdictions (i.e. Queensland, Western Australia, Tasmania, South Australia and the Northern Territory), the Victorian defence does not include a mental impairment which has the effect of removing a person’s capacity to control his or her actions.
  17. The defence applies to people who were suffering from a mental impairment at the time they committed the criminal act. Part 2 of the Act establishes processes to be used if the accused suffers from a mental impairment at the time of the trial, and is unable to understand the charge, the trial or the evidence, or is unable to enter a plea or give instructions to his or her lawyer (see Investigations into Unfitness to Stand Trial).

    "Mental Impairment"

  18. The Act does not define the term "mental impairment". It has been held to have the same meaning as "disease of the mind", which formed the basis of the common law insanity defence (R v Sebalj [2003] 2003 VSC 181; R v Gemmill (2004) 8 VR 242; DPP v Taleski [2007] VSC 183; R v Martin [2005] VSC 518).
  19. "Disease of the mind" has been held to be synonymous with "mental illness". It connotes an unhealthy or "infirm" mind, as opposed to a healthy mind affected by a transient, non-recurrent mental malfunction caused by external forces (R v Falconer [1990] 171 CLR 30; R v Radford (1985) 42 SASR 266).
  20. See "What is a ‘disease of the mind’?" in Automatism for further information concerning the meaning of this phrase, and examples of conditions which have been held to be "diseases of the mind".

    Nature and Quality of the Act

  21. People will have a defence to what would otherwise be a criminal act if, at the time they committed the act, they were suffering from a mental impairment that had the effect that that they did not know the nature and quality of their conduct (s20(1)(a)).
  22. This provision restates one of the limbs of the common law defence of insanity. In that context, the phrase "nature and quality" has been held to refer to the physical character and significance of a person’s actions, and the consequences of those acts. It does not refer to the moral quality of his or her conduct (Sodeman v R (1936) 55 CLR 192).
  23. To satisfy this limb of the defence, the accused must have been unable to appreciate the physical nature of what he or she was doing, and the consequences of his or her behaviour. In the case of murder, for example, the accused must have had so little capacity for understanding the nature of life and the destruction of life, that to him or her it was like breaking a twig or destroying an inanimate object (R v Porter (1933) 55 CLR 182).

    Knowledge of wrongfulness

  24. People will have a defence to what would otherwise be a criminal act if, at the time they committed the act, they were suffering from a mental impairment that had the effect that they did not know that their conduct was wrong (s20(1)(b)).
  25. Section 20(1)(b) defines this to mean that the person "could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong".
  26. This provision, including the definition of "wrong" as meaning contrary to the ordinary principles of reasonable people, rather than contrary to the law or morality, also restates one of the limbs of the common law defence of insanity (R v White and Piggin (2003) 7 VR 442; R v Porter (1933) 55 CLR 182; Sodeman v R (1936) 55 CLR 192; Stapleton v R (1952) 86 CLR 358).

    Mental Impairment and Proof of Elements

  27. The defence of mental impairment is not established simply by proving that the accused suffered from a mental impairment that had one of the requisite effects. The jury must also be satisfied that the accused engaged in the "conduct constituting the offence" (s20(1)).
  28. Section 3(1) states that "conduct includes doing an act and making an omission". It is clear from this definition that the prosecution must at least prove, beyond reasonable doubt, that the accused committed the act or omission which constitutes the offence charged.
  29. It is unclear whether the prosecution must also prove any of the other elements of the charged offence, such as the requisite mens rea. While the use of the term "conduct constituting the offence" may indicate that the prosecution is not required to prove that the accused had a specific mental state, this issue has not yet been addressed in Victoria.[2]
  30. A number of different approaches have been taken to the issue of which elements the prosecution is required to prove, as outlined below. As the law in this area is unclear, judges who are required to charge a jury in a case that raises the defence of mental impairment will need to consider which of these approaches (if any) to apply.

    The Original High Court Approach

  31. Originally, it appears to have been assumed (without discussion) by the High Court that the prosecution was required to prove all of the elements of the offence charged (see, e.g., R v Porter (1933) 55 CLR 182; R v Sodeman (1936) 55 CLR 192; R v Stapleton (1952) 86 CLR 358).
  32. This approach does not address the difficulties that arise if the presence of a mental illness prevents the prosecution from proving that the accused had the requisite mental state. It is possible that the accused would be entitled to a complete acquittal in such circumstances.
  33. This approach appears to have been adopted in the trial of Donna Fitchett. In R v Fitchett (2009) 23 VR 91, Nettle JA is reported as having told the jury that they needed to find all of the elements of murder proven (at para 26). However, the issue did not form a ground of appeal, and appears not to have been directly addressed.

    The Stiles Approach

  34. In the only Victorian case to directly address this issue, the Court of Appeal also held that the prosecution had to prove all of the elements. However, they stated that when deciding whether the prosecution has proved its case, the jury must assume that the accused was of sound mind (R v Stiles (1990) 50 A Crim R 13. See also R v Perkins [1983] WAR 184).
  35. Under this approach the jury should not consider any evidence of mental illness when determining whether the elements of the offence have been proven. Consequently, if evidence of mental illness provides the only reason for doubting that the accused had the requisite mental state, he or she should either be convicted or found not guilty because of mental impairment, depending on whether the requirements of the defence are established on the balance of probabilities.
  36. This approach has been used in a number of recent NSW single judge decisions (see, e.g., R v Grant [2009] NSWSC 833; R v Tarantello [2011] NSWSC 383).

    The Hawkins Approach

  37. In Hawkins v R (1994) 179 CLR 500, the High Court held, in the context of the Tasmanian Criminal Code, that the prosecution only needs to prove that the accused voluntarily committed the ‘incriminated act’. They do not need to be satisfied that the accused acted with the requisite specific intention.
  38. Under this approach, where the accused is charged with an offence that requires proof of a specific intention:
  39. This approach has been followed in a number of cases in other jurisdictions (see, e.g., R v Toki [2003] NSWCCA 125; R v Minani (2005) 63 NSWLR 490; Garrett v R [1999] WASCA 169; Ward v R (2000) 118 A Crim R 78 per Kennedy, Wallwork and Scott JJ).
  40. However, other judgments have highlighted a number of difficulties with the Hawkins approach, and have sought to limit its application (see, e.g., Ward v R (2000) 118 A Crim R 78 per Wheeler J; R v Nolan WA CCA 22/5/97; Stanton v R (2001) 24 WAR 233; [2001] WASCA 189).

    Other Approaches

  41. A number of other approaches have been taken to this issue, both in Australia and in other common law jurisdictions. These include:

    Other Matters for Consideration

  42. When determining which approach to take to this issue, judges may wish to consider the following matters:

    When to Give a Charge on Mental Impairment

  43. Once a jury has been empanelled, if there is admissible evidence that raises the question of mental impairment, the judge must direct the jury to consider the question (s22(2)). This reflects the position at common law (R v McMahon (2004) 8 VR 101; R v Shields [1967] VR 706; R v Meddings [1966] VR 306; Bratty v Attorney-General for Northern Ireland [1963] AC 386).
  44. A charge concerning mental impairment will therefore always need to be given if there is admissible evidence that raises the issue (unless the prosecution and the defence agree, prior to empanelment, that the proposed evidence will establish the defence, and the trial judge is satisfied that that is the case. See "Consent Hearings" above).
  45. It may therefore be necessary to charge the jury about mental impairment even if neither the prosecution nor the defence seek to raise the question, or actively oppose it being left to the jury, if there is admissible evidence on the issue (see, e.g., Hawkins v R (1994) 179 CLR 500).
  46. The time at which the charge should be given will depend on the resolution of the issues outlined in "Mental Impairment and Proof of Elements" above. For example:

    Content of the Charge

  47. The term "mental impairment" is a legal term, not a medical term. It is therefore for the trial judge to determine what is meant by the term and to explain its meaning to the jury (R v Falconer [1990] 171 CLR 30; R v Tonkin [1975] Qd R 1; R v Kemp [1957] 1 QB 399).
  48. The judge should clearly explain what the prosecution must prove before the jury considers the defence of mental impairment. This will depend on the resolution of the issues outlined in "Mental Impairment and Proof of Elements" above.
  49. The judge must explain to the jury the findings which may be made in a case where mental impairment is in issue (i.e. guilty, not guilty or not guilty because of mental impairment (s22(2)).
  50. The judge must also explain to the jury the legal consequences of those findings (s22(2); R v Fitchett (2009) 23 VR 91).[4]
  51. This requirement was introduced to address the concern that, in the absence of any information about the processes that would follow a finding of not guilty because of mental impairment, some jury members might be reluctant to hand down an exculpatory verdict, due to the perception that it could result in the immediate release of a disturbed and dangerous person. In most cases, that would almost certainly not be the case (R v Fitchett (2009) 23 VR 91. See also R v Weise [1969] VR 953).
  52. This part of the charge must therefore:
  53. The judge is not empowered to prognosticate upon or pre-empt the decisions to be made with respect to the accused’s disposition (R v Fitchett (2009) 23 VR 91).
  54. The judge must not convey any impression concerning the desirability, punitive features or public safety aspects of arriving at a particular verdict (R v Fitchett (2009) 23 VR 91).
  55. While there is no set formulation for what must be said, the Court of Appeal in R v Fitchett (2009) 23 VR 91 approved the following charge given by Osborn J in R v Gemmill (12/11/03 Vic SC):

    If you find the accused guilty, then there will be a further hearing before me and I will have to determine how he should be sentenced. If you find him not guilty, that is completely not guilty, he will be discharged and be free to walk away from the court. If you find him not guilty because of mental impairment, then there are two options open to me. The first is to declare that he is liable to a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act (1997) and the second is to order that he be released unconditionally. I would have to form a view on evidence as to what was the appropriate course to be followed.

    A Supervision order, which is the first option that would be open to me, may commit the person to custody, or release the person on conditions decided by the court and specified in the Order. So you can see that those are the different legal consequences that follow from the different verdicts available to you. And you can see, as I have told you, that a verdict of not guilty because of mental impairment, has quite different consequences from a verdict of not guilty, …

     

    Notes

[1] It is unclear whether the defence and prosecution simply need to agree that the accused committed the relevant acts, or whether they also need to agree that the accused had the requisite mental state: see "Mental Impairment and Proof of Elements" below.

[2] It is unclear whether the jury must return this verdict in relation to the offence charged, or whether they may return a qualified acquittal to a lesser included offence. See "Lesser Included Offences" below for further information.

[3] Where a similar phrase was interpreted in the United Kingdom, the courts originally held that the prosecution had to prove all of the elements of the charged offence (R v Egan [1998] 1 Cr App R 121). This approach was later overruled, with the courts holding that the prosecution only had to prove the actus reus of the charged offence (Attorney-General's Reference (No. 3 of 1998) [2000] QB 401; R v Antoine [2001] 1 AC 340).

[4] This differs from the law in most other areas, where it is generally considered undesirable to direct a jury about the consequences of their verdict (see, e.g., Lucas v R (1970) 120 CLR 171).

Last updated: 23 November 2011

In This Section

8.4.1 - Charge: Mental Impairment

8.4.2 - Checklist: Mental Impairment

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings