Insanity and Intoxication in Criminal Law

Insanity Defence

Presumption of Mental Capacity

Section 26 of the Criminal Code (Qld) establishes a presumption that individuals do not suffer from mental impairment. This presumption must be displaced by the defence of insanity, as per Section 27 of the Criminal Code (Qld).

Questions regarding mental capacities and fitness to stand trial can be referred to the Mental Health Court under Section 110 of the Mental Health Act 2016 (Qld).

If the insanity defence under Section 27 is successfully raised, it results in a qualified acquittal, termed a 'special verdict,' specifically 'not guilty by reasons of unsoundness of mind,' as stated in Section 647(1) of the Criminal Code (Qld). This is followed by detention in a mental health facility as mandated by the Mental Health Act 2016 (Qld).

The threshold for establishing the elements of Section 27 is intentionally set very high.

M’Naghten Rules (1843)

The M’Naghten case (1843) established key principles for the insanity defence under common law:

  • Every individual is presumed sane and responsible for their actions unless proven otherwise.
  • To establish an insanity defence, it must be clearly proven that at the time of the act, the accused was suffering from a defect of reason due to a disease of the mind.
  • This defect must have caused the accused to either not know the nature and quality of their actions or, if they did know, not understand that their actions were wrong.

The essential elements are:

  1. Disease of the mind
  2. Defect of reason (caused by the disease)
  3. Defendant did not know:
    1. The nature and quality of the conduct
    2. What he did was wrong.

Section 27(1) Criminal Code (Qld)

Section 27(1) of the Criminal Code (Qld) states that a person is not criminally responsible for an act or omission if, at the time of the act or omission, they were in a state of mental disease or natural mental infirmity that deprived them of the capacity to:

  • Understand what they were doing,
  • Control their actions, or
  • Know that their actions were wrong.

The elements are:

  1. Mental disease or natural mental infirmity, which deprives the accused of
  2. The capacity to:
    • Understand what he/she is doing; or
    • Control his/her conduct; or
    • Understand that conduct is wrong.

Mental Disease Explained

The psychiatric definition of mental disease involves a 'pervasive inability to engage reality,' indicating a failure of 'reality testing.' However, Section 27 uses a legal definition, not a medical one (R v Falconer (1990); Jeffrey v The Queen [1982]).

Insanity, as per R v Radford (1985), 'must result from 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, as distinct from the reaction of a healthy mind to extraordinary external stimuli.' Generally, mental diseases have an internal rather than external cause (R v Falconer (1990)). External or transient factors like intoxication are insufficient.

Examples of conditions considered diseases of the mind include:

  • Psychomotor epilepsy
  • Psychotic disorders such as schizophrenia
  • Cerebral arteriosclerosis (hardening of arteries reducing blood flow to the brain)
  • Somnambulism (sleepwalking)
  • Hyperglycaemia (high blood sugar due to a diabetic accused failing to take insulin)
  • Reactive depression
  • Delirium tremens

It's important to note that anti-social disorders like 'psychopathy' are generally not considered mental diseases, as individuals with these disorders are typically aware of the nature and significance of their actions.

Incapacities Resulting from Mental Disease

Due to the mental disease, the accused (at the time of committing the offense) lacked one of three capacities:

(a) No Capacity to Understand Actions

As a result of a mental disease, the accused either has no understanding or is mistaken about the physical nature or physical consequences of their conduct.

  • Example: An accused person places a baby on a fire, mistakenly believing it to be a log of wood.
  • Example: An accused person decapitates someone simply to observe what the person looks like without a head, lacking an appreciation of the nature of the conduct.

(b) No Capacity to Control Conduct

This refers to cases of 'acting under irresistible impulses,' where the accused experiences an overwhelming desire to do something and cannot exercise restraint (R v Moore (1908); Wray v R (1930)). This only applies to cases where the accused acts involuntarily because of a mental disease (R v Falconer (1990)).

(c) No Capacity to Understand Conduct is Wrong

The modern view understands 'wrong' in this context as morally wrong (Stapleton v R (1952); Sodeman v R (1936)). Recent authority suggests that the term does not refer to a failure to understand that the act was legally wrong (R v Porter (1933)).

Automatism

Sane Automatism vs. Insane Automatism

  • Sane Automatism: Lack of will, lack of voluntariness, and unconsciousness negate criminal liability under Section 23(1) of the Criminal Code (Qld) and at common law. Results in a complete acquittal.
  • Insane Automatism: Automatisms that result from a mental disease or natural infirmity of the mind fall under Section 27 of the Criminal Code (Qld) (R v Falconer (1990)). This is a defence resulting in a qualified acquittal.

Intoxication

Role and Relevance of Intoxication

Depending on the circumstances, evidence of intoxication in Queensland may be used by the defence to support a claim that:

  • The criminal conduct was involuntary (generally rejected).
  • The accused did not have the requisite 'special intent' (subjective mental element) as per Section 28(3) of the Criminal Code (Qld).
  • Intoxication caused mental impairment, relevant under Sections 27, 28(1), and (2) of the Criminal Code (Qld).
  • It substantiates a claim of self-defence or provocation.

Self-induced (intentional) intoxication is never a defence to any charge.

Intoxication and Voluntariness

Queensland's Section 28 of the Criminal Code (Qld) contains no reference to the issue of voluntariness and automatism.

  • Intoxication is irrelevant for the issue of voluntariness. Self-induced intoxication provides an exception to the rule (under Section 23(1)) that a person is not responsible for involuntary acts (R v Kusu [1981]; R v Miers [1985]).
  • Common Law: Evidence of intoxication in extreme cases may support the claim that the accused's actions were involuntary, but only if it produced a condition in which the accused was not aware of the nature of the physical acts he or she was performing (R v O’Connor (1980); R v Haywood [1971]).

Intoxication and Mental Elements

Offences of General/Basic Intent

Crimes whose definition implies a mens rea (mental element) which does not go beyond the actus reus (physical element).

Voluntary intoxication is irrelevant. Examples include assault (ss245, 335), rape (s349), unlawful use of a motor vehicle, manslaughter (s303), and attempted rape (R v Parker (1915)). These are offenses in which the mental elements do not go beyond the physical elements, or in other words, the accused does not intend anything beyond what is physically achieved (DPP v Morgan [1976]).

Offences of Specific/Ulterior Intent

Crimes whose definition implies a mens rea (mental element) which does go beyond the actus reus (physical element).

Voluntary intoxication may prevent forming the specific intent (Section 28(3) Criminal Code (Qld)). Examples include stealing (R v O’Regan [1961]), arson (R v Buckley (1982)), robbery (Kaminiski v R [1975]), and murder (R v O’Regan [1961]). These are offenses in which the mental elements go beyond the physical elements, where the accused’s mind is aimed at consequences beyond the physical elements of the offense.

R v O’Connor (1980)

In this case, the intoxicated accused stabbed a police officer who was trying to arrest him. The accused stated he had no recollection of what occurred. The trial judge ruled that intoxication could be considered for charges of theft and wounding resisting arrest (offences of specific intent) but not for the charge of unlawful wounding (basic intent).

The High Court, in a majority decision, held that evidence of voluntary intoxication may be used to negate mens rea and voluntariness whenever these two elements are constituent elements of the offense charged. The distinction drawn in Majewski was deemed arbitrary, without a sound basis, and unsustainable.

Critique of R v O’Connor (1980)

Stephen J. noted that the approach 'operates by means of uncertain criteria, in a manner not always rational and which serves an end which I regard as doubtful of attainment.' The distinction 'is neither clearly defined nor easily recognizable [and] does not reflect or give effect to any coherent attitude either as the relative wrongfulness of particular conduct or the degree of social mischief which that conduct is thought to involve.'

New South Wales and England have included lists of offences of specific intent in their legislation to clarify the confusion. Queensland has no such list, leaving decision-making to the courts (somewhat random). There's complete inconsistency in application to attempts, which should all be offences of specific intent.

Intoxication and Defences

Self-Defence and Provocation

Under Sections 271(2) and 272 of the Criminal Code (Qld), intoxication may be relevant in assessing the accused’s belief about the existence of the threat or the necessity of the force used (R v Conlon (1993)). However, intoxication will not be relevant for determining the objective element of the defence (R v McCullough [1982]).

Under Section 304 of the Criminal Code (Qld), evidence of intoxication may be relevant in determining the subjective element of provocation. Intoxication may, for instance, make the accused more susceptible to losing self-control. However, intoxication will not be relevant for determining the ordinary person test of the objective element of provocation.

Intoxication Causing Mental Disease or Abnormality of Mind

Section 27 and Section 304A

Intoxication may be relevant if it induces a condition such as delirium tremens or permanent brain damage (R v Dearnley [1947]; Re Bromage [1991]; DPP v Beard [1920]). Intoxication may be the cause of an abnormality of mind for the purpose of the defence of diminished responsibility under Section 304A, providing it is protracted and has caused some injury to the accused’s brain (R v Chester [1982] Qd R 252; R v Whitworth [1989]).

Intoxication (unless it is self-induced, as it usually is, under Section 28(2)) may give rise to a defence under Section 27 if it can be established that the defendant lacked the capacity:

  1. to understand what he/she is doing;
  2. to control his/her conduct;
  3. to understand that conduct was wrong, as per Section 28(1).

Announcements (Related to Course)

Week 12 (19-23 May 2025)

  • Topic 11 seminars: Subjects of Criminal Law, Insanity, Diminished Responsibility.
  • Thursday, 22 May 2025: Release of research assignment on Blackboard (discussion board available from 23 May 2pm).

Week 13 (26-30 May 2025)

  • Lecture, 26 May 2025: Online (recorded), assignment Q & A.
  • No seminars (discussion board closes 23 May 2pm).
  • 30 May 2025, 2pm: Submission deadline.