Partial Defences to Murder, Provocation and Diminished Responsibility                

Written by Peter Zahra SC

This paper comprises excerpts from New South Wales Law Reform Commission Reports
82Diminished Responsibility; and 83Provocation and Infanticide.

MURDER - THE ELEMENTS
1.1 (Section 18 Crimes Act)

For murder (except in the case of felony murder) the Crown must prove that the accused killed with:

1. an intention to kill; or
2. an intention to inflict grievous bodily harm, being bodily harm of a really serious kind; or
3. a reckless indifference to human life, meaning that the accused foresaw the probability that death would result from his or her act or failure to act. (in Royall v The Queen (1991) 172 CLR 378, following the decision of R v Crabbe (1985) 156 CLR 464 in relation to the requisite mental element for "reckless indifference", with the qualification that under the NSW legislation, unlike the position at common law, the accused must be shown to have foreseen the probability of death, rather than simply the probability of grievous bodily harm or the possibility of death.)



1.2 VOLUNTARY MANSLAUGHTER -
THE PARTIAL DEFENCES TO MURDER

For voluntary manslaughter, the prosecution is required to prove the same mental state as is generally required for murder. That is, the accused must be shown to have intended to kill or to cause grievous bodily harm, or to have been recklessly indifferent to human life. However, the accused will be convicted of voluntary manslaughter instead of murder where his or her mental state was affected in a way which is recognised by law to reduce his or her culpability for the killing. The factors so affecting the accused's mental state must be shown to constitute either provocation, diminished responsibility, or infanticide (Crimes Act ss.22A, 23, and 23A. These are known as the partial defences to murder and require proof of some form of mental impairment or loss of self control which significantly affected the accused's culpability at the time of the killing.



1.3 INVOLUNTARY MANSLAUGHTER
Involuntary manslaughter is an unlawful killing by a person who cannot be proven to have the requisite guilty mind for murder, but whose conduct falls short of conduct expected of a reasonable person in the same circumstances. An accused may be convicted of involuntary manslaughter by an unlawful and dangerous act or by criminal negligence. Manslaughter by an unlawful and dangerous act requires the prosecution to prove that the death was caused by an unlawful act and that an ordinary person engaged in the same conduct would have realised that he or she was exposing another to an appreciable risk of serious injury ( R v Wilson (1992) 174 CLR 313). Manslaughter by criminal negligence requires the prosecution to prove that the accused's act or omission causing death involved such a great departure from the standard of care to be expected from a reasonable and prudent person as to deserve to be called a crime against the community generally and conduct deserving punishment Nydam v The Queen [1977] VR 430; R v Bateman [1925] All ER 45.



1.4 FELONY MURDER
Felony murder is the exception to the general principle of unlawful homicide that the seriousness of a particular killing be measured according to the accused's mental state. Felony murder is a killing committed by an accused or an accomplice, in an attempt to commit , or during or immediately after the commission of a crime punishable by penal servitude for 25 years (such as robbery with wounding or aggravated armed robbery. Felony murder does not involve consideration of the accused's state of mind in committing the act causing death, such as whether the accused intended to kill. Felony murder has been criticised as an anomaly within the law of homicide, given that it permits persons to be convicted of murder without consideration of whether or not they intended or foresaw the particular consequences of their actions. In the United Kingdom, the Homicide Act 1957 (UK) now provides that a killing committed in the course of some other offence does not amount to murder unless done with the same malice aforethought as is generally required for murder. In Canada, the Supreme Court has ruled that the concept of absolute liability inherent in constructive murder breaches s 7 of the Charter of Rights and Freedoms as it is contrary to the principles of fundamental justice (see Vaillancourt v The Queen (1987) 47 DLR (4th) 399).

The Crown need not prove a causal connection between the felony and the death, or that the death was foreseeable: R v Van Beelan (1973) 4 SASR 353.

A person who participates in a felony which is punishable by penal servitude for 25 years is guilty of murder even though not the actual perpetrator of the killing (where the killer is guilty of felony murder) even if the killing was contrary to the intention of the person: R v R (1995) 79 A Crim R 191.

In R v Sharah (1992)63 A Crim R 361, the Court considered the elements of proof where the person charged was not the person who killed the deceased in both common purpose murder and felony murder. Carruthers J at p.366 said:

"As to common purpose murder; it was incumbent upon the Crown to prove beyond reasonable doubt:
[Where the person 'A' was the killer; 'N' the deceased; and 'J' was person robbed.]

(i) that there was a common purpose between the appellant and A in company to rob J whilst A was, to the knowledge of the appellant, armed with an offensive weapon, namely, a sawn-off double-barrelled shotgun;

(ii) that during the course of the armed robbery A discharged the gun intending to kill or cause serious bodily harm to N;

(iii) that the appellant contemplated that in the carrying out of the common unlawful purpose of armed robbery, A might use the gun with the intention of causing really serious bodily harm.

As to felony-murder (upon the assumption that the foundational crime was the offence under s.98) it was incumbent upon the Crown to prove beyond reasonable doubt:

(i) that there was a common purpose between the appellant and A in company to rob J whilst A was, to the knowledge of the appellant, armed with an offensive weapon, namely, a sawn-off double-barrelled shotgun;

(ii) that during the course of the armed robbery A wounded J and during the course of such armed robbery with wounding or immediately thereafter, A discharged the gun causing the death of N;

(iii) that the discharge of the gun by A during or immediately after the armed robbery with wounding of J, was a contingency which the appellant had in mind, whether or not the gun was fired intentionally and whether or not in furtherance of the common unlawful purpose.

As to the final element, see especially the judgments of this Court in Johns [1978] 1 NSWLR 282, particularly at 294-295, where Begg J quotes with approval the directions of the trial judge.

In relation to the s.98 count, it was incumbent upon the Crown to prove beyond reasonable doubt:

(i) that there was a common purpose between the appellant and A in company to rob J whilst A was, to the knowledge of the appellant, armed with an offensive weapon, namely, a sawn-off, double-barrelled shotgun;

(ii) that during the course of the armed robbery A wounded J;

(iii) that the appellant contemplated that in the carrying out of the common unlawful purpose of armed robbery such wounding might occur."



1.5 VOLUNTARY ACT AND FELONY MURDER
The High Court in R v Ryan (1969) 121 CLR 205 considered the question whether the Crown must establish that the ultimate act causing death was voluntary. In that case, the Court considered that whilst the ultimate discharge of the gun may have been accidental, it was open to the jury to conclude that the presentation of a cocked, loaded gun with the safety catch unapplied was sufficient to amount to a voluntary act causing death (at p.219).



DEFENCE OF PROVOCATION
"2.1 An unlawful killing which would otherwise constitute murder may amount to manslaughter if the accused acted under provocation. The defence of provocation reduces liability from murder to manslaughter on the basis that the killing resulted from a loss of self-control in response to provocation, in circumstances where an ordinary person could also have lost self-control.

2.2 The doctrine of provocation in unlawful homicide was first developed by the courts in England in the 16th and 17th centuries. In the 16th century, "murder" was defined as killing with "malice aforethought", at that time interpreted as meaning killing with cold-blooded premeditation. Malice aforethought was implied by law unless it could be shown that the killer acted upon provocation, in sudden anger or "hot blood", in which case he or she would be convicted of manslaughter instead of murder. The distinction between murder and manslaughter was based on different underlying degrees of blameworthiness, reflected in differences in the punishment imposed.

2.3 In the 17th century, the doctrine of provocation developed as a rule of mitigation which classified certain types of killing committed in anger or hot blood as manslaughter rather than murder, on the basis that these killings were less reprehensible. The courts nominated certain categories of conduct which they regarded as sufficiently grave to constitute provocation and so give rise to the mitigation offered by the doctrine of provocation. These categories comprised conduct which was considered offensive to a person's honour. Angry retaliation to such affronts was generally considered to be understandable, according to the social code of honour of the time. In the 18th and 19th centuries, the doctrine of provocation continued to evolve through the courts, gradually expanding to include hot-blooded killings generally, wherever grave provocation was offered.

2.4 In New South Wales, the partial defence of provocation was adopted under legislation in 1873 and later reproduced in the Crimes Act 1900 (NSW). That statutory formulation of the defence required a killing committed under provocation to occur suddenly and in the heat of passion, in a state of lost self-control in circumstances where an ordinary person could also have lost self-control. If the accused established the defence of provocation, he or she was convicted of manslaughter instead of murder. The sentence for manslaughter was discretionary; that is, the sentencing judge could impose a sentence which was considered appropriate to the circumstances of the case. In contrast, the sentence for murder was mandatory at that time, meaning that the sentencing judge must impose the statutory sentence regardless of any mitigating circumstances.

2.5 In 1982, the old statutory formulation of provocation in the Crimes Act 1900 (NSW) was replaced by a new provision dealing with the defence of provocation. The 1982 amendments were the result of recommendations by a Government Task Force on Domestic Violence, which was established to examine, amongst other things, the operation of the defence of provocation in the context of domestic killings by women of their abusive partners. There was a perception that the defence of provocation was too restrictive to accommodate killings of this type. The new provision dealing with the defence of provocation under the 1982 amendments was intended to broaden the definition of provocation in order to make it more appropriate for women who kill in situations of domestic violence, particularly for women who kill in response to a culmination of long-term abuse rather than immediately following a single act of provocation. The amending legislation transferred the onus of proof to the prosecution, to disprove a claim that a killing was provoked.

2.6 There have been no amendments to the statutory formulation of the defence of provocation in New South Wales since 1982. Provocation is available as a partial defence to murder in every Australian jurisdiction."



OPERATION OF THE DEFENCE OF PROVOCATION
THE CURRENT LAW OF PROVOCATION IN NEW SOUTH WALES

"2.9 In New South Wales, the rules relating to the defence of provocation are contained in s.23 of the Crimes Act 1900 (NSW). That section reads:

23. (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accuses of murder and fine the accused guilty of manslaughter.

(2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where:

(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and
(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased,

whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous times.

(3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if -

(a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission;

(b) the act or omission causing death was not an act done or omitted suddenly; or

(c) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm.

(4) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation.

(5) This section does not exclude or limit any defence to a charge of murder.

2.10 Section 23 of the Crimes Act 1900 (NSW) has, to a large extent, been interpreted by the courts as being an affirmation, rather than an alteration, of the common law defence of provocation. The key elements of the defence, as formulated in s.23, may be summarised as follows:

- All the elements of murder must be established, namely that the accused caused the death of another person, the victim, and that the accused acted with an intention to kill or to cause grievous bodily harm, or was recklessly indifferent to human life.
- The unlawful killing must be the result of a temporary loss of self-control by the accused that was induced by provocative conduct, although it is not necessary that the killing occurred suddenly and immediately after the act of provocation.
- The provocation must have been so serious that it could have caused an ordinary person to lose self-control and form an intention to kill or inflict grievous bodily harm on the victim (the "ordinary person" or "objective" test).
- Conduct sufficient to amount to provocation may be either actions or grossly insulting words or gestures. It appears that there is no requirement under s.23 that the provocative conduct be unlawful.
- The provocative conduct must generally be committed by the victim, in the presence of the accused. The provocation must affect the accused somehow, although it is not necessary that it be directed specifically against him or her.
- There is no requirement that the accused's act causing death be proportionate to the victim's provocative conduct ( Crimes Act 1900 (NSW) s.23(3)(a)). In applying the ordinary person test, the test is whether, in light of the provocation offered, an ordinary person could have lost self-control so as to form an intention to kill or cause grievous bodily harm ( Johnson v The Queen (1976) 136 CLR 619 at 639-640, 659; Masciantonio v The Queen (1995) 183 CLR 58 at 67)."



WHEN WILL PROVOCATION BE LEFT TO THE JURY?

"2.11 It is a question of fact for the jury to determine whether or not the circumstances of a particular case amount to provocation under s.23 of the Crimes Act 1900 (NSW). However, before the defence of provocation may be left for the jury to consider, there is a threshold question for the trial judge to decide as a question of law. The question for the trial judge is whether, on the version of events most favourable to the accused as suggested by the evidence, the jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked. Only if this question is answered affirmatively by the trial judge may the defence of provocation be left for the jury to consider ( Stingel v The Queen (1990) 171 CLR 312 at 334; Masciantonio v The Queen (1995) 183 CLR 58 at 67-68. See also R v D.A.R. (Court of Criminal Appeal, NSW, 8 November 1995, DDA 60540/94, unreported) per Sperling J at 12), although the judge is to exercise caution before declining to leave provocation to the jury ( Stingel v The Queen (1990) 171 CLR 312 at 334). If there is sufficient evidence to satisfy the threshold test, the trial judge must direct the jury to consider the defence of provocation even if the defence has not been raised by the accused's legal representative ( Parker v The Queen (1964) 111 CLR 665 at 681; Pemble v The Queen (1971) 124 CLR 107 at 117-118."



BURDEN AND STANDARD OF PROOF

"2.12 Once there is sufficient evidence of provocation to leave to the jury, it is the prosecution who bears the burden of proving beyond a reasonable doubt that the defence of provocation has not been established. If the prosecution does not succeed in proving beyond reasonable doubt that the accused was not provoked in accordance with the defence of provocation, the accused will be convicted of manslaughter instead of murder. The maximum statutory penalty for manslaughter is penal servitude for 25 years, in contrast to the maximum penalty of penal servitude for life which may be imposed for murder.

2.13 Examples of conduct which has been found sufficient to leave the defence of provocation for the jury to consider in an accused's trial for murder include: physical and emotional abuse by the victim of the accused's daughter followed by a physical assault by the victim on the accused ( Masciantonio v The Queen (1995) 183 CLR 58; discovery by the accused, a conservative Muslim Turk, that his daughter, the victim, is in a sexual relationship with a young man ( R v Dincer [1983] 1 VR 460; words and gestures of affection by the victim towards the accused shortly after the accused has discovered that the victim, her husband, has been sexually abusing their daughters for years ( The Queen v R (1981) 28 SASR 321; taunting by the victim about the accused's sexual inadequacies and about the victim's infidelity ( Moffa v The Queen (1977) 138 CLR 601).

2.14 The incidence of provocation cases in New South Wales was examined in a study by the Judicial Commission of sentenced homicide offenders between 1990 and 1993. The study revealed that the defence of provocation was raised in 7.8% of homicide cases in that period. The defence was successful in reducing murder to manslaughter in 70% of cases in which the defence was raised (whether by the prosecution's acceptance of a plea or at trial). Sentences for manslaughter on the ground of provocation ranged from a four year bond under s.558 of the Crimes Act 1900 (NSW), to penal servitude for 10 years and six months."



THE ORDINARY PERSON TEST OF PROVOCATION

"2.15 Section 23(2) of the Crimes Act 1900 (NSW) provides that the defence of provocation is only available in cases where an ordinary person, faced with the same provocation which the accused faced, could have lost self-control so as to form an intention o kill or cause grievous bodily harm. This is commonly referred to as the "ordinary person" or "objective" test of provocation. The ordinary person test is also a feature of the defence of provocation at common law and under the statutory provisions dealing with the defence of provocation in every other Australian jurisdiction.

2.16 Of all the elements of the defence of provocation, the ordinary person test has, at least in recent years, been the most controversial. Law reform agencies in other jurisdictions have recommended that it be abolished.

2.17 As restated by the High Court in Stingel's case, the ordinary person test has three components:
- the ordinary person's perception of the gravity of the provocation;
- the ordinary person's power to exercise self-control in response to that provocation; and
- the form of the ordinary person's response after losing self-control in comparison to the accused's response."



THE GRAVITY OF THE PROVOCATION
-2.18 Under the first component of the ordinary person test, the jury must consider what would be the ordinary person's perception of the gravity of the provocation offered by the victim. For the purpose of determining the gravity of the provocation, the ordinary person is regarded as having any relevant personal characteristics of the accused. For example, if the accused is addicted to glue-sniffing, that fact may be taken into account in assessing the gravity of taunts directed towards that person's addiction. Similarly, the fact that an accused has previously been subjected to a number of sexual assaults may be taken into account in assessing the gravity of an unwelcome sexual advance made by the victim."



THE ORDINARY PERSON'S POWER OF SELF-CONTROL
"2.19 The second component of the ordinary person test requires the jury to consider whether an ordinary person could have lost self-control as a result of the provocation. In this context, the "ordinary person  means a person with ordinary powers of self-control, falling within the common range of human temperaments (see Stingel v The Queen (1990) 171 CLR 312 at 329). For the purpose of assessing whether an ordinary person could have reacted in the same way as the accused, the personal characteristics of the accused, such as a particularly excitable temperament, must not be considered. For example, evidence that an accused has an intellectual disability which reduces his or her power to exercise self-control must not be considered by a jury in assessing whether an ordinary person could have lost self-control in response to the same provocation.

2.20 There is one exception to the general rule prohibiting the personal characteristics of the accused from being considered when assessing the ordinary person's power of self-control. Where the accused is young, the ordinary person is deemed to be an ordinary person of the accused's age. There is no precise definition of "young" under this exception to the ordinary person test. The High Court has simply stated that the ordinary person is to be regarded as a person of the accused's age, where the accused is immature by reason of youthfulness (see Stingel v The Queen (1990) 171 CLR 312)."



THE ORDINARY PERSON'S RESPONSE AFTER LOSING SELF-CONTROL
"2.21 The third component of the ordinary person test requires consideration of the form which the ordinary person's reaction could have taken, assuming that the ordinary person's reaction could have lost self-control in response to the provocation. The law in relation to this third component of the test differs in New South Wales from the common law position and the position under statutory provisions in other Australian states.

2.22 In New South Wales, the ordinary person test simply requires consideration of whether an ordinary person could have formed an intention to kill or cause grievous bodily harm, rather than an intention to kill in the same manner as the accused did. At common law, the law relating to the third component of the ordinary person test is less clear. In Stingel v The Queen, the High Court stated that, according to the ordinary person test as it operates under the Tasmanian Criminal Code and at common law, the jury must consider whether an ordinary person, once provoked, could have formed an intention to kill or cause grievous bodily harm, and whether the ordinary person could have retaliated to the provocation "to the degree and method and continuance of violence" as that adopted by the accused. Thus it may be that the more brutal or sadistic the attack on the victim, the less likely it is that an ordinary person could have reacted in the same manner and degree. More recently, however, the High Court appears to have given less importance to this third component of the ordinary person test, stating that whilst the test involves consideration of the nature and extent of an ordinary person's reaction, it is the formation of an intention to kill rather than the precise form or means adopted which is the jury's primary consideration in assessing the ordinary person's response (see Masciantonio v The Queen (1995) 183 CLR 58 at 69)."



DIRECTIONS ON THE ORDINARY PERSON TEST
2.23 In R v Alexander Supreme Court of New South Wales 21.10.94 per Hunt CJ at CL, his Honour in giving his reasons in a judge alone trial addressed the issue of the ordinary person test as follows: (at page 27)

"For the benefit of those hearing or reading this judgment and who have no previous knowledge of this issue of provocation, I point out that the reason why the law takes into account the possible reaction of the ordinary person as well as that of the accused himself is to prevent the reduction of what would otherwise be murder to manslaughter in a case where a person who is abnormally sensitive to provocation loses his or her self-control. The law is that people must be restrained from killing others and that they must be punished for doing so, but the law also allows for the inevitable fact that even the ordinary person can be provoked by some conduct into losing self-control and forming such an intention to kill or to inflict grievous bodily harm. If the conduct which caused the accused to lose his self-control was such that an ordinary person in his position could also have been caused thereby to lose that person's self-control so far as to have formed such an intention, then that crime is reduced from murder to manslaughter.

The ordinary person in the position of the accused represents the objective standard by which the accused's power of self-control is to be measured. That ordinary person is assumed to have the ordinary range of human emotions common to all members of the community, and to possess self-control at a level which is common to all members of the community. So far as the possible reaction of the ordinary person is concerned, however, a distinction is drawn between that person's perception of the nature of the deceased's conduct and that person's power of self-control.

So far as the ordinary person's perception of the nature of the deceased's conduct is concerned, that person is regarded as having those of the personal characteristics, attributes or history of the particular accused which serve to identify the implications in that conduct or to affect the gravity of that conduct: Stingel v The Queen (1990) 171 CLR 312 at 324. The ordinary person shares for that purpose those of the accused's age, sex, race, physical features, personal attributed, personal relationships and past history so far as those characteristics relate to an objective assessment of the gravity of particular conduct: ibid (at 326). So far as the ordinary person's power of self-control is concerned, however, the extent of that power is unaffected by the personal characteristics of the particular accused except his or her age, in the sense of immaturity (at 327, 330-331). (No such question of age arises in the present case.) If the accused's loss of self-control is affected by any such characteristics falling outside the ordinary or common range of human temperaments, then those characteristics are not shared by the ordinary person (at 329), even though that particular characteristic may have been relevant to the ordinary person's perception of the gravity of the conduct of the deceased (at 332).

That means that, in the present case, for the purpose of determining the ordinary person's perception of the gravity of [the deceased's] conduct, that ordinary person is regarded as sharing with the accused the history which he has related - in particular, [the deceased's] attitude towards M and L over the ten years of their marriage - but, for the purpose of determining whether the ordinary person could have been induced by that conduct of [the deceased] (as so perceived) to have so far lost self-control as to form an intention to kill her or to inflict grievous bodily harm upon her, that ordinary person's power of self-control is regarded as unaffected by any such history or any other characteristic of the accused which falls outside the ordinary or common range of human temperaments."



NSW LAW REFORM COMMISSION RECOMMENDATION
FOR AMENDMENTS TO SECTION 23

The NSW Law Reform Commission has proposed that section 23 should be amended to read as follows (Report 83):

"(1) A person who would otherwise be guilty of murder shall not be guilty of murder and shall be guilty of manslaughter if that person committed the act or omission causing death under provocation.

(2) For the purpose of subsection (1), a person commits an act or omission causing death under provocation if:

(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by:

(i) the conduct; or

(ii) a belief of the accused (based on reasonable grounds) as to the existence of the conduct;

of someone towards or affecting the accused, in circumstances where the accused kills:

(iii) the person who offered the provocation; or

(iv) the person believed on reasonable grounds to have offered the provocation; or

(v) a third party when attempting to kill or to injure the person who offered or was believed on reasonable grounds to have offered the provocation; and

(b) the accused, taking into account all of his or her characteristics and circumstances, should be excused for having so far lost self-control as to have formed an intent to kill or to inflict grievous bodily harm or to have acted with reckless indifference to human life as to warrant the reduction of murder to manslaughter.

(c) For the purpose of subsection 2(a), "conduct" includes grossly insulting words or gestures.

(3) For the purpose of determining whether an act or omission causing death was an act done or omitted under provocation as provided by subsection (2), there is no rule of law that provocation is negatived if:

(a) the conduct of the deceased or of any other person did not occur immediately before the act or omission causing death;

(b) the conduct of the deceased or of any other person did not occur in the presence of the accused;

(c) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased or of any other person that induced the act or omission;

(d) the act or omission causing death was not an act done or omitted suddenly;

(e) the act or omission causing death was an act done or omitted with any intent to take life or inflict grievous bodily harm; or

(f) the conduct of the deceased or of any other person was lawful.

(4) Where a person is intoxicated at the time of the act or omission causing death, and the intoxication is self-induced, loss of self-control caused by that intoxication or resulting from a mistaken belief occasioned by that intoxication is to be disregarded.

"Self-induced intoxication" in this subsection has the same meaning as it does in s.428A (of the Crimes Act 1900).

(5) For the purpose of subsection (1), a person does not commit an act or omission causing death under provocation if that person provoked the deceased or any other person with a premeditated intention to kill or to inflict grievous bodily harm or with foresight of the likelihood of killing any person in response to the expected retaliation of the deceased or of any other person.

(6) Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation.

(7) This section does not exclude or limit any defence to a charge of murder, with the exception that no claim to the defence of provocation shall lie other than as provided by this section."



DEFENCE OF DIMINISHED RESPONSIBILITY

"3.1 Diminished responsibility is a defence to murder which, if proven, reduces liability for unlawful homicide from murder to manslaughter. It is based on a general principle of our criminal law that a person's responsibility for committing a serious offence should be assessed in light of any substantial mental impairment which that person suffered. The central feature of diminished responsibility is the existence of a mental disorder which can be shown to have substantially impaired the accused's mental responsibility at the time of the killing.

3.2 The defence of diminished responsibility originated in Scotland in the 19th century. It was there developed by the courts as a means of avoiding murder convictions for those offenders otherwise liable for murder, who did not satisfy the restrictive test for the "insanity defence" (now referred to as the defence of mental illness), but whose mental state was nevertheless impaired. The United Kingdom later enacted legislation to provide for a defence of diminished responsibility. In 1974, diminished responsibility was introduced in new South Wales by legislation which was modelled on the United Kingdom's legislative formulation. At that time in New South Wales, there was a mandatory life sentence for murder. Diminished responsibility therefore served the purpose of avoiding a murder conviction and consequent mandatory life sentence in those cases where an offender was mentally impaired but not mentally ill, as defined under the defence of mental illness. The defence of diminished responsibility is available in four Australian jurisdictions, namely New South Wales, Queensland, the Australian Capital Territory, and the Northern Territory.

3.3 The defence of diminished responsibility has at various times been the subject of controversy. Some, including several law reform agencies in other Australian states, have suggested that it is both unnecessary and undesirable to provide for diminished responsibility as a partial defence to murder. Others have criticised the current legislative formulation of diminished responsibility on the grounds that it is out of touch with medical notions of mental impairment, that it generates a high level of disagreement amongst expert witnesses, and that it is too complex. Sentencing for manslaughter on the basis of diminished responsibility has also proven difficult, particularly since, at least in New South Wales, there is no specific provision to allow diminished responsibility offenders to receive medical or psychiatric treatment. On the other hand, some of these offenders may suffer from disorders which are untreatable, and consequently they may continue to pose a danger to the community even after their sentences are served."



OPERATION OF THE DEFENCE IN NEW SOUTH WALES
FOR OFFENCES PRIOR TO 3 APRIL 1998

"3.5 The statutory provisions governing the defence of diminished responsibility in New South Wales are contained in s.23A of the Crimes Act 1900 (NSW). That section defines diminished responsibility in the following terms:

(1) Where, on the trial of a person for murder, it appears that at the time of the acts or omissions causing the death charged the person was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for the acts or omissions, he shall not be convicted of murder.

(2) It shall be upon the person accused to prove that he is by virtue of subsection (1) not liable to be convicted of murder.

(3) A person who, but for subsection (1) would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.

(4) The fact that a person is by virtue of subsection (1) not liable to be convicted of murder in respect of a death charged shall not affect the question whether any other person is liable to be convicted of murder in respect of that death.

(5) Where, on the trial of a person for murder, the person contends:

(a) that he is entitled to be acquitted on the ground that he was mentally ill at the time of the acts or omissions causing the death charged; or

(b) that he is by virtue of subsection (1) not liable to be convicted of murder,

evidence may be offered by the Crown tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.

3.6 It is a precondition to the application of the defence that the prosecution has proved, beyond reasonable doubt, that the accused is otherwise liable for murder. That is, the prosecution must prove that the accused caused the death of another human being, and that he or she had the requisite mental state for murder at the time of the killing. If that is proven, there are then three elements which must be satisfied in order to establish the defence of diminished responsibility. These are:

1. that at the time of the killing, the accused was suffering from an abnormality of mind;

2. that the abnormality of mind arose from one of the causes listed within the parentheses in s.23A(1), that is from a condition of arrested or retarded development of mind, or from any inherent cause, or induced by disease or injury; and
3. that the abnormality of mind substantially impaired the accused's mental responsibility for the killing.

It is the accused who bears the burden of proving, on the balance of probabilities, that these three elements have been established ( Crimes Act 1900 (NSW) s.23A(2). See also R v Purdy [1982] NSWLR 964; R v Tumanako (1992) 64 A Crim R 149 at 159-160).

3.7 The defence of diminished responsibility may potentially be pleaded on the basis of one of a wide range of mental disorders, provided that the disorder results from a cause listed in parentheses in s.23A(1). In this sense, the scope of diminished responsibility is much wider than the defence of mental illness. The defence of mental illness applies only to those mental conditions which can be shown to affect the accused's cognitive process to such an extent as to render that person incapable of knowing the nature or quality of his or her act, or incapable of knowing that that act was wrong. In contrast, diminished responsibility requires a substantial impairment caused by an abnormality of mind. This may cover, for example, uncontrollable urges and extreme emotional states, as well as cognitive disorders falling outside the defence of mental illness.

3.8 On the other hand, diminished responsibility is a more limited defence than the defence of mental illness in the sense that, unlike the defence of mental illness, it applies only to proceedings for murder. Moreover, a successful plea of not guilty by reason of mental illness results in a complete "acquittal", although in fact this means that the person is held in "strict custody" in a prison or psychiatric hospital for an indeterminate period. In contrast, conviction for manslaughter by reason of diminished responsibility does not result in an acquittal but instead reduces liability from murder to manslaughter, with the imposition of a determinate sentence of up to 25 years' penal servitude.

3.9 Typical examples of cases in which diminished responsibility may be pleaded are where the accused suffers from a mental condition such as schizophrenia or severe depression, or has an intellectual disability (In the Judicial Commission's study of sentenced homicide offenders in New South Wales between 1990 and 1993, the most commonly diagnosed conditions giving rise to the defence of diminished responsibility were major or severe depression and schizophrenia, followed by brain damage, personality disorders, and post traumatic stress syndrome: see H. Donnelly, S. Cumines and A. Wilczynski, Sentenced Homicides in New South Wales 1990-1993: A Legal and Sociological Study (Monograph Series Number 10, Judicial Commission of New South Wales, 1995) at 66). In more controversial cases, the defence may be raised where the accused claims to have suffered from an antisocial personality disorder (See, for example, R v Byrne [1960] 2 QB 396 (Eng CCA); R v Evers (Court of Criminal Appeal, NSW, 16 June 1993, CCA 60086/92, unreported)), or from premenstrual tension. As for the frequency with which the defence is pleaded, a study of sentenced homicide offenders in New South Wales between 1990 and 1993 revealed that diminished responsibility was raised by approximately 14% of people accused of murder. A verdict of manslaughter was returned in approximately 61% of those cases (whether following a trial or following the Crown's acceptance of a plea)."



ABNORMALITY OF MIND
3.10 Section 23A requires an accused to show that he or she was suffering from an abnormality of mind at the time of the commission of the offence. In R v Byrne [1960]2 QB 396, Lord Parker CJ described "abnormality of mind" as:

"a state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal. It appears...to be wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will-power to control physical acts in accordance with that rational judgment. See also R v Tumanako (1992) 64 A Crim R 149; R v Chayna (1993) 66 A Crim R 178.



CAUSES OF THE ABNORMALITY
3.11 The second element of the defence requires the accused to show that his or her abnormality of mind arose from one of the three causes listed in s23A, namely from a condition of arrested or retarded development of mind, or from an inherent cause, or induced by disease or injury. This is something which must be determined by expert evidence( R v Purdey [1982] 2 NSWLR 964 at 966; R v Tumanako (1992) 64 A Crim R 149 at 160)



SUBSTANTIAL IMPAIRMENT OF MENTAL RESPONSIBILITY
3.12 Section 23A requires the accused to prove that his or her mental responsibility for the act causing death was "substantially impaired" as a result of the abnormality of mind. This third element requires the tribunal of fact to determine whether the accused's capacity for rational conduct was impaired, whether that impairment was substantial, and whether there was the necessary causal relationship between that impairment and the acts which the accused committed ( R v Gieselmann Unreported CCA (NSW) 28 June 1996) "substantial" impairment does not necessarily mean total impairment, but the impairment must be more than trivial or minimal ( R v Ryan Unreported CCA (NSW) 30 October 1995). Expert evidence may be admitted however courts have recently emphasised that the question of whether a person's mental responsibility was substantially impaired is really a question of degree, essentially involving a moral judgment. As such, it is a matter for the jury to determine, after approaching the question in a common sense way and applying community standards. Since it primarily involves the making of a moral judgment, it is a matter on which juries may legitimately differ from expert medical opinion (see R v Gieselmann at page 15 per Mahoney P)



SUBSTANTIAL IMPAIRMENT BY ABNORMALITY OF MIND

(The Defence of Diminished Responsibility from the 3rd April 1998)

3.13 For offences on or after the 3rd April 1998 Section 23A reads as follows:

"(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 person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an under lying condition, and

(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

(2) For the purpose 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.

(6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death.

(7) If, on the trial of a person for murder, the person contends:

(a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or

(b) that the person is not liable to be convicted of murder by virtue of this section,

evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may given directions as to the stage of the proceedings at which that evidence may be offered.

(8) In this section:

underlying condition means a pre-existing or physiological condition, other than a condition of a transitory kind."



OUTLINE OF PROVISIONS:
3.14
(1) The principal elements of the new defence (called substantial impairment by abnormality of mind) are contained in the new section 23A (1).

(2) Subsection (2) provides evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible as this is a matter for the jury.

(3) Subsection (3) makes it clear that the effects of any self induced intoxication on the accused at the time of the acts or omissions that caused the death concerned are to be disregarded by the jury.

(4) Subsections (4) to (7) are substantially the same as the current 23A (2) to(5). They provide that:

(a) the onus of establishing the defence is on the accused, and

(b) the defence results in the accused's liability being reduced from murder to manslaughter, and

(c) proof of the defence does not affect the liability of any other person for the death concerned, and if the accused raises a defence of mental illness or a defence under 23A, the prosecution may offer evidence tending to prove the other of those contentions and the Court may give directions as to the stage of proceedings at which the evidence may be offered.



NOTICE PROVISIONS:
3.15 Section 405AB has been inserted which requires the accused to give the Director of Public Prosecutions notice of an intention to raise the defence. The notice is to include the names and addresses of any person the accused intends to call to give evidence of the defence and particulars of the evidence to be given by them.

Section 405AB provides:

"(1) On a trial for murder, the defendant must not, without the leave of the Court, adduce evidence tending to prove a contention by or behalf of the defendant that the defendant is not liable to be convicted of murder by virtue of section 23A, unless the defendant gives notice, in accordance with this section, of his or her intention to raise that contention no less than 14 days before the commencement of the trial.

(2) Without limiting subsection (1), the defendant must not, without the leave of the Court, call any other person to give evidence tending to prove a contention by or on behalf of the defendant that the defendant is not liable to be convicted of murder by virtue of section 23A unless the notice under this section includes:

(a) the name and address of the other person, and

(b) particulars of the evidence to be given by the other person.

(3) Any evidence tendered to disprove a contention that the defendant is not liable to be convicted of murder by virtue of section 23A may, subject to any direction of the Court, be given before or after evidence is given to prove that contention.

(4) Any notice purporting to be given under this section on behalf of the defendant by his or her legal practitioner is taken, unless the contrary is proved, to have been given with the authority of the defendant.

(5) A notice under this section is to be given in writing to the Director of public Prosecutions, and may be given by delivering it to the Director, or by leaving it at the office of the Director or by sending it in a registered letter or certified mail addressed to the Director at the office of the Director."


ABNORMALITY OF MENTAL FUNCTIONING ARISING FROM
AN UNDERLYING CONDITION

The Law Reform Commission, in its Report No.82, notes at page 54:

"3.16 The Commission's reformulation replaces the term "abnormality of mind" with the expression "abnormality of mental functioning arising from an underlying condition"/

3.17 In paragraphs 3.34 and 3.35, we noted the criticisms made of "abnormality of mind", that it is an ambiguous and not particularly meaningful term. Our initial reaction to these criticisms was to omit altogether any reference to "abnormality of mind" or a similar phrase, since we considered that any such phrase would be likely to lead to disputes amongst experts as to its exact meaning, and as to whether or not a particular mental condition could be said to fall within it. Instead, diminished responsibility could simply be defined in terms of whether or not the accused was affected as to capacity to understand, to judge, or to control his or her actions. That definition would have the advantage of not requiring experts to reach conclusions on whether a specific condition could be said to amount to an "abnormality of mind". Instead, the expert's attention would be focused on describing the way in which the accused was affected at the time of the killing.

3.18 However, a formulation which does not include a term expressly linking the defence to an underlying concept of mental impairment or mental disorder would risk widening the ambit of the defence too far. Potentially, diminished responsibility might then be pleaded by any person who killed in a heightened emotional state. We have therefore adopted the term "abnormality of mental functioning arising from an underlying condition". The expression "abnormality of mental functioning" was devised with the assistance of forensic psychiatrists and psychologists. It was considered to overcome some of the confusion amongst experts as to what exactly is intended by the word "mind" in the term "abnormality of mind", and would instead expressly require experts to consider the way in which an accused's mental processes were affected by reason of some underlying or pre-existing condition. It also adopts the language of the Mental Health Act 1990 (NSW), which refers to "mental functioning". That expression should therefore be more readily understood by expert witnesses. Whilst our formulation retains a reference to "abnormality", which is not a precise expression, we have defined "abnormality" in terms of a person's capacity to understand, judge, and control actions. By limiting the meaning of the term "abnormality" in this way, it is made clear that, by "abnormality of mental functioning", we are really referring to seriously disturbed mental processes, caused by an underlying condition, which affect the accused's capacity in those three respects, and not simply to any behaviour which seems unusual or bizarre. It is considered that, under this formulation, the defence might typically apply to people who, for example, suffer from severe depression or have an intellectual disability, or hypomanic people, but only if they can prove that by reason of these conditions, their capacity to judge, understand, or control their actions was substantially affected.

3.19 Under the reformulation recommended in this Report, the accused's "abnormality of mental functioning" must arise from an "underlying condition". The term "underlying condition" is defined as a pre-existing mental or physiological condition other than of a transitory kind. By including the phrase "arising from an underlying condition" in our reformulation, it is not the Commission's intention to replicate in another form the causes in parentheses under the existing definition in s.23A of the Crimes Act 1900 (NSW). Nor do we intend to limit the defence to endogenous mental diseases to the exclusion of, for example, people whose capacities are impaired by reason of brain injury. The term "raising from an underlying condition" is intended to link the defence to a notion of pre-existing impairment requiring proof by way of expert evidence, which impairment is of a more permanent nature than a simply temporary state of heightened emotions. This does not mean that the condition must be shown to be permanent. It simply requires that the condition be more than of an ephemeral or transitory nature. So, for example, a severe depressive illness which is curable would still be considered to come within the definition of "underlying condition", notwithstanding that it is not permanent. On the other hand, a transitory disturbance of mind brought about by heightened emotions, such as extreme anger in typical cases of "road rage", would be excluded from the definition of "underlying condition" and therefore could not form the basis of a plea of diminished responsibility."



CAPACITY TO UNDERSTAND, JUDGE OR CONTROL

The Law Reform Commission Report 82, page 56 notes:

"3.20 The Commission's formulation defines diminished responsibility in terms of a substantial impairment of the capacity to understand events, to judge whether actions are right or wrong, or to control those actions. In this way, we have spelt out what has generally been regarded since Byrne as the essential meaning of "abnormality of mind" under the existing statutory formulation.

3.21 While adapting the Byrne definition of "abnormality of mind", the Commission has given careful consideration to whether or not the third component, "capacity to control", should be included within our new definition of diminished responsibility.

3.22 We are conscious of the concerns expressed in submissions and in consultations that it will often be difficult for experts to state with any certainty whether or not a person was incapable of controlling that person's actions, or whether that person simply chose not to. In some cases, this is an issue on which expert witnesses inevitably will disagree. We are also aware of the objections concerning the possible application of the defence to people suffering from so-called anti-social personality disorders or "psychopathy". The Commission agrees that so-called "psychopaths" or people suffering from antisocial personality disorders ought not for that reason alone to benefit from the defence of diminished responsibility. Under our formulation, such people may try to raise the defence on the basis that they were incapable of controlling themselves in killing. However, we do not consider that such a claim would succeed, especially given that the accused must satisfy the jury that the impairment arose from an underlying condition and that the impairment was so substantial as to warrant reducing liability from murder to manslaughter. If, on the other hand, consideration of a person's capacity to control himself or herself were excluded altogether from our reformulation of diminished responsibility, there is a risk that other people who should be receiving the benefit of the defence will be unfairly excluded, such as brain damaged people, hypomanic people, or people suffering from auditory hallucinations. For this reason, we have decided to include this third component, "capacity to control himself or herself", within the reformulation. It will then ultimately be for the jury to decide whether a person really was incapable of controlling himself or herself, to the extent that that person satisfies the additional requirement of proving that murder should therefore be reduced to manslaughter.

3.23 The Commission's reformulation also omits any requirement to identify a specific cause of the accused's condition. Thus it would no longer be necessary to prove that the accused's condition was caused by an arrested or retarded development of mind, an inherent cause, or a disease or