The purpose of this paper is to present a commentary on the Crimes Amendment
(Diminished Responsibility) Bill 1997 (henceforth, the Diminished
Responsibility Bill).
Background issues: In terms of the background to the Bill, some of the
paper's main findings are as follows:
- the Bill would repeal existing section 23A of the Crimes Act
1900 and the defence of diminished responsibility. In its place the Bill
proposes: a new defence of substantial impairment by abnormality of mind; and a
procedural requirement that an accused person must disclose before the trial
starts that he or she intends to rely on the defence;
- to a substantial extent the Bill is based on the report of the
NSW Law Reform Commission on Partial Defences to Murder: Diminished
Responsibility;
- the partial defence of diminished responsibility was introduced
in NSW in 1974, at a time when there was still a mandatory life sentence for
murder. The defence served the purpose of avoiding a murder conviction by
permitting a lesser punishment where the accused was mentally impaired but not
insane (page 5);
- under the defence of insanity or mental illness, the person's
responsibility for his or her actions is nil, which in NSW results in that
person's detention in prison or hospital as a forensic patient. Under the
defence of diminished responsibility, on the other hand, a degree of mental
responsibility remains, thus serving only to reduce culpability from murder to
manslaughter (page 7);
- under section 32 of the Criminal Procedure Act 1986 an accused
person standing trial for an indictable offence may elect to have the charge of
murder tried by judge alone. In Chayna (1993) 66 A Crim R 178 Gleeson CJ
referred to a tendency for the legal representatives of accused persons who
wish to raise a case of diminished responsibility to prefer a trial without a
jury'. In 1995 the DPP issued guidelines for Crown Prosecutors as to the
granting of consent to an accused to be tried by judge alone. Statistical
figures for the post-1993 period are not available (pages 10-11);
- the Bill has been introduced at a time when it is felt in some
quarters that the judiciary is failing to reflect the standards and values of
the community in its sentencing decisions. Responding to this, a key feature of
the Bill is that it places increased emphasis on the moral assessment by the
jury as to whether the evidence warrants the reduction from murder to
manslaughter';
The defence of substantial impairment by abnormality of mind: The main
differences between the current defence of diminished responsibility and the
new defence are as follows: