Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

Victorian Law Reform Commission
Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper
The approach in other jurisdictions
5.122 In Western Australia, the issue of how the jury should approach the elements of the
offence was considered in the case of Ward v The Queen (Ward). In this case it was held
that it is the directions which are provided to the jury which are important, rather than
the order in which the elements are approached:
Provided that all defences open to an accused are the subject of proper directions, and
all elements of the offence are canvassed, it has not as I understand it been suggested
that it is necessary, as a matter of law, that directions consider particular matters in any
particular order. 108
5.123 The view in Ward was endorsed in the case of Stanton v The Queen where it was held that
the judge has discretion in directing the jury on how to approach the elements of the offence:
there is no rule of law or practice that requires a trial Judge to direct a jury that they
must consider (as opposed to decide) on various alternative offences that are open on an
indictment in any particular order. The trial Judge may do so if he or she thinks that the
facts of the case so require and that it will assist the jury to do so. But the power of the jury
to approach the task in whatever way they see fit must be respected. If such a direction is
given it should be made clear that it is directory or permissive rather than mandatory. 109
5.124 In 2007, the Western Australian Law Reform Commission agreed with the position in Ward
and Stiles. It recommended that legislation should not outline the procedure to be followed
for a jury considering the elements of a mental impairment defence. In doing so, it said:
The Commission agrees with the reasons for decision of Wheeler and Pidgeon JJ in Ward
who stated that, so long as correct directions are given to the jury in respect of the
relevant burden of proof and other matters in relation to each issue, there is no reason to
require a trial judge to direct a jury to consider the questions of intent and insanity in a
particular order. 110
5.125 Consistent with the Western Australian approach, in South Australia, legislation provides
that the trial judge has the discretion to decide on the order in which the objective and
subjective elements of the offence are to be considered. The legislation outlines options
for the procedure to be followed, depending on which elements of the offence are to be
considered first. 111
5.126 In New Zealand, the judge or jury only considers the issue of mental impairment once the
Crown has proven that the act was committed. As stated in R v Cottle:
Questions
This is for the reason that the jury would only go on to consider the special defence, if it
were already convinced that the Crown had proved to its complete satisfaction that the
act had been committed by the prisoner and—if he was sane—in circumstances which
compelled the conclusion that the act was deliberate and intentional. 112
42 What approach should be adopted in directing juries on the order of the
elements of an offence in cases where mental impairment is an issue
43 Should the trial judge be required to direct the jury on the elements of an
offence in a particular order where mental impairment is an issue
108
108 Ward v The Queen (2000) 23 WAR 254 [130].
109 Stanton v The Queen [2001] WASCA 189 (22 June 2001) [84].
110 Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report (2007) 237.
111 Criminal Law Consolidation Act 1935 (SA) ss 269F, 269G.
112 R v Cottle [1958] NZLR 999, 1030.