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

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The relevance of mental impairment to the jury’s consideration of the mental
element of an offence
5.127 A separate but related consideration to the issue of the order of offence elements is
whether the accused person’s mental impairment is relevant to the jury’s consideration of
the mental element of an offence.
5.128 This issue has been identified as arising in particular under the Stiles approach to directing
the jury on offence elements.
5.129 Under the Stiles approach to directing a jury, the jury would first have to determine if
all the elements of the offence have been proved, including the mental element of the
offence. It is only after all the elements of the offence have been proved that the jury
would consider evidence relevant to the defence of mental impairment. However, if
there is evidence that the accused had a mental impairment at the time of the offence,
this could be relevant to the accused person’s state of mind at the time of the offence. If
there is such evidence, even if it falls short of establishing the mental impairment defence,
the prosecution may be unable to prove the mental element of the offence because the
accused person was suffering from a mental impairment.
5.130 The issue therefore centres on the uncertainty as to whether evidence of an accused
person’s mental impairment is to be used by the jury to either:
• find that the impairment prevented the accused from forming the requisite mental
element for the offence and therefore the element is not proved at all and completely
acquit the person, or
• find that the mental element is proved, but that the impairment prevented the
accused from having the capacity to know the nature and quality of their actions or to
know whether it was right or wrong, and therefore find the accused person not guilty
because of mental impairment.
5.131 A number of trial judges have drawn attention to the uncertain state of the law on this issue
and the consequent difficulty in properly instructing juries. 113 In the case of Soliman, this
issue arose in the context of whether evidence of the accused person’s mental illness could
be used to determine whether the fourth element of the offence of rape (awareness that
or not giving any thought to whether the complainant is not consenting or might not be
consenting), had been proved by the Crown beyond reasonable doubt. The court held that:
If an accused is to be presume[d] to be of sound mind for the purposes of a jury’s
consideration of all the elements, then evidence which goes to the issue of mental
impairment, whether it be evidence supporting the defence or rebutting it, should only be
considered if, and when all the elements of rape, are proven. If this were otherwise, then
potentially all the same evidence which would be relied upon to establish, or even rebut the
defence of mental impairment, may well result in an accused’s outright acquittal and would
interfere with the presumption of sound mind. This would potentially undermine the Stiles
approach and undermine the province of the defence of mental impairment itself. 114
5.132 The High Court in Hawkins stated that evidence of ‘mental disease’ (under section 16 of
the Criminal Code Act 1924 (Tas)) is relevant to specific intent where this is not sufficient
to amount to a defence of insanity. 115
Question
44 What approach should be adopted in determining the relevance of mental
impairment to the jury’s consideration of the mental element of an offence
113 See, eg, Transcript of Proceedings, R v Sutherland (County Court of Victoria, CR-10-00016, Judge Punshon, 18 October 2012) 118.
114 DPP v Soliman [2012] VCC 658 (1 May 2012) [41].
115 Hawkins v The Queen (1994) 179 CLR 500, 517.
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