Re-cap

Offense: establishing criminal liability Defenses: reasons why accused should be exempt from the criminal law

1. The defective agent: mental and volitional 2. Justification 3. Excuses 4. Failure of proof (mistake, intoxication)
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The defective agent: mental and volitional

Unsoundness of mind

Unsoundness Incapacity to know nature/wrong or contrary to law

Abnormality (arrested/retarded development, inherent causes, disease/injury) Substantial impairment of mental responsibility

Diminished responsibility

Insane automatism/automatism

Lack of control but not lack of consciousness How do you fit this into the Penal Code?

Re:cap Unsoundness

MNaghtens Rules [1843]

A killed secretary of PM came to London to kill PM the tories in my city follow and persecute me wherever I go, and have entirely destroyed my peace of mind. They do everything in their power to harass and persecute me Question went all the way to HOL laboring under such a defect of reason, from disease of the mind, as to not know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong

Re-cap Unsoundness

Mental defect
Prove defense of unsoundness Challenge mens rea (Rozman)

What if drug induced?

Local case law dont deal with this very clearly Discount the effect of the drug artificial?

Re-cap Unsoundness

Chia Moh Heng

A 52 years old, unemployed - renting flat together with 55 year old friend one day, 1 am, A woke up and went to brush teeth - saw knife next to the sink - took it in his hand and walked to sleeping friend stabbed friend in chest In deciding s.84 or exception 7

Medical evidence essential but not the final word

Whose perspective does the judge seem to prefer?

Medical, legal, ordinary man?

What does judge think of legal test for s. 84 Does the judge apply any legal test?
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Re-cap diminished responsibility

What test? Krishnasamy Naidu: composite test

abnormality of mind that substantially impairs mental responsibility Abnormality of mind (Byrne definition: cognitive and volitional) arrested/retarded development, inherent causes, disease/injury Substantially impairs
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YMC: 3-step test

Krishnasamy Naidu

A and V married on 1985 2 kids in 1980s, v had affair In 2000, v had affair In 2001, v had affair another affair In 2004, another affair Lower court applies 3-step test (fails 3rd step) If the mental responsibility of the accused was not impaired, then the answer to the composite question really should be that the accused was not suffering from an abnormality of mind that substantially impaired his mental responsibility Court did not agree with lower ct assessment of facts

Importance given to plan Assessment that could have resisted impulse

Court argued that lower courts wrong assessment resulted from using wrong test do you agree?

Lim Chin Chong [1998] 2 SLR 794

A young male prostitute killed V when V propositioned A Argued: acute adjustment disorder

Psychiatrist: this disorder cumulative effect of being sent for adoption when 2 yrs old; adoptive mother dying when 4 yrs old; adoptive father remarrying at 6 yrs old; lack of love; running away from Penang to Kelantan; duped into being male prostitute --- developed guilt complex breaking point when propositioned Para. 37 f this all it takes to set up the defense of diminished responsibility then society will run amok with many of these sufferers killing others on the spur of the moment and then hiding behind a shield of abnormality of mind to lessen the gravity of their crimes

Automatism
Seminar 9

Automatism

Targets situations where accused has no control over actions Two kinds of lack of control

Peculiar to accused Can happen to any of us

Penal Code does not expressly provide for both kinds of automatism

Why should accused suffering from automatism be exempted? Lack of control --- voluntariness of action (idea that criminal law should treat individuals as choosing agents)
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Insane automatism

S.84 Unsoundness
Incapacity to know nature/wrong or contrary to law Cognitive/consciousness

Automatism

No control but may be conscious

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Insane automatism

YMC interprets s.84 to include insane automatism

Problem s. 84 refers to cognitive defects, automatism is a control problem (may be conscious)

S.84 Nothing is an offence which is incapable of being done (implies voluntariness) by a person.by reason of unsoundness of mind No need to go on to see if incapable of knowing nature/wrong or contrary to law
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Sane/insane automatism

Does it matter?

Burden of proof

Factors to be considered
Common law countries Internal cause Continuing danger

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Sane automatism

S. 39 voluntary A person is said to cause an effect voluntarily when he causes it by means ( YMC:implies willed conduct) whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it do you agree?
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Sinnasamy

A charged with the murder of his infant daughter. A claimed to have suffered from an epileptic fit at the time of the killing. The defense was that D did the act when in a state of automatism, which is a temporary loss of consciousness associated with some types of epilepsy. The onus is on D to set up this defense, and the question is whether he has succeeded in bringing himself within s 84 of the Penal Code. Did judge believe he was having a fit at that time?
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Kenneth Fook Mun Lee

Automatism comprises a state of defective consciousness in which a person performs unwilled acts. Two types of automatism (citing foreign case law)

insane automatism sane (or non-insane) automatism

The two types are differentiated according to whether the cause was internal or external, and whether the condition was prone to recur. The burden of proof varies according to whether the automatism was insane (burden on the defence) or sane (burden on the prosecution).
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