THE

DEFENCE
OF
INSANITY

INTRODUCTION
Section 84 of Penal Code
Nothing is an offence which is done
by a person who at the time of doing
it, by reason of unsoundness of mind,
is incapable of knowing the nature of
the act or that he is doing what is
either wrong or contrary to law

MEANING OF INSANITY
Malaysian provision does not use the
word insanity but unsoundness of
mind
Section 84-person of unsoundness of
mind is not able to form intention and
cannot be held liable for their acts.
Derived from the main rule in the
case of Daniel MNaghten

MNaghtens Rule
to establish a defence on the ground of
insanity, it must be clearly proved that, at the
time of the committing of the act, the
accused was labouring under such a defect of
reason, from disease of the mind, as not to
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.

 In Daniel MNaghtens case (1843), M Naghten had

been charged with murder after he shot the secretary
of Sir Robert Peel, whom he mistook for Sir Robert
Peel. He was under the delusion of persecution that
Sir Robert Peel had injured him. He was acquitted on
the ground of insanity. In consequence of the ensuing
public controversy, the House of Lords put a number
of questions to the judges answers, were reported in
the law reports under the heading, Daniel
MNaghtens Case. Although not given in the course
of decision nonetheless been accepted by the courts
ever since as correctly laying down the terms of the
defence, and there are now a large number of
reported judicial endorsement of the MNaghten rules.

 In this case, Tindal C.J. decided that the

accused did not know what he had done.
As a result, it caused uproar in the
Parliament. Then the House of Lords called
the three judges and held discussion. The
House of Lords, comprising of 15 judges,
referred to certain answers, namely:
a) At the time of committing the
crime, the
accused was labouring
under such a defect of reason from
disease of the mind

b) That he did not know the nature and

quality of the act and if he did know it,
he
did not know what he was doing
was wrong.
The House of Lords laid down five principles
based on the answer of the judges :
1) Every man is presumed to be the same
and to possess same degree of
responsibility until the contrary is proven to
the satisfaction of the jury.

2) To establish a defence on the

ground of insanity, it must be clearly
proved that at the time of committing
the offence, the accused was labouring
under the defect of reason from the
disease of the mind as not to know the
nature and quality of the act he was
doing or if he did know it, he did not
know what he was doing is wrong.

3) If the accused was conscious that

the act was one which he ought not to
do and if the act was at the same time
contrary to the law of the land, he is
punishable.
4) A medical witness who has not seen
the accused before trial should not be
asked whether based on the evidence
he thinks that the accused is insane.

5) Where a criminal act is committed

by a man under some insanity,
morbid delusion as to the
surrounding fact which conceal from
him the true nature of the act he was
doing, he will be under the same
degree of responsibility as he would
have been of the facts as imagined
them to be.

The Important Principles to Prove

Insanity from MNaghtens case
Nature and the quality of the act
Doing what was wrong
Regina v. Windle (1952)
Geron Ali v. Emperor (1941)
Ashiruddin Ahmed v. The King
(1949)

i) Nature and quality of the act

An insane person who was acting in a state of
automatism ( state of unconsciousness ) would not
know the nature of his act.
ii) Doing what was wrong
It might be asked whether, if the accused knew
what he was doing, he also knew that it was wrong
or contrary to law. The MNaghten rules use the
word wrong only. In this context the word wrong
mean moral wrong or legal wrong?

 Wrong' in the MNaghten rules

means contrary to law.
However,in the case of R v Windle,
the question whether the appellant
knew that what he was doing was
morally wrong was not raised as it
was not necessary - under the
MNaghten rules wrong means
contrary to law

Regina v Windle (1952)

In this UK case, the appellant was charged and
sentenced to death for the murder of his wife
who was insane. The accused was 40 years of
age and a person of weak character. He was
married to a woman 18 years younger than him
and his marriage life was not a happy one. The
wife keep on nagging of committing suicide. He
always talked of his marriage problem with his
workmates. His workmates were tired of his
story. Eventually, one of his workmates told the
appellant to give her a dozen of aspirin.

 One day, the appellant gave the wife

100 aspirin tablets. This caused her
death. When he was questioned by the
police, he admitted that he gave her
100 tablets of aspirin and they said that
he would be hanged for that. The doctor
said that the appellant was suffering
from the disease of the mind called as
folie a deux but was aware of what he
was doing was forbidden by law.

 But he thought that he was doing her a favour as

she always thought or nagged of committing
suicide. He knew that the act was contrary to law.
It was held that the word wrong refers to legal
wrong and not moral wrong, therefore, he could
be charged for murder.
If the said case had arisen in Malaysia or
Singapore, and a disjunctive view is accepted
under section 84, the question whether the
appellant knew his act was immoral would be
significant. On the facts, it might appear to him
that it was morally right to kill his wife.

 However, in Stapleton v Queen

(1952); an Australian case, the court
held wrong means moral wrong i.e.
according to the ordinary standards
adopted by reasonable man. If the
accused said that what he was doing
what was morally right, then he
would come under the protection.

 In MNaghtens rule the word used is

wrong and it means contrary to
law.
Section 84 on the other hand refers
to wrong or contrary to law.
The word wrong or contrary to
law under section 84 of the Penal
Code has several interpretations.

 Davies: He said that wrong or contrary

to law must be read conjunctively, that is
you have to read or as and.
Mc Killop: It is sufficient to prove either
wrong or contrary to law, therefore, it
must be read disjunctively according to
him.
Indian Court has also divided on this point.
This was reflected in the following cases:

Geron Ali v Emperor

(1941)
Conjunctive view

The appellant followed a deviationists teaching

founded by one Khoar Ali (Guru). The guru had a
mistress named Pirani. When the villagers found the
guru and the mistress were not married but staying
together, they became unpopular in the village. So
Geron Ali who was very loyal to them called them as
father and mother, complained to the guru about the
villagers attitude. The guru told Geron Ali to bring
their heads to him. He beheaded one of the villager
and his daughter . He brought the two heads to his
guru and said, father, you ask me for one human
head, I present two. The defence pleaded was
insanity.

 The Calcutta High Court was of the view that the

word wrong or contrary to law should be read
conjunctively i.e. the accused must proved that he
did not know what he was doing was contrary to
law and also did not know it was wrong.
The accused did not know that what he was doing
was wrong he considered that he was doing a
meritorious act which qualified him for heaven.
The accused alsodid not know what he was
doingwas contrary to law he killedthese persons
without any effort of concealing it.
The court was satisfied that Geron Ali fulfilled both
requirements.

Ashiruddin Ahmed v The King

(1949)
Disjunctive view
The appellant in his evidence said that
he heard a voice from heaven saying
that his Qorban (sacrifice) was not
accepted by God. He said that the
voice told him to replace a Qorban
with his own child and he executed it.
It was done in the mosque. According
to his defence he was suffering from
unsoundness of mind.

 The judgement was that whether as a

result of his unsoundness of mind he was
prevented from knowing whether his act
was wrong or contrary to law. From the
fact, he knew that his act was contrary to
law because after the killing he went to his
uncles house but when he arrived there
his uncle was talking with a policeman. He
called his uncle to a different place and
told him the whole story.

 The test used was disjunctive test

and he was given protection under
section 84 on the basis that he was
incapable of knowing that his act was
wrong.
In conclusion, in India there are two
view as held in Geron Ali and
Ashiruddin.

ELEMENTS OF INSANITY UNDER S.84 PC

Nothing is an
offence at the
time
of doing it

Due to unsoundness
of mind

Incapable
of knowing

Wrong or contrary
to law

 Nothing is an offence
Like all the several exceptions in Chapter IV of
the Penal Code, insanity if successfully pleaded
operates as a complete defence to all offences.
There is however, one significant difference
between insanity and other defences. The
accused when acquitted under the defence of
insanity will normally be detained in a mental
institution at the discretion of the president in
Singapore and the Yang di Pertuan Agong in
Malaysia.

 At the time of doing it

Under both the MNaghten rules and
section 84 of the Penal Code, the
accused must be suffering from the
requisite mental disability at the time
he commits the alleged offence. It is
quite obvious that evidence of mental
disability must nesessarily be based
on medical or psychiatric examination.

 However if the accused suffering from a mental

disorder that by itself was insufficient to bring
him within the defence of insanity, he will not get
the benefit of the defence if that disorder was
aggravated by alcohol consumed just prior to the
alleged commission of the offence eventhough
such combination may have resulted in a lack of
the requisite knowledge specified in the defence
of insanity. In such a case, the time of assessment
of the accuseds mental capacity is immediately
before he consumes the alcohol, i.e. before the
actual commission of the alleged offence.

 Insanity as a defence may be due to

any cause and may be permanent or
temporary, but it is essential that the
accused should be suffering from
insanity at the time of doing the act
complained of.

 Unsoundness of mind
It is a state when the mind does not function
properly. It may manifest in so many ways eg.
Idiocy, lunacy, imbecility, delusions, derangements,
fits etc. There is no hard and fast rule or limit within
which a man can be said to be of sound mind.
A man can be said of unsound mind if he cannot
understand others, cannot express himself, cannot
judge the consequences of his acts or distinguish
between good and bad, right and wrong.

In other words, a person is of unsound mind

whose mental faculties have been impaired
and has become destitute (poor) of reason,
intelligibility and coherence of thought.
This is to say that he has lost his mental
balance or equilibrium.
It is not every degree of mental disease or
disequilibrium that can avoid responsibility.
-Trivedi (1981)

 What is the difference between unsoundness of

mind in section 84 and disease of the mind under
MNaghten rule? To certain extent they do over-lap.
However the concept of unsoundness of mind is
wider than disease of the mind causing a defect of
reason.
Section 84 would not only include diseases of the
mind but also mental deficiency not resulting from
disease of the mind. For eg. it would cover brutish
stupidity without rational power which is excluded
under MNaghten rule.

 MNaghten rules used the term defect of

reason from disease of the mind.
A defect of reason is more than a momentary
confusion or absent-mindedness; a deprivation of
reasoning power is required.
The requirement that the mental impairment should
be caused by disease must be emphasized. A
malfunctioning of the mind of transitory effect
caused by the application to the body of such
external factor as violence, drugs, including
anaesthetic and hypnotic influences cannot be
considered as constituting disease of the mind.

 The same is equally true of a diabetic

who gets into a hypoglycemic coma
as a result of failing to take food after
taking insulin.( since the failure to
take food to counteract the insulin is
an externalfactor). It would however
be different if the diabetes itself
caused the coma.

 Disease or unsoundness of mind will usually have

to be proved by medical evidence. Mental
diseases like schizophrenia, paranoia or lunacy are
classified as medical insanity that can also come
under the defence of unsoundness of mind,
provided that other conditions in section 84 are
satisfied.
The entire mental history of the accused will be
relevant (both before and after) to the issue of the
accuseds insanity at the particular time of the
commission of the alleged offence, and also any
evidence of mental disorder in near relatives or
ancestors will be likewise considered pertinent
substantiating evidence.

 Delusions, hallucinations and illusions

may all occur as symptoms of
dementia or other psychotic illness.
In MNaghten case, the accused was
suffering from morbid insane delusions
of persecution by Sir Robert Peel. He
wanted to shoot Sir Robert Pellbut by
mistake, shot his secretary.
Similarly in Ashiruddin Ahmed.

Lipmans case (1970)

The accused took some. He was then under
the illusion of descending to the center of
the earth and being attacked by snakes. In
attempting to fight off the snakes, he killed
the victim who suffered two blows on the
head but died of asphyxia as a result of
bed sheet being crammed into her mouth.
He said that he had no knowledge of what
he was doing and no intention to kill or do
grievous bodily harm.

 It was held that he was not liable as

he was under the influence of
morbid delusion.
In the above case, we can say that,
morbid delusion can be used as a
defence only when it affected his
mind to do the wrongful act.

 In Jusoh v PP, the accused ran amok

for no apparent reason, killing four
people. Any ordinary man might well
be prompted to say this is the work
of madman.
Relying on the defence of mania, the
conviction of the accused was
quashed.

 In the English case of Kemp(1956), the accused,

during a period of unconsciousness arising from
arteriosclerosis (hardening of the arteries),
attacked his wife with a hammer. The accused was
suffering from a congestion of blood in the brain
as a result of arteriosclerosis. However, this is not
regarded as disease of the mind within the scope
of insanity in MNaghten rule. Thus, he raised the
defence of automatism and not insanity.
Devlin J however held that the accused was
suffering from a disease of the mind.

 In PP v Rozman bin Jusoh (1995), the

accused was convicted of drug-trafficking
after his defence under section 84 was
unsuccessful. He claimed that he was of
subnormal intellect. However, it was held
that subnormal intellect was not
unsoundness of mind and it did not
prevent him from knowing that his act of
drug-trafficking was contrary to law.

 In his lordships view, this disease at this

stage is purely physical, when it
interferes with the brain cells, it then
becomes a disease of the mind.
In the Indian case of Re Pappathi
Ammal (1959), somnambulism
(sleepwalking) could come within the
scope of section 84 of the IPC. However,
hypnotism is viewed as an external factor
that should not be covered by section 84.

 Incapable of Knowing
The unsoundness of mind under section
84 or the disease of the mind under
MNaghten must affect legal responsibility
before the defence can succeed. It must
impair the cognitive faculties as opposed
to the emotional/volitional capacities. (It
excludes for instance irresistible impulse).

 The successofanirresistibleimpulse
defencedependson the facts of the case.
Forexample,assumethata child has been
molested. If the childs mother shoots and kills the
suspected molester, the mother could argue that
she was so enraged by the violation of her child
that she was unable to control her actions. The
mother need not
havebeendiagnosedasmentallyill.
Rather,shewouldneedtoshowthatshewas
mentally ill at the time of the shooting and that the
illness impaired her self-control.

 Insomestates,theirresistibleimpulse
defencehasneverbeenadopted.Inothers,it
hasbeenadoptedandsubsequently
withdrawn.Whereithasbeenrejected,the
reasonsaregenerallythesame:toprevent
sanepersonsfromescapingliability
simplybecausetheywereunabletocontrol
theiractions.

 In Sinnasamy v PP (1956), the appellant was

charged with murder of his own daughter aged
21 months. The medical evidence tendered
shows that his parent was down with epilepsy.
In his defence he can only remember incidents
before and after the mishap.
The accused failed to prove his defence under
section 84. The accused was acting in the
state of irresistible impulse therefore he was
not qualified to raise the defence of insanity.

 It can be said that, the irresistible

impulse cannot be a defence under
section 84.

 The reasoning ability of the accused

must be affected; it is not enough
that he simply failed to use powers of
reasoning which he had. This aspect
of the insanity test is classically
illustrative of the laws basic premise
of responsibility. Guilt cannot be
adduced in the absence of the
capacity to reason.

 Wrong or contrary to law

The accused must then go on to show
that because of his insanity either he
did not know the nature of his act or if
he did know it, he did not know either
he was doing wrong (under
MNaghtens case and section 84) or
contrary to law (under our section 84
only).

CONJUNCTIVE AND
DISJUNCTIVE APPROACH IN
MALAYSIA
AZRO v. PP (1962)
JUSOH v. PP (1963)

 In Malaysia, both conjunctive and disjunctive

approach was applied by the judges in the
following cases.
Azro v PP
Accused, living in Singapore, made a business with
another person in Malaysia. One day, at about 1a.m,
he was found sitting astride the deceased and
stabbed him to death (inflicted some 20 stab
wounds). He caused injuries to the rescuers also. His
defence was he acted due to unsoundness of mind.

 Thompson C.J opined that under section 84,

the unsoundness of mind must lead to one of
the two consequences, either that the accused
person incapable of knowing the nature of his
act or that he is incapable of knowing that his
act was wrong or contrary to law. Therefore,
his appeal was dismissed by the court.
From this case, he cannot raise the defence
under section 84 because he failed to fulfill
the said requirements.

 In Jusoh v PP, the appellant went

berserk (amuk) and killed his sister in
law, his two children and a young
stranger when he became violent. He
was convicted under section 302 on
murder. On appeal, he contended
that he was not having any motive
and he raised up the defence of
insanity under section 84.

 It is sufficient to establish insanity under

section 84, if the accused act as a result of
unsoundness mind and does not know what
he did was wrong.
The judge did not mention the phrase
contrary to law, therefore we can assume
that the judge applied disjunctive approach.
He was found not guilty as he lost control
himself.

 The court held that the accused was

suffering from mania which would
produce in him an irresistible impulse
to do what he did, and that although
irresistible impulse is no defence, the
type of mania from which it springs
generally produces the consequence
that the sufferer does not know what
he is doing is wrong.

Motive
In Yeo Ah Seng v. PP (1967), the
accused killed his three friends
without apparent motive. The trial
judge has misdirected the jury by
saying that every man is presumed
to intend to know the natural and
probable consequences of his act.
This was a wrong direction. The
appellant appeals to Federal court.

 The court said that although the motive

was not very important in murder, the
jurys attention should have been drawn
to the fact that lack of motive should be
considered as a lack of intention.
Therefore, if there was no motive, there
was no intention and most probably that
he was insane. Therefore, the motive
should be considered by the court.

 In deciding the case, the court must consider

the motive of the accused person since the
motive and intention are interrelated.
In Goh Yoke v PP (1970), the appellant killed
and dismembered the body of his own son. He
put the dismembered body into a sack. The
sack was found floating in the Malacca River.
Here again, the issue arose on the misdirection
of the judge to the jury. There was failure to
explain to the jury the medical evidence and
also appellants family history.

 For example that two of the appellants sons

were mental patients, one died and mentally
insane and another was admitted to mental
hospital for three times suffering from mental
problem. The case was that the killing was
motiveless and this was not pointed out to
the jury.
Therefore, in this case, all the relevant
information must be disclosed to the jury and
there should not be misdirected to the jury.

 In Chia Chan Bah v The King (1938),

the accused was charged for murder
and the defence contended that there
was no motive. The victim was the one
reported to him as attempting to
molest his wife.
The court held that the accused was
liable and thereby convicted him as the
defence of insanity was not accepted.

BURDEN OF PROOF

On the accused
Basis of the presumption-sane
Balance of probabilities
Section 105 of Evidence Act

 Under the M Naghten rules in England the burden

of proving insanity rests on the accused.
This rule has its basis on the presumption that a
person is presumed sane until the contrary is
proved.
The standard of such proof is on the balance of
probabilities, i.e no higher than in a civil case.
The position is similar locally. This conclusion is
reached though a combination of (a) section 105
of a Evidence Act dealing with the proof of
defences, and (b) a reliance upon the English
cases on the burden of proof of insanity.

 In PP v Yuvaraj, section 105 of the Malayan (now

Malaysia) Evidence Act which is also section 105
of the Singapore Evidence Act was considered.
The Privy Council observed that this section
raised a presumption of fact against the accused
unless the contrary is proved. The burden is
therefore on the accused of disproving the
existence of facts and what was required was,
proof on the balance of probabilities, and that it is
sufficient that upon the evidence the court
considers that it is more likely than not that the
facts exists or does not exists.