Hawkins v The Queen

Hawkins v The Queen - [1994] HCA 28 - HCA 1990 case summary — Zoe

[15]

[Dr. Sale's] opinion was that at the time of the homicide the appellant was suffering from diagnosable mental diseases which he labelled an adolescent identity disorder and a depressive disorder Dr. Sale said that if the appellant was holding a gun to his head with the intention of killing himself he would have been highly aroused, both emotionally and physiologically, at the time. His ability to think clearly or logically would have been "very very severely impeded" and his thought processes would have been "somewhat fragmented". Normal rational thinking and reasoning would not have been possible in that state of emotional and physiological arousal. In states of very high emotional arousal it is quite common for individuals to experience flashbacks of old and distressing memories. Dr. Sale did not think the appellant would have been impaired in his ability to squeeze the trigger as a willed act but believed there was significant doubt that the appellant could (was able to) form a specific intention to either kill or cause bodily harm to his father. Dr. Sale's views were based on an assumption that the appellant had been on the point of committing suicide at the critical moment. The mental disease suffered by the appellant caused that suicidal behaviour. Problems in thinking were likely to exist in the moments before the intended suicide. Dr. Sale agreed that it would be fair to summarize his evidence by saying that there was significant doubt concerning the appellant's "capacity to form the intent to kill his father or do him bodily harm by reason of his mental disease operating in the circumstances postulated, namely about to commit suicide." Crawford J.'s summary of Professor Jones' evidence is as follows: The appellant was suffering from what the law regards as a mental disease, labelled by the professor as an adolescent adjustment disorder. A person suffering from that disease would be more prone to attempt suicide and when a person is about to attempt suicide the thinking processes are confused and poorly formulated. It is likely that a person suffering from the appellant's disease who was about to attempt suicide would be more prone to fragmented and disorganized thinking patterns. The appellant's capacity to form the specific intent to kill his father at the time he fired the rifle was at least diminished and it is possible that he did not form that intention at all. It is even possible that the appellant's capacity to form the intention of killing his father was extinguished, but this could not be expressed as a probability. A person with his disease would be more likely to act at a pre-cognitive level and would tend to act rather than think about it, and to that extent the appellant's capacity to form an intention to kill his father would have been reduced by virtue of his disease. Most people with that disease would not have an incapacity to understand or form that intention but the disease rendered it more probable that the capacity would be lost. Taking into account the appellant's probable anxiety at the time he was about to take his own life and that what his intentions were when he shot his father could not be elicited from him, it is quite likely that he did not form an intention to kill his father or cause him bodily harm. The mental disease on its own would not render a person incapable of forming such a specific intent but in consequence of the appellant's anxiety level when about to commit suicide it might have had the effect of the appellant shooting his father without having the intention of killing him or causing him bodily harm. Although this evidence would have been admissible on the issue of insanity, the majority of the Court of Criminal Appeal held that, as counsel for the accused did not raise that defence, the ruling that the evidence was inadmissible for any other purpose did not occasion any miscarriage of justice.

[32]

An application of s. 13(1) or of s. 16(1) equally precludes criminal responsibility for an act done by an alleged offender but the onus of proving a willed act is on the prosecution while the onus of proving insanity is on the defence and its proof entails a special verdict. In these circumstances, it is not surprising that, in Tasmania as elsewhere [6] , counsel for the defence have sought to use evidence of mental abnormality to raise a reasonable doubt about the voluntariness of the accused's act independently of and distinct from a defence of insanity. Apart from the reversal of the ultimate onus of proving insanity effected by s. 381 of the Code, ss. 13 and 16 operate by absolving the doer of an incriminated act from criminal responsibility for that act. On proof that an incriminated act is done by a person, there is a presumption that that person is of sound mind and that presumption justifies the further presumption that the act was "voluntary and intentional". Where there are two available avenues of complete excuse for an incriminated act, one placing the onus of proof on the prosecution, the other placing the onus on the defence, it is not surprising that great difficulties in theory and practice have arisen [7] . One basis for distinguishing between the two avenues of excuse is to confine the relevance of mental disease to the defence of insanity, denying its relevance to the issue of voluntariness. This has been the solution adopted in most if not all jurisdictions. The solution requires, of course, the determination by the court of the character of any mental abnormality the existence of which is proved or raised by the evidence. Where evidence of a mental abnormality is relied on by the defence and the issue is criminal responsibility for the incriminated act, it is necessary to characterize the abnormality in order to determine whether the connexion, if any, between the alleged abnormality and the doing of the act falls for consideration as a question of voluntariness or as a question of insanity. Characterization was the issue addressed by this Court in Reg. v Falconer [8] . In that case, the Court was concerned to characterize the condition which was said to have affected the voluntariness of the appellant's act in discharging a gun and thereby causing the death of the deceased. The issue arose because evidence of the appellant's mental state when the gun was discharged had been rejected at the trial on the ground that it was insufficient to raise for the jury's consideration the possibility of non-insane automatism under s. 23 of the Criminal Code of Western Australia. It was clear that the same abnormality could not give rise to issues of voluntariness and insanity at the same time [9] . The Court held that the evidence was capable of giving rise to an issue of voluntariness.

[41]

With respect, the approach of the majority overlooks the distinction between the operation of ss. 13 and 16 in precluding criminal responsibility for doing an act and the prescription (as an element of an offence) of the specific intent with which an act is done. Although the evidentiary presumption of sound mind is of general application, there is a reason why rebuttal of that presumption by evidence of mental disease, which is necessarily admissible on the issue of insanity, cannot be taken into account in determining whether an act is voluntary and intentional. Mental disease, by itself, is no excuse for the doing of an incriminated act but s. 16 provides an excuse ("not criminally responsible") when, and only when, the consequence and measure of the mental disease are as prescribed by pars (a) and (b) of s. 16(1). It would destroy that limitation on the defence to allow evidence of mental disease to destroy the inference that an act is willed when it is done by a person of sound mind [15] . If it were otherwise, the practical consequence of destroying that inference would be the outright acquittal of an offender although that offender, if he was suffering to any extent from a mental disease, was not suffering to the extent prescribed by pars (a) and (b) of s. 16(1). That is a sound enough reason to reject evidence of mental disease in determining the issue of the voluntariness of an act done by a person presumed to be of sound mind. But there is no such reason for excluding evidence of mental disease in determining whether an act done by a person who is criminally responsible for the act was done with a specific intent. In such a case, the actor is liable in any event to conviction for an offence constituted by the doing of the act but is liable to conviction for a more serious offence only if the prosecution establishes the intent which is the additional element in the more serious offence. The presumption of sound mind is not the equivalent of a presumption that a person intends the natural, or natural and probable, consequences of his act [16] . What a person who is criminally responsible for his act intended when he did the act is an issue which must be determined by the jury as an inference from all the evidence which is relevant to that issue and no presumption of law exists to relieve the jury of that duty [17] . The prosecution is entitled to invoke the presumption of sound mind but not to exclude any evidence which is relevant to rebut it. In Schultz v The Queen [18] , Burt C.J. pointed out that the intent of an accused is not necessarily the intent that might be attributed to an ordinary person in the circumstances but the intent of the accused himself. He said [19] :

[49]

The evidence of the two doctors is not relied on by the defence as raising the question whether the accused was legally sane. Its importance is that it would assist the jury in deciding the question whether the accused's action in pulling the trigger, which so far as this branch of the matter is concerned was admittedly the intentional act of a sane man, was also his deliberate act. This question is one of fact and its solution involves an inquiry as to the thinking of the accused at the moment of acting. If the jury accepted the evidence of the doctors it, in conjunction with the accused's own evidence, might well cause them to regard it as more probable that the accused's final act was prompted by sudden impulse rather than by consideration. On this question the accused was entitled to have the verdict of a properly instructed jury. The point was clearly made in the Ontario case of Reg. v Kirkby [26] where the trial judge withdrew the issue of insanity from the jury but directed them to take the accused's mental disorder into account in determining specific mental elements in the crime of first degree murder (including planning and deliberation). Martin J.A., speaking for the Ontario Court of Appeal [27] , affirmed that the issue for the jury was "whether, taking into account the appellant's mental disorder, the appellant did plan and deliberate on the killing, as distinct from whether the appellant on account of his mental disorder lacked the capacity to plan and deliberate". In some cases, the same approach has been taken to the admissibility of evidence of mental disease on the issue of specific intent. In Reg. v Baltzer [28] Macdonald J.A., speaking for the Appeal Division of the Supreme Court of Nova Scotia, said: In order to determine whether the appellant had the specific intent to commit murder the crucial problem for the jury is to determine what was in the mind of the accused. In order to determine what was in his mind, evidence of his whole personality and background including evidence of any mental illness or disorder that he may have suffered from at the material time, is relevant and must of necessity, be examined so that the jury can consider such evidence together with all the other evidence in determining whether the Crown has established beyond a reasonable doubt that the accused did have the specific intent required, this apart altogether from the issue or defence of insanity. The same principle has been accepted in other cases: Reg. v Meloche [29] ; Reg. v Browning [30] ; Reg. v Hilton [31] ; Reg. v Lechasseur [32] ; Reg. v Allard [33] ; Reg. v Stevenson [34] . 1. [1963] S.C.R. 522; (1963) 41 D.L.R. (2d) 380; [1963] 3 C.C.C. 289. 2. ibid., at pp. 543; 382; 291. The authority of More was not diminished by Reg. v Mulligan , [1977] 1 S.C.R. 612; (1976) 66 D.L.R. (3d) 627; 28 C.C.C. (2d) 266 which related simply to the relevance of evidence of a particular psychiatric condition to the issue of intoxication negativing intent: see pp. 625-626, 626-627; 631-632, 638-639; 271, 278. 3. [1963] S.C.R., at pp. 543-544; (1963) 41 D.L.R. (2d), at pp. 382-383; [1963] 3 C.C.C. 289, at pp. 291-292. 4. (1985) 21 C.C.C. (3d) 31. 5. (1985) 21 C.C.C. (3d), at p. 61. 6. (1974) 27 C.C.C. (2d) 118, at p. 141. 7. (1975) 34 C.C.C. (2d) 184. 8. (1976) 34 C.C.C. (2d) 200, at pp. 202-203. 9. (1977) 34 C.C.C. (2d) 206, at p. 208. 10. (1977) 38 C.C.C. (2d) 319. 11. (1990) 57 C.C.C. (3d) 397, at p. 401, where the Quebec Court of Appeal held that the accused's mental condition was relevant both to the specific intent in murder and the element of planning and deliberation. 12. (1990) 58 C.C.C. (3d) 464, at p. 488; cf Reg. v Wright (1979), 48 C.C.C. (2d) 334, at p. 340.

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