O'Neill v The Queen

The learned trial judge failed, in the context of s. 16 (1) (b) of the Criminal Code, to put to the jury adequately the evidence relative to the extent of the lessening of the power of the accused to resist an impulse and failed to give sufficient weight to essential aspects of such evidence.

The learned trial judge failed to direct the jury, adequately or at all, as to what could constitute an impulse within s. 16 (1) (b) of the Criminal Code, and failed to put fully enough to the jury the evidence from which the jury, if it found that the accused killed the deceased boy, could have reached the view that he did so under an impulse.

Further and alternatively to grounds 1 to 3 inclusive, that, as the trial was conducted on behalf of the accused and the Crown on the basis that a substantial deprivation of the power to resist an impulse was sufficient to establish the defence of insanity, and as the learned trial judge in his summing-up accepted such a basis, the trial miscarried and the verdict is unsafe and should not be permitted to stand.

The verdict of the jury on the issue of insanity (a) cannot be supported having regard to the evidence, and (b) was against the evidence and the weight of evidence.

It may well be that the second and third grounds do not raise matters appropriate to the grant of special leave. Because counsel's argument on the first ground involved examination of facets of the summing up, we will briefly express a view on grounds two and three: but, in doing so, we must not be taken to hold the view that those grounds were proper for the grant of special leave.

Counsel for the applicant expressly disavowed the proposition that s. 16 (1) (b) provided a defence of diminished responsibility. In that, in our opinion, he was quite correct. He agreed that the section provided for no more than the defence of irresistible impulse. However, it was submitted that there had been differing interpretations given by judges in Tasmania as to the effect of the presence in s. 16 (1) (b) of the words "in substance". Consequently, it was around these words that argument centred. The principal case in which the section had received interpretation was Hitchens v. The Queen [No. 2] [1] .

In that case, the trial judge, in the first place, had explained to the jury that "in substance" in the section meant "totally or almost totally". Later, upon objection by counsel, the learned judge withdrew those words and substituted the word "substantially". On appeal the direction, as thus amended, was sustained.

In the present case, the learned trial judge, in summing up to the jury, said:

It would be a defence calling for a special verdict if you were satisfied that his act of killing the boy was done under the impulse which, by reason of mental disease, he was in substance deprived of any power to resist. "In substance" means substantially. Deprived in substance means substantially deprived of any power to resist. Any in that context must mean all. Deprived of all power to resist. Any power to resist. So that substantially or in substance is opposed to being partially deprived in a minor degree. It is not a case of his power to resist being lessened or being diminished. In the words of the section, what the defence need to prove is that by reason of mental disease he was, in substance, deprived of any power to resist an impulse to kill the boy, if he had that impulse. This again, as you will see, right through s. 16 is linked with mental disease. In other words if he killed through strong emotions that by itself would not be enough but of course if that was produced, if that condition was produced by mental disease then that would be sufficient. Providing, of course, always that the mental disease in substance deprived him of any power to resist. This is a separate matter, of course, from the earlier part of the section. To some extent at least they do overlap, this question of by reason of mental disease not knowing right from wrong may overlap to some extent with an incapacity by reason of mental disease to resist an impulse. It really depends on the evidence in the case and as I go through the evidence I will draw your attention to parts that relate particularly to those matters.

No objection was taken to the summing up, nor was any additional or different direction asked for by counsel who appeared for the applicant at the trial.

Counsel for the applicant found some difficulty in precisely expressing his objection to what the learned trial judge put to the jury as to the requisites of the defence under s. 16 (1) (b). But we apprehend that the submission is that the words "in substance" indicate that something less than absolute loss of ability to resist the impulse deriving from mental disease would suffice, though counsel was prepared at times to accept the view that there must be a total inability to overcome the impulse which led to the fatal act.

The question before us is one of construction of the section. It may be accepted that its enactment was inspired by the Atkin Committee Report made in the year 1923. But, having studied the report, we doubt if we derive any assistance in construction from the fact that that report was the inspiration of the section.

The words "in substance" are used in many contexts. Reference to dictionary meanings is enough to illustrate and emphasize the fact that in various contexts the words are of various import. But in our view the intention of the language of the sub-section as a whole is plain enough. Difficulty arises when it becomes necessary to offer any synonym for, or explanation of, the words as they are used in the statute.

In our opinion, the force of the word "any" in the expression "deprived of any power to resist" requires the conclusion that, to succeed in a defence under the sub-section, the defence must satisfy the jury on a balance of probabilities that, due to mental disease, the accused had lost all power to resist: that mental disease had left him with no power of resistance to the impulse to do the fatal act. The words "in substance" do not introduce any quantitative qualification of this requirement. They are placed in the section, in our opinion, to emphasize the practical rather than the theoretical or perfectionist in relation to the decision whether total incapacity to resist the impulse had resulted from mental disease. The accused is not required to demonstrate in any scientific or theoretically conclusive fashion the completeness of his loss of capacity to resist the impulse to do the fatal act. It is sufficient if he induces in the mind of the jury that "in substance" that was his situation at the relevant time.

We have some doubt as to whether the ordinary man who sits on a jury would fail to comprehend this idea conveyed by the words of the statute itself: and, in any case, such a person would receive the concept which we have expressed as the import of the section if he were told that the matter to be established was that the accused substantially had lost all power of relevant resistance.

But that uncertainty may be present in the minds of jurymen because of the words "in substance" cannot be gainsaid. In such a case, if explanation rather than use of the words of the section were desired, or felt in a particular case to be required, our own choice in providing an explanatory expression would be to say that the jury must be satisfied on a balance of probabilities that to all intents and purposes the accused was quite unable to resist the impulse which sprang from mental disease. In the daily affairs of life, we are accustomed to describe a person or object as to all intents and purposes having a particular quality or condition, when it is desired to negative the need for perfection in identity and accept the view that a degree, though a high degree, of approximation suffices in satisfying the requisite description.

In the Oxford English Dictionary (1933 ed.), vol. X, Sole-Sz, at p. 56 of Part Su-Sz, a meaning given to "in substance" is "substantially". One of the meanings there given to the word "substantially" is "in all essential characteristics or features; in regard to everything material; in essentials; to all intents and purposes; in the main". By a permissible combination of the two dictionary items, this meaning of "to all intents and purposes" is given indirectly to the words "in substance". Thus, in our opinion, there is no philological difficulty in treating the expression "to all intents and purposes" as an equivalent or, perhaps more accurately, as an extrapolation of the words "in substance".

In our opinion, it would be correct to tell a jury that it is for the accused to satisfy them on a balance of probabilities that at the time he did that of which he is accused he was to all intents and purposes wholly unable by reason of mental disease to resist the impulse to do that act. But this is not to deny that the use of the words "in substance" in that direction in place of the words "to all intents and purposes" would also suffice. It seems to us that a jury so informed, i.e. by either formulation or by a combination of both formulations, would understand that they are not asked to make a scientific judgment which excludes all possibilities or one that is limited to certainties, but that they are entitled to judge the matter, i.e. the accused's total deprivation, as one of substance.

Consequently, we do not think that the substitution in the context in which the learned trial judge used it, of the word "substantially" for the words of the statute was a departure from the meaning properly to be given to s. 16 (1) (b).

For the rest, having closely examined the summing up, we are quite unable to say that it was in any respect unfair or lacking in the requisite relationship of the evidence to the legal requirements of the Crown case. In our opinion, the trial judge did carefully bring to the attention of the jury the evidence relevant to the special defence under s. 16 (1) (b) and adequately related it to the requirements of that provision. Although, as we think, grounds two and three may well not afford ground for the grant of special leave, we are of opinion that neither was made out.

Because of the general importance of the meaning and application of s. 16 (1) (b) we would grant special leave to appeal. But, for the reasons we have given, we would dismiss the appeal.

I agree with the Chief Justice that special leave should be granted; I would, for the reasons stated in his reasons for judgment, dismiss the appeal.

(1) A person is not criminally responsible for an act done or an omission made by him -

(b) when such act or omission was done or made under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist.

(2) The fact that a person was, at the time at which he is alleged to have done an act or made an omission, incapable of controlling his conduct generally, is relevant to the question whether he did such act or made such omission under an impulse which by reason of mental disease he was in substance deprived of any power to resist.

Paragraph (b) has proved troublesome (see Hitchens v. The Queen [2] and Hitchens v. The Queen [No. 2] [3] . In construing it, I would avoid translating "any" as meaning "all" because to do so leads naturally but erroneously to a conclusion that "in substance all" means "substantially all", "nearly all", or "to a substantial extent". Introducing a sense of degree into these words of the paragraph is to misinterpret them. The paragraph does not raise a defence of diminished responsibility. 1. [1959] Tas. S.R. 209. 2. [1962] Tas. S.R. 35.

"He was deprived of any power to resist" should be read as "he was not left with any power to resist" or "he did not have any power to resist", that is, "he was unable to resist". "In substance", if it requires any explanation, means "in reality" rather than "theoretically". It does not mean "to a substantial extent". Whatever the theoretical position, if in substance or reality he was unable to resist, this is enough to satisfy the requirements. This reaches, by a different route, much the same result as the joint judgment.

The question of the onus of proof has not been raised (see s. 381 (3)).

The application of the Criminal Code Tas. has the disturbing result that, despite the fact that the applicant had been diagnosed a paedophiliac, had suffered a gunshot wound in the head causing severe brain damage, and had been subjected to psychosurgery causing further brain damage, he was found criminally responsible for murdering a young person.

I would grant special leave. I agree that the appeal should be dismissed.

I agree with the judgment prepared by the Chief Justice and with the order proposed by him.