Regina v Cheatham

Regina v Cheatham - [2002] NSWCCA 360 - NSWCCA 2002 case summary — Zoe

[64]

On the fifth day of the trial the jury asked for a definition of "wrong" and some guidance on interpretation and suggested some phrases, "moral wrong", "legal wrong", "delusionary wrong", "altruistic wrong", et cetera. The judge after commenting that some of those words do not go together told the jury: "At the end of the case it will be necessary to give you such directions of law as are necessary, however in the course of the evidence particularly the psychiatrist, you've heard a lot of discussion of an understanding of right and wrong and one of the things that you will need to be told in relation, particularly to the defence on mental illness of a possibility of a special verdict, is that you would consider whether or not the accused was disabled from knowing that what he was doing was wrong, that is to say standing with three people with whom he stand (sic) and where wrong is used in that sense. It is in the sense that an ordinary reasonable person knows the difference between right and wrong, therefore it has a moral dimension rather than knowing that it's against the law. I know that a couple of questions have been addressed as to whether or not he thought it was against the law, that's not the test. The test you will apply will relate to whether or not he could with a reasonable amount of composure understand that what he was doing was wrong in the sense that ordinary reasonable people would know it's right or wrong. And one of the things you would have to consider is whether or not by reason of a mental illness he was disabled from reasoning from ordinary composure that what he was doing was wrong. I hope by the end of the trial it won't sound as complicated as that because you will receive some instructions in its proper context but you will recall as I think one of the doctors responded, in fact I think it was Dr Strum this afternoon, that this is not a matter in which the trial is conducted by psychiatrists, this is a trial by jury. The psychiatric evidence is undoubtedly important and you should pay heed to it but in the end I will explain to you it's going to be for you as representatives of the community to come to a decision in this case about a number of issues, one of which I've indicated to you. " Whilst these comments were primarily directed to the defence of mental illness they have some relevance to the issue of diminished responsibility, because that raised the issue whether the appellant's capacity to distinguish between right and wrong was substantially diminished.

[66]

The judge explained to the jury that if the appellant had not satisfied them on the balance of probabilities that he was mentally ill at the time of the stabbings they had to consider "the partial defence of diminished responsibility." That was applicable only to the two counts of murder. The judge also explained that the appellant had to establish this defence on the balance of probabilities. As to that defence the judge said (SU18-20): "What is required therefore to establish this defence? There must first be an abnormality of mind which simply means a state of mind so different from that of an ordinary human being that a reasonable person would term it abnormal. The expression 'abnormality of mind' covers the mind's activities in all its aspects, not only in the perception of physical acts and matters and the ability to form rational judgment whether an act is right or wrong but also the ability to exercise willpower and to control physical acts in accordance with rational judgment. In this case all three psychiatrists, that is to say including Dr Strum, are agreed that the accused at the time had an abnormality of mind and you as the jury from the absence of any contradictory evidence should act upon that evidence. The second thing that is required in order to establish this defence is that that abnormality must arise from one or more of various specified causes. I do not propose to take you through all the specified causes, they are set out in a provision in an Act of Parliament. One of them which is relevant is that the abnormality of mind should arise from inherent causes, and once again all three experts are agreed that an abnormality of mind in this case arose from an inherent cause in the sense that it was longstanding. In respect of the cause of mental abnormality you should be guided by the medical evidence and you should accept the unanimous opinion of the experts that have been called before you, there being no evidence at all contradicting it. However before the defence is made out there is a third matter and as I think the Crown Prosecutor mentioned to you, this is really the crux of your task in relation to this defence. If there was an abnormality of mind arising from an appropriate cause, it must be such to have substantially impaired the mental responsibility of the accused for what he did. In other words, the question for you is did such abnormality of mind substantially impair the mental responsibility of the accused, not the moral responsibility of the accused, but his mental responsibility? The expression 'mental responsibility for his acts' involves a consideration of the extent to which the mind of the accused was answerable for his physical acts. In this case the physical acts are the various acts of stabbing whereby the victims were in two cases killed and in one case injured. Your consideration must include attention to the extent of the ability of the accused to exercise willpower to control those acts of stabbing. The question is not whether did he not resist his impulse but whether he could not resist his impulse. You must also consider whether there was a substantial impairment of the mental responsibility of the accused for his acts. Substantial does not mean total, the mental responsibility need not be totally impaired or destroyed altogether, nor does it mean trivial or minimal. It is something in between It is left to you to say on the evidence whether the mental responsibility was impaired and whether it was substantially impaired. There is no specific test which can give you the answer but you must ask yourselves having heard what the medical witnesses have said and knowing what the accused did and what he has said, as you find it to be on the material before you, do we looking at it broadly as people of ordinary common sense, think that it is more probable than not that there was a substantial impairment or diminishing or weakening of this accused's mental responsibility including his ability to exercise willpower to control what he did. If the answer to that question is yes, you would find him not guilty of murder on those two counts and guilty of manslaughter. However if you think there might have been some impairment but it was not substantial, something which did not really make much difference to his mental responsibility although it may have made it harder for him to control himself then your answer would be no, and he would be guilty of murder in respect of each of those counts."
No objection was taken to these directions at the trial. It was not suggested that they were wrong. Rather it is contended that they are inadequate and incomplete.

[69]

As to diminished responsibility the judge said: "To establish the defence of diminished responsibility which would reduce the crimes of murder to manslaughter, that is the two counts number 1 and 2 in the indictment three things are required. First there has to be an abnormality of mind, and second it must derive from specified causes. I have said to you that there is unanimous expert opinion to the effect that those two matters exist in this case and you should accept that evidence. However the third thing that must be proved on the balance of probabilities by the accused is that the abnormality of mind was such as substantially impaired his mental responsibility for what he did. I remind you what I said to you this morning that we are talking about mental responsibility not moral responsibility, and the expression 'mental responsibility' includes a consideration of the mind and the extent to which the mind is answerable for physical acts. In other words you would have to include a consideration of the extent of the accused's ability to exercise willpower to control his acts, and the question is not whether he did resist any impulse but whether he could not. But Parliament has left it for you to say whether or not if there was an impairment it was substantial although it is permissible for experts to express their opinions in terms of that issue, what the law requires is for you to determine the matter yourselves. In making that determination you take into account not only any opinions expressed by the experts but you take into account a whole of the evidence (??) that you have heard and bring to bear your own experiences of life and your common sense. If you think there might have been some impairment but it was not substantial, then the defence would be made out. (??) On the other hand if you do think there was a substantial impairment in the sense that I have indicated, then the defence will be made out and in respect of the two counts of murder, your verdict would be not guilty of murder but guilty of manslaughter. I did not remind you because I thought it was fairly obvious at (??) the context of evidence and addresses of counsel that there was a division of opinion between the experts on this aspect as well.

[86]

As to that defence, in Ryan (1995) 90 A Crim R 191 at 195 Hunt CJ at CL, with the concurrence of the other members of the Court, said: "The particular aspects of mind to which attention is usually paid in relation to this defence are the accused's perception of events, his ability to form a rational (or sensible) judgment as to whether his actions were right or wrong, and his capacity to exercise willpower to control his physical actions in accordance with rational (or sensible) judgment. Such perception, ability and capacity vary widely in normal people. An abnormality of mind exists where there is a deviation from the range over which they may vary in normal people. A person's mental responsibility for his actions concerns the extent to which his mind is answerable for his physical acts, and it too involves the extent of that person's ability to exercise willpower to control his physical actions. That mental responsibility is impaired if it is diminished by reason of that abnormality of mind."
The Apellant's Detailed Submissions The appellant accepted that the jury's verdict demonstrates that they were not satisfied that the appellant's disease of the mind totally incapacitated him from reasoning with a moderate degree of composure and sense as to the wrongness of what he was doing. The appellant submitted that it was then incumbent upon the jury to decide whether the appellant had made out the defence of diminished responsibility. There was ample evidence for them to consider that his ability to determine right from wrong was more than minimally impaired. It was submitted that it was vital that the jury be told that one important aspect of a person's "mental responsibility" was the degree to which he is able to form a rational or sensible judgment as to whether his actions are right or wrong. Similarly, a person's perception of the events at the time of the act causing death is another aspect of a person's "mental responsibility". If his perception was more than minimally impaired by delusional abnormality of the mind the appropriate verdict in the murder charges was "guilty of manslaughter".

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Judgment (164 paragraphs)

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Cases Cited (5)