Sodeman v R [1936] HCA 75

Sodeman v R [1936] HCA 75 - HCA 1936 case summary — Zoe

[37]

having a disease of the mind, the case must be limited to the facts raised in that case, and in that case there was no evidence of mental disease. Irresistible impulse was not properly dealt with in the summing up. The prisoner was entitled to have it put, as it was put in R. v. Holt (1), that if the impulse was the result of disease of the mind which prevented the actions being controlled, he was not guilty (See also R. v. Flavell (2); R. v. Curran (3); H. M. Advocate v. Sharp (4)). As to the onus of proof - An accused person is affected by two presumptions of law, (1) that he is innocent, and (2) that he is sane and responsible for his actions. The law casts upon the Crown the onus of displacing the first presumption, and on the accused the onus of displacing the second. The displace- ment of these presumptions is brought about in different ways : (1) In the case of the presumption of innocence, by proof beyond reasonable doubt ; (2) in the case of the presumption of sanity, on the balance of probability, or, as Tindal C.J. put it in the trial of M'Naughten (5), "on balancing the evidence." The jury are the tribunal that has to go through these respective mental processes, and if the jury are misled into believing that they are to apply the same test in each case it is a misdirection. The Victorian Court of Criminal Appeal in its judgment said in effect that the jury could not be expected to distinguish between these two methods of coming to a conclusion. It is submitted that that is wrong and that the jury were not properly directed on this matter. The trial Judge did not sufficiently distinguish the onus that rests on the Crown from the onus that rests on the accused, and from the words which he used it might appear that the degree of proof was the same in each case, and that the prisoner had to prove his insanity beyond all reasonable doubt. The same language is used to describe the onus resting on the Crown as that resting on the prisoner: This is not correct (Brown v. The King (6); Hicks v. The King (7); Clark v. The King (8); R. v. Porter (9)). It is difficult to

[120]

that he is incapable of forming a judgment that they are wrong, and in some cases even of understanding their nature. It is also necessary to remember that many people find the expression "understand the nature and quality of the act" anything but illuminating. It has been said by a learned text writer that "nature" and "quality" are mere synonyms, and it has been decided that they refer to the physical character of the act and not to its moral aspect (R. v. Codere (1) ). Applied to such a case as the present, it appears to me to mean the capacity to comprehend the significance of the act of killing and of the acts by means of which it was done. The alternative test of irresponsibility in the formula already quoted from M'Naghten's Case (2) is stated with a false appearance of simplicity. When a derangement of the mind manifests itself only intermittently and in acts of passion, frenzy or the like, the question whether the party accused labours under such a disease of the mind that he did not know that what he was doing was wrong may well provoke in response two further questions - namely, what is meant by "know," and, at what stage in the course of his progress towards the commission of the acts charged must capacity to know cease? In general it may be correctly said that, if the disease or mental derangement so governs the faculties that it is impossible for the party accused to reason with some moderate degree of calmness in relation to the moral quality of what he is doing, he is prevented from knowing that what he does is wrong. In R. v. Davis (3) Stephen J. laid down a test expressed more widely, but based upon the necessity of a capacity in the accused person to attain some rational composure. In R. v. Kay (4) Channell J. adopted the test formulated by Stephen J. Perhaps it was too widely expressed, but it is necessary to remember that it has no application whatever except in cases where there is a disease, disorder or defect of the reason. If that exists, its operation in depriving the subject of a knowledge of the moral qualities of his act must be considered. It is then that it becomes important to

[132]

in the end (1) that it was the opinion of the witnesses that the prisoner could not have made his statements to the police officers from an unassisted memory ; (2) that it was their opinion that the statements did not contain a complete or correct account of what must have occurred when he committed the homicides, and in particular of what happened after he seized the victim's throat and before she collapsed; (3) that, although he might be able to give an account spontaneously of what occurred before the killing of the girls up to a point and might after they collapsed see and understand all that he had done, he could not when he was bringing about their deaths understand the nature of what he was doing or know that it was wrong. The picture to be collected from their evidence was that of a man of natural instability of mind becoming under temporary influences deranged; his understanding and memory would serve him up to a point, the latter growing blurred as he proceeded ; led on by an obsession which allowed no free will, his understanding would become " swamped by his obsession" and he would not know what he was doing or anything of its qualities, moral or otherwise, until his victim lay dead in front of him; that after the event, by reconstruction from what he saw and understood before and after, he would know of necessity what he had done. It is almost unnecessary to say that upon the facts of the case many observations are open as to the probability or improbability of such a picture. It is, for instance, at this point that the omission from his statements of any details of what occurred immediately after he attacked his victims might seem to bear upon the medical view. But, whatever view the jury might in the end take of the picture, it represented the prisoner's true defence and arose upon the evidence given on his behalf. It was therefore essential that it should be submitted to the jury in a manner which would, so far as may be, ensure that they appreciated its weight as well as its nature. It was necessary also that they should be enabled by a proper direction to perceive how the legal criterion of irresponsibility would apply to such a state of things. The task which the circumstances of the case thus imposed upon the learned Judge was peculiarly difficult. It was made no easier by the fact that the medical evidence was

[141]

of the world, giving all such respect as they considered proper to any evidence brought before them, but in the end deciding on all the evidence whether the defence had been established. He then referred to the abnormality of the accused's four homicides, of their apparent absence of purpose, and of the extraordinary treatment of the bodies, and suggested to the jury that they were things which stood at the threshhold of the inquiry as indications, at any rate, that the man was not normal. He then dealt with the accused's family history. Coming to the medical evidence he stated in general terms the opinion expressed by the witnesses to the effect that the accused was irresponsible under both limbs of the test he had given the jury from M'Naghten's Case (1). He informed the jury that the expert knowledge of the witnesses did not free the jury from the necessity of regarding their evidence with great care and seeing whether they ought to be satisfied; that the value of the evidence depended upon the data on which it was given; that in mental diseases there were not the same means as in other diseases depending on physical condition of forming a conclusion, and a medical opinion must largely depend on material gathered in some such way as seeing and conversing with the subject of such disorders or reading what others have written of their similar examination. He warned them that such opinions, though having their value, must be subjected to the microscope of common sense and experience before they were accepted wholly. He illustrated the observation by one reason given by a medical witness for his opinion, namely, that his experience was that people suffering under an obsession and acting in such a way did not know what they were doing at the time and understand the nature of the act. He said that one would require a wide experience to speak with confidence on such a matter, but that was the way the witness put it. He contrasted this with the reason given by the other two medical witnesses, which, he said, consisted in their observations of or conversations with the accused man.

[143]

. In point of fact I think the fair effect of the medical evidence is that _ each witness based his conclusion on a combination of considerations, the combination I have already described. His Honour then returned to the necessity which he had before impressed upon the jury of judging of matters of this kind by means of common sense - and experience of life. After giving a definition of " obsession," his Honour stated that it was said that the accused had an obsession but that would not be enough; the mere desire, however hard, however strong, however impossible to control, would not be sufficient. But that one doctor, at any rate, went the further step and said that if a man has an obsession, gives way to it, and does that which is always before his mind, then he does not know the quality of his act and does not know whether it is right or wrong. After referring to the basis of the other two opinions which he had before contrasted with the first, his Honour concluded the summing up with the passage to which I have already referred in reference to the burden of proof. The statement in reference to the obsession is the nearest approach which the charge makes to putting what I consider to be the true case for the prisoner arising upon the evidence. But it does not appear to me to be at all sufficient to enable the jury to understand it, nor does it in the least represent its strength. It brings obsession into contrast with the legal standard of irresponsi- bility, and does not make it clear that in the application of that standard it is always recognized that overpowering obsession arising from mental infirmity provides strong reason for inferring the requisite lack of capacity to know that an act is wrong or to understand its nature and quality. It does not direct attention to the exact way in which the evidence suggests that the requisite understanding of the significance of his acts and their moral bearing was lost and regained. It does not enter upon a consideration of the accused's statements and compare and reconcile them with the explanation or picture of the accused's deeds finally suggested by the medical evidence. It contains no reference to the question whether the prisoner in virtue of his constitutional moral instability was disabled at the time by disease from retaining or gaining such a moderate degree of calmness as to comprehend the considerations affecting the significant features of his acts and their dreadful moral character.

[207]

The other point taken was that the learned Judge in directing the jury as to the burden of proof, having stated that it was for the Crown to establish its case beyond reasonable doubt, went on to say that the burden of proof in the case of insanity rested upon the accused, and the suggestion was that the jury might have been misled by the learned Judge's language into the impression that the burden of proof resting upon the accused to prove insanity was as heavy as the burden of proof resting upon the prosecution to prove the facts which they had to establish. In fact, there is no doubt that the burden of proof for the defence is not so onerous; it has not been very definitely defined. The Canadian case of Clark v. The King (1) was referred to; but even there the learned Judges were not able to find a very satisfactory definition ; but it is certainly plain that the burden on the accused in cases in which he has to prove insanity may fairly be stated as not being higher than the burden which rests upon a plaintiff or a defendant in civil proceed- ings. That that is the law was not challenged and no Court in Australia has decided otherwise. The only question was whether the definition was sufficiently brought home to the minds of the jury by the language used in the summing up. On that point, the Supreme Court of Victoria took the view unanimously that there was no misdirection, and in the High Court of Australia the opinion of the learned Judges was divided ; but the opinion which prevailed was again that there was no misdirection. Their Lordships do not think the question whether or not the language used was enough clearly to bring the matter home to the jury in the particular case - it is not a question of general legal importance, but only a question of the exact turn of the phrase - could, except in a very clear case, be a ground for exercising the very exceptional jurisdiction which is preserved to this Board in criminal cases. Their Lordships are satisfied that there was no doubt in the minds of any of the Courts

At a glance

Court

Decision date

Before

Source

Judgment (212 paragraphs)