Mental illness — including insane automatism
This chapter is affected by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which commenced on 27 March 2021, and is currently under review. See [4-302] for a discussion of how that Act impacts on proceedings where the defence of mental illness was raised before 27 March 2021.
[6-200] Statutory provisions
Under the Mental Health (Forensic Provisions) Act 1990, mental illness as a defence in indictable proceedings is provided for under Pt 4 and also under s 22. It may also be in issue where automatism is raised.
“Mental illness” is not defined for the purposes of the Mental Health (Forensic Provisions) Act 1990 and is to be determined according to the M’Naghten Rules (1843) 10 CL & Fin 200, where an issue of insane automatism arises.
See also Part 4 procedures at [4-320]ff.
[6-210] Insane automatism
As to automatism generally, see [6-050].
There is a presumption both of voluntariness and of sanity. A voluntary act is one done in consciousness of the nature of the act and in exercise of a choice to do an act of that nature: R v Falconer (1990) 171 CLR 30 at 39.
Where evidence is tendered by the accused to rebut the presumption of sanity on the balance of probabilities, the same evidence cannot be taken into account in determining whether the act was voluntary: Hawkins v The Queen (1994) 179 CLR 500 at 513. The presumption of a sound mind is not the equivalent of a presumption that a person intends the natural and probable consequences of his or her act, and evidence of mental illness falling short of the M’Naghten Rules may be relevant to an issue of intent as to the consequences of a voluntary act. The issue of voluntariness, however, must be resolved by the jury before any issue of the specific intent with which the act is done.
It is only after the basic question of voluntariness is answered adversely to the accused that the issue of intent is to be addressed — which can, in turn, only arise on the hypothesis that the accused’s mental state at the time of the act did not arise from mental illness under the M’Naghten Rules: Hawkins v The Queen (1994) 197 CLR 500 at 517; Radford v The Queen (1985) 20 A Crim R 388. This impliedly overrules decisions such as R v Stiles (1990) 50 A Crim R 13.
In considering the issue of the voluntariness of the act (as opposed to intent as to consequences of the act), the jury must proceed on the basis that the accused was possessed of a sound mind and ignore, for that purpose evidence of mental illness. If the Crown fails on that issue, the accused is entitled to an acquittal. If the Crown succeeds, then the onus is on the accused to establish M’Naghten mental illness on the balance or probabilities: Hawkins v The Queen (1994) 179 CLR 500 at 512–513.
[6-220] Where an issue arises as to whether the evidence discloses a basis for either sane or insane automatism
A difficult question may arise where the accused relies on (sane) automatism but disclaims, expressly or impliedly, mental illness as a defence. If there is evidence of mental illness, the Crown may wish to rely on it so as to avoid the acquittal of a potentially dangerous person. In such a case it seems the jury should be directed that:
if the Crown fails to prove beyond reasonable doubt that the act of the accused was voluntary, on the assumption that he or she was then of sound mind, the accused is entitled to an acquittal; unless
it is established on the balance of probabilities that the accused was mentally ill in accordance with the M’Naghten Rules, taking into consideration the whole of the evidence on that issue.
[6-230] Suggested direction — mental illness (where there is no issue of automatism)
You next have to consider whether, at the time the [act was done/omission was made], [the accused] was mentally ill, so as not to be responsible according to law. This being an issue raised for your determination by and on behalf of [the accused], it arises as an exception to the general rule which I have indicated to you applies as to who bears the onus of proof in this trial. The onus in this issue is on [the accused]. By way of further exception, however, the standard of proof required of [the accused] is not as high as that required of the Crown. It is sufficient if [the accused] establishes on the balance of probabilities, that is to say, that it is more likely than not that [he/she] was mentally ill at the time of the doing of the act constituting the alleged offence. If so, then [he/she] is entitled to a verdict of “not guilty by reason of mental illness”. I will return, in due course, to explain what the legal and practical consequences of such a verdict, both to [the accused] and to the community at large would be if you returned that verdict.
Firstly, however, as to the question of what is meant in law by the expression “mental illness”? I emphasise that the relevant time to be considered is the time when the Crown alleges that the act constituting the offence was done. You are not concerned, as such, with the mental state of [the accused] before or after that time, except in so far as it assists you in determining what [his/her] mental state was likely to have been at that time, in which case it may be of great assistance to you.
To establish that [the accused] was mentally ill so as not to be responsible according to law for [his/her] [act/omission], [the accused] must show that, as a result of a defect of reason from a disease of the mind, [he/she] did not appreciate the nature and quality of that physical act [or that [he/she] did not know that it was wrong].
What then is meant by a “disease of the mind” which produces such a defect of reason? The law requires that [the accused’s] state of mind must have been one of disease, disorder or disturbance arising from some condition which may be temporary or of long standing, whether curable or incurable. Such a condition may have been caused by some physical deterioration of the brain cells, but need not necessarily be so caused.
It may arise from some mental malfunction with no apparent organic basis or where the cause of the disease may be unknown, provided in all cases that it results in the function of the reason memory or understanding being thrown into a state of derangement or disorder. [The distinction to be drawn is between a defect of reason from an underlying mental illness as distinct from the reaction of a healthy mind to some extraordinary external factor which is transient, that is, passing and not prone to recur.]
A defect of reason, memory or understanding involves a disorder of the capacity to reason such as one that prevented [the accused] from knowing what [he/she] was doing in that [he/she] did not know the physical nature or quality of the act [or did not know that the act was wrong but wrong according to the ordinary standards of reasonable people in our community].
As to whether [the accused] did not know the act to be wrong, the question you should ask yourselves is whether [the accused] could be said to know, in the sense of appreciating or understanding that [his/her] act was wrong, if through a disease, disorder or disturbance of the mind [he/she] could not think rationally of the reasons which to ordinary people would make that act right or wrong?]
If through a disordered condition of the mind [the accused] could not reason about the matter with a moderate degree of sense and composure, it would be open to you to find that [the accused] did not know that what [he/she] was doing was wrong.]
Go now to [6-260] as to the requirement under s 37 of the Mental Health (Forensic Provisions) Act 1990 of explaining to the jury the legal and practical consequences of a finding that the accused was mentally ill.
[6-240] Suggested direction — where insane automatism and mental illness are raised by the accused
The Crown must first prove that the act constituting the offence … [specify the act, for example, stabbing] was a voluntary act of [the accused]. A voluntary act is one done in the exercise of [the accused’s] free will and choice to do an act of that kind. In this case, you have heard evidence as to [the accused’s] state of mind at the relevant time, and you have also had the benefit of submissions from both counsel as to the inferences or conclusions which you should draw from this. I remind you that the onus is on the Crown to prove beyond reasonable doubt that [the accused’s] act was voluntary in that sense.
In determining, however, whether the Crown has established voluntariness in that sense, you must (for that purpose) leave out of consideration of evidence that [the accused] may have suffered some mental illness at that time. In other words, you must approach this issue, on the basis that [the accused] was mentally healthy and determine this question on that basis … [canvass the evidence going to this issue apart from evidence going to mental illness and the opposing submissions]. If, having considered that evidence, you are of the view that the Crown has failed to eliminate the reasonable possibility that [the accused’s] act was not voluntary in the sense in which I have indicated, then you must bring in a verdict of “not guilty”.
If, on the other hand, you conclude that the Crown has proved beyond reasonable doubt that the act of [the accused] was voluntary, then you must next consider the question raised by and on behalf of [the accused] that [he/she] was mentally ill so as not to be responsible according to law, but for this purpose you must take into consideration the whole of the evidence bearing on [the accused’s] mental state at the time of that act … [give the direction considering [6-200] and [6-220] and canvass the evidence going to the question of mental illness and the submissions made].
If you are satisfied that it is more likely than not that [the accused] was mentally ill, so as not to be responsible according to law, then the appropriate verdict is one of “not guilty on the ground of mental illness” and you should proceed no further.
If, however, [the accused] has failed to satisfy you that it is more likely than not that [he/she] was mentally ill (in the sense which I have described to you) at the time of the doing of the act alleged, then you would go on to consider the next matter which the Crown must prove beyond reasonable doubt, namely, whether [he/she] did that act with the relevant intent … [state intent, for example, to kill in murder]. In determining that question, you should again take into consideration the whole of the relevant evidence relating to [the accused’s] state of mind at the time including evidence as to [his/her] mental state and which [the accused] relied upon in support of a defence of mental illness … [canvass the evidence on this issue and the respective submissions].
If the Crown has satisfied you beyond reasonable doubt that [the accused] did have the intent … [specify intent, for example, to kill] at the relevant time, then it would be open to you to convict [the accused].
If the Crown fails to satisfy you as to that issue beyond reasonable doubt then you must acquit [the accused] … [or if there is an alternative verdict available such as manslaughter in lieu of murder, add: You should proceed then to consider whether the Crown has established that [the accused] may be guilty of the lesser offence of … [state alternative]].
[6-250] Suggested direction — where the accused raises sane automatism as an issue but expressly or impliedly disclaims mental illness as a defence and the Crown relies on mental illness
Direct the jury in accordance with the first two paragraphs under [6-240] above, and proceed.
The Crown, however, submits that, even if you were to find that it has not established beyond reasonable doubt that [the accused’s] act was voluntary, nevertheless [he/she] is not entitled to an outright acquittal. It submits this on the basis that the underlying cause of [the accused’s] act was that at that time [he/she] was suffering from mental illness so as not to be responsible according to law for that act.
Even though this issue is raised by the Crown, it need only be established that [the accused] was mentally ill at that time on the balance of probabilities. Assuming you were of the view that the Crown had not established beyond reasonable doubt that the act of [the accused] was voluntary, but were of the view that it has been established on the balance of probabilities that [he/she] was mentally ill at the time, then your verdict would be “not guilty on the ground of mental illness”, rather than simply one of “not guilty”.
The legal and practical consequence of such a verdict I will explain to you in due time, but I must first explain to you the law relating to mental illness … [give the suggested direction under [6-230], then direct as under [6-260]].
[6-260] Suggested direction — explanation to jury of the legal and practical consequences of findings
Where an issue arises as to whether the accused is mentally ill, s 37 of the Mental Health (Forensic Provisions) Act 1990 provides that the court must explain to the jury the findings which may be made on the trial and the legal and practical consequences of those findings. Because of the detail required by s 37, it is suggested that oral directions be supplemented by written directions as authorised by s 55B of the Jury Act 1977.
The law requires me to explain to you the legal and practical consequences of a finding that [the accused] was “not guilty on the ground of mental illness”. The purpose of this explanation is so that you understand what would be the practical result of such a verdict. Of course, I am not suggesting that you should reach that verdict in preference to any other.
You must understand that you are required to give a true verdict according to the evidence and the law as I have explained it to you. If your verdict is “not guilty”, the accused walks from the court a free person and the criminal process comes to an end. That is what happens whenever a jury finds that the Crown has not proved the charge brought against any member of the community.
However, if your verdict is “not guilty on the ground of mental illness”, I have to decide what should then be done with the accused. If I am satisfied that neither [his/her] safety, nor the safety of any other member of the community is seriously put at risk by [his/her] release, I can order [his/her] release into the community either unconditionally or on conditions that I believe are necessary for [his/her] welfare and that of the community.
On the other hand, if it is not appropriate to release the accused at this point in time, I can make an order that [he/she] be detained in custody until [he/she] is released by what is called “due process of law”. This means not only that the accused remains in custody until a decision is made to release [him/her], but also that [he/she] becomes what is known as a forensic patient and falls under the supervision of a body called the Mental Health Review Tribunal.
I am required to inform you briefly of the composition and functions of this Tribunal.
… [it is suggested that at this point the trial judge might take the jury through the suggested written direction [6-270]].
[6-270] Suggested written direction
The Mental Health Review Tribunal consists of a President or a Deputy President and two other members. Both the President and Deputy President must be a current or former judicial officer or be qualified for appointment as a judicial officer. One of the Tribunal members must be a psychiatrist or a psychologist or an expert of that kind. The third member is a person who has suitable qualifications or experience for the task. The Tribunal cannot order the release of a forensic patient unless one of its members is, or has held, judicial office.
To review a case of a forensic patient as soon as practicable after an order is made for [his/her] detention in strict custody. The Tribunal may make orders as to that person’s continued detention, care or treatment.
The Tribunal cannot make an order for the release of a forensic patient unless it is satisfied that the safety of that person or any member of the public would not be seriously endangered by [his/her] release. The Tribunal must notify the Minister for Health and the Attorney General in advance of the release of a forensic patient and they may make submissions to the Tribunal in relation to the possible release of that person.
Where an order for release is not made, the Tribunal orders continued detention, care and treatment in a place and manner specified by the Tribunal.
After the review referred to in Note 1, the Tribunal must, at least once every six months, again review the case and make orders as to the forensic patient’s continued detention, care or treatment in a hospital, prison or other place or as to [his/her] release.
If release is ordered, then it may be on conditions or unconditionally. If any condition is breached, or where the mental condition of the person has deteriorated so that [he/she] may be a serious danger to others, a further order may be made by the Tribunal for the person’s apprehension, care and detention.
Security conditions (as necessary) are in place while a forensic patient is detained in a hospital, prison or other place or if the person is allowed to be temporarily absent from the place of detention.
A person found “not guilty on the ground of mental illness” may be released from these restrictions if given an unconditional release, or where released on conditions and those conditions have expired over time.
“Wrong” in the second limb of the M’Naghten Rules means “wrong” according to “ordinary standards adopted by reasonable men”: Stapleton v The Queen (1952) 86 CLR 358 at 375.
Where the only cause for the accused’s involuntary act is mental illness according to the M’Naghten Rules, the appropriate verdict is “not guilty on the grounds of mental illness”: R v S  2 NSWLR 1. It is, therefore, essential where automatism is in issue that the evidence and jury instructions be directed to the cause of the basis asserted for involuntariness: R v Youssef (1990) 50 A Crim R 1.
Where there is an issue of both sane and insane automatism, the jury must be directed to determine, firstly, whether the accused’s act was voluntary on the assumption that he or she was not mentally ill. It is only if this issue is determined adversely to the accused that the onus passes to him or her to establish mental illness: R v S  2 NSWLR 1; R v Radford (1985) 20 A Crim R 388.
Generally, it is not for the Crown to raise mental illness. Where an issue of automatism is raised it must be negatived by the Crown beyond reasonable doubt.
As to whether the jury should be directed as to the second limb of the M’Naghten Rules in terms of the inability to “reason about the matter with a moderate degree of sense and composure”, see: R v Porter (1933) 55 CLR182 cf Willgoss v The Queen (1960) 105 CLR 295 at 301, in which the High Court rejected the proposition that the accused’s appreciation of “wrongness” extends beyond an intellectual to an emotional appreciation.
[6-290] Disease of the mind
It may be necessary in the circumstances of a particular case to deal with the following in directions to the jury:
“Disease of the mind” has been contrasted with “mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control and impulsiveness”: R v Porter (1933) 55 CLR 182 at 188.
Any mental disorder which “manifests itself in violence and is prone to recur” may be a M’Naghten disease of the mind: Bratty v AG (Northern Ireland)  AC 386 at 412.
Mental malfunctioning of a transitory nature caused by some external factor such as violence, drugs, alcohol, etc, has been held not to be due to disease: R v Quick (1973) QB 910 cf Radford v The Queen (1985) 42 SASR at 274–275, where the contrast is drawn between a pathologically infirm mind and “the reaction of a healthy mind to extraordinary external stimuli”.
As to self-induced intoxication by drugs and/or alcohol, see Pt 11A of the Crimes Act 1900, especially s 428H and s 428G.
A “gross psychopath”, that is, one who has a gross lack of self-control and emotional feeling is not M’Naghten mentally ill: Willgoss v The Queen (1960) 105 CLR 295. Nor does this condition raise an issue of automatism: Bratty v AG (Northern Ireland)  AC 386 at 409.
“Irresistible impulse”, as such, does not by itself raise a defence of mental illness: Sodeman v the King (1936) CLR 192; R v Hodges (1985) 19 A Crim R 129, although it may be symptomatic of it and will be relevant provided there is other evidence of mental illness: Attorney-General (South Australia) v Brown  AC 432.
Where the accused raises mental illness, the Crown may rely on diminished responsibility or substantial impairment under s 23A of the Crimes Act 1900 and vice versa, but the onus on the accused of establishing mental illness is on the balance of probabilities: R v Ayoub (1984) 2 NSWLR 511.
[6-295] Effect of special verdict of not guilty by reason of mental illness
Section 38(2) of the Mental Health (Forensic Provisions) Act 1990 provides that if a special verdict of not guilty by reason of mental illness is returned, the court may remand the person in custody until the making of an order under s 39. On the return of a special verdict that the accused is not guilty by reason of mental illness, the court may order that the mentally ill person be detained in such place and in such manner as the court thinks fit, until released by due process of law: s 39(1). The court may also make any other order it thinks fit, including conditional or unconditional release of the person from custody: s 39(1). The court is not to make an order releasing a person from custody unless the court is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered: s 39(2). As soon as practicable after the making of an order under s 39(1), the Registrar of the Court is to notify the Minister of Health and the Mental Health Tribunal of the terms of the order: s 39(3).
For Forms of Orders for referrals to the Mental Health Review Tribunal including those under s 39 and the documentation required, see Procedure for fitness at [4-325].