Crimes Amendment (Diminished Responsibility) Bill 1997: Commentary and Background
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Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 19/1997 by Gareth Griffith and Honor Figgis
|The purpose of this paper is to present a commentary on the Crimes Amendment (Diminished Responsibility) Bill 1997 (henceforth, the Diminished Responsibility Bill).
Background issues: In terms of the background to the Bill, some of the paper's main findings are as follows:
- the Bill would repeal existing section 23A of the Crimes Act 1900 and the defence of diminished responsibility. In its place the Bill proposes: a new defence of substantial impairment by abnormality of mind; and a procedural requirement that an accused person must disclose before the trial starts that he or she intends to rely on the defence;
- to a substantial extent the Bill is based on the report of the NSW Law Reform Commission on Partial Defences to Murder: Diminished Responsibility;
- the partial defence of diminished responsibility was introduced in NSW in 1974, at a time when there was still a mandatory life sentence for murder. The defence served the purpose of avoiding a murder conviction by permitting a lesser punishment where the accused was mentally impaired but not insane (page 5);
- under the defence of insanity or mental illness, the person's responsibility for his or her actions is nil, which in NSW results in that person's detention in prison or hospital as a forensic patient. Under the defence of diminished responsibility, on the other hand, a degree of mental responsibility remains, thus serving only to reduce culpability from murder to manslaughter (page 7);
- under section 32 of the Criminal Procedure Act 1986 an accused person standing trial for an indictable offence may elect to have the charge of murder tried by judge alone. In Chayna (1993) 66 A Crim R 178 Gleeson CJ referred to a tendency for the legal representatives of accused persons who wish to raise a case of diminished responsibility to prefer a trial without a jury'. In 1995 the DPP issued guidelines for Crown Prosecutors as to the granting of consent to an accused to be tried by judge alone. Statistical figures for the post-1993 period are not available (pages 10-11);
- the Bill has been introduced at a time when it is felt in some quarters that the judiciary is failing to reflect the standards and values of the community in its sentencing decisions. Responding to this, a key feature of the Bill is that it places increased emphasis on the moral assessment by the jury as to whether the evidence warrants the reduction from murder to manslaughter';
The defence of substantial impairment by abnormality of mind: The main differences between the current defence of diminished responsibility and the new defence are as follows: