SUBSTANTIAL IMPAIRMENT BY ABNORMALITY OF MIND & PROVOCATION Claus & Stephanie

Substantial impairment by abnormality of mind (Claus) • Section 23 A

A defendant may have a legal defense available in order to defend a charge in court. A defense will usually involve some denial, justification or excuse for the accused’s act. Most defense revolve around the Mens Rea of the offense. This is a partial defense.

• (1) A person who would otherwise be guilty of murder is not to be convicted of murder if:

• (a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, (Mental condition)

and• (b) the impairment was so substantial as to warrant liability for murder

being reduced to manslaughter

• (2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible (acceptable or valid)

 • (3) If a person was intoxicated at the time of the acts or omissions causing the death

concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section.

 • (4) The onus (Burden of proof) of is on the person accused to prove that he or she is not liable

to be convicted of murder by virtue of this section.

 • (5) A person who but for this section would be liable, whether as principal or accessory, to be

convicted of murder is to be convicted of manslaughter instead.

 • (6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue

of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death.

• (7) If, on the trial of a person for murder, the person contends (struggle):

• (a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or

• (b) that the person is not liable to be convicted of murder by virtue of this section,

• evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.

(8) In this section: • "underlying condition" means a pre-existing mental or

physiological condition, other than a condition of a transitory kind.

Provocation (Steph)

What is provocation?

• Provocation is a defense where the accused claims that the actions of another person caused him or her to temporarily lose control. The accused may claim that there were mitigating circumstances that caused them to carry out the act.

23 Trial for murder-provocation

• (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.

• 2(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and

• 2(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict GBH upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.

Provocation• What is Provocation?

Provocation is a defense where the accused claims that the actions of another person caused him or her to temporarily lose control. The accused may claim that there were mitigating circumstances that caused them to carry out the act.

23 Trial for murder-provocation

• (1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter.

• 2(a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and

• 2(b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict GBH upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.

Case • R v Byrne (1960) (Substantial impairment by abnormality of mind)

• The appellant murdered a young girl staying in a YWCA hostel. He then mutilated her body. He did so as he was suffering from irresistible impulses which he was unable to control.

Held:"abnormality of mind" was wide enough to cover the mind's activities in all its aspects, including the ability to exercise will power to control physical acts in accordance with rational judgment. But "abnormality of mind" means a state of mind so different from that of ordinary human beings that a reasonable man would term it abnormal. He was thus allowed the defence to reduce the murder conviction to manslaughter.

• R v Khalouf [2003] (Provocation) • Khalouf was charged with stabbing Rebecca Diab to death on or about 18 February 2000 in an

hotel at Bass Hill. The accused stabbed the deceased repeatedly, principally in the upper chest, the throat and the neck. After the stabbing the accused  showered and telephoned his son to tell him that he had killed somebody. Ultimately the son got in touch with the police, who attended the hotel, found the deceased dead, arrested the appellant and took him to the police station. Later on they interviewed him and he admitted stabbing the deceased. He said that during the night the deceased emerged from the bathroom and started waving a knife about in front of him and that he tried to take the knife from her and in the course of doing so received a cut to his hand. He managed to get the knife away from her and began stabbing her.