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109 DIMINISHED RESPONSIBILITY IS A PARTIAL DEFENCE. It reduces
liability for murder to manslaughter if the defendant was not legally insane at the time of the killing but was suffering from an abnormality of mind that substantially impaired his or her mental responsibility. The rationale for the defence is that if total mental incapacity absolves all blame, then serious mental incapacity short of total impairment should reduce culpability. Diminished responsibility is not a defence in New Zealand. It is a statutory defence in England,[141] New South Wales,142 Australian Capital Territory,[143] Queensland,144 Northern Territory,[145] Singapore,146 the Bahamas,147 Barbados,[148] Hong Kong149 and in 14 states in the United States of America.[150]
110 We discuss diminished responsibility because battered defendants have relied on it overseas[151] and, on at least one occasion, a New Zealand court has said that the defence may well have been available to a battered defendant if it had existed in New Zealand.[152] Commentators have called for its introduction in New Zealand to ameliorate what is seen as the inability of the current criminal law to accommodate battered women.[153]
111 The defence has its origins in Scottish common law. The first reported case occurred in 1867 and concerned a defendant who suffered from epilepsy, was a heavy drinker and had attacks of the delirium tremens.[154] The defendant was on trial for the murder of his wife. Lord Deas held that a weakened state of mind might well be an extenuating circumstance reducing murder to culpable homicide (manslaughter).
112 Diminished responsibility was adopted into English statute law by the enactment of section 2 of the Homicide Act 1957. The initial impetus for the defence arose out of pressure for the abolition of capital punishment. A finding of manslaughter, rather than murder, would allow the judge to avoid giving the mandatory death sentence in cases where the jury considered that mental responsibility was reduced. The English defence (which has been adopted by several Australian jurisdictions) provides as follows:
(1) Where a person kills or is party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing.
(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.[155]
113 The first requirement for a defendant wishing to argue diminished responsibility is that he or she was suffering from an “abnormality of mind” at the time of the offence. Abnormality of mind has been interpreted by Lord Parker to be:[156]
a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts, in accordance with that rational judgment.
114 This is a broad definition. It has been held to include psychosis, organic brain disorder, schizophrenia, psychopathy, epilepsy, hypoglycaemia, endogenous and reactive depression, post-traumatic stress syndrome, chronic anxiety and personality disorders.[157] In her review of the operation of section 2 of the Homicide Act 1957 (UK), Susanne Dell found that the great majority of diminished responsibility offenders were diagnosed with psychosis, personality disorders or depression.[158] She found that the last two categories covered a very wide range of conditions, including cases where the defendant would hardly have attracted the diagnosis had it not been for the existence of the defence.[159] Dell noted that doctors had difficulty in trying to assess where abnormality of personality began.[160] They also found it difficult to determine where stress ended and milder forms of mental illness began.[161] Later commentators have criticised “abnormality of mind” as lacking coherent limits[162] and as an ambiguous and not particularly meaningful term.[163]
115 The English diminished responsibility defence is available only where the abnormality of mind arises from arrested or retarded development, inherent causes, disease or injury. This factor must be established by expert evidence.[164] These four causes or aetiologies have no defined or agreed psychiatric meaning,[165] and can lead to a great amount of disagreement among expert witness.[166]
116 The third requirement of the defence, substantial impairment of mental responsibility, is not a clinical question but a legal or moral one.[167] Nevertheless, medical experts routinely give opinions on the question.[168] Mental responsibility has been criticised as a nebulous concept with no clear definition emerging from the cases.[169]
117 The difficulties with the diminished responsibility defence have led to various proposals for its reform. In England, the Butler Committee recommended that the defence should be replaced with a sentencing discretion for murder.[170] However, in the event of the mandatory sentence being retained, it recommended that the defence be reformed.[171] The Committee recommended replacing the requirement for abnormality of mind caused by one of the four specified causes, with a requirement that the defendant was suffering from a form of mental disorder as defined in section 4 of the Mental Health Act 1959 (UK): that is, “mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind, except intoxication”. The Committee also recommended replacing the requirement that mental responsibility be substantially impaired with a requirement that “in the opinion of the jury, the mental disorder was such as to be an extenuating circumstance which ought to reduce the offence to manslaughter”.[172]
118 The Criminal Law Revision Committee was in broad agreement with the Butler report but preferred a formula requiring that “the mental disorder was such as to be a substantial enough reason to reduce the offence to manslaughter”.[173] The English Law Commission’s Draft Criminal Code substantially adopted the Criminal Law Revision Committee’s recommendation, although “mental abnormality” was preferred to “mental disorder”.[174]
119 The New South Wales Law Reform Commission has also recommended that the defence be reformed. New South Wales has a sentencing discretion for murder. Nevertheless, the New South Wales Law Reform Commission thought that the defence was sufficiently useful to retain. The principal reason for this was that the partial defences allowed community involvement in deciding culpability.[175]
120 The New South Wales Law Reform Commission proposed the following defence:[176]
(1) A person, who would otherwise be guilty of murder, is not guilty of murder if, at the time of the act or omission causing death, that person’s capacity to:
(a) understand events; or
(b) judge whether that person’s actions were right or wrong; or
(c) control himself or herself,
was so substantially impaired by an abnormality of mental functioning arising from an underlying condition as to warrant reducing murder to manslaughter.
“Underlying condition” in this subsection means a pre-existing mental or physiological condition other than of a transitory kind.
(2) Where a person is intoxicated at the time of the act or omission causing death, and the intoxication is self-induced, the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether or not the person suffered from diminished responsibility under this section.
121 The term “abnormality of mental functioning arising from an underlying condition” was intended to overcome some of the confusion amongst experts as to what exactly is intended by the word “mind” in the term “abnormality of mind”.[177] It was also intended to require experts to consider the way in which an accused’s mental processes were affected by reason of some underlying or pre-existing condition,[178] although there is no requirement that a particular cause be established. The exclusion of transitory conditions was directed at temporary states of heightened emotion, such as “road rage”. It was not intended to exclude mental or physiological conditions such as depression, which may not be permanent.[179] It simply requires that the condition be more than of an ephemeral or transitory nature.
122 The reference to the impairment of the defendant’s capacity to understand events, judge the rightness of his or her actions or exercise self-control, sets out in statutory form Lord Parker’s definition of “abnormality of mind” in
R v Byrne.[180] The New South Wales Law Reform Commission acknowledged that the inclusion of “capacity to control” was controversial because it is often difficult for experts to state with any certainty whether a person was incapable of controlling their actions, or whether that person simply chose not to do so.[181] The possible application of the defence to people suffering from psychopathy or anti-social personality disorders was also noted.[182] However, the New South Wales Law Reform Commission did not con-
sider it could omit this component because omission might exclude defendants who were brain damaged, hypomanic or suffering from auditory hallucinations.[183]
123 The defence also requires the fact-finder to determine that the impairment is substantial enough to warrant reducing murder to manslaughter. Like the Butler Committee’s reformulation, this is intended to make it clear that this is a moral determination to be made by the jury and not the expert witness.
124 The New South Wales Law Reform Commission’s recommendation has been enacted as section 23A of the Crimes Act 1990 (NSW) with one change: the term “abnormality of mind” has been substituted for “abnormality of mental functioning”.
125 New Zealand currently has no defence of diminished responsibility.[184] There was a proposal to introduce the defence into New Zealand in the Crimes Bill 1960. Clause 180 of the Bill provided that murder should be reduced to manslaughter where the jury were “satisfied that at the time of the offence the person charged, though not insane, was suffering from a defect, disorder, or infirmity of mind to such an extent that he should not be held fully responsible”. Where diminished responsibility was successfully argued, the sentence was to be detention during Her Majesty’s Pleasure.[185] However, the clause was dropped from the Crimes Act 1961 because the abolition of the death penalty was deemed to render the defence unnecessary.[186]
126 The Crimes Consultative Committee also discussed the defence in its report on the Crimes Bill 1989.[187] It noted that the operation of the defence in England had attracted criticism. It considered that, as with provocation, matters relating to diminished responsibility could be adequately dealt with as mitigating factors in sentencing. It stated that in general:[188]
... a range of matters can, in justice, amount to mitigating circumstances on a charge of homicide. It is not useful to single out particular types of circumstances and elevate them into special defences. In the case of the diminished responsibility defence, the difficulties involved in special treatment are exacerbated by complexities in achieving sufficiently precise wording for the statutory defence.
Arguments in favour
127 Under existing law, a mentally disordered defendant who intentionally commits homicide must come within the insanity defence or be found guilty of murder and sentenced to life imprisonment (if the other defences are not applicable). Section 23 of the Crimes Act 1961 sets a very high threshold for the insanity defence. Diminished responsibility would recognise a reduced culpability for a range of mental disorders that do not amount to insanity.[189]
128 Even if a sentencing discretion for murder were to be introduced, the defence might still be useful. Like the defence of provocation, it allows the less culpable killer to avoid the label of “murderer”.
129 Psychiatric evidence about the defendant can be subjected to examination and cross-examination in the course of the trial. This allows the issue to be more thoroughly examined than if the psychiatric evidence is presented in a report to the sentencing judge.[190]
130 It has been common practice in England since 1960 for trial judges to accept manslaughter pleas where medical evidence of abnormality of mind is uncontested[191] and 80–90 per cent of diminished responsibility cases are disposed of in that way.[192] This suggests the availability of diminished responsibility as a defence can save time and money, assuming the charge would otherwise have been defended.
131 Where the defence is contested, the community is involved, by way of the jury, in making decisions on culpability and this enhances community acceptance of a reduced sentence for intentional killings.[193] On the other hand, it may be a criticism of this approach that standards are fixed, not by the law, but by an ad hoc selection of citizens that compose that jury.
Arguments against
132 The English version of diminished responsibility has been the subject of strong and continuing criticism.[194] The elements of the defence are vague and have no clear psychiatric meaning. Psychiatrists interpret the requirements of the defence differently, leading to inconsistency and unpredictability.[195] “Abnormality of mind” has been given a very broad definition and, controversially, includes personality disorders and cases of sexual psychopathology. The defence has been criticised as amounting to trial by expert rather than by jury.[196] Some commentators see problems in distinguishing diminished responsibility from insanity.[197] The reformed New South Wales defence answers some, but not all, of these criticisms.
133 The defence may serve to partially excuse domestic killings arising from jealousy and possessiveness. Dell found that 38 per cent of diminished responsibility pleas in England were wife killings arising, in the majority of cases where the offender was not psychotic, from “amorous jealousy or possessiveness”.[198]
134 A conflict may arise between the desire to acknowledge reduced culpability and the need to preserve the public from danger in the case of defendants whose abnormality of mind is such that they pose a danger to the public.[199]
135 It has been argued that there is a danger that stereotypes about women could lead to the overuse of this defence at the expense of a more appropriate use of either self-defence or provocation.[200] Commentators have also criticised the way in which the defence concentrates on the apparent infirmity of mind of the battered defendant rather than the violent behaviour of the abusive partner.[201]
136 The forensic psychiatrists we consulted expressed the view that, while domestic violence may lead to a range of psychological responses in the victim, it does not commonly cause the victim to develop abnormality of mind to the degree required by the defence of diminished responsibility.[202] We know of no research as to whether the victims of domestic violence who kill are more likely to have developed abnormality of the mind.
137 Nevertheless, the adoption of the defence has been recommended as a way of recognising the lesser culpability of some battered women of infirm mind who kill.[203] It is possible that some of the battered defendants who have been found guilty of murder would have succeeded in pleading diminished responsibility if the defence had been available in New Zealand. For example, in R v Gordon, a case concerning a defendant who had suffered years of violence at the hands of the deceased, Hardie Boys J said:[204] “[w]ere the defence of diminished responsibility available in this country, it may well have been availed of here”. The defendant was suffering from a significant depressive illness at the time her husband was killed and had been diagnosed as suffering from BWS. In England, a diagnosis of BWS has sufficed to establish abnormality of mind for the purpose of diminished responsibility.[205]
Question 7: Should New Zealand adopt a partial defence of diminished responsibility?
Question 8: If the answer to question 8 is yes, which version of diminished responsibility do you prefer:
(a) The English version: section 2 of the Homicide Act 1957?
Where a person kills or is party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing.
(b) The English version as amended by the Butler Report?
Where a person kills or is party to the killing of another, he shall not be convicted of murder if there is medical or other evidence that he was suffering from a form of mental disorder as defined in section 4 of the Mental Health Act 1959[206] and if, in the opinion of the jury, the mental disorder was such as to be an extenuating circumstance which ought to reduce the offence to manslaughter.
(c) The English version as amended by the Criminal Law Revision Committee?
Where a person kills or is party to the killing of another, he shall not be convicted of murder if there is medical or other evidence that he was suffering from a form of mental disorder as defined in section 4 of the Mental Health Act 1959 and if, in the opinion of the jury, the mental disorder was such as to be a substantial enough reason to reduce the offence to manslaughter.
(d) The version in the English Law Commission’s draft criminal code?
(1) A person who, but for this section, would be guilty of murder is not guilty of murder if, at the time of his act, he is suffering from such mental abnormality as is a substantial enough reason to reduce his offence to manslaughter.
(2) In this section “mental abnormality” means mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind, except intoxication.
(3) Where a person suffering from mental abnormality is also intoxicated, this section applies only where it would apply if he were not intoxicated.
(e) The version proposed by the New South Wales Law Commission?
(1) A person, who would otherwise be guilty of murder, is not guilty of murder if, at the time of the act or omission causing death, that person’s capacity to:
(a) understand events; or
(b) judge whether that person’s actions were right or wrong; or
(c) control himself or herself,
was so substantially impaired by an abnormality of mental functioning arising from an underlying condition as to warrant reducing murder to manslaughter.
“Underlying condition” in this subsection means a pre-existing mental or physiological condition other than of a transitory kind.
(2) Where a person is intoxicated at the time of the act or omission causing death, and the intoxication is self-induced, the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether or not the person suffered from diminished responsibility under this section.
(f) Some other version?
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