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Report No. 35

911. Negative Illustrations.-

A negative case, R. v. Walden, (1959) 1 WLR 1008: (1959) 3 All ER 203 (CCA). in which the defence was not accepted, may be cited. There, Walden, a lecturer in a college, had proposed marriage to Joyce, a girl employed in the office of the college. The girl declined the proposal and favoured a student of the college, Neil. A week later, Walden left a class which he was taking, and in the corridor on his way to his locker, he passed Neil who was talking to Joyce. Returning from his locker, he shot Neil through the back, went into the office and shot Joyce through the back six times, the last three shots being fired into her back as she lay on the ground. Both of them died.

Walden then ran up to his car, which he later abandoned with the pistol which he had used. He was found three weeks later by a constable in a shelter. Incidence about the murder was overwhelming, but Walden tried to prove abnormality of mind impairing his mental responsibility. While one consulting psychiatrist was of the opinion that Walden was suffering from a severe type of abnormality and was suffering from paranoia and was grossly abnormal, the senior prison medical officer and another consulting psychiatrist disagreed and said that the accused had no abnormality of mind.

The jury rejected the defence, and on an appeal on the ground of misdirection, the court dismissed the appeal. The objection in appeal was to the summing up by the Judge to jury to the effect that the jury had to decide whether the accused was "wandering on the border-line-being between sane and insane", so that he was not fully responsible for what he had done. The Court found nothing wrong in this summing up, on the facts of the case.

912. Burden of proof of diminished responsibility.-

Regarding onus, section 2(2) of the Homicide Act. 1957, provides that it should be for the defence to prove that the person charged is (by virtue of this section) not liable to be convicted of murder. The Court of Criminal Appeal1 has held, that when a plea of diminished responsibility is put forward, the burden of proof on the accused is not so heavy as the burden which rests on the prosecution to prove its case beyond reasonable doubt, and that the burden on the defence is discharged if the evidence justifies the conclusion that the balance of probabilities is in favour of the defence. The court followed the leading case as to but den of proof, R. v. Carr-Briant (CCA) (1943) 2 All ER 156: 1943 KB 607 (CCA).

1. R. v. Dunbar, (1957) 3 WLR 330: (1958) 2 All ER 737.

913. Recent cases on the section in the English Act have clarified the application of the provision1. The defence of diminished responsibility is sometimes put forth as a false excuse. In a recent case2, the appellant, while robbing a bank, shot and killed a bank employee. The defence was that he felt that he was possessed by the spirit of a deceased American gangster, Legs Diamond, who controlled his acts. Two psychiatrists gave evidence that they believed that this delusion was a genuine one; two doctors (for the Crown), however, said that he was "shamming". The appellant was convicted and sentenced to death. The appeal was dismissed by the Court of Criminal Appeal.

1. Most of the cases are 'discussed in the article by Richard F. Sparks Diminished Responsibility in theory and practice, (January 1964) MLR 9.

2. R. v. Terry, (1961) 2 WLR 961 (CCA).

914. Irresistible impulse has also come up. In R. v. King, (December 3, 1963) Facts taken from (1963) 12 Current Law, Item 193 (December, 1963) (CCA). the defendant, a Ugandan, was charged with the murder of four persons. His defence was diminished responsibility within section 2 of the Homicide Act, 1957, to an "irresistible impulse". On his behalf, a doctor gave evidence that the behaviour of the defendant's mother-in-law would be a stimulus such as might well cause a person of his racial type to lose his self-control.

The defendant suffered from no abnormality of mind, either before or after the killings. McNair J. directed the jury that irresistible impulse was no defence to a charge of murder, and that if the defendant's conduct was merely the normal reaction for his racial type, it was not an abnormality at all. The defendant was convicted of all the murders, and applied for leave to appeal. The Court of Criminal Appeal (Lord Parker C.J., Winn and Atkinson JJ.). dismissing the application, held (1) that the Judge's direction was entirely correct; and (2) that there was in any event no evidence of abnormality arising from any causes that would bring the case within section 2 of the Act. Irresistible impulse, if arising from abnormality of mind, would perhaps, be covered1-2.

1. See article on the Homicide Act, 1957 Camb LJ 183, 189.

2. See also Russell on Crime, (1964), Vol. 1, p. 125.

915. In a recent case1, the meaning of the expression "substantially" was considered. The facts were these: The defendant, who pleaded diminished responsibility under section 2(1) of the Homicide Act, 1957, was charged with the murder of his wife. The jury convicted him of murder, and he was sentenced to life imprisonment. He appealed to the Court of Criminal Appeal. In appeal, the ground taken was that the judge had misdirected the jury, and that, had it not been so, the verdict of the jury would have been that of manslaughter with diminished responsibility.

1. R. v. Lloyd, (1966) 2 WLR 13 (CCA).

916. In directing the jury, Ashworth J., of the Birmingham Assizes had said that according to medical evidence, the accused was suffering from mental abnormality, but that the accused must also show that the mental abnormality substantially impaired his mental responsibility. In explaining the word "substantially", the Judge said:

"I am not going to try to find a parallel for the word "substantial". You are the judge, but your own commonsense will tell you what it means. This far I will go. Substantial does not mean total, that is to say, the mental responsibility need not be totally impaired, so to speak, destroyed altogether. At the other end of the scale substantial does not mean trivial or minimal. It is something in between, and Parliament has left it to you and other juries to say on the evidence, was the mental responsibility impaired, and if so, was it substantially impaired?".

917. The Court of Criminal Appeal said that the direction given to the jury on the meaning of the word "substantially" could not be validly criticised. The direction, though not identical with, was in substance quite the same as that given in Reg. v. Simcox. "The Times", February 24, 1964 (CCA). (The Times, February 24, 1964), and approved by this Court. The Court went on to quote the observations of Lord Parker, C.J. given in the case of Simcox, as follows:-

"All four experts were of the opinion that this appellant suffered from an abnormality of mind, and that abnormality of mind arose from inherent causes, the name given to the abnormality being paranoid personality.

Not one of them however, would go to the length of saying that as a result of that abnormality the appellant's mental responsibility was substantially impaired. They used words to the effect that the impairment was moderate, that it was harder for him to control his actions, that the degree of paranoid personality was, as one doctor said, persistent and strong. Those and other expressions were used, but not one of the mental experts felt that he could say that the impairment was substantial. In those circumstances the jury, after what this court considers to be a most admirable and fair summing-up, refused to return a verdict of manslaughter, but returned a verdict of capital murder.".

918. The Court of Criminal Appeal further quoted the direction of the trial Judge Finnemore J. in the case of Simcox, about which the Court of Criminal Appeal had stated in the previous case that it could not be validly criticised. The direction was as follows:-

'Members of the jury, the real thing you may think here is this word "substantially", and we will come to it in a moment. Neither doctor called for the defence obviously liked the word, and it may be so, but that is the word in the Act of Parliament, that is the word you have got to use, and I expect you will not have as much difficulty as some people might have. There is no scientific precise test.

That cannot be and never can in human conduct, otherwise we should not need juries or anybody, and if you will allow me to say so, I think you should look at it in a broad commonsense way and ask yourselves, having heard what the doctors have said, having made up your minds about it, knowing what this man did, knowing the whole story, do we think, looking at it broadly as commonsense people, there was a substantial impairment of his mental responsibility in what he did? If the answer to that is "yes", then you find him not guilty of murder, but guilty of manslaughter.

If the answer to that is "no" there may be some impairment, but we do not think it was substantial, we do not think it was something which really made any great difference, although it may have made it harder to control himself, to refrain from crime, then you would find him guilty as he is charged in the only charge to this indictment.'.

After approving the direction to the jury given by Ashworth J. in the assize Court, the Court of Criminal Appeal dismissed the appeal.

919. It would appear, that the defence of diminished responsibility is recognised in the laws of some of the Commonwealth countries also1. Recently, it has been incorporated in Queensland2-3-4.

1. For the position in 1953, see R.C. Report, pp. 413 and 416.

2. Section 304A, Criminal Code of Queensland.

3. See (1962) 36 Australian Law Journal 171.

4. Colin Howard Australian Criminal Law, (1965), pp. 83-84.

920. The necessity of using care while employing the phrase "borderline insanity" in connection with diminished responsibility was emphasised by the Privy Council in a case1 which arose under the Homicide (Special Defence) Act, 1959 of the Bahama Islands, an Act which is similar to the Homicide Act, 1957. The Privy Council pointed out that the distinction between legal insanity and mental irresponsibility may be one of kind and not of degree, for a man may clearly recognise that he is doing wrong, but nevertheless be unable to resist the temptation to act owing to abnormality of mind.

1. Rose v. Queen, 1961 AC 496: (1961) 2 WLR 506 (PC).

921. Opinion is not unanimous as to whether the provision on the subject in the English Act has worked well. Though it has not been an unqualified success, it would appear to have served some useful purpose. The provision, while not abolishing the M'Naghten rules, supplements them by providing for cases where there cannot be said to be complete irresponsibility, but there is substantial impairment1.

Perhaps in countries where the sentence of death is mandatory and the application of the M'Naghten rules is felt to cause hardship, the provision would come in handy as saving the Judge from having to pass a formal sentence of death in a case of insanity outside those rules, where the sentence would not, in any case, be carried out, and also to give a measure of recognition to mental abnormalities short of insanity2.

1. See note on Homicide Act, (1957) 20 MLR 38 by J.E. Hall Williams.

2. Glanville. Williams Criminal law-the General Part, (1961), para. 173.

922. The defence of diminished responsibility may however be abused. Sometimes persons, sentenced to a lesser imprisonment under this provision, may come out of prison and commit the same killing again1. Again, a person, who is really insane, may, instead of taking the defence of insanity, put forth the defence of diminished responsibility, in order to obtain a fixed sentence and avoid detention in the prison meant for lunatics. He may thus escape the treatment which would have been given to him in such a prison2.

1. See the case of Bennet, discussed in Glanville Williams Criminal Law, (1961), p. 552, para. 177.

2. See the view of Dr. Patrick McGrath, (1958) 1 British Medical Journal 641, cited in Glanville Williams Criminal Law-the General Part (1961), p. 554, para, 177.

923. However, the defence seems to have served some useful purpose in many cases, for example, cases of infanticide outside the Infanticide Act1. One suggestion has been to delete the requirement of "mental abnormality", so as to leave to the jury discretion to reduce the conviction to manslaughter in all cases where the culpability is substantially diminished2.

1. See the cases of Budden and Rowley, cited by Glanville Williams Criminal Law-the General Part, (1961), p. 557, para. 177.

2. See Glanville Williams Criminal Law-the General Part, (1961), p. 558, para. 177.

924. Since, in India, the question of sentence is entirely in the discretion of the Court, and the sentence of death is not mandatory, such a provision does not appear to be necessary. Courts may, while considering the question of sentence, be expected to take into account the mental state of the accused, even if it falls short of legal insanity1-2.

A change in the law is not, therefore, suggested.

1. See Analysis of case law, Case Nos. 26, 36, 57, 62, 92.

2. See also Sankappa Shetty (in re:), AIR 1941 Mad 326.



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