- Notable Unreported Decision
- Appeal Determined (QCA)
SUPREME COURT OF QUEENSLAND
LAI v Director of Public Prosecutions (Qld) & Anor  QCA 287
Appeal No 535 of 2016
QMHC No 94 of 2014
Court of Appeal
General Civil Appeal
Mental Health Court at Brisbane – Unreported: 1 December 2015
11 November 2016
14 June 2016
Margaret McMurdo P and Gotterson JA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – INSANITY AND MENTAL IMPAIRMENT – DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY – where the appellant was charged with arson – where the Mental Health Court found that the appellant was not of unsound mind at the time of the offending – where the appellant contends the primary judge misapplied Stapleton v The Queen (1952) 86 CLR 358 and erred in finding that the appellant could appreciate the wrongness of his conduct at the time of the alleged offence – where the appellant lit the fire at night to conceal his conduct and gave a false explanation to police about who was responsible – where the primary judge concluded the appellant had a psychotic illness at the time of the offence but was not deprived of the capacity to appreciate the moral wrongness of his conduct because he in part knew the burning of the car was against the law –whether the appellant was of unsound mind
Criminal Code (Qld), s 27
Mental Health Act 2000 (Qld), s 267, s 335, s 389, s 405
DAR v DPP (Qld) & Anor  QCA 309, cited
R v Arnold (1724) 16 State Trials 704, cited
R v Codere (1916) 12 Cr App R 21, cited
R v Davis (1881) 14 Cox CC 563, cited
R v Schafferius  1 Qd R 381, cited
Re M’Naghten’s Case (1843) 10 Cl & Fin 200; (1843) 8 ER 718;  EngR 875, cited
Re S  QMHC 8, cited
SCN v Director of Public Prosecutions (Qld) & Anor  QCA 237, applied
Stapleton v The Queen (1952) 86 CLR 358;  HCA 56, considered
R v Porter (1933) 55 CLR 182;  HCA 1, cited
Trial of James Hadfield (1800) 27 St Tr 1281, cited
J D Briggs for the appellant
T A Fuller QC for the respondents
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondents
- MARGARET McMURDO P: On 17 March 2014 the appellant’s lawyers referred the charge brought against him, that on 10 January 2013 he wilfully and unlawfully set fire to a motor vehicle, to the Mental Health Court. The case was heard on 30 November and on 1 December 2015. The Mental Health Court determined that the appellant was not of unsound mind at the time of the alleged offence and that the matter should proceed according to law. The appellant seeks to appeal from that decision.
- Under s 335 Mental Health Act 2000 (Qld) the notice of appeal must be filed within 28 days. He attempted to file a notice of appeal on 7 January 2016 but was told by the registry it was out of time. When this was conveyed to the appellant’s barrister on his return from leave on 11 January 2016, he filed an application for an extension of time to appeal, together with supporting material. The application raises an interesting matter of law as to the interaction between s 335 and Supreme Court Practice Direction 3 of 2013, paragraph 3 which provides:
“Calculation of Time
- Subject to the rules and unless otherwise specified, for the purposes of this Practice Direction days which fall on weekends or public holidays are included in calculating time periods within which to file or lodge and serve court documents, but court holiday periods declared by a practice direction are not included.”
- Supreme Court Practice Direction 19 of 2015 provided that, for the offices of the Supreme Court Registry, “each of the days from 21 December 2015 to 1 January 2016 inclusive” were court holidays. The terms of Practice Direction 19 suggests that the weekends and public holidays between 21 December and 1 January were court holidays. If so, the appellant had 40 days to file his appeal. On that basis his appeal would have been within time and he should have been permitted to file it on 7 January. But a member of this Court observed that it seemed questionable whether a Practice Direction could vary the effect of an Act of Parliament. There seems much to commend that view but, as these matters were not argued before us in any considered way, it would be unwise for this Court to express any concluded view. Given the first respondent’s concession that any delay was brief and properly explained, if it is necessary to do so this Court ought to grant the application and extend time to appeal to 12 January 2016. I note the respondent does not oppose such an order.
- The grounds of the appeal are that the Mental Health Court erred by concluding that the appellant was not of unsound mind at the time of the alleged offence and by failing to properly apply the test for determining whether his mental illness deprived him of the capacity to know that his act at the time of the alleged offence was wrong.
- I will set out the approach taken by the Mental Health Court and the appellant’s contentions before stating my reasons for concluding that the appeal should be dismissed.
The Mental Health Court’s reasons
- The Mental Health Court noted that the appellant at the time of the alleged offence was in his thirties, on a disability pension and living in supported accommodation. The offence concerned the burning of a vehicle owned by another resident in his unit block.
- The court referred to Dr Beech’s report of 25 November 2013 which recorded the following. The appellant claimed he was a victim of retaliation after giving evidence of a violent assault eight years earlier. He also gave a psychotic-sounding history of falling out with a flatmate 20 years earlier in Victoria as a result of which he was stalked and moved to Queensland. The court formed the impression from the report that the appellant’s history was delusional or delusional-sounding. He told Dr Beech that he knew nothing about the offence and could not account for the firelighters outside and inside his unit which were similar to firelighters found around the burnt car. He told Dr Beech he had concerns about cars parked outside his unit and he had previously enquired whether the burnt car was registered. But he said these things did not worry him; they were not preoccupying thoughts. Dr Beech referred to clinical notes from the Princess Alexandra Hospital following the appellant’s admission on an involuntary treatment order in June 2013. In his evidence before the court, Dr Beech relied on the appellant’s ruminations about the Victorian incident and the serious assault episode which seemed to preoccupy his thinking during his hospital admission. Dr Beech also relied on the appellant’s history, including from his parents who described him as bright until Year 11 when he “lost the plot,” possibly in the context of cannabis use. Dr Beech noted the appellant’s poor self-care, blunted affect and significant formal thought disorder. He diagnosed paranoid schizophrenia. He expressed some doubt as to whether the appellant’s denial of the offence proceeded from mental illness rather than evasion. Dr Beech, the court noted, opined that the appellant was deprived of the capacity to know that his acts were wrong.
- The court referred to Dr Beech’s further report of 1 April 2015, prepared after he read Dr Phillips’ report of 16 March 2015, and noted that both doctors gave evidence. Dr Phillips considered it was within the realms of normal thinking for the appellant to be concerned that he might be subject to violent retribution for his part in the serious assault case or cases. He had over-valued ideas rather than a delusion. She considered that at the time of the alleged arson he had become psychotic in his thinking about the idea of retribution, was misinterpreting cues in a psychotic way, and was pre-occupied with these things more than was reasonable, even given their genuine factual origin. The court noted that Dr Phillips reviewed his history and considered he had a somatoform disorder. He refused to give her permission to speak to his parents. He did not completely deny his offending to her; after looking at the evidence he said he must have committed the offence but claimed to have no memory of it.
- The appellant denied to both doctors that the owner of the car was incorporated in his delusional beliefs. The court noted that Dr Phillips found the appellant hypervigilant as a result of post-traumatic stress disorder (PTSD) and an overlying psychosis caused by the serious assault. He told her that he was annoyed and frustrated by the complainant parking at the back of his unit. There was a tenuous link between the offence and his concerns about the serious assault in that he said he thought the parking of the car at the rear of his unit made it more likely that those seeking retribution against him could also park close to his unit. He told Dr Phillips that Dr Beech’s diagnosis of schizophrenia was insulting and he feared involuntary treatment. The court considered that might be why he refused Dr Phillips permission to speak to his parents. The court noted that Dr Phillips’ diagnosis at the time of the offending was PTSD following the serious assault, superimposed with depression and anxiety and a psychotic disorder not otherwise specified. She allowed for the possibility of schizophrenia as a differential diagnosis but he was not psychotic at the police interview or since. Dr Phillips relied upon the notes of the appellant’s hospital admission to support her diagnosis. The court noted that Dr Phillips considered the question of deprivation of capacity very difficult to assess because he would not allow access to his thinking to provide insight into how or why the offending may have fitted in with his psychosis. He did not want a mental health defence which might make him subject to involuntary treatment so he has not made any statements connecting the alleged offence with his psychotic thinking, if there was a connection.
- The court determined that at the time of the offending he had a psychotic illness. This was consistent with the opinions of both Dr Beech and Dr Phillips and the advice of the assisting psychiatrists. The court accepted Dr Beech’s evidence that, at the time of the alleged offence, the appellant had untreated schizophrenia but it was not a kind which caused him to come into conflict with other elements in society.
- The real question, the court considered, was whether he was deprived of the capacity to know that he ought not do the act. The court referred to its decision in Re S and Dixon J’s statement in R v Porter. One reason which makes an act right or wrong to ordinary people is whether it is illegal, the court noted, adding, “it might often be that knowledge that an act is contrary to law is indistinguishable from a knowledge that it is wrong according to reasonable standards.” The court observed that it restated the law in Re S as psychiatrists and counsel sometimes “put too much emphasis on the idea that the legal test for deprivation of this capacity is whether or not the person knew that it was morally wrong.” Too much focus, the court considered, was put on the following part of the test set out in Porter, as though it were an independent and exclusive test: “If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.”
- The test, the court concluded, “is not whether any given person is able to reason with a moderate sense of composure at any given time. It’s whether or not they know they ought not do the act.” The court noted the appellant’s odd behaviour during and after the offending and that he did not attempt to disguise the alleged offence. If that were all the available evidence it may be sufficient to find delusional or psychotic thinking depriving him of capacity. But he had confronted the owner of the car a few weeks earlier, angrily expressed his view that the car should not be stored behind his unit, and threatened to take care of the situation himself if it was not moved. Further, the court noted, Dr Beech accepted the appellant knew that burning the car was against the law. That conclusion, the court found, was supported by the fact that he lit the fire at night; he denied anything to do with it; gave a false explanation about the fire starters in and outside his unit; and gave police a false lead about a drug offender living in the units. All this suggested to the court that he knew his offending was illegal and was taking care to conceal it.
- The court noted that his psychosis was not floridly causing uninhibited behaviour and at best had a tenuous connection to the alleged offence. In determining whether there was a deprivation of capacity by reason of the psychosis it was logical to enquire if there was any connection between it and the alleged offence. He told Dr Beech there was none. Dr Phillips found a tenuous connection and considered that the psychosis impaired his capacity to know he ought not do the act but did not deprive him of that capacity. The case was difficult because the appellant did not explain his state of mind and would not frankly discuss the alleged offence. This made drawing inferences more difficult. The court concluded that Dr Phillips’ opinion was more likely to reflect the reality of the appellant’s state of mind at the time of the offending; he was affected by psychosis but not deprived of the capacity to know he ought not do the act.
- Dr Beech formed his opinion without police statements outlining both the appellant’s confrontation with the complainant some weeks earlier, and that an unhappy third party had pointed out to the appellant that the car was stored behind the appellant’s unit. Dr Phillips took a more enquiring and careful approach to whether the appellant’s view of the serious assault incident was delusional. The court determined that, applying the test for deprivation of this capacity to the facts, Dr Phillips was probably correct; his capacity to know he ought not do the act was impaired, but he was not deprived of that capacity at the time of the alleged offence.
The appellant’s contentions
- In contending that the court misapplied the Stapleton test, the appellant emphasises historical cases cited in Stapleton including R v Davis, and also Sir Samuel Griffith’s letter to the Queensland Parliament of 29 October 1897 attaching the draft Criminal Code, in particular the footnotes to what is now s 27 Criminal Code (Qld). He submits that the test was whether the appellant could appreciate the wrongness of his particular act at the time of the alleged offence. If through mental disease he could not think rationally of the reasons which to ordinary people make his act right or wrong, he could not appreciate the wrongness of it. Stapleton makes clear that the term “wrongness” is determined according to moral and not legal standards. This was not a quantitative test of the kind adopted in the early case of R v Arnold. Since the 1800 decision in Trial of James Hadfield the test has been qualitative. Stapleton also makes clear that the deprivation of the capacity of an accused person to know wrongness is determined not by reference to the magnitude of his or her thinking, but by reference to the quality of the thinking and its effect on the person’s appreciation of the morality of the person’s particular act at the time of the alleged offence. If mental illness affected the appellant’s thinking about his act in the sense described in Stapleton, he contends he was deprived of that capacity and was of unsound mind under both s 27 and the Mental Health Act. The question, the appellant contends, was whether he was deprived by his mental illness of the capacity to think rationally of those reasons which to an ordinary person would make that act right or wrong.
- The evidence, the appellant submits, was that he suffered from a delusion which made him profoundly fearful and led him to believe his life was in danger because the subject of the alleged offence, the car, was positioned to allow those who were after him to more easily attack him; this caused him to burn the car. The court erred in departing from the Stapleton test and in not appreciating that the delusion made him burn the car; the offence had nothing to do with his feelings towards the car owner. He contends the court erred in implying knowledge of moral wrongness from the awareness of the appellant that his act was legal, and in not appreciating that one did not follow the other in the circumstances of this case. Whilst the court correctly noted the Stapleton test, it did not properly apply it. Dr Phillips, on whose opinion the court relied, also fell into error in taking a quantitative approach to deprivation by considering that his capacity was “substantially impaired” but not “completely deprived.” She was, he contends, confused about the Stapleton test and failed to properly apply it. He also submits she wrongly asserted that the appellant was not deprived because he had not incorporated the owner of the car into his delusion.
- The appellant places emphasis on the following exchange at the hearing between the court and Dr Beech, who stated that the appellant would have known burning the complainant’s car was illegal according to the standards of reasonable men:
“Her Honour: Well there’s no sharp divide between – people who know that something is illegal may therefore well know they ought not do the act? --- Yes, your Honour.
…The legal test is can you think rationally of the reasons which to ordinary people make the act right or wrong. One of the reasons which occurs to ordinary people predominantly is, well, is it against the law. Do you know what I mean? --- Yes, your Honour.
It’s – we don’t have to examine his moral conscience, I think. It’s hard to apply this test, but the reasons juries aren’t told is – did the person know whether – you have to decide whether they knew it was against the law or not – is that the courts traditionally were opposed to juries being told that because they thought that jurors would then think, ‘I wonder if he really understood the intricacies of the law. Perhaps he misapprehended the law’ – and go off on a wrong track. So it’s not – if someone understands that an act is against the law, it’s a pretty significant indication they know they ought not do the act? --- Then I think – I think he knew that it was illegal to set the fire. And I think that’s – and it seems to me it’s pretty clear in his denial that he was the person who set the fire that he knew it was wrong.
Can you talk to me about your view, then, that he was deprived of that capacity in that context? --- Because I think he believed his life was in danger. He became increasingly worried that these people were coming around and that the cars being parked out the back might be people coming to get him or might obscure people coming to get him. And that he’s spoken to some of the owners about moving cars because they shouldn’t be there and that for whatever reason on that day this woman who parked her car there and left it there – he decided to burn it. And I think he did – I suspect – and it’s difficult because to me he denied that he did it. But I suspect that he was influenced by his persecutory beliefs.
One of the things that makes this case so hard is that he refuses to let either you or Dr Phillips really examine his thinking around the actual offence, because he won’t talk to you about it. But are you presuming he thought, ‘Well, although I know that that would be an illegal thing to do, I think it’s the only option open to me to keep me safe’? --- Yes, your Honour. And I don’t know that I can say that he believed it was the only option left to him.
No, but – all right. But, ‘It’s something I’m going to do because I’m so worried and that will keep me safe’? --- Yes.
‘Even though I know it’s an illegal thing to do’? ---Yes. And if I duck out at night when no one’s doing it and light the car on fire, no one will see me, so I will be able to get away with it. And at the same time remove the risk to me of someone being in a car or hiding in a car or somehow using that to get to me.”
- The judge, the appellant emphasises, was assisted by two psychiatrists, both of whom advised that at the time of the alleged offence the appellant was most likely deprived of the capacity to know he ought not do the act because of his mental illness and that he was of unsound mind at the time.
- The appellant contends that the court’s error in not applying Stapleton correctly requires that this appeal be allowed, the decision of the Mental Health Court set aside and instead a finding substituted that the appellant was of unsound mind at the time of the alleged charge, with the matter remitted to the Mental Health Court for determination of any further orders.
- Under s 267 Mental Health Act, the Mental Health Court is empowered to decide whether a person the subject of a reference to it was of unsound mind when the alleged offence was committed. The standard of proof is on the balance of probabilities, with no party bearing the onus, but with the qualification that clear and convincing evidence is required. The Mental Health Court is constituted by a Supreme Court judge who is advised by two assisting psychiatrists on the meaning and significance of clinical evidence. An appeal from a decision of that court to this Court is an appeal in the strict sense requiring the demonstration of error of fact or law.
- The expression “unsound mind” is defined in the Schedule to the Mental Health Act as,
“...the state of mental disease or natural mental infirmity described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.”
- Section 27 Criminal Code relevantly provides:
“(1)A person is not criminally responsible for an act...if at the time of doing the act...the person is in such a state of mental disease...as to deprive the person of capacity...to know that the person ought not do the act...”.
- I have not found the appellant’s reliance on historical cases or on Sir Samuel Griffith’s comments helpful in determining whether an accused person is of unsound mind because of this incapacity. The test is that stated by Dixon CJ, Webb and Kitto JJ in Stapleton. The focus must be on the accused person’s:
“...knowledge of the nature and quality of the act and of its wrongness. For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. See Reg. v. Davis, Stephen J., R. v. Kay, Stephen J. In R v Porter this was expressed by Dixon J as follows:- ‘The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.’” (Footnotes omitted).
- Later their Honours said in discussing Lord Reading CJ’s observations in R v Codere:
“This perhaps means that in cases of serious crime, the fact that it is punishable by law is enough to show the prisoner that it is something which he ought not to do, although the final test is that it is wrong according to the standard adopted by reasonable men. The truth perhaps is that, from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong (his insane judgment even treating the act as one of inexorable obligation or inescapable necessity) he may yet have at the back of his mind an awareness that the act he proposed to do is punishable by law...the accused must be incapable of understanding that he [or she] was acting contrary to law as distinguished from appreciating that his [or her] act was wrong according to the ordinary standards adopted by reasonable [people]”.
- The assisting psychiatrist, Dr McVie, therefore accurately referred to the appropriate test when she noted that, “When psychiatrists look at this capacity they look at it in terms of moral reasoning, rather than did the person know it was legally wrong to [do] the act.”
- Her Honour’s statement during Dr Beech’s evidence “we don’t have to examine his moral conscience” may have been prone to confuse the psychiatrists and lawyers involved in the matter, as may the statement in the court’s reasons that psychiatrists and barristers sometimes “put too much emphasis on the idea that the legal test for deprivation of this capacity is whether or not the person knew it was morally wrong” and “the test is not whether any given person is able to reason with a moderate sense of composure at any given time.” The court referred to the passage in Porter cited in Stapleton which I have set out in full above and fully appreciated that, as this Court recently stated in applying Stapleton in SCN:
“[T]he question in determining whether the [accused person] was deprived of the capacity to know [the person] ought not do the charged acts was whether, at that time, [the person] had the ability to reason with a moderate degree of composure, according to the standards adopted by reasonable people, as to the wrongness of [the person’s] acts. In answering that question it is relevant, although not decisive to consider if [the person] understood [the person’s] acts were punishable by law. The two concepts are often intertwined.
...[An accused person’s] understanding [the person’s] charged acts were against the law and would get [the person] into trouble with the police ...[was] a highly relevant factor in determining whether [the person] was able to reason with a moderate degree of composure, according to standards adopted by reasonable people, as to the wrongness of her acts.”
- Whether an accused person lacks the relevant capacity is a question of fact applying the Stapleton test. In this case that task was for the Mental Health Court constituted by a judge. In determining this issue the court was not bound by the views of the assisting psychiatrists and had to make up its own mind on the evidence. Sometimes the application of this test will be clear cut; other times more difficult. Take the case of a woman suffering a mental illness as a result of which she deludedly believed she was the daughter of God and God told her to disobey man-made laws, take food from supermarkets and distribute it to the poor. Acting on that delusion and considering she was acting morally in not stealing from the supermarket, she took supermarket food intending to give it to the poor. These circumstances strongly suggest that, even though she knew she was acting against the law, she would not be criminally responsible as she did not have the ability to reason according to the standards of reasonable people as to the wrongness of her acts. By contrast, take the case of a father suffering from the mental illness of severe depression who unsuccessfully attempts to kill himself and, as he wants to punish his estranged wife, he first kills their children, knowing this is a heinous crime. Although suffering from a mental illness at the time of the killing, in the absence of persuasive contrary psychiatric evidence, the circumstances strongly suggest that he appreciated the moral wrongness of his acts and was not deprived of the relevant capacity. Most cases, like the present one, are less clear cut. As the court identified, this matter was particularly difficult because the appellant did not explain his state of mind or frankly discuss his alleged offence with Dr Beech or Dr Phillips.
- My review of the court’s reasons make clear that her Honour carefully considered the evidence of both Dr Beech and Dr Phillips, which she had heard only the previous afternoon. The court uncontentiously concluded that the appellant had a psychotic illness at the time of the alleged offence and that the question for determination was whether there was the relevant deprivation of capacity. Although the reasons were not lengthy, nor was the case. The court referred to the peculiar features of the alleged offence which suggested that mental illness may have deprived the appellant of the capacity to appreciate the moral wrongness of his acts but noted the appellant’s earlier confrontation with the car owner and his threat to “take care of the situation,” sparked by another person in the unit block stating he was unhappy with the positioning of the car. Like Dr Beech, her Honour accepted that the appellant knew that burning the car was against the law, noting that he lit the fire at night, apparently in a desire to conceal his offence, and he later denied involvement giving both a false explanation to police and suggesting that someone else in the unit block may be responsible. These were all factors capable of supporting her Honour’s conclusion that the appellant was not deprived of the capacity to appreciate the moral wrongness of burning the car. Contrary to the appellant’s contentions, the court did appropriately focus on his knowledge of the nature and quality of his alleged offence and its wrongness.
- Ultimately the court preferred Dr Phillips’ opinion that the appellant’s mental illness at the time of the alleged offence impaired his capacity to know he ought not burn the car but did not deprive him of that capacity. This was a finding of fact open on Dr Phillips’ evidence. The court did not err in stating that it thought Dr Phillips took a more careful approach than Dr Beech in that his opinion did not consider the police statements. That remained the position even though his second report referred to Dr Phillips’ report which summarised that material. Contrary to the appellant’s contention, in drawing a distinction between “impair” and “deprive,” the court was not in error. To impair means to diminish whereas to deprive means to divest of something possessed or enjoyed, to dispossess, to strip. A deprivation of the relevant capacity means that the alleged offender is of unsound mind, whereas an impairment of the relevant capacity is a factor relevant to sentence if the alleged offender is convicted.
- The appellant has not demonstrated any error of fact or law which undermined her Honour’s conclusion that the appellant was not of unsound mind under the Mental Health Act. For these reasons I would dismiss the appeal.
I propose the following orders:
- If necessary to do so, this Court extends time to appeal to 12 January 2016.
- The appeal is dismissed.
- GOTTERSON JA: I agree with the orders proposed by McMurdo P and with the reasons given by her Honour.
- PETER LYONS J: I have had the advantage of reading in draft the reasons for judgment of McMurdo P with which I agree, subject to what follows.
- The question raised in a case like the present one is whether a defendant, adapting the language of s 27 of the Criminal Code, is in such a state of mental disease as to deprive him or her of the capacity to know that he or she ought not to do the act constituting the offence. The inclusion of the word “ought” in the statutory provision makes plain that the act is to be judged by reference to some standard. This has been identified on occasion as “the ordinary standard adopted by reasonable men”.
- However, it was made plain in Stapleton that this standard was not to be equated with the criminal law. Thus, after referring to the answers given in M’Naghten, it was said in Stapleton:
“It will be seen from the answer to this question that the learned Judges were very much aligned to the distinction between the capacity to know the law of the land and the capacity to know that the act committed was one the accused ought not to do. Indeed, the contrast is clearly brought out in the express statement that the accused must be conscious that the act was one which he ought not to do and at the same time it must be contrary to law.” (emphasis added)
- This conclusion appears elsewhere in Stapleton. Thus the standard by which a defendant’s conduct is to be judged was described as “the canons of right and wrong and not to the criminal law”. After referring to charges to a jury not long after M’Naghten, their Honours characterised these as reflecting “the contrast … between right and wrong in the general sense and not lawfulness and unlawfulness”. They also endorsed a statement from Pope’s Treatise on the Law and Practice of Lunacy which included a statement to the effect that the question is to be considered by reference to “principles of general morality rather than to the enactments of positive law”.
- It follows that the primary question will always be whether the defendant had the capacity to know that the relevant act was morally wrong. As Stapleton shows, knowledge that an act is against the law is often helpful in the determination of this question. But the primacy of the question whether the defendant had the capacity to know that the act was morally, rather than legally, wrong cannot be ignored.
- In R v Porter, for the purpose of applying this aspect of the test of insanity, Dixon J said:
“The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.”
- Immediately prior to the citation (with approval) of this passage, the Court in Stapleton said that a conviction would not result if the jury understands that “… given a disease, disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing”. It is apparent from the passage from SCN set out by McMurdo P in her Honour’s reasons that this remains the standard by reference to which the test which is ultimately found in s 27 of the Criminal Code is to be applied.
- While it seems to me that the reasons for judgment of the Mental Health Court do not given adequate recognition to this test, it does not follow that its conclusion was in error. There was a proper basis for concluding that the appellant knew that his conduct was contrary to law. No reason has been identified for concluding that, nevertheless, he lacked the capacity to recognise that his conduct was morally wrong. It has not been shown that the Mental Health Court was wrong to prefer the view of Dr Phillips that, while the appellant’s capacity to know that he ought not to do the relevant act was impaired, he was not deprived of that capacity. Indeed, there were sound reasons for reaching that conclusion. The fact that the appellant could form a view that his conduct was unlawful is some indication, though not perhaps particularly strong, that he had the relevant composure. While the assessment of the Court Liaison Service on the day of the offence revealed some disorganisation in the appellant’s thoughts, there were no obvious signs of psychosis; and the evidence of his presentation on that occasion does not demonstrate that he did not have sufficient composure to enable him to reason as to whether or not his conduct was morally wrong. The disorganisation of thought related to the appellant’s linking the charge with a past accusation of an offence. There is no “clear and convincing evidence” on which to base a finding that the appellant was, at the time of the offending, of unsound mind.
- Accordingly, I agree that the appeal should be dismissed.
 Re DRL (Unreported, Mental Health Court, Dalton J, 1 December 2015).
 Above, 2, l 40 – l 41.
 Above, 4, l 25 – l 35.
  QMHC 8,  and following. This Court recently upheld her Honour’s reasoning in that case: see SCN v Director of Public Prosecutions (Qld) & Anor  QCA 237.
 (1933) 55 CLR 182 cited in Stapleton v The Queen (1952) 86 CLR 358, 367.
 Re DRL (Unreported, Mental Health Court, Dalton J, 1 December 2015), 5, l 14 – l 16.
 Above, 5, 1 20 – 1 21.
 Above, 5, 1 24 – 1 30.
 Porter (1933) 55 CLR 182, 189 – 190.
 Re DRL (Unreported, Mental Health Court, Dalton J, 1 December 2015), 5, l 31 – l 34.
 Above, 6 1 9 – 1 15.
 Above, 7, l 10 – l 14.
 (1952) 85 CLR 358, 367.
 (1881) 14 Cox CC 563, 564 (Stephen J).
 Stapleton (1952) 85 CLR 358, 367 – 375.
 (1724) 16 State Trials 704.
 (1800) 27 State Trials 1281, 1313 – 1315, 1355.
 R v Porter (1933) 55 CLR 182, 189 – 190, approved in Stapleton (1952) 85 CLR 358, 367.
 T1-29 – T1-30.
 T2-15, l 1 – l 6 (Dr McVie); T2-15, l 14 – l 24 and T2-16, l 14 – l 24 (Dr J G Reddan).
 Mental Health Act s 405; R v Schafferius  1 Qd R 381; DAR v DPP (Qld) & Anor  QCA 309,  – ; SCN  QCA 237, .
 Mental Health Act s 389.
 DAR  QCA 309,  – ,  and ; SCN  QCA 237, .
 Stapleton (1952) 86 CLR 358, 367.
 (1916) 12 Cr App R 21.
 Stapleton (1952) 85 CLR 358, 375.
 T2-14, l 2 – l 4.
 T1-29, l 42, set out at  of these reasons.
 Re DRL (Unreported, Mental Health Court, Dalton J, 1 December 2015), 5, l 18 – l 21, set out at  of these reasons.
 Above, 5, l 31 – l 32, set out at  of these reasons.
  QCA 237.
 Above, .
 Macquarie Dictionary Federation Edition.
 Stapleton v The Queen (1952) 86 CLR 358, 374, using language quoted from the judgment of Lord Reading in R v Codere (1916) 12 Cr App R 21, 27-29.
 (1843) 10 Cl & Fin 200, 209-211; 8 ER 718, 722.
 At p 372.
 Stapleton at p 368.
 Stapleton at p 373.
 2nd Ed (1890) p 385.
 Stapleton at p 374.
 See in particular Stapleton at p 375.
 (1933) 55 CLR 182, 189-190.
 Stapleton at p 367.
  QCA 237 at .
 AR 91.
 See AR 87.
 See R v Schafferius  1 Qd R 381, 383.
- Published Case Name:
LAI v Director of Public Prosecutions (Qld) & Anor
- Shortened Case Name:
LAI v Director of Public Prosecutions
 QCA 287
McMurdo P, Gotterson JA, P Lyons J
11 Nov 2016
- White Star Case:
|Event||Citation or File||Date||Notes|
|Primary Judgment||QMHC94/14 (No Citation)||01 Dec 2015||Mental Health Court at Brisbane|
|Appeal Determined (QCA)|| QCA 287||11 Nov 2016||-|