Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .

Legislative Assembly for the ACT: 2002 Week 14 Hansard (10 December) . . Page.. 4129 ..

Clause 28.

MR STEFANIAK (4.51): I move amendment No 1 circulated in my name [see schedule 4 at page 4191].

I have grave fears about paragraph (c). Clause 28 reads:

A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that-

(a) the person did not know the nature and quality of the conduct; or

(b) the person did not know that the conduct was wrong; or

(c) the person could not control the conduct.

Any one of those three paragraphs is enough to enable a person to plead they did not have the relevant mental intention.

This has been commented on in other jurisdictions. As I said at the in-principle stage, not every state or territory is enacting absolutely the same criminal legislation. I understand South Australia has adopted something very similar to this. Other states have adopted something along these lines, and Victoria and one other state have not.

The scrutiny report confirms what I have said. It says:

A mentally impaired person is not criminally responsible if any one of these effects is present at the time of his or her conduct.

It goes on to talk about the third arm of the test-that is, that the person could not control the conduct-which I seek to delete. It states:

The third arm of the test extends the common law and makes it easier for a defendant to run an "insanity"defence. Under clause 28, a defendant can argue that even if they did know the nature and quality of the conduct; or that they were aware that their conduct was wrong, they would not be guilty because they were "unable to control the conduct".

The explanatory memorandum, which quotes the Commonwealth explanatory memorandum, notes that some law reform bodies have been split as to whether this is desirable. The scrutiny report criticises the EM for not pursuing this issue. I will not go into that. It goes on to say:

The issue was addressed by the Law Reform Commission of Victoria, in Report No 34, Mental Malfunction and Criminal Responsibility (1990). This Commission responded to the suggestion that the compulsive behaviour (sometimes, although inaccurately, called irresistible impulse) be a basis for the insanity defence in this way:

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .