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Legislative Assembly for the ACT: 2002 Week 14 Hansard (10 December) . . Page.. 4130 ..

MR STEFANIAK (continuing):

The difficulty with compulsive behaviour is to distinguish impulses which are irresistible from those which were simply not resisted. In the light of the potential difficulties, the Commission does not believe that the insanity defence should be covered to include irresistible impulse.

In its Discussion Paper No 14, Mental Malfunction and Criminal Responsibility (1988), at 19, the Commission noted that "the test is not in fact restricted to impulsive actions. It applies to a general lack of capacity to control conduct".

In its Discussion Paper, the Commission noted that some cases of "irresistible impulse"would fall under the traditional test. That is, the defendant may argue that he or she had so lost control that they did not know what they were doing was wrong. The Commission noted however,

This would not avail a defendant who could think calmly about the wrongness of his or her actions but was unable to resist. Under the legislation operating in some States, such a person would have an insanity defence.

I would submit that that is wrong and could open the floodgates to a lot of spurious defences. The report goes on to say:

The problem of allowing the insanity defence in such cases-where there is no evidence of overwhelming emotion-is to distinguish them from cases of callous blameworthy conduct."

Blurring what might well be cases of callous, blameworthy conduct, enabling someone to succeed in this defence, is a real problem I do not think the community would want. I do not think it is desirable in our criminal justice system.

The report goes on to make a few other comments and refers to pages 18 to 20 of the Victorian commission's report.

The first two paragraphs of subclause 28 (1)-that the person did not know the nature and quality of the conduct or that the person did not know the conduct was wrong-are traditional elements that have been accepted over a number of decades as a defence of mental impairment or insanity.

I am very concerned that the third element-that the person could not control the conduct-will lead to spurious defences being run by people who are not really deserving.

Mrs Dunne: It is like the drunk's defence.

MR STEFANIAK: My colleague Mrs Dunne makes a very good point. She states, "It is like the drunk's defence."It does potentially get us into a situation like the Nadruka case which this Assembly overcame but which is effectively replicated in this legislation. The community was outraged at that case. I felt a bit sorry for the magistrate, who might have done a better job. I could see his reasoning. But we the legislature saw fit to amend the legislation to make it quite clear that undeserving persons should not have these types of defences available to them.

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