Salient. Official Newspaper of the Victoria University of Wellington Students' Association. Vol 40. No. 7. April 13 1977
From the Courts
From the Courts
The death of Constable Murphy in Christchurch brought about a wave of public indignation, and many claimed it was time for a stand against the increasing violence in society. This case, perhaps more than others of a similar nature, focused public attention upon the administration of a criminal trial and the penalties imposed by the courts. In particular, a great amount of publicity was given to the defense of insanity, a defense that was rejected. The rejection of the defense has been seen as just and that the constable's killer will 'get his deserts.' Such attitudes are an indication of a general ignorance about the law of insanity and the results of a finding of insanity at a trial.
Two points need to be made. Firstly, re revenge. The average period of incarceration as a non-paying guest of the crown for murder is seven years. A person committed to a mental institution having been found insane, will be there for an average minimum period of 14 years. Secondly, the defense is absurdly difficult to achieve. The law is of 19th century origin and antiquated when viewed in light of more modern psychological views. The burden lies with the accused to prove insanity (beyond all reasonable doubt.) It is not, to use the American vernacular, 'copping a plea" or "doing a deal.' Considering the admitted inadequacy of prisons to cope with prisoners who have psychological problems the law in sending such people to prison is doing them and society a disservice.
Our law on insanity is derived from England. In 1841 Daniel McNaughten attempted to assassinate Peel, killing by mistake his secretary. His acquittal of murder on grounds of insanity provoked a great controversy. Queen Victoria said, "No man who tries to kill my Prime Minister is insane." The Law Lords formulated for the House of Lords a series of answers to hypothetical questions regarding insanity in law. Although at the time of their formulation these answers were not intended to be a source of law, these famous rules are now entrenched utterances of law that must be followed. The real tragedy of this little drama is that the rules have not changed in any shape or form, either in their substance or application, since first promulgated in 1843.
(1) | Every person shall be presumed sane at the time of doing or committing any act until the contrary is proved. | ||||
(2) | No person shall be convicted of an offence by reason of an act done or committed by him while labouring under a natural imbecility or disease of the mind to such a extent to render him incapable:
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Problems arise in several areas. For one, the "disease of the mind" criterion has been limited by the courts to exclude many psychologically recognised mental disorders. It must cause a "defect of reason" and this has been held to be a high demand of an impairing of the reasoning processes. Milder forms of, say, senility or temporary disorders are insufficient. Secondly the accused must not know what he did was "morally wrong." Again this has been given a limited application by the courts. For instance, psychiatrists have recognised mental disorders that create irresistable impulses. The victim of such a disorder knows what he is doing, and that it is wrong, but is unable to resist But while psychiatry recognises such a state, law does not, for there is no room for such a concept within the McNaughten rules.
Smith and Hogan, authoritative text writers in criminal law concede that it is not every affliction of the mind recognised by medicine that will suffice for legal insanity. Or to quote the English court of Appeal, "it is not a medical question, but a legal one." The law sets its own criteria, but while medicine advances, the law clirgs to its 19th century concepts. The need for change has been recognised. A British special committee headed by Lord Atkin (one of the Law Lords) recommended that all a jury could be called upon to decide is, upon the facts did the accused suffer a derangement of the mind such that he should not be held criminally liable. There has been no attempt to implement the committee's recommendations, or any change, either in the U.K. or N.Z.
However, even should the law change, social problems remain. There is the stigma that an unenlightened society places upon insanity or any mental disorder, so that an accused would not avail himself to the defense, prefering to face a record of a criminal conviction rather than one of treatment for a mental disorder. And while our prisons are notoriously lacking in an ability to help with the psychological problems of their inmates, it is questionable that our mental institutions have any better facilities. Society's answers are those of revenge rather than those of understanding, of punishment rather than help. Little difference can be found between men's attitudes towards McNaughten and the attitudes expressed towards the man who killed Constable Murphy. Chronologically 134 years have passed, but that probably is all.
— Paul O'Leary.