Representing Mentally Ill and Intellectually Disabled Clients in QLD

8.0 - The Defence of 'Unsoundness of Mind'

What constitutes an unsound mind is a question of law. However, whether a person was suffering from an unsound mind at the time of the offence is a question of fact, for the tribunal of fact to decide, whether that be a jury or an alternative decision maker.

Under section 26 of the Criminal Code Act 1899 (Qld) every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved. Thus the onus is on the defence to establish the defence of unsoundness of mind on the balance of probabilities.

Schedule 2 of the Act defines unsoundness of mind as ‘the state of mental disease or natural mental infirmity' as described under section 27 of the Criminal Code Act 1899 (Qld), 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'.

Thus, the test for 'unsoundness of mind' as a defence to a criminal act is provided under section 27(1) of the Code and means that a person is not criminally responsible for an offence if the person was, at the time of the alleged offence, in a state of 'mental disease' or a 'natural mental infirmity', and, deprived of any one of the following three capacities:

  • The capacity to understand what they are doing; or
  • The capacity to control their actions; or
  • The capacity to know that they ought not do the act or make the omission.

For the purposes of section 27 the phrases 'mental disease' and 'natural mental infirmity' have significance. In R v Falconer (1990) 171 CLR 30 the Court adopted the reasoning posited by King CJ in R v Radford (1985) 42 SASR 266 at 274-6, 'I do not think a temporary disorder or disturbance of an otherwise healthy mind caused by external factors can properly be regarded as a disease of the mind.... The essential notion appears to be that in order to constitute insanity [unsoundness of mind] in the eyes of the law, the malfunction of the mental facilities...must result from an underlying pathological infirmity of the mind, be it of a long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary stimuli'.

Moreover, according to R v Falconer at 54, the Court stated that it would '...think it necessary that a temporary mental disorder or disturbance must not be prone to recur if it is to avoid classification as a disease of the mind. That is because a malfunction of the mind which is prone to recur reveals an underlying pathological infirmity.'

Insanity OR Automatism?

The High Court in R v Falconer also considered the relationship between unsoundness of mind, and, the defence of automatism under section 23 of the Criminal Code Act 1899 (Qld). While section 27 requires evidence that raises the issue of a connection between the offence and a mental state that constitutes an underlying mental infirmity generally from internal factors, section 23 generally requires evidence that postulates that the accused person committed an offence involuntarily, that is, independently of the person's will - because of the application of external stimuli upon an otherwise sound mind.

Intentional Intoxication

The role of intentional intoxication may well be of considerable relevance. In Re LIH [2002] QMHC 014, Wilson J stated that the "Court must determine whether he was deprived of one of the capacities by a mental disease, and if so, whether that state of mind resulted to any extent from intentional intoxication".