M’Naghten Rules

It is a defence if it is proved that at the time of commission of the offence the accused labouring under such a defect of reason from disease of the mind that he did not know the nature and quality of the act or that he did not know that what he was doing was wrong: M’Naghten [1843-60] All ER 229, Commonwealth Criminal Code section 7.3. The irresistible impulse doctrine as a separate doctrine has been rejected: Sodeman (1936) 55 CLR 230.

It has been held that the defence of mental illness can be raised in Local Court proceedings: Regina v McMahon [2006] NSWDC 81.

In the opinion of the writer, this defence should only be raised in cases other than murder in the most exceptional circumstances, because of the risk that a resolution under the mental health legislation might lead to a longer period of incarceration than a plea of guilty with a strong case in mitigation.

If it appears to a magistrate that a person is a mentally ill person under the Mental Health Act 1990 the magistrate can order that the person be taken to hospital for assessment or care, or discharge the person into the care of a responsible person. If the person is not returned to court within 6 months the charges are deemed dismissed. The time the person spends in hospital must be taken into account in determining the penalty: s. 33.

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