O'Neill v The Queen [1977] HCA 24

High Court of Australia Barwick C.J. Stephen, Mason, Murphy and Aickin JJ. O'Neill v The Queen [1977] HCA 24

ORDER Application for special leave to appeal granted. Appeal dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

May 10 Barwick C.J. and Mason J.

Section 16 of the Criminal Code Tas. is as follows:

16.

(1) A person is not criminally responsible for an act done or an omission made by him—

(a) when afflicted with mental disease to such an extent as to render him incapable of—

(i) understanding the physical character of such act or omission; or

(ii) knowing that such act or omission was one which he ought not to do or make; or

(b) when such act or omission was done or made under an impulse which, by reason of mental disease, he was in substance deprived of any power to resist.

(2) The fact that a person was, at the time at which he is alleged to have done an act or made an omission, incapable of controlling his conduct generally, is relevant to the question whether he did such act or made such omission under an impulse which by reason of mental disease he was in substance deprived of any power to resist.

Thus an additional ground of exculpation is added to the traditional M'Naghten rules.

The applicant for special leave was tried before Chambers J. and a jury of twelve for the murder of a small boy at Taranna on or about 4th February 1975. Included in his defence was the ground of irresistible impulse, claiming the benefit of s. 16 (1) (b) which we have quoted. He called expert evidence in support of this defence. It consisted of the evidence of a general practitioner, of psychiatrists and psychologists. The Crown called expert evidence in rebuttal. He was convicted: he appealed to the Court of Criminal Appeal in Tasmania which dismissed his appeal. He has now applied for special leave to appeal to this Court.