Gale v Gale [1952] HCA 59

86 C.L.R.] OF AUSTRALIA.

doubt, but in cases such as these, the true view is what we have just said." This perhaps means that in cases of serious crime, the fact that it is punishable by law is enough to show the prisoner that it is something which he ought not to do, although the final test is that it is wrong according to the standard adopted by reason- able men. The truth perhaps is that, from a practical poimt of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the dif- ference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong (his insane judgment even treating the act as one of inexorable obligation or inescapable necessity) he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.

In the present case we would have indeed hesitated to order a new trial for the reason alone that the learned judge directed the jury that the test of insanity was whether the accused knew that firing a shot at another person was against the law. But as the question of the correctness of the decision in R. v. Windle (1) was raised by the summing up we have thought it better to deal with it.

That decision was not given as a considered judgment and, besides M'Naghten's case no authority was cited except R. v. Rivett (2). We think that the decision should not be followed.

While as we have said it is not probable that because of this direction alone we would have ordered a new trial, it is desirable to say that if a jury were to lay hold of this point that the accused must be incapable of understanding that he was acting contrary to law as distinguished from appreciating that his act was wrong according to the ordinary standards adopted by reasonable men, the distinction would tell against the appellant.