Is it right that an accused who has killed, but who is acquitted because of their mental impairment, may be detained under a custody order with a longer limit on its term only because they were charged with murder rather than manslaughter?
That apparently inconvenient and unfair result under the newly operational Criminal Law (Mental Impairment) Act 2023 (CLMI Act) was highlighted in Western Australia v McCullock [No 2] [2024] WASC 400.
There, the State applied for a pre-trial ruling that despite Ward v The Queen (2000) 23 WAR 254, an accused could be acquitted of murder because they lacked the requisite intention, and also be found not guilty on the alternative charge of manslaughter because of mental impairment.
In rejecting that possibility, Quinlan CJ acknowledged the potentially inconvenient and unfair consequences of the CLMI Act in treating mentally impaired accused differently based on their charge, and not the facts personal to them. His Honour, though, agreed with and was constrained by Ward, noting any change was a matter for the Court of Appeal or Parliament. The CLMI Act had not ‘over-ruled’ Ward — that is, that once a court or jury reaches the prior finding that a person is not guilty of murder by reason of mental impairment, no issue of intention arises.
What led to the State’s application?
The accused had been charged with murdering her infant son by striking his head on the ground late one night. The next morning, police found her at her home holding his body. After being taken for treatment, she allegedly said, in effect, that she had killed her son because she believed he was going to be tortured for eternity. By killing him, she could prevent that from happening.
The accused had a history of mental ill-health. At the time of the State’s application, both she and the State proposed to lead expert evidence that, when she caused her son’s death, she lacked the capacity to know she ought not strike his head against the ground.
The accused did not dispute she had caused her son’s death. However, she did not admit she had had the requisite intention to have murdered him.
Ahead of the judge-alone trial, the State applied for orders that the Court decide the elements of the charge of murder, including any specific intent, before it decided the question of criminal responsibility.
The State did that because of the effect the CLMI Act would have if the accused were acquitted of murder by reason of mental impairment, rather than on the basis that she lacked the requisite intent. If the latter verdict were reached, and she could then be found not guilty of manslaughter because of her mental impairment, she would likely be made subject to a custody order with a shorter limiting term.
How would the CLMI Act have had that effect?
The CLMI Act came into operation in September last year, when it repealed the Criminal Law (Mentally Impaired Accused) Act 1996.
As described in Western Australia v Chokolich [2024] WASC 346, the CLMI Act did away with the approach taken under the repealed Act to custody orders for accused who were either unfit to stand trial or acquitted of offences by reason of unsoundness of mind. Those custody orders imposed indefinite detention, discharged only when an accused was released by the Governor. People who were unfit to stand trial could therefore be indefinitely detained despite no findings being made about the offence with which they were charged.
Under the CLMI Act, an accused who remains unfit to stand trial must either be discharged from their charge, or face a ‘special proceeding’: s 37. That proceeding requires the Court to decide the charge against the accused on the available evidence: s 41. The Court may then find the accused not guilty of the offence and acquit them, find them not guilty by reason of mental impairment, or find that they have committed a relevant offence: ss 41, 43.
If the Court finds an accused not guilty by reason of mental impairment or to have committed an offence, it may make a custody order: s 46. The Court may also make such an order where an accused has been found not guilty by reason of mental impairment at trial.
That means that, unlike under the repealed Act, before making a custody order the Court must have been satisfied of all the factual elements of a charged offence beyond reasonable doubt. And, if it makes a custody order, the Court must set a limit on its term: ss 50, 51.
To set that limit, the Court is required to arrive at the best estimate of the term of imprisonment the Court would have imposed if it were sentencing the person for the offence on a plea of guilty and without taking into account any mental impairment: s 50(2), (3).
In cases of murder, then, a custody order would ordinarily be required to be made for the term of a person’s life. So, if the accused could only be found not guilty of murder, rather than manslaughter, by reason of mental impairment, she faced having a custody order imposed with a limiting term of her life.
Why did Ward prevent the accused being found not guilty of manslaughter by reason of mental impairment?
Quinlan CJ began by identifying that since Ward it has been the law that where a person is charged with murder and raises the defence of mental impairment, the Court must determine whether they are criminally responsible for the killing before proceeding to the issue of intention.
If an accused is found not criminally responsible for a killing by reason of mental impairment, a verdict of not guilty of the offence for which they have been charged must be entered, whether murder or manslaughter.
As Quinlan CJ put it, where issues of intention are concerned with the degree of criminal responsibility, to assess intent where there can be no criminal responsibility is at best hypothetical and at worst incoherent.
The State submitted that the CLMI Act had, by necessary implication, overridden the rule from Ward.
Quinlan CJ held that it had not.
Instead, the CLMI Act is only concerned with the consequences of a finding that an accused is not guilty by reason of mental impairment, or that they are not fit to stand trial. It is not concerned with the insanity defence itself, nor its operation and procedural requirements.
Quinlan CJ observed that the State’s argument — that the CLMI Act required in certain circumstances a verdict of not guilty of manslaughter by reason of mental impairment on a charge of murder — relied on ‘offence’ in s 50(2) meaning the offence of which the person is found not guilty. That had to include, the State submitted, a statutory alternative offence.
Quinlan CJ noted that was contrary to a submission made by the State and accepted in Chokolich — that where in setting the limiting term the Court is to assume an accused had pleaded guilty to ‘the charge’ (s 50(3)), the ‘offence’ in s 50(2) for which the best estimate of the term of imprisonment is to be determined is the offence charged.
That was reinforced by the possible results of a ‘special proceeding’. The Court could not in such a proceeding find a person not guilty of murder and also not guilty of manslaughter by reason of mental impairment, and so could not deal with them under s 50 in the way the State submitted the Court could an accused found not guilty by reason of mental impairment at trial.
Accordingly, the operation of the CLMI Act as a whole did not lead to the conclusion that by necessary implication the possible consequences for the setting of a limiting term should be taken to have overruled the effect of Ward.
The Chief Justice then dealt with the State’s argument that unless Ward had been overruled, an accused who was not criminally responsible by reason of mental impairment but who, as a matter of fact, lacked the requisite intention for murder, may for no reason other than having been charged with murder be deprived of the benefit of a shorter limiting term.
While Quinlan CJ accepted the force, from a general policy perspective, of that argument, his Honour questioned the State’s emphasis on proportionality, where a limiting term is not to be equated with a sentence. A person made subject to a custody order is not ‘deserving’ of any period in custody. Custody orders are entirely concerned with the protection of the public. The CLMI Act has nothing to do with punishment, but is intended to ensure the dignified treatment of persons with mental impairment who come into contact with the justice system, and to provide them with the best possible treatment, care and support.
Accordingly, a limiting term is not a minimum period nor even an estimate of how long a person subject to a custody order should be detained, where a person may not be detained for any longer than required for the protection of the community. Considerations of proportionality, in the sense understood in sentencing offenders, are not relevant to whether and when a person should be released from a custody order. The limiting term is, instead, a check to ensure people are not held beyond a certain period unless the Court determines otherwise.
The Chief Justice recognised, though, that in future cases where the State prefers a charge of manslaughter rather than murder, and the accused is found not guilty by reason of mental impairment, the limiting term would be less than the duration of the person’s life.
That is, the outcome under the CLMI Act may well be affected and potentially determined by the charge the State prefers.
While Quinlan CJ considered there was much to commend, from a policy perspective, the view that that constrained judicial discretion, that was not unique to the CLMI Act. It may also be present in any case where mandatory sentences apply. It did not allow the Court to give the CLMI Act a meaning its text could not reasonably bear.
That the CLMI Act had potentially inconvenient or unfair consequences in the context of the law applied since Ward did not mean, by necessary implication, there was an intention in the CLMI Act to produce a significant change to the unsound mind defence. That was particularly the case where any change would apply to every charge in which a specific intention was an element.
Accordingly, the Judge hearing the accused’s trial was required to determine whether the accused was criminally responsible for the act that caused her son’s death, before proceeding to determine whether she had the requisite intention for murder. If the Judge concluded the accused was not criminally responsible, the appropriate verdict was one of not guilty of murder by reason of mental impairment. Their views on intention would be hypothetical.
What did Quinlan CJ observe about the consequences of the result?
The Chief Justice made some closing observations:
- The CLMI Act underscores the significant impact which the DPP’s discretion as to the charges brought may have on the outcome of proceedings. The proper exercise of prosecutorial discretion might mitigate any potential unfairness that may be visited upon an accused by the CLMI Act.
- To the extent Ward leads to inconvenient or unjust results, it should be addressed in an appropriate case by the Court of Appeal, or by Parliament.
After Quinlan CJ delivered his decision, the accused was tried and found not guilty of murder by reason of mental impairment: Western Australia v McCullock [No 3] [2024] WASC 469.
Justice Forrester found, as the accused acknowledged, that because of what she thought was going to happen to her son, she thought the only way to protect him was to kill him. That was why the accused took her son and hit him on the floor. It was an irresistible inference, Forrester J found, from the very significant injuries to the accused’s son’s head that, in inflicting injuries of such severity, the accused intended to cause his death.
While that intention was the product of an unsound mind, it remained an intention to which the accused gave effect. Accordingly, Forrester J found that at the time the accused killed her son, she did intend to kill him.
It has since been reported that the accused has been made subject to a custody order, and that a hearing to set a limiting term has been listed for April 2025. However, given the findings as to the accused’s intent, it may be that Ward is left unquestioned in the Court of Appeal for now. There may not, then, be any change coming to address the arguably inconvenient and unfair operation of the CLMI Act.
