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Section 84 of the Penal Code

Elements of the Defence

At the time of the offence D was suffering from an unsound mind causing in D an incapacity to know the nature of the act, or that it was either wrong or contrary to law

Historical origins

MNaghtens Rules

Unsoundness of mind

Disease of the mind (MNaghten)

Has been broadened in UK Any underlying pathological infirmity Cf. temporary (purpose of commitment under s. 84 vs criminal punishment) or externally caused (individual fault) infirmity Linked to notion of cognitive incapacity mental malfunctioning that renders A completely incapable of knowing acts nature or that act wrong/contrary to law At the point of crime cf. continuing nature

YMC: must read s.84 holistically

Rosman Bin Jusoh

D was charged with trafficking and possessing of cannabis. A clinical expert testified that D was of subnormal intellectual capacity.

The Court of Appeal held: subnormal intellect is not unsoundness of mind True, the [expert opined] that D might not have been able to discern right from wrong but this opinion is itself inconclusive On the contrary, D knew it was contrary to law to sell drugs

Incapable of knowing

What about capable of knowing but did not exercise capacity at the time of crime? Indian courts

Require total incapacity Actual lack of knowledge No distinction between capacity and exercise of capacity (YMC prefers this why?)

MNaghten Rules

Local courts

Nature of Act

Unsoundness of mind --- results in incapable of knowing nature of act Penal Code illustrations

Refers to surface features of act Would this be merely partial inability to know nature of act? Includes harmful consequence

YMC: include harmful consequences of act

Australian case law (applying MNaghten)

Wrong or contrary to law

Disjunctive (favorable to A)
Wording Artificial distinction between different kinds of wrongs Morally wrong vs. legally wrong What is the purpose of criminal punishment?

Conjunctive (Narrower application)


Should s. 84 be interpreted to include irresistible impulse? YMC: interpret act in s. 84 if irresistible impulse then not an act

Take note

Relationship between s.84 unsoundness of mind

Diminished responsibility S. 85 (ii) (b) insane intoxication Insane automatism Sane automatism


Diminished Responsibility
Exception 7


Partial defense

Cf. insanity

Does not get you completely off the hook From s. 300 to s. 299 Why only for murder? You are ill but still aware physical/moral Sufficiently culpable for criminal punishment (Retribution) Other objectives of criminal punishment (Can be deterred?)

Why just a partial defense?


Diminished responsibility

Suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions.


Diminished responsibility

advocates adopting three-stage test (abnormality + cause + substantial impairment) vs. composite test (Krishnasamy) Advocates adopting Bryne definition for abnormality of mind (that includes inability to exercise will-power) cf with actual wording of Penal Code)


The gravamen of Exception 7 concerns the straightforward question whether the offender was suffering from such abnormality of mind as substantially impaired his mental responsibility Splitting the one question into three stages compels the court to ask three questions instead of one. That may be an acceptable method provided that the court eventually reconstitutes the three stages to the composite question and answers it as a whole. Choo Han Teck J in the Court of Appeal

Abnormality of mind

Byrne definition (why does YMC advocate adopting this cf with actual wording of Penal Code)

Commonsense broad definition reasonable man will term abnormal perception of physical acts and matters ability to form a rational judgment on right or wrong exercise will power Volitional Degree Normal quirks?


Abnormality of mind

This is a legal definition Not a medical definition


Cause of abnormality

Exception 7
Arrested or retarded development of the mind An inherent cause Induced by disease or injury


Causes of abnormality

Arrested or retarded development of mind

Not only organic Includes subnormal intellect Personality disordered


Causes of abnormality

Inherent cause
Natural to persons mind At birth or after Permanent (other causes can be transitory)


Causes of abnormality

Disease or injury

Physical deterioration Can be caused by external factors (E.g. drugs, alcohol) as long as leads to actual physical deterioration

But note that cannot just be transitory effect of external factors (E.g. drugs, alcohol)

What if the drugs, alcohol aggravates an underlying condition?

YMC: should look at whether without the drugs, alcohol --- still affected by underlying condition?

Self-induced intoxication is not an injury under s44 Penal Code


Abnormality - substantially impaired

Case by case determination Krishnasamy Naidu

a close, if not the only, connection between conduct and death

Australian example Impairment that justifies lowering of conviction


Jimmy Chua

Caution expressed by the Court of Appeal over the use of the term partial insanity or borderline insanity to describe Diminished Responsibility The need to distinguish between did not resist an impulse and could not resist an impulse.

Queare: Which type of non-resistance will support a plea of Diminished Responsibility?



Over-reliance on medical experts by courts Failure to interrogate link between mental problem and consequence (as defined in Penal Code provisions) Failure to differentiate between mental condition at time of crime and at time of trial