Freedom of Speech v. An Intervention Order

[Rob Legat - SBPL]

To extrapolate on what Tim W has said: the act of murder generally requires the presence of intent. It's not necessarily the case that the intent must be to actually kill someone - because the intent can be to 'grievously harm' them (each state is different in their requirements, this is the Queensland example). When I say 'generally' there's also the incidence of unlawfully killing someone while being recklessly indifferent to human life but this is predicated on the accused being aware of the probability (not just possibility) of the act resulting in a person's death.

If someone is found to be 'insane' then that means they cannot form the necessary intent required for the act to be murder; or even to be aware of the probability that the act would result in death.

While you can be correct in saying he was accused of murder (and should probably add that he was found not guilty due to lack of capacity, or what the actual finding was), you cannot say that he is a murderer. He hasn't been found guilty of murder. You or anyone else can't make the determination that he is. Doing so is the sole reserve of the courts and they found differently.

 

[James95]

That being the case then you can't truthfully call him a murderer, because at law, he isn't one.
For the benefit of people reading this later (since you must surely already know), murder requires either intent, or recklessness not vitiated by mental illness.You are mistaken in that thought. Yes, you exactly do.

Did he go to MHRT?

I'll finish off the thought that it may still be a convicted murderer at law by the fact that the court during the time of Kirby etc, I recall a case where a conviction for an offence is different to what a "Sentencing Act" conviction is. I cannot recall the case immediately but if I think of it I'll tell you (and probably the court too).


But this is also where the freedom element needs to be approved: in my opinion he could also be a murderer, because I know facts about the case that are privy to my family and I. It may be a little harder to appreciate but just because the law in a criminal case doesn't declare someone a murderer, doesn't mean in fact they are not. Think of wrongful death suits.

 

[James95]

To extrapolate on what Tim W has said: the act of murder generally requires the presence of intent. It's not necessarily the case that the intent must be to actually kill someone - because the intent can be to 'grievously harm' them (each state is different in their requirements, this is the Queensland example). When I say 'generally' there's also the incidence of unlawfully killing someone while being recklessly indifferent to human life but this is predicated on the accused being aware of the probability (not just possibility) of the act resulting in a person's death.

If someone is found to be 'insane' then that means they cannot form the necessary intent required for the act to be murder; or even to be aware of the probability that the act would result in death.

While you can be correct in saying he was accused of murder (and should probably add that he was found not guilty due to lack of capacity, or what the actual finding was), you cannot say that he is a murderer. He hasn't been found guilty of murder. You or anyone else can't make the determination that he is. Doing so is the sole reserve of the courts and they found differently.

I think you're mistaken. It is not that mens rea is actually displaced in it's entire sense, I think at Australian common law, it is the fact that the person didn't know the quality of their actions or what they were doing was wrong. I think you can still form the intent to kill, and be classified as a murder, even if insanity mitigates the liability.

CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 - SECT 20 Defence of mental impairment
I think under s20(a) it is possible to not knowing for instance, that shooting someone in the brain that their act is of the nature of killing, but 20(b) you can still form the intent to kill, but the defence of insanity is still available while having the necessary mens rea to kill.

I hope I make sense here.

 

[Rob Legat - SBPL]

Sorry, but your argument doesn't make sense. This is one of the relatively few areas of law where it is black and white - not so much in terms of the offence itself, but as to whether the accused is capable of being found responsible for the act. If you are, you stand trial. If you are not, then you don't. There is no 'mitigation of liability'. There's no sliding scale here. Either your'e in or you're out - and issues like arguments of diminished responsibility (such as being drug affected) are clearly in the 'you're in' camp. If you 'qualify' for insanity - which I feel weird typing, but anyway - you are, at least for the time being, deemed by medical professionals to be incapable of being responsible for your own actions. Ergo, you're out - no point arguing further. Society says no.

Besides, let's look at what you actually said (because I don't know the court's actual finding):

"Yes not guilty by virtue of insanity"

In case anyone is missing it: "Not guilty". If you're not guilty of murder, the court has found you not to be a murderer. Or, rather, the court has not found you to be a murderer because you have been tested and found not to have met the required elements to be guilty of murder. At that point, the reason why you're not guilty is secondary to the fact that you have been found not guilty.

You are of course entitled to your opinion on the matter. But the courts are the determiners of law and the medical experts are the determiners of who is medically insane, and what you or I may think to the contrary means exactly zero.

 

[James95]

Sorry, but your argument doesn't make sense. This is one of the relatively few areas of law where it is black and white - not so much in terms of the offence itself, but as to whether the accused is capable of being found responsible for the act. If you are, you stand trial. If you are not, then you don't. There is no 'mitigation of liability'. There's no sliding scale here. Either your'e in or you're out - and issues like arguments of diminished responsibility (such as being drug affected) are clearly in the 'you're in' camp. If you 'qualify' for insanity - which I feel weird typing, but anyway - you are, at least for the time being, deemed by medical professionals to be incapable of being responsible for your own actions. Ergo, you're out - no point arguing further. Society says no.

Besides, let's look at what you actually said (because I don't know the court's actual finding):

"Yes not guilty by virtue of insanity"

In case anyone is missing it: "Not guilty". If you're not guilty of murder, the court has found you not to be a murderer. Or, rather, the court has not found you to be a murderer because you have been tested and found not to have met the required elements to be guilty of murder. At that point, the reason why you're not guilty is secondary to the fact that you have been found not guilty.

You are of course entitled to your opinion on the matter. But the courts are the determiners of law and the medical experts are the determiners of who is medically insane, and what you or I may think to the contrary means exactly zero.

If you're found not guilty, you're not convicted, eg. you're not subject to a court's jurisdiction, you must be immediately released. This act doesn't do that but provides for an indefinite sentence of mental health treatment. How can a court (supposedly practising judicial power) have the authority to impose a sentence without a controversy before it? (there would be no controversy if he was discharged). The only logical assumption that can be made is that insanity is, as described, a mitigating defence and not a complete defence, and does not discharge you of murder but in effect renders sentencing completely different than it would have been if you weren't insane. (life imprisonment).

I found a case: People v McQuillan (People v. McQuillan), it is an American case but it illustrates my point well. Using terminology like "not guilty" means you're literally discharged, they later changed legislation to change the terminology to reflect the "true" nature of what a verdict of insanity really means "guilty but insane", and in my opinion it is a category of guilty conviction that is recognised as a conviction under the common law, and the conviction is for the charge before the court.

 

[Rob Legat - SBPL]

You’re all over the place and making less and less sense. You are always subject to the jurisdiction of the courts, that’s part of living within society. So your premise is poorly based and the rest of your argument crumbles.

Each state has mental health legislation which runs along the lines if: you can be involuntarily committed where you have a mental illness, you need treatment, you can’t make a decision for yourself, and you’re a danger to others. Seems to fit the bill here.

This bears out in the way proceedings are dealt with - at least they way I learned them. The ‘insanity plea’ is entered during the plea phase, before trial. If mental deficiency is raised then the accused is tested. If deemed unfit to stand trial, then they don’t have a trial. If you don’t have a trial then the prosecution doesn’t present a case, and there’s no need to raise a defence to that case because it is never made.

Quoting some American case, which I didn’t bother reading, is irrelevant. The process is rather settled in Australia and an American authority is persuasive at best. Someone who practises in criminal law can probably quickly point to a leading authority in Australia on the subject.

 

[James95]

You’re all over the place and making less and less sense. You are always subject to the jurisdiction of the courts, that’s part of living within society. So your premise is poorly based and the rest of your argument crumbles.

Each state has mental health legislation which runs along the lines if: you can be involuntarily committed where you have a mental illness, you need treatment, you can’t make a decision for yourself, and you’re a danger to others. Seems to fit the bill here.

This bears out in the way proceedings are dealt with - at least they way I learned them. The ‘insanity plea’ is entered during the plea phase, before trial. If mental deficiency is raised then the accused is tested. If deemed unfit to stand trial, then they don’t have a trial. If you don’t have a trial then the prosecution doesn’t present a case, and there’s no need to raise a defence to that case because it is never made.

Quoting some American case, which I didn’t bother reading, is irrelevant. The process is rather settled in Australia and an American authority is persuasive at best. Someone who practises in criminal law can probably quickly point to a leading authority in Australia on the subject.

But the thing is if you don't have insanity becoming a category of the guilty plea then how does the court sentence you to indefinite treatment? Like correct me if I'm wrong here but something is still not making sense. You're either guilty or not guilty, and if you're not guilty you're discharged, any further "order" must be an executive function because there is no longer a controversy before the court (Chapter III courts?)

 

[Rob Legat - SBPL]

Are you referring to Chapter III of the Constitution? You’re way off track.

Let’s use Queensland as an example. Murder is an offence under the Queensland Criminal Code. Questions of mental competency are determined by the Mental Health Court which was created under the Mental Health Act. The Court has the power to make a forensic order to detain the person for treatment. Nothing to do with the Constitution.

The simple fact is if the person has been found not guilty by reason of lacking capacity then they’re not a murderer.

 

[James95]

Are you referring to Chapter III of the Constitution? You’re way off track.

Let’s use Queensland as an example. Murder is an offence under the Queensland Criminal Code. Questions of mental competency are determined by the Mental Health Court which was created under the Mental Health Act. The Court has the power to make a forensic order to detain the person for treatment. Nothing to do with the Constitution.

The simple fact is if the person has been found not guilty by reason of lacking capacity then they’re not a murderer.

It's not off track because we're talking about the effect of the verdict - which decides whether or not me calling someone a murderer is legitimate.

 

[Rod]

Just change from murderer to killer, simple.