When the ‘corpus juris’ meets a corpus delicti: The appearance

Provocation, “Phrenzy” and the Insanity Defence: Australasian Case Law ( after M’Naghten’s Case [1843])

Since the Hulme-Parker trial, New Zealand case law has refined provocation defences in the context of manslaughter, notably in the case of R v McGregor [1962] NZLR 1069(CA), in which the appellate judges observed that “special difficulties” arise when “purely mental peculiarities”(such as a compulsive, disordered personality) are relied on in order to exculpate a defendant. Inarguably Hulme and Parker felt extremely provoked and threatened by Mrs Parker’s several actions and zeal in working to separate them. Excessive emotionalism or paranoid disorder may constitute a valid ‘characteristic’ in justifying violent responses to provocation but ,in fact, these are rarely accepted in cases dealing with manslaughter under provocation.[46] Gerald Orchard has noted that if the relevant characteristic cited “is no more than evidence of a short temper or unusual pugnacity” this will not serve an exculpatory purpose in the New Zealand judicial environment.[47] There remains the excuse of obvious youthful immaturity linked to the criterion of the power of self-control (the standard ,predictably, being that of an ‘ordinary person’ of the defendant’s age), but these considerations were not normative in New Zealand’s legal culture in the 1950s, which tended to operate within the simple dyads of a ‘Gothic’ jurisprudence. In addition, J.H. Baker has noted that, historically, the common law proffered a necessary régime of “afflictive punishment” but that its legacy was a criminal law which “fluctuated from almost ineffectual leniency to brutal severity.”[48] Few would now doubt that the justice meted out to Hulme and Parker tended towards the brutal, although in 1954 many Kiwis would have felt that the girls were treated leniently in escaping execution, given the consensus view – as characterized in the media – that their relationship was “a sexual perversion which attacked and undermined both the prescribed moral codes and expected gender roles” of the time, involving two “adolescents out of control.”[49] Legally, Hulme and Parker were probably guilty, at worst, of culpable ignorance and temporary delusional insanity in a case which starkly demonstrated the empirical unsoundness of trying to distinguish meaningfully between malice (=cold-blooded killing) and chance medley (=hot-blooded homicide), as the killing of Honora Parker elided this seemingly neat and logical distinction, as there was a compound, a fateful coming together, of elements of situational provocation, clear – but fervid – foresight and an emotionally-charged melée on 22 June 1954.

The M’Naghten case-law ‘Rules’, as set out judicially in 1843 by the then Lord Chief Justice (Tindal), were incorporated into the Draft Code of the English Criminal Bill Commission (1879) and s22 of that document was transferred “in almost identical terms” into New Zealand’s Criminal Code Act, creating New Zealand’s insanity defence, which “has been relatively unaffected by subsequent revisions of our criminal legislation.”[50] That fact is itself problematic inasmuch as the Rules “do not address the issues of lack of control, irresistable drives, or impulses”, so that without clear evidence that the accused was suffering from a strikingly obvious mental disease at the time the killing occurred, these kinds of claims will fail as defences.[51] This was the precise legal lacuna which ensnared Hulme and Parker given the statutory presumption of sanity in the operative legislation under which they were tried and sentenced (s43(1) Crimes Act 1908) and because of the absurd situation in which ‘common-sense’ Victorian rules on complex psychiatric matters still held full legal sway in New Zealand fifteen years after the death of Sigmund Freud. [52] This ‘hangover’ of obtuse legal positivism was recalled by Dr C.E. Beeby (the Director of Education, NZ, 1940-60) when he was a young clinical psychologist (during the 1920s) and was called upon to examine two adolescents charged with arson. Beeby tested their intellectual and educational abilities and Professor James Shelley “dealt with their emotional problems”. Beeby recalled that “As might have been foreseen in those days, our evidence made no impression on judge or jury…”[53a]
The insanity defence was always restrictive, as evidenced in the case R v Hadfield (1800) 27 St Tr 128, in which James Hadfield , a silver spoon-maker from Middlesex, was put on trial for high treason for firing a pistol at King George III (attempted regicide) at the Theatre Royal, Drury Lane and was acquitted by a jury who judged that he had suffered from a delusion which prompted his act. After evidence of his mental agitation and discharge from the army on the ground of insanity were read into evidence, the jury found Hadfield “Not Guilty; he being under the influence of Insanity at the time the act was committed” (supra. at 1356).This was a landmark case in English jurisprudence, providing for the first time a special ‘not guilty’ verdict and creating, ipso facto, a new category of offenders: ‘criminal lunatics’. The ratio scripta (written reasoning) of this case was provided by Sir John Mitford, the Attorney General , who gave a full explication of the settled law of the realm, which was premised on notions of will, intentionality and the degree of discretion possessed by accused persons at the time of offences. As Sir John (later Lord Redesdale) expressed the matter:
if a man is completely deranged, so that he knows not what he does, if a man is so lost to all sense, in consequence of the infirmity of disease, that he is incapable of distinguishing between good and evil – that he is incapable of forming a judgment upon the consequences of the act which he is about to do, that then the mercy of our law says, he cannot be guilty of a crime (1286).
This formulation was a compound of Chief Justice Coke and Hale’s doctrinal reasonings and of two precedent cases, which excluded persons experiencing “occasional insanity with lucid intervals” and requiring for acquittal “a total and absolute insanity and deprivation of the mind”(1290) of the kind engendering ‘madman’ behaviour, when a defendant is “labouring under the extreme of the disorder when in a phrenzy [sic], or [when] a person who is suffering the severity , for instance, of a violent fever, may do an act of which he is perfectly unconscious, and for which, therefore, he cannot be deemed to be responsible”(1286). There is clear polysemy residing in this case-law which could have been given a better exegesis in 1843, but we shall see that it had to wait until a brilliant Australian jurist, Sir Owen Dixon, finally understood its vital import and its nuanced issues of duree in 1933. Brookbanks and Simester remind us that the M’Naghten Rules stressed the causal connection between a delusional state and the crime “and the status of the offence if the content of the delusions is true”:
M’Naghten demonstrates, and subsequent cases have also shown, that a person may know precisely what she is doing and even be aware that she is committing a criminal act, yet be excused because her firmly-held delusions have compelled her to act as she did. [53]
This interpretation of M’Naghten seems, based on empirical analysis of New Zealand case-law, extremely sanguine, for while this formulation almost perfectly describes the mindset of Pauline Parker and Juliet Hulme, the New Zealand legal system failed to apply it regarding insane delusions in any of the reported cases subsequent to M’Naghten [54] ,which was itself a culpable omission. This seems likely to be a result of colonial nervosity in the face of ‘epic’ English precedent law, leading to illiberal and loosely constructionist readings of the operative statutes in line with narrowly reductive views of brain disease( a crudely positivist biologism). Simester and Brookbanks have noted that this area remains contested because jurists are reluctant to hand over “the judicial task of determining the legal status of mental illness or disease exclusively to medical experts” and because their duty is “not to declare the clinical parameters of a particular disease process but rather to state whether a mental disease fits within the legal criteria for insanity laid down by Parliament.”[55] In addition, the Rules are exclusively cognitive in focus “and ,arguably, fail to give adequate consideration to disorders of the will or the emotions.” [56] Simester and Brookbanks have acknowledged the unresolved problem of accommodating offenders who are not insane in the narrow cognitive sense “yet who suffer from mental abnormalities which impair their ability to conform to the law’s requirements.”[57] Even in the headnote to M’Naghten’s Case it was noted that the Rules “have been adversely criticized both by legal and medical text writers…and [they] frequently receive a liberal interpretation in England.”[58] Their Lordships, reviewing the principles of legal insanity for the House of Lords, urged the view that acquittals from “partial delusions” were impossible if the defendant “knew at the time of committing [a] crime that he was acting contrary to…the law of the land.”[59] This narrow line was followed in the New Zealand Supreme (now High) Court case of R v Monkhouse [1923] GLR 13, in which an acquittal was granted because, in Chapman J’s words, Monkhouse’s delusions “were not isolated” but were “indicative of a diseased brain and [were] really only symptoms of insanity resulting in irresponsibility”(supra., 14). Other relevant case-law affixed to the reprinted Crimes Act 1908—under which Hulme and Parker were tried— included R v Holden [1920] NZLR 458, which tried to fine-tune the interpretation of s43 via legal legerdemain in a case involving a mother’s manslaughter of her illegitimate child, and R v Deighton [1900] 18 NZLR 891, which proffered a rather blunt-edged line of reasoning also by the Chief Justice, Sir Robert Stout (this time unpacking the identical precursor clauses from s23 of the Criminal Code Act 1893). In Holden the Court of Appeal rejected the notion that “something like a condition of frenzy” rendered the mother “momentarily irresponsible” as the jury did not doubt that she knew her act was wrong (supra., 460 & 461), which seems on all fours with Hulme and Parker and certainly negatived any precedencial value of Hadfield as a key English case which may have been helpful from the standpoint of the duration, the temporality, of episodic insanity in further elucidating the rather mechanistic ‘nuances’ of the Crimes Act 1908.
The earlier case of Deighton (1900) dealt rather clumsily with the issues of irresistible impulse and what constituted ‘knowledge’ of the nature, quality or wrongfulness of an act of killing. In this case it was reported that the preponderance of evidence (including medical) “tended to show that the accused was not suffering from any mental disease”, and Stout CJ’s summing-up constitutes a tour de force of common-sense positivist ‘psychology’. Stout recalled the statutory burden of proof for insanity, using the 1893 codified constructions of “natural imbecility” and/or a “diseased mind” and resulting in a two-fold test which asked if the accused was (1) rendered “incapable of understanding the nature or the quality of the act” and (2) was “incapable of knowing that the act he was doing was wrong”(supra., 892). This antiquated M’Naghten test and quasi-medical terminology of mentation was also the legal standard facing Juliet Hulme and Pauline Parker 80 years after it had been promulgated. In fairness to Sir Robert Stout, these creaky legal exemplars illustrate the severe limitations of the stare decisis doctrine as a means of dealing in an even-handed and nuanced manner with particularized case-instants. Consequently, defendants may be ‘squeezed’ both hermeneutically and existentially between the vise-grip of ,on the one hand , narrowly-framed positivist legislative canons and, on the other, unlike (albeit superficially ‘like’) decided cases which freeze prior and outmoded – if conscientious – attempts to bring conceptual clarity to issues of phenomenal complexity which should ideally be resolved in a climate of judicial freedom which strives to be both: (a) contemporaneous in its awareness of shifting medico-legal paradigms, and (b) appropriately focused on the salience of the