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

particular circumstances which require judicial adjudication. This was essentially the problem which the Justices were adverting to, with polite firmness and humility, when framing what became the M’Naghten Rules for the House of Lords (cf. in particular Justice Maule’s qualms, wishing “my learned brethren would have joined me in praying your Lordships to excuse us from answering these questions” given his fear that “as these questions relate to matters of criminal law of great importance and frequent occurrence, the answers to them by the Judges may embarrass the administration of justice, when they are cited in criminal trials”[60]).
Thus in Deighton Stout CJ ignored Dr Mackin’s medical testimony that Deighton must have been temporarily insane on the ground of “no evidence whatever that the man had any mental disease”(supra., 893), which is clear evidence of the fettering of a fundamentally non-empirical legal system in regard to these contested issues and also of a point made by Peter Goodrich: that managing the rules of precedent “is an art and not a science”, an art which in practice “conforms fairly closely to the interests, both political and economic, of the class to which the legal profession and institution belong.”[61] Goodrich’s concern with “the effects of the broad development of bodies of law” is directly related to his anxieties regarding the “formidable and unresolved” difficulties attending the “traditional, somewhat mechanistic, view of precedent.”[62]
Stout CJ disregarded other testimony, followed informal hearsay evidence and led the jurors towards a verdict – incontestably a very crude praxis – before focusing upon the point that even if Deighton “suffered from an impulse which he could not control”, the core legal issue (M’Naghten again) was : “was he in such a mental state that he did not know he was killing [his infant child] and doing wrong?”(895) By focusing on this narrow issue, Stout CJ skilfully evaded the exculpatory import of s23(3) of the Criminal Code Act and anticipated a major – if short-lived – line of case-law, most notably the authoritative English case of R v Windle [1952] 2 QB 826, which rejected an excuse of mercy killing and communicated insanity on the legal ground that Windle knew that his act of poisoning was ‘wrong’ in sense of prohibited by law. Windle followed M’Naghten, and Lord Goddard CJ – in the UK Court of Criminal Appeal – upheld the withdrawal of the insanity case from the jury and delivered a robust judgment reminding jurors that “in the McNaghten [sic] rules, ‘wrong’ means contrary to law and not ‘wrong’ on the question whether a particular act might or might not be justified”(supra.,834). This legalistic line of reasoning was soundly rejected by the High Court of Australia in R v Porter (1933) 55 CLR 182, and the Porter judgment was later endorsed by the same court in Stapleton v R (1952) 86 CLR 358 (HCA), ultimately becoming settled doctrine in New Zealand legal practice. In Porter Sir Owen Dixon summed up operative Anglo-normative criminal law with his accustomed lucidity: “The crime of murder is committed when, without any lawful justification, without any excuse, without any provocation, a person of sufficient soundness of mind to be criminally responsible for his acts intentionally kills another” (Porter at 183). Dixon J instructed jurors that defence counsel must establish, “upon a balance of probability, that [the accused] was…not of such a mental condition at that time as to be criminally responsible” and ,vitally, that counsel have “not got to remove all doubt from your minds.” Upon the basis of this authoritative judicial reasoning Parker and Hulme should not have been denied the insanity defence by the jury (‘Not guilty on the ground of insanity at the time of the commission of the offence charged’ in Dixon J’s elegant formulation [185]). Dixon J added that “There is a legal standard of disorder of mind which is sufficient to afford a ground of irresponsibility for crime”(186) and I argue that this standard applied to Hulme and Parker. [My emphasis.]
The genius of Stapleton v The Queen (1952) 86 CLR 358 (HCA) was that the learned justices (Dixon CJ, Webb J and Kitto J) undertook a comprehensive review of English case law anterior to R v McNaghten and, upon the basis of unimpeachable scholarship, used the stare decisis doctrine to set aside the authority of R v Windle, thereby forging a pathway which led, eventually, to s23 (2) (b) of New Zealand’s 1961 Crimes Act, in which the objectivist ‘contrary to law’ thrust of Windle was supplanted by Dixon CJ’s conceptualization in Porter (1933): viz., the subjective test as to whether an accused could recognize that wrongfulness meant awareness of moral wrong, “according to the ordinary standards adopted by reasonable men [sic]”, not whether the accused knew it was wrong in terms of being “contrary to law” (358 & 375). Sir Owen Dixon’s critical obiter dictum in Porter was a jury instruction that they were to concern themselves with the “condition of the mind” at the critical time “when the act complained of was done”, adding a rider of great pertinence to the Hulme-Parker case:
You are not concerned, except for the purpose of finding out how he stood at that moment, what his subsequent condition was or what his previous condition was. He may have been sane before and he may have been sane after, but if his mind were disordered at the time to the required extent, then he should be acquitted on the ground of insanity at the time he committed the offence (187).
That noted, Owen J (as he then was) insisted that a disturbed or disordered state must transcend “mere excitability of a normal man [sic], passion, even stupidity, obtuseness, lack of self-control, and impulsiveness”, being linked to “a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long standing”(188). Further, the said mental ‘infirmity’ must have frustrated the reasoning process for a crucial temporal period so that the accused may have known that s/he was killing, “knew how he was killing and knew that he was quite incapable of appreciating the wrongness of the act”(189). Dixon J referred, in this finely nuanced dictum, to an ordinarily responsible person holding “queer or unsound ideas” constituting “such a mental disorder or diseased intelligence at that moment [=of committing the actus reus] that he was disabled from knowing that it was a wrong act to commit in the sense that ordinary responsible men understand right and wrong and that he was disabled from considering with some degree of composure and reason what he was doing and its wrongness”(190). This is nothing less than the application of the meta-ethics of lapsarianism (non-judgementalism) to an Anglo-Australian jurisprudence and, given that it was upheld in Stapleton and followed in New Zealand until 1961( R v Macmillan [1966]NZLR 616 (CA) at 621 & 622 ), it should have been applied in Hulme-Parker, especially given Turner J’s statement that in the view of the Court of Appeal, “We are not aware of any authoritative decision which supervened in this country between the years 1952 and 1961”(supra.,619), after which the new Crimes Act 1961 regularized the position via express statutory codification—viz., accepting Dixon ‘s ruling into the textual fabric of s23(2) (b) of that 1961 enactment.