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

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 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.
The Supreme Court Trial (August 1954)
According to the Glamuzina and Laurie account of the Hulme-Parker trial (23-28 August 1954), the defence case was seriously weakened by the girls’ confessions of murder to detectives (without lawyers present!) and the prescriptive jury instruction of the presiding Supreme Court Judge, Sir Francis Adams: “You really have no option but to hold the accused guilty of murder on the ground that the defence of insanity of the required nature and degree has not been proved.”[63] In Glamuzina and Laurie’s account, Adams J “pointed out to the Jury that both medical witnesses for the defence had agreed the girls knew that what they did had been wrong in the eyes of the law.”[64] This was an erroneous application of the M’Naghten common-law Rules in that it took no cognizance of Dixon J’s nuanced ruling in R v Porter (1933), especially given that one of the prime symptoms of their mental alienation was a sense of their exemption from the dictates of law and community norms. One also recalls Clarence Darrow’s comment à propos Leopold and Loeb: that despite this “archaic legal test”, the fact that defence counsel discovered “extensive derangements of their emotional life…[which] entered into and caused the commission of the crime” led them to expect, in a court of justice, some mitigation of the offence. However, one jury source claimed that the jurors had believed Hulme and Parker to be insane but felt that a guilty verdict would spare them from lengthy incarceration in a mental hospital (being under eighteen, they came under the protection of s5 of the Capital Punishment Act 1950 and would be subject to detention at the Crown’s ‘pleasure’). Aside from the crudity of Adams J’s ruling, it is true that a full insanity verdict would indeed have quashed their conviction and placed them in indefinite custody under Part IV of the Mental Health Act 1911. In addition to the appalling judicial derogation of Porter (1933) and Stapleton v The Queen (1952) – the point of which Turner J emphasized so clearly in Macmillan (previously cited) – there was another critical criminological nuance which seems to have escaped Adams J’s attention in framing his jury instruction: that when confronted with ‘method in the madness’ of criminal defendants, jurists may be too quick to think in terms of parallels with Shakespeare’s Prince Hamlet.[65] Turner J observed that evidence of “method and logical approach to an alleged crime might not be inconsistent with the [insanity] diagnosis, but might in fact support it” (R v Macmillan [1966] NZLR 616(CA) at 625). This assessment is entirely consonant with Sir Owen Dixon’s rulings but seems to have been suppressed by Adams J in ruling on the statutory options available in the 1908 Crimes Act. A robust defence might have been able to displace the Crown’s presumption of sanity (s43 (1) ) , using Juliet’s and Pauline’s confession as evidence of shock and mens rea after the event, and while there was clearly no bio-physical evidence of “natural imbecility or disease of the mind” (s43 (2) ) , defence psychiatrists ought to have been schooled by defence counsel to exploit s43(3) and (4) as a ground for a defence of temporary delusional insanity-automatism (exogenous rather than endogenous), as per Porter. Let us re-examine the relevant subsections under which the Supreme Court trial was held:
(3) A person labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground of insanity under the provisions hereinafter contained unless the delusions caused him to believe in the existence of some state of things which, if it existed, would justify or excuse his act or omission.
(4) Insanity before or after the time when he committed or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he committed or omitted the act, in such a condition of mind as to render him irresponsible for such act or omission. [66]

These legal parameters—if linked to Porter and Stapleton—surely ought to have provided a proverbial ‘barn-door’ through which a full insanity claim could have been avoided, thereby circumventing Crown Prosecutor Alan Brown’s appallingly unsubtle characterization that “this plainly was a callously planned and premeditated murder, committed by two highly intelligent and perfectly sane but precocious and dirty-minded girls.”[67] (Emphasis mine.) Defence counsel Terence Gresson rebutted , stating that “The Crown’s description is unfortunate and medically incorrect. They are mentally sick girls more to be pitied than blamed.”[68] Thus the rather invidious ‘mad or bad?’ label became attached to the trial process (with the defence and prosecution tethering each case , respectively, to the relevant adjective). Of course the social context of the trial would have made a defence of temporary insanity very difficult to sustain (especially with Mrs Hulme as a Crown witness whom the police tried to keep away from defence counsel), but it would have been the most juristically nuanced option. It is apparent that Adams J was operating under the equivalent of the “Queensberry Rules” (Lord Queensbury’s attack on Oscar Wilde in 1895), with all the legally-sanctioned homophobic violence of the Oscar Wilde trials still ringing in his earlobes 59 years on from that watershed event in British criminal jurisprudence.

Mr Brown pre-warned the jury that they were to ignore the dire legal plight of the accused; that feelings of outrage for the late Mrs Parker or pity for the girls “have nothing to do with this trial at all” for the simple reason that “Sentiment and emotionalism have no part in British justice.” Brown set out the Crown case: “The evidence will be that the two girls came to the conclusion, after much thought, that the mother of one of them, Parker, was an obstacle in their path, that she thwarted their desires, and that she should be done away with. They planned to murder her, and put their plan into effect by battering her over the head with a brick encased in a stocking…in a manner as to make her death appear to be an accident.”[69] Brown added that “Their main object in life was to be together, sharing each other’s thoughts, secrets and plans; and if any person dared to part them then that person should be forcibly removed.”[70] From February 1954 the personal diaries of Pauline Parker referred, with increasing frequency, to the death of her mother, and in March Pauline began visiting shipping companies in anticipation of their projected American voyage. In April both girls began a short-lived campaign of shop-lifting to garner travel funds. Here is a sample of the more notorious passages from Pauline’s diary:
As usual I woke at 5 and managed to write a considerable amount. I felt depressed at the thought of the day. There seemed to be no possibility of mother relenting and allowing me to go out to Ilam. This afternoon mother told me I could not go out to Ilam again until I was eight stone and more cheerful. As I am now seven stone there is little hope…she is most unreasonable. Why could not mother die? Dozens of people are dying every day. So why not mother, and father, too? [13 February 1954]
Anger against mother boiled up inside me, as it is she who is one of the main obstacles in my path. Suddenly a means of ridding myself of the obstacle occurred to me. If she were to die… [28 April]
I did not tell Deborah [Juliet] of my plans for removing Mother. The last fate I wish to meet is one in a Borstal. I am trying to think up some way….I do not want to go to too much trouble but I want it to appear either a natural or an accidental death. [29 April]
We practically finished our books today and our main idea for the day was to moider [transcribed Brooklyn pronunciation of ‘murder’] Mother. This notion is not a new one, but this time it is a definite plan which we intend to carry out. We have worked it out carefully and are both thrilled with the idea. Naturally we feel a trifle nervous but the anticipation is great. We are both stark, staring mad. [19 June]
…we discussed our plans for moidering Mother and made them a little clearer. Peculiarly enough I have no qualms of conscience (or is it peculiar, we are so mad?). Next day I rose late and helped Mother vigorously this morning. Deborah rang and we decided to use a rock in a stocking rather than a sand-bag. We discussed the moider fully. I feel very keyed up, as though I were planning a Surprise party. Mother has fallen in with everything beautifully and the happy event is to take place tomorrow afternoon. So next time I write in this diary Mother will be dead. How odd—yet how pleasing. [21 June]
The Day of the Happy Event:
I am writing a little of this up the morning before the death. I felt very excited and ‘the night-before-Christmasish’ last night. I did not have pleasant dreams, though. I am about to rise. [22 June 1954]
In her post-homicide statement to the police, Pauline appeared the model of lucidity, which doubtless contributed to the case of full legal sanity upheld against her at trial. This interview was also notable for Pauline’s clear desire to shield Juliet from any blame, declaring that Juliet had gone well ahead along the track (“I wish to state that Juliet did not know of my intentions and she did not see me strike my mother”). Parker refused to disclose why she killed her mother and both girls conceded that they were both in a state resembling frenzy: