I was recently asked by Lexis Nexis Australia if I would be interested in reviewing one of the books they publish. Not knowing much about Australian law, I was happy to review one from the perspective of an American attorney looking for an introduction to the subject. Given that criminal law is one of the most common subjects on the blog, I chose Thalia Anthony et al., Waller & Williams Criminal Law: Text and Cases (2013) to review, and Lexis Nexis Australia provided a free copy.
I. The Book
At over 1000 pages, Waller & Williams is a fairly comprehensive book. Overall it’s broken into three parts: an introduction into the theory and justifications behind the criminal law (as well as a bit of criminal procedure), a section on specific criminal offenses, and a section on defenses. Concepts are explained with a mixture of notes from the authors, statutory text, and excerpts from important cases. This approach mirrors that found in many American casebooks and was very easy to follow.
Overall I was struck by how approachable the subject was. Like the United States, Australia is a common law country. This means that the general structure of the criminal law (e.g. the requirements of actus reus and mens rea) and the definitions of many crimes and defenses are the same or very similar to those in the United States. Also like the United States, Australia is a federation. This means that the Australian states have their own independent systems of laws separate from the Commonwealth’s. Just as in the United States, this approach means that we can analyze a given problem in multiple contexts.
Just as the patchwork of criminal laws in the United States has resulted in a variety of insanity defenses in the different states, the same is true in Australia. Further inspired by the international nature of Batman, Inc. (which included an Australian member, the Ranger), I decided to look at how supervillains claiming a defense of insanity would fare in Australia.
II. Insanity in Australia
In addition to coverage of the Commonwealth laws, Waller & Williams includes significant coverage of the laws in New South Wales and Victoria, the two most populous Australian states. As in the United States, Australia followed the M’Naghten rules until recently, when some jurisdictions began adopting other rules. The Commonwealth Criminal Code Act (i.e. the primary federal criminal law in Australia) uses a wider definition, found in § 7.3:
(1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:
(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
(c) the person was unable to control the conduct.
(8) In this section: mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
As Williams & Waller explains, this is essentially the M’Naghten rules (subsections (1) and (2)) plus uncontrollable impulse and coverage of severe personality disorder (i.e. psychopathy). This is notable because very few American jurisdictions recognize uncontrollable (or irresistible) impulse as a defense.
In Victoria the defense is called mental impairment rather than insanity, but still broadly follows the M’Naghten rules in its Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, § 20:
(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence the person was suffering from a mental impairment that had the effect that —
(a) he or she did not know the nature and quality of the conduct; or
(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).
(2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.
In Victoria, mental impairment covers neither personality disorder nor irresistible impulse.
Unlike the Commonwealth and Victoria, New South Wales still follows the common law M’Naghten rules directly rather than having an explicit statutory scheme. However, “mental illness” is defined by statute:
‘mental illness’ means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:
(c) serious disorder of thought form,
(d) a severe disturbance of mood,
(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)–(d).
The Mental Health (Forensic Provisions) Act 1990, § 38(1) provides that, if the person tried ‘did the act or made the omission charged, but was mentally ill at the time’, the jury should return a ‘special verdict’ — ‘that the accused person is not guilty by reason of mental illness’. Given the statutory definition of mental illness above, this seems broader than the M’Naghten rules.
III. What Does This Mean for Supervillains?
The bottom line seems to be that supervillains branching out into the Australian market (so to speak) would do well to stick with federal crimes, as the Commonwealth Criminal Code’s definition of insanity is considerably broader than either Victoria’s or New South Wales’s. The inclusion of irresistible impulse and severe personality disorder would potentially enable supervillains such as Two-Face, the Riddler, and even the Joker to claim insanity. As we discussed previously, these supervillains would find it very difficult to plead insanity in most American jurisdictions (and, indeed, in most Australian jurisdictions). For example, the Joker is not insane by virtually any American definition, but he is likely a psychopath (as I understand it), and thus could be insane under Australian federal law.
It is interesting to note that the Australian federal insanity defense is broader than the state equivalents. Broadly speaking, the opposite is true in the United States, particularly as a result of the finding of attempted presidential assassin John Hinckley, Jr. not guilty by reason of insanity. In response to the verdict, the US federal government passed the Insanity Defense Reform Act, which made it much more difficult to successfully plead insanity in federal court. Several states also restricted the insanity defense, but in general state rules and procedure remain more lax than the federal ones.
Overall I found Waller & Williams easy to use and fairly comprehensive. As with any casebook I wouldn’t rely on it as a sole source for advising clients (admittedly not a very likely scenario to begin with when it comes to Australian criminal law), but it is a useful introduction to and outline of the subject.