![]() ![]() The McNaghten Rules require proof of a “disease of the mind” as a foundation for the defence. ![]() Here Chapter 2 follows the majority of Australian jurisdictions which have enacted similar extensions of the McNaghten Rules. 144 The third of the tests, which has no common law counterpart, allows mental impairment to excuse when the effect of the impairment is that the defendant cannot control their conduct. 143 The extension of the defence to include those who are unable to reason with a moderate degree of sense and composure about right and wrong does not go so far as to excuse those who know their conduct to be wrong but lack any feeling, understanding or moral appreciation of its wrongfulness. The Code adopts the formulation of the test used by Sir Owen Dixon in his jury direction in Porter, in 1933. 142 However, a person who is unable to reason with a moderate degree of sense and composure cannot be said to know how others might judge the defendant’s conduct. A defendant who knows that reasonable people consider the conduct to be wrong is taken to know that it is wrong, no matter what the defendant’s personal convictions or personal morality on that score. The second of the tests amplifies the original McNaghten requirement that the mental impairment deprive the defendant of knowledge that the conduct was wrong. Unlike some earlier Australian codifications of the first McNaghten rule, which require proof that insanity deprived the defendant of the capacity for knowledge, 141 the Code simply requires proof that the defendant did not know the nature and quality of their conduct. The first of the tests for determining criminal responsibility in s7.3)(1) paraphrases the first of the McNaghten rules. The McNaghten rules have been extended, however, by the provision of an excuse for a person whose conduct was beyond their control, as a consequence of mental impairment. Section 7.3(1) is based on the principles derived from the rules propounded by the House of Lords in McNaghten, 140 in 1843.
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