murder. In this case the accused, Mr Cheatham stabbed his wife, three old year old daughter and three month old daughter numerous times.

In this case the prosecution will argue the accused demonstrated this intention by writing the letters expressing his intention to kill his family in the five hours prior to his stabbing them.  Further, it is unlikely that he had any other intention than to kill his family (or at least was recklessly indifferent to the probability of death) by stabbing the victims numerous times.

ATTEMPTED MURDER

For the prosecution to achieve a conviction for the attempted murder of the younger child, they must prove:

1. the accused intended to kill his three month old baby daughter, and that
2. despite the fact that the child did not die, the accused’s acts were ‘sufficiently proximate’ to the completed offence of murder.

(Section 327)

With regards to the first element, the intention argument put for murder (above) is equally applicable for attempted murder.

Regarding the second element, a distinction has been drawn between preparing to commit a crime and attempting to commit it.  Only the latter is punishable. (Bronitt, and McSherry, 2001, p.437)  In Britten v Alpogut, the court said that the acts must be more than ‘merely preparatory’ to be considered ‘sufficiently proximate’.  The precise test is unclear in Australia but a favoured approach is the ‘last act’ test.  This test was established by R v Eagleton ([1855] 6 Cox CC 559). and requires the prosecution to prove “that acts remotely leading towards the commission of an offence are not attempts, but acts immediately connected with it are…in this particular case no other act on the part of the defendant would have been required. It was the last possible act.”  

In this case it could be said the accused’s acts were sufficiently proximate and fulfilled the ‘last act’ test, as there was no more that the accused could do to complete the murder. The accused had taken all possible steps to murder his daughter, it was only the end result that did not work out.

2.

INSANITY

In order for the accused to be acquitted for the murders and attempted murder on the grounds of insanity, the defence will need to prove:

1. That the accused had a mental dysfunction that affects a person to a substantially disabling degree); and

2.  The accused was incapable of knowing:

1. what he was doing, or
2. that his actions were wrong.

(Section 428)

The court will leave the first question to be decided by the jury, on the basis of expert medical evidence.  This is largely a matter of fact, and the defence will put forward the evidence of Dr Milton to show the accused was suffering from a mental dysfunction, namely hypochondriasis.

The defence will then need to show the accused was acting under such defect of reason that he did not know his actions were wrong, or the accused did not have the capacity to reason and think with sense and composure. (M’Naghten [1983] 8 ER 718 at 722 )  There is no direction within the legislation or in case law as to what this means, so this must be left up to the jury to decide as a matter of fact after hearing expert evidence as to the meaning in the particular case. (Bronitt and McSherry, 2001, p.211)

Further, Dixon J considered the definition of what is ‘wrong’ in R v Porter ([1933] 55 CLR 182 (at 190)) He said ‘wrong’ is assessed “according to the everyday standards of reasonable people”.  

In this case the accused believed what he was doing was the right thing for his family. However, the defence could rightly argue that the hypochondriasis affected the accused so greatly that he did not have the capacity to reason and think with sense and composure.  In fact, his delusion was so strong that he had to do something about this and tried to kill his family.  It is likely that according to everyday people, murdering your family for whatever reason would be considered ‘wrong’.  

DIMINISHED RESPONSIBILITY

For the conviction of murder to be brought to manslaughter with the accused, the defence must prove:

1. That the accused was suffering from an abnormality of the mind, and
2. That it substantially impaired his judgement and responsibility.

(Section 14)

Lord Parker CJ in R v Byrne ([1960] 2 QB 396 (at 403)) defined the term “abnormality of the mind” as a state of mind that reasonable people will judge as abnormal. It covers the mind in all aspects, not only the perception on physical matters, the ability to from rational judgement whether the act is wrong or right, but also the ability to exercise will power to control actions with the rational judgement. It is likely the accused’s hypochondriasis falls within this definition because a reasonable person would see the disease as abnormal.

The second issue the defence will need to solve in order to successfully plead diminished responsibility is that the accused’s hypochondriasis substantially impaired his judgement. This mental impairment must have had a great affect on the accused’s capacity to understand the events, the wrongness or his act or the ability to control his actions. (Bronitt and McSherry, 2001, p.280)

3.

WHICH CASE IS STRONGER?

The prosecutions case may appear stronger and their case already proven, as it is fair to say that the accused killed, (or attempted to kill), his wife and two children. He fulfilled all the elements required for a conviction of murder and attempted murder. The accused made the appropriate actions towards killing his family and he also showed intent, firstly by expressing his intent, stabbing them numerous times and lastly being ‘visibly distressed’ when he found out that his youngest daughter was still alive. The defence need to prove insanity or diminished responsibility only on the balance of probabilities. But at the same time the prosecution must shed doubt upon the defence’s case. Insanity will result in full acquittal whereas diminished responsibility will result in a murder conviction being dropped to manslaughter. I believe that the accused has a strong case to argue on not guilty on the grounds of insanity, as based on expert witnesses,(DR Milton) I think it can be proven that the level of the accsued’s hypochondriasis rendered him insane, as no sane person or ‘reasonable man’ would kill their family even under the same circumstances. I do not think the accused was acting as a reasonable man and I believe that his delusions caused by his hypochondriasis were so great that it can be proven that he was probably insane. The accused I believe he did not know the quality of his actions. Therefore I believe that the accused should be acquitted on the grounds of insanity.

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Bibliography:

Books

• Judge RN Howie QC, (1997) Butterworths Australian Criminal Law Dictionary. Australia: Butterworths

• Bronitt, S and McSHerry, B. (2001) Principals of Criminal Law. Sydney: LBC Information Services.

• Crofts, P. (1997) Criminal Law. Sydney: Cavendish Publishing

Cases

• He Kaw The v The Queen (1985) 157 CLR 523 at 569, 570
• R v Eagleton [1855] 6 Cox CC 559
• M’Naghten [1983] 8 ER 718 at 722
• R v Porter [1933] 55 CLR 182 (at 190)
• R v Byrne [1960] 2 QB 396 (at 403

          Christina Muthurajah

 

Diminished Responsibility/Insanity

                Criminal Law

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