Original Title: The Defence of Insanity under Malaysian Law and the problems with the current position. I delivered this talk at the recent Death Penalty roundtable seminar held on 4 April 2014 in what I hoped was a clear, eloquent and stylish manner.
Insanity is a defence for most things. From the mundane – not speaking coherently, delusional, not turning up for work – to the dramatic – seriously wounding or killing someone. And it is at this dramatic end that is under discussion today. You may or may not be pleased to know that the law presumes all of us as sane until proven otherwise. There are some however for whom a persuasive case can be made out to prove an exception to the rules on the grounds of res ipsa loquitor, that is the Latin phrase for the thing speaks for itself.
I shall be answering 2 questions in my talk today:
[And I will then round off with hopefully something brilliantly insightful. After which you may rise to give me a standing ovation. Some may passionately shout the title of my talk. Some may cry for an encore of the first paragraph of the introduction because they like Latin. Hopeful, I admit. More likely you will be wondering how long I’m going to prattle on here because we coming to the best part of this forum after this session – lunch! So let’s start.] This part of the speech was left out because of the sombre feel that morning.
What is the law on the defence of insanity?
Even though we use the phrase insanity, the legal term is unsoundness of mind. In practice, however, the two are used interchangeably as I will today. The defence is found in section 84 of the Penal Code (‘PC’), which reads as follows:
Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.
There are 3 elements to successfully raising this as a defence:
Firstly, when the offence was committed, the accused was of unsound mind/insane.
Secondly, that insanity mentally impaired the accused.
Thirdly, it impaired him to the point that he was incapable of knowing:
Before we proceed to consider the elements, I want to talk about the burden of proof. The standard of proof for the accused to prove insanity is on a balance of probabilities. That means, looking at the facts, he was probably insane. This is known as the civil standard of proof. As opposed to the criminal one which would require the accused to prove his insanity beyond a reasonable doubt, a far heavier burden.
Let’s deal with the first element. What is ‘unsoundness of mind’ supposed to mean?
The term is not defined in the Code. The courts have not defined it either. They have taken a ‘I know it when I see it’ approach. Perhaps this is best since whether the accused was insane when he committed the offence is a question of fact, to be decided not only in light of the clinical evidence but his conduct before and after the event. In short the Judge must consider the whole sequence of events, which is crucial to determining whether the accused was insane when he committed the offence.
I digress here a moment to point out that the Courts have jealously guarded its right to determine whether the accused is insane. In PP v Han John Han  1 SLR(R) 1180 Choo Han Teck J held there was nothing in principle preventing a court from finding unsoundness of mind as of fact without any clinical evidence. And his Lordship would be in keeping with the tradition in England. The Malaysian Federal Court decision of Rajagopal v PP  said this:
In this connection we were guided by the decision of the Court of Criminal Appeal in England in the case of James Frank Rivett  34 Cr App R 87. It was held in that case that the issue is one to be determined by a jury and not by medical men of whatever eminence; and where a jury has found a prisoner guilty despite strong evidence by medical men of the highest standing that he was insane at the material time, the Court of Criminal Appeal will not interfere with the verdict, unless it is satisfied that no reasonable jury could have found a verdict of guilty in the particular case.
In short, insanity is a factual finding to be made by the Judge. Reports from medical practitioners only tends to prove, it doesn’t prove it. The law is concerned only with legal insanity, not medical insanity.
One view is that unsoundness of mind is ‘integrally connected with the cognitive incapacity described in s 84… [Cognitive means your ability to think, understand, remember and learn] A straight reading of s 84 requires the mental malfunctioning to be of such a nature and intensity as to render the accused completely incapable of knowing the nature of his or her act or that the act was either wrong or contrary to law.’ This is promulgated by Stanley Yeo, Neil Morgan and Chan Wing Cheong in their excellent textbook ‘Criminal Law in Malaysia and Singapore’ (2012) LexisNexis. I agree with this view.
This cognitive incapacity must be present when the offence is committed. If the insanity gripped the accused before and after the event it still doesn’t count. King CJ in R v Radford a 1985 South African case articulated it well – ‘the malfunction of the mental faculties called ‘defect of reason’ in the M’Naghten Rules, must results from an underlying pathological infirmity of the mind, be it of long or short duration and be it permanent or temporary, which can be properly termed mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli.’
Needless to say that the unsoundness of mind should not have been voluntary induced. The concept does not include ‘drunkenness, conditions of intense passion and other transient states attributable either to the fault or nature of man.’
Now the second element. What does ‘incapable of knowing’ mean?
It’s easier to define it negatively. Incapable of knowing is lacking the faculties to make a distinction between right and wrong. It does not include an accused who doesn’t know or is simply not aware that the nature of his act is wrong. The word ‘knowing’ suggests that the insanity must have impaired his cognitive abilities to make that distinction.
The third element. Nature of the act, wrong or contrary to law. These cover different dimensions of knowledge of the offence. So for example, incapable of knowing the nature of the act is like the accused killing someone truly believing they would come back to life. A lack of motive is a factor the court may consider in support of an insanity defence.
The phrase ‘Wrong or contrary to law’ though has given rise to two issues.
Firstly, what wrong is being referred to? A moral or legal wrong? Practitioners and academics are unanimous that it refers to ‘moral wrong’. This raises the next question – subjective or objective? This is where controversy lies. The Indian and English jurisprudence takes the subjective route. The Australian jurisprudence however points towards the objective standard – ordinary standards adopted by reasonable men. There are currently no local decisions on this.
Second, should the phrase be read conjunctively (adding to what came before it) or disjunctively (offering an alternative to what came before it)? This is significant because if it is read conjunctively the prosecution has to prove that the accused was incapable of knowing that the act was wrong and contrary to law. If it was disjunctive, the prosecution need only prove either one instead of both. I can’t fathom the controversy though. The use of the word ‘or’ indicates in the clearest terms that the phrase is read disjunctively.
What happens if the evidence falls just short of unsoundness of mind?
The law appears quite strict on this. Low or subnormal intellect is not unsoundness of mind. In the Singaporean Court of Appeal decision of PP v Rozman bin Jusoh & Anor  it was accepted as evidence that the accused was of subnormal intellect, borderline IQ and easily manipulated by others. He could not also discern right from wrong. Despite being acquitted at the High Court, on appeal, a conviction was reinstated. They said: ‘On the contrary, on the evidence, including his own evidence, Rozman knew it was contrary to law to sell drugs he knew the consequences that would be visited on him if he sold drugs. In our judgment, Rozman’s ‘low intellect’ and his disposition of being easily susceptible to manipulation by others is not a defence to a criminal charge.’
So anything short of unsoundness of mind cannot claim protection under section 84 of the Penal Code.
A successful defence of insanity means that the accused will get a qualified acquittal. This defence embodies a fundamental maxim of criminal law actus non facit reum nisi mens sit rea (An act does not constitute guilt unless done with a guilty intention.) Although he lives, he is not at liberty. Often he will be held at his Majesty’s pleasure and looked into from time to time for sign of improvements to his mental condition.
And with that we have answered our first question. Now to the next.
How can the law for insanity defence be improved?
I know the talk says what are the problems with the defence. I’d like however to take a more positive approach to discuss how the defence can be improved in terms of its consideration. I have alluded to some of the problems earlier.
In answering this question, I will only intend to address two examples this morning which may prove fertile for further discussion.
The first is the role of the medical opinion towards determining whether the accused was insane when the offence was committed. Whilst I agree with the Judge ultimately being the finder of fact, I would like to see a greater participation and influence of medical opinion in determining whether the accused was insane at the material time. The reason is one of competency. Judges are not psychologists (amateur perhaps). The court should learn the extent of its competencies and seek assistance in areas it lacks competency.
Furthermore, to leave the issue of insanity entirely to medical opinion from the dock is insufficient. I’d propose that when an accused wants to plead insanity as a defence, the court will call two psychologists – one from the government, the other in private practice – to sit alongside the Judge as it is done with High Court Land References (where they have one land valuer from government and another from the private sector) and juvenile court proceedings (where they have two lay assessors sitting with a Magistrate). And like the Land References, where the Judge will only write a decision if he disagrees with the two psychologists sitting with him.
This is one way to implement greater influence and participation by competent experts into the decision making process. There will be difficulties with this suggestion already as I see it: are there enough psychologists to go around? What happens there are radically divergent views between the psychologists and perhaps even the judge? How credible will the Judge be if she strikes out on her own completely?
The textbook I mentioned earlier also say: ‘Another option is the creation of a clinical expert tribunal to decide between competing expert opinions, with a third option being to educate trial judges to become as close to being a clinical expert as possible.’ At the end of the day, whichever ultimately works depends on the local circumstances, budget, quality of judges, etc. I think some experimentation should be carried out to see how best to integrate medical practitioners into such cases. I certainly think that the legal profession and judicial decision making can only benefit from it.
The second relates to a plea of guilty. A person must be sane before they can enter a plea of guilty/not guilty. If they are found to be insane at the time they are charged then the court will declare them unfit to plead guilty and the accused will be detained without trial. What happens though when the court finds they are fit to plead and there is an insanity defence he can raise? There are 2 schools of thought on this.
The first view comes from Visu Sinnadurai J in the decision of PP v Misban bin Saat . Justice Visu took the view that an accused person who recovered from his unsoundness of mind and who is fit to stand trial may choose to or not to raise the defence of insanity. So by that same token he could plead guilty to the offence even though an insanity defence is available. Justice Visu’s view emphasizes the accused’s right to make a choice, even if it is detrimental to him, so long as he is sane at the time he has to make that choice.
The second view comes from the late Augustine Paul J in the case of PP v Ismail bin Ibrahim . His Lordship was of the view that an accused person who has an insanity defence cannot plead guilty to the offence, even if he is sane when he makes his choice. Justice Paul took the view that even if the plea of insanity is not raised by the defence, it is the duty of the court to inquire if there is such evidence possibly on record. And since a successful insanity defence results in a conditional acquittal, an accused cannot plead guilty to something he could be innocent too. Justice Paul’s view emphasizes the contradiction between pleading guilty for a crime that the accused may not have committed, and addresses that point of view.
Personally, I prefer Justice Visu’s view because it promotes choice. If an accused wishes to plead guilty and not raise an insanity defence when he can, that is his choice. He may do them for reasons best known to himself. It is not for us to insist. I have conducted cases where the accused insists on pleading guilty even though they have a possible defence to the charge – and these are sane individuals. Their reasons may vary. Not everybody tries to stay out of jail, that I can tell you.
There has been little development in the law since those two cases. It would be good if this uncertainty in the law is settled once to bring greater clarity to the area.
In wrapping up, I want to consider the question should the law on the insanity defence be changed? I think it should. No doubt it has gotten by so far but more out of necessity than by choice. The insanity defence as found in section 84 PC is outdated. It was modelled on the M’Naghten Rules which brought within 19th century thinking on mental malfunctioning and criminal responsibility. We are now in the 21st century – about 150 years or so since the rule was fashioned. And in overhauling the defence, a greater role can be played by medical practitioners in defining the ambit and ingredients of an insanity defence.
Paragraph 7.3 of the Australian Commonwealth Criminal Code 1995 at the moment serves as the best example of such an attitude. It combines the best features of the Australian common law and the Queensland Criminal Code 1899 and incorporates contemporary clinical knowledge about mental disorder. That could perhaps serve as a model for further refinement and improvement.
I hope you found my talk informative. Thank you.
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