PENAL CODE (AMENDMENT) BILL

Order for Second Reading read.

6.05 p.m.

The Minister for Labour and Law (Mr K. M. Byrne): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

The Bill seeks to introduce into Singapore the doctrine of what is commonly known as "diminished responsibility". This was originally a Scottish doctrine but was imported into England by the Homicide Act, 1957. The present law relating to insanity is contained in section 84 of the Penal Code 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.'

This provision, Sir, is based on the so-called M'Naghten Rules, which summarised the advice given by the Judges to the House of Lords in M'Naghten's Case in 1843. According to this provision, the relevant test of insanity is a legal test and not a medical or psychiatric test. For the defence of insanity to succeed, it is necessary to establish that the accused was suffering at the time of the offence from a defect of reason due to disease of the mind so that he either did not know what he was doing or did not know that it was wrong. If the accused is not suffering from a disease of the mind or is not suffering from a form of insanity which affects the intellectual powers as distinguished from the will or emotions, he is not within the M'Naghten Rules.

Clause 2 of the Bill, which is based on section 2 of the Homicide Act, 1957, of England, provides that culpable homicide shall not be murder if the offender was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in causing the death or being a party to causing the death. The effect, Sir, is that diminished responsibility will be a mitigating factor and, to quote from the report of the Royal Commission on Capital Punishment in England, it is a "device to enable the courts to take account of a special category of mitigating circumstances in cases of murder and to avoid passing sentence of death in cases where such circumstances exist."

The exception of diminished responsibility is quite different from that of insanity. Insanity covered by the M'Naghten Rules and section 84 of the Penal Code is a complete defence leading to the verdict of acquittal while diminished responsibility merely reduces the offence to culpable homicide not amounting to murder.

The provision of the new Exception 7 to section 300 of the Penal Code, which are proposed to be inserted by clause 2 of the Bill, cover mental abnormality whether induced by mental or physical disease or injury or arising from mental deficiency or other inherent causes. These words would appear to cover mental abnormality due to any form of insanity, to mental defectiveness, epilepsy, psycho neurosis arising from inherent causes and forms of psychopathic personality arising from arrested or retarded development of the mind. The onus of proving that he comes within the exception is by virtue of section 106 of the Evidence Ordinance on the accused, and it is for him to satisfy the jury not only that abnormality within the definition contained in the Exception existed at the time of the offence, but that it was of such a degree that it substantially impaired his mental responsibility for the acts with which he is charged. The use of the term "mental responsibility" makes it clear that it is not legal responsibility which is in question at this point. Legal responsibility is diminished if the criteria contained in the Exception are satisfied, but diminution of legal responsibility is not itself one of those criteria.

The doctrine of diminished responsibility has been applied in England for over five years and has on the whole been applied successfully. The doctrine has also been adopted by a number of Commonwealth countries and recently the Judicial Committee of the Privy Council has given authoritative advice on the application of the doctrine in the case of Rose vs the Queen, in an appeal from the Supreme Court of the Bahama Islands. In the English case of Regina vs Byrne (1960) 2 QB 396 Lord Chief Justice Parker in delivering the judgment of the Court of Criminal Appeal said:

`"Abnormality of mind" which has to be contrasted with the time-honoured expression in the M'Naghten Rules "defect of reason" means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. The expression "mental responsibility for his acts" points to a consideration of the extent to which the accused's mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts'.

The Lord Chief Justice then went on to cite from Scots cases indicating that "such abnormality as substantially impairs his mental responsibility" involved a mental state which in popular language (not that of the M'Naghten Rules) a jury would regard as amounting to partial insanity or being on the borderline of insanity. Lord Tucker, in giving the opinion of the Judicial Committee of the Privy Council in Rose vs the Queen, referred to the case of Regina vs Byrne and said:

`Their Lordships respectfully accept this interpretation of the words "abnormality of mind" and "mental responsibility" as authoritative and correct. They would not, however, consider that the Court of Criminal Appeal was intending to lay down that in every case the jury must necessarily be directed that the test was always to be the borderline of insanity. There might be cases in which the abnormality of mind relied upon could not readily be related to any of the generally recognized types of "insanity". If, however, insanity was to be taken into consideration, as undoubtedly would usually be the case, the word must be used in its broad popular sense. It could not too often be emphasized that there was no formula that could safety be used in every case - the direction to the jury must always be related to the particular evidence that had been given and there might be cases where the words "borderline" and "insanity" might not be helpful.'

The doctrine of "diminished responsibility" was considered at the United Nations Seminar on the role of the Substantive Criminal Law in the protection of Human Rights held at Tokyo last year and the Seminar in its report recommended the adoption of the doctrine.

The other important amendment made by the Bill is contained in clause 6, which seeks to widen the definition of "stolen property" to include property into or for which stolen property has been converted or exchanged. This follows the provisions of section 46 (1) of the United Kingdom Larceny Act, 1916, and will enable a prosecution to be instituted in respect of property into which or for which the property actually stolen has been converted or exchanged.

Clauses 3 and 4 of the Bill seek to provide that the punishment of caning may be imposed for the offence of voluntarily causing hurt or grevious hurt to extort property or to constrain the commission of an illegal act. As caning is already a possible punishment for the offence of extortion, it is considered that it should be available as a punishment where hurt or grevious hurt is caused to commit extortion.

Clause 5 of the Bill is complementary to and consequential on the Punishment of Kidnapping Bill. It seeks to make the offence of kidnapping or abducting in order to murder punishable with death or imprisonment for life (instead of imprisonment for life or imprisonment which may extend to ten years as at present).

Sir, I beg to move.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole Assembly.

Assembly immediately resolved itself into a Committee on the Bill. -[Mr Byrne].

Bill considered in Committee; reported, without amendment; read a Third time and passed.