Section 23A Crimes Act 1900 | Defence to Murder Substantial Impairment


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Being charged with murder can be highly stressful and emotionally draining, however there are various ‘defences’ that you can raise to explain your actions and obtain a better outcome in your case.

One such defence is ‘substantial impairment of the mind,’ which is contained in section 23A of the Crimes Act. This defence only applies in murder cases.

‘Substantial impairment of the mind’ is what is known as a ‘partial defence,’ which means that if you raise it successfully, the charge of murder will be downgraded to manslaughter.

This means that you will face a maximum penalty of 25 years imprisonment as opposed to life imprisonment, which applies in murder cases.

Section 23A says that the defence will be raised if you prove you were suffering from a pre-existing ‘substantial impairment of the mind’ at the time of the offence that was so great that it affected your ability to understand events, judge whether your actions were right or wrong, or control yourself.

If you wish to raise the defence of ‘substantial impairment of the mind,’ you will have to prove that you suffered from an underlying mental condition. You can do this by providing evidence to the court, for example, psychiatric reports and assessments, to show how the mental condition affected you.

If you’ve been charged with murder and you’re wondering if the defence of ‘substantial impairment of the mind’ applies in your case, you should get advice as soon as possible from a highly experienced criminal defence lawyer.

At Sydney Criminal Lawyers, we exclusively practice criminal law, with a particular specialty in murder cases.

Our specialist knowledge of this complex area of law, combined with our experience winning these types of cases means that our clients have a leading advantage when it comes to fighting their murder charges.

Our senior legal team is made up of Accredited Criminal Law Specialists who can advise you of any defences that you are able to raise, and will dedicate the time and effort to obtain all relevant evidence to support your case, such as mental health reports or assessments.

Our outstanding advocates can then give you the best possible representation in court by developing a compelling case and putting forth all evidence to ensure you get a positive result in your case.

If you want the best advice on how to raise a defence such as ‘substantial impairment of the mind’ in your murder case, call us today on (02) 9261 8881 and let our murder specialists help you.

The Legislation

Section 23A of the Crimes Act 1900 contains the defence to murder of ‘substantial impairment by abnormality of mind,’ which reads as follows:

23A Substantial impairment by abnormality of mind

(1) A person who would otherwise be guilty of murder is not to be convicted of murder if:
(a) at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and
(b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

(2) For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.

(3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section.

(4) The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.

(5) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead.

(6) The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death.

(7) If, on the trial of a person for murder, the person contends:
(a) that the person is entitled to be acquitted on the ground that the person was mentally ill at the time of the acts or omissions causing the death concerned, or
(b) that the person is not liable to be convicted of murder by virtue of this section,
evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.

(8) In this section: “underlying condition” means a pre-existing mental or physiological condition, other than a condition of a transitory kind.