Scottish High Court of Justiciary Decisons

Lord Murray.—[After a summary of the facts]—Now, however, you have to consider the more difficult aspect of the case—the special defence, which is a somewhat novel one, based upon the alleged abnormal and irresponsible condition of the accused at the time of the accident. Such irresponsibility may create criminal immunity and form the ground of a good defence; but there is a strong presumption in favour of normality and responsibility. That presumption may be overcome, but the onus of proof lies, as indeed was conceded by counsel for the defence, upon the person who pleads that he is abnormal and irresponsible.

Turning now to the question of a man's responsibility or irresponsibility for his actions, irresponsibility need not be confined to what to us is the most familiar example, viz., the case of a person who is, in popular language, “out of his mind.” It may be useful for me to remind you of the general basis on which the defence of irresponsibility rests. Putting it in language which is both legal and intelligible, it amounts to this,

that, owing to some disordered condition of the mind which affects its working, the afflicted person does not know the nature of his act, or, if he does know what he is doing, he does not know that what he is doing is wrong. The most familiar case is where reason has been upset and the person is, in common parlance, out of his mind, a condition which may be permanent or passing. This condition may be induced by various causes. It may be congenital; it may be induced by illness, fever, palsy, accident, injury, or shock; all these may induce a condition in which, in popular language, a man is “not fully responsible for his action.” This condition may be brought about by a man's own action, e.g., over-indulgence in drink; but in the present case I am glad to say we are relieved from considering that question, as both sides are in agreement that the question of drink does not enter into the case. It being then the law that there may be irresponsibility—temporary or permanent—where the reason is so affected as to make the person who has committed the act unaware of the nature of his act, I must remind you shortly of conditions which fall short of inferring irresponsibility. As was pointed out by counsel for the Crown, there are certain things which will not excuse. If a person, being normal, runs over someone because he did not see him, the fact that he did not see the person he ran over affords no excuse, for the law holds that he ought to have seen him. If a person is abnormal, in the sense merely that he is below the ordinary or average standard, that affords no excuse. The degree of care which the law imposes is always proportionate to the risk of the operation. In the event of an accident it would be no defence for a man to say, “I happened to be tired and rather exhausted and therefore less attentive.” It would be no defence for a woman to say, “I had overestimated the strength of my nerves; a situation arose in which my nerves were unequal to the strain, and that was the cause of the accident.” The law says to such persons that they were bound to take account of such possibilities. But where the defence is that a person, who would ordinarily be quite justified in driving a car, becomes—owing to a cause which he was not bound to foresee, and which was outwith his control—either gradually or suddenly not the master of his own action, a question as to his responsibility or irresponsibility for the consequences of his action arises, and may form the ground of a good special defence. The question, accordingly, which you have to determine is whether, at the time of the accident, the accused was or was not master of his own action. So put the question becomes a pure question of fact.

Now it is not disputed that there may be such a thing as a condition of irresponsibility induced by what has been referred to as mental dissociation. The admission, however, of the possibility of such a condition does not relieve the case of difficulty. As regards the period immediately following the accident, it is common ground between the doctors examined on behalf of the Crown and the accused respectively that the actions of the accused during this period are typical of a state of mental dissociation. The period to which you must turn your attention is the crucial period which elapsed from the time the accused left the young lady at her door until the moment of the accident. What happened thereafter, it is common ground, may be regarded as typical of mental dissociation. You must draw your conclusions as best you can from the facts, as the question you have to decide does not admit of definite proof. Upon the facts proved you must decide whether, after leaving the young lady and until the accident, the accused, being then in a normal condition, was just driving carelessly and inattentively, and whether it was not the shock of the accident which induced a state of dissociation; or whether, on the contrary, the state of dissociation, which admittedly existed after the accident, was not a continuation of a state which had existed prior to the accident, and which had supervened and was in operation from some time after the accused left the young lady at her house. On leaving her house did something supervene in the mind and condition of the accused for which he was not responsible and which he could not foresee, and did this something exist at the time of the accident; or is the true view that it was not until after the accident that the abnormality supervened? That appears to me to be the problem with which you are confronted. Admittedly the facts in the case are open to more than one interpretation. For instance, take the question of excessive speed. It is within your knowledge that persons, who as a rule are careful, are sometimes careless, and it is a perfectly rational view of the facts in this case that we have here an instance of a careful man betrayed from mere fatigue into a situation in which he was not paying proper attention. On the other hand, as the defence contends, the apparent carelessness may not have been carelessness at all, but the result of some abnormal influence at work in the accused from some time after he left the young lady and became the sole occupant of the car. It is between these two views you have got to choose, and I shall now touch on the facts which I think you should keep in mind as bearing on the situation. [His Lordship reviewed the facts, drawing the jury's attention, inter alia, to the marked inconsistency between the reckless and apparently callous conduct of the accused at the time of, and immediately after, the accident and the character and record of the accused up to that date.]

Upon the question of the form of verdict which you are to return, it would be competent for you, under my direction, to return a special verdict; but I prefer the course suggested by counsel for the defence, that you should return a general verdict. If there were no question of abnormality in the case, I have little doubt your verdict would be one of guilty. But the question of abnormality is present and must be dealt with. If you think that, at the time of the accident, the accused was master of his own actions, it is your duty to return a verdict of guilty. If, on the other hand, you think that the condition of mental dissociation, which admittedly was present after the accident, was also actively present prior to the accident, then your view would preclude the existence of culpability on his part. If you affirm irresponsibility there can be no culpability, and the proper verdict for you to return is one of “not guilty.” I do not think that there is any difficulty on the law of the case, but only in its application to the facts. The question you have to solve is really one of fact, and it is for you to arrive at a just inference from the facts laid before you.