Attorney General of Northern Ireland v Gallagher [1961] UKHL 2 (20 July 1961)

ATTORNEY-GENERAL FOR NORTHERN IRELAND

v.

GALLAGHER

Lord Reid
Lord Goddard
Lord Tucker
Lord Denning
Lord Morris of Borth-y-Gest

20th, July 1961.

Lord Reid

my lords,

The Respondent, Patrick Gallagher, was convicted at Belfast of die
murder of his wife on 7th September. 1960. There is no doubt that he
killed her. The defence was insanity or alternatively that he was so drunk
when he killed her as to be incapable of having any intent to kill her or do her
grievous bodily harm. So there was no room for a verdict of not guilty:
if the defence had been successful the verdict would have been guilty but
insane or manslaughter.

The Respondent appealed to the Court of Criminal Appeal of Northern
Ireland on the ground of misdirection of the jury by the trial judge, Lord
MacDermott, L.C.J. That Court held that there had been misdirection
and that the verdict of murder could not stand: they further held that in
the circumstances they could not substitute either a verdict of guilty but
insane or a verdict of manslaughter. They therefore directed a verdict of
acquittal to be entered.

The Attorney-General for Northern Ireland ‘thereupon applied under the
provisions of the Administration of Justice Act, 1960, for a certificate that
a point of law of general public importance was involved and for leave to
appeal to this House. The Court granted a certificate but refused leave
to appeal. Leave to appeal was later given by this House;

Before coming to the certificate I must set out the facts so far as they
are necessary for its consideration. The Respondent had frequently used
violence towards his wife, generally after taking drink. The medical
evidence about his mental condition was conflicting but there was evidence
that he is an aggressive psychopath, that this is a disease of the mind which
is quiescent for considerable periods but manifests itself from time to time in
explosive outbursts, and that taking drink is likely to cause an outburst.
For some time before 7th September, 1960, the Respondent had been in a
mental hospital. On that date he was allowed to go to Omagh. There he
bought a knife and a bottle of whisky. He was seen cycling towards his
home and two hours later he entered a neighbour’s house under the influence
of alcohol and said he had killed his wife. She was found dead, having
sustained extensive and brutal injuries from the knife and a hammer. The
Respondent had drunk the greater part of the bottle of whisky either before
or after the killing or both.

I can now come to the certificate. The Court certified that ” the following
” point of law of general public importance was involved in the said
” decision :—

” ‘ Whether a person in a psychopathic condition which is quiescent
” ‘ may become insane (within the meaning of the rules in M’Naghten’s
” ‘ case 10 Cl. & F. 200) as the result of the voluntary consumption by
” ‘ him of intoxicating liquor, if the effect of that intoxicating liquor
” ‘ is to bring about an explosive outburst in the course of a mental
” ‘ disease although the disease was not itself caused by intoxicating
” ‘ liquor.'”

One of the Appellant’s arguments submitted to the Court of Criminal
Appeal and to this House was that, even if at the moment of killing his wife
the Respondent was incapable of knowing the nature and quality of his act
or knowing that he was doing wrong, and even if that was a consequence
or manifestation of his mental disease—of his being a psychopath liable to
explosive outbursts—yet the defence of insanity was not open to him because

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before taking the drink—when there was no defect in his reason—he had
clearly evinced an intention to kill his wife and any temporary derangement
of his reason at the time of the killing was the result of his own voluntary
act in taking the drink.

In my opinion this is the point and the only point of law raised by the
certificate. It is, T think, assumed in the certificate that during an ” explosive
” outburst” the person’s reason is dethroned to the extent required by the
M’Naghten rules. Whether that assumption was justifiable on the evidence
may be questionable, but the argument before the Court of Criminal Appeal
appears to have proceeded on the footing that there was just sufficient
evidence to entitle a jury to come to ‘hat conclusion if so minded.

The first argument submitted by Counsel for the Respondent was that
under the provisions of the 1960 Act this House had no power or jurisdiction
to decide any question beyond that set out in the certificate. If a decision
of that question is sufficient to dispose of the whole case, then this House
can do that but not otherwise. Counsel then submitted that no matter how
the question of law in the certificate is dealt with, that cannot lead to
substituting another verdict for the verdict of acquittal entered by the Court
ot Criminal Appeal. This must, I think, have been the view of that Court
because the ground on which they refused to grant leave to appeal to this
House was ” that in the opinion of this Court a ruling on this point of law
” in favour of the Crown’s contention would not lead to a reversal of the
” decision of this Court.”

That argument depends on the proper construction of section 1 of the
Administration of Justice Act. 1960. which is in the following terms: —

” 1.—(1) Subject to the provisions of this section, an appeal shall
” lie to the House of Lords, at the instance of the defendant or the
” prosecutor.—

” (a) from any decision of a Divisional Court of the Queen’s
” Bench Division in a criminal cause or matter ;

” (b) from any decision of the Court of Criminal Appeal on an
” appeal to that court.

” (2) No appeal shall lie under this section except with the leave of
” the court below or of the House of Lords; and such leave shall not
” be granted unless it is certified by the court below that a point of
” law of general public importance is involved in the decision and it
” appears to that court or to the House of Lords, as the case may be,
” that the point is one which ought to be considered by that House.

” (3) Section five of the Appellate Jurisdiction Act, 1876 (which
” regulates the composition of the House of Lords for the hearing and
” determination of appeals) shall apply to the hearing and determination
” of an appeal or application for leave to appeal under this section,
” as it applies to the hearing and determination of an appeal under that
” Act; and any order of that House which provides for the hearing
” of such applications by a committee constituted in accordance with
” the said section five may direct that the decision of that committee
” shall be taken on behalf of the House.

” (4) For the purpose of disposing of an appeal under this section
” the House of Lords may exercise any powers of the court below or
” may remit the case to that court.

” (5) In this Act, unless the context otherwise requires, ‘ leave to
‘ appeal’ means leave to appeal to the House of Lords under this
” section.”

Subsection (1) allows an “appeal” from a “decision” of the court
below, and subsection (4) authorises this House in ” disposing of” the
appeal to ” exercise any powers of the court below “. So far there is nothing
to suggest that the powers and duties of this House in this matter are
different from or more limited than its powers and duties in ordinary appeals.

The difficulty arises from subsection (2) which limits the grounds on
which leave to appeal can be granted. First there must be a certificate by
the court below that a point of law of general public importance is involved

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in the decision, that is, in the decision of the court below. And then
comes the provision which causes the difficulty: before the court below
or .this House can grant leave it must appear that ” the point is one which
” ought to be considered ” by this House.

Taken by themselves these last words might seem to indicate that all
that this House is to do is to consider (which must include deciding) the
point of law. But that cannot be right because there would then be no
reason for authorising this House to exercise “any powers of the court
” below “. Moreover, a limited consultative jurisdiction of this kind would
be a novelty in United Kingdom procedure, and if that were all that this
House can do, the procedure could hardly be called an ” appeal” from the
” decision ” of the court below. The point of law is not ‘the decision—
it is only ” involved in the decision “. The decision in (the present case
was the substitution of a verdict of acquittal for the verdict of murder,
and that is the decision from which the present appeal lies. The point
certified by the Court of Criminal Appeal is certified by them as having
been ” involved in the decision “.

To make the issue clearer let me suppose a case where the respondent
in this House argued two points in the court below either of which if right
entitled him to succeed. The court below having decided one in his favour
might well say it was unnecessary to consider the second. Then, the first
point having been certified, this House holds that the court below was
wrong. What is then to happen? It cannot reasonably be supposed that
Parliament intended that the respondent is to have no opportunity of having
his second point considered so that his conviction must stand. So it must
either be considered by this House or by the court below. It is true
that subsection (4) authorises a remit to that court but that is only for the
purpose of disposing of the appeal to this House. I can find nothing to
authorise a remit to the court below directing it to reopen and rehear the
case and come to a fresh decision. So in that case at least this House must
go beyond the point certified and hear and decide the second point which
may have no connection at all with the first.

If in such a case this House must exercise the whole of its ordinary functions
on appeal, what is there to show that in some other class of case it is not
to do so? The Respondent points to the contrast between the language of
section 1 (2) of the 1960 Act and the language of section 6 (1) of the
Criminal Appeal (Northern Ireland) Act, 1930 (which is the same as in the
corresponding English Act). Under the latter the Attorney-General had
to certify that ” it is desirable in the public interest that a further appeal
” should be brought” : under the 1960 Act it must appear “that the point
” is one which ought to be considered by that House “: under the old pro-
cedure it was decided in Milne and Others v. Commissioner of Police for City
of London 
[1940] A.C. 1, that it was open to the Appellant to take any point
before this House, and the argument is that the change of language in the
1960 Act clearly shows an intention to alter this.

In my judgment the change of language can properly be regarded as
indicating an intention to make some alteration but the question remains—
What was the alteration which was intended? In deciding that well settled
principles require us to go to the words of the new Act, we can have
in mind the circumstances when the Act was passed and the mischief which
then existed so far as these are common knowledge, but we can only use
these matters as an aid to the construction of the words which Parliament
has used. We cannot encroach on its legislative function by reading in some
limitation which we may ‘think was probably intended but which cannot be
inferred from the words of the Act.

If I had to consider the provisions of subsection (2) without reference
to the earlier law I would have no doubt that the purpose of subsection (2)
is merely to define the conditions which must be satisfied before leave can
be given and that once leave has been given its purpose is spent. The court
below must certify that a point of law of general public importance is
involved: then leave is not to be granted unless further it ” appears “, or is
thought by that court or this House in deciding whether to give leave, that

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that point is one which ought to be considered by this House. I would
not infer a prohibition against this House considering anything else but that
point, and I would find no basis for an inference that this House is permitted
to consider some further points but not others which it could normally
consider in an ordinary appeal.

It is familiar and well known that one thing which this House considers
in deciding whether to give leave in a civil case is whether the case involves
a point of law which ought to be considered by this House. But once
leave is given this House can and does consider other points as well. Sub-
section (2) could well mean that, whereas in civil cases the existence of
such a point is only one element, though an important element, in deciding
whether to give leave, in criminal cases it is an indispensable element. There
was no such indispensable element under the former law: so far as its
language went the Attorney-General could have acted on any ground that
seemed sufficient to him to warrant a certificate that it was desirable in
the public interest that a further appeal should be brought. Of course,
I do not say that this was the reason for the change of language. I only
say that it is not an inevitable inference from the change of language that
it must have been intended to limit the scope of the appeal once leave had
been given.

As the proper construction of this section raises a new and important issue
I do not wish to go further than is necessary to decide this case. Others
regarding it in light of different facts may be more successful than I have
been in finding in the terms of the section some basis for an implication
that in hearing an appeal under it the powers of this House are in some
way limited. This is a case in which the question of law certified and the
question whether there was misdirection are not entirely unrelated. They
are different questions because, even if I agree with the view of the Court
of Criminal Appeal on the question of law certified—and I do agree with
what I understand to be their view—I can still hold that there was no mis-
direction. So a decision that there was no misdirection is in no way merely
consequential on a decision on the point of law certified. It is therefore
necessary for me to hold, as I do, that the section does not limit this House
to the question certified and matters consequential on its decision of that
question. But I do not have to decide whether it is open to an appellant
to raise matters wholly unrelated to the question certified.

On the question of misdirection, I have had an opportunity of reading
the speech about to be delivered by my noble and learned friend Lord
Tucker. I agree with it, and in particular I wish to add that I entirely agree
with his view that absurd and disastrous consequences can result from the
present limitation of the powers of the Courts of Criminal Appeal. Accord-
ingly I move your Lordships that this appeal should be allowed and the
verdict of murder restored.

Lord Goddard

my lords,

In my opinion this appeal should be allowed and the verdict and sentence
passed at the trial restored. I have had an opportunity of reading the
Opinion about to be delivered by my noble and learned friend Lord Tucker,
who has fully and carefully analysed the medical evidence, and I agree
with his conclusions. I would, however, say that, despite the somewhat
guarded admission of the Attorney-General before the Court of Criminal
Appeal, there was not, in my opinion, any evidence of insanity : at the
most, evidence only of self-imposed drunkenness. I will assume the
Respondent was an aggressive psychopath but no one suggested that such a
condition of itself amounted to insanity. I will assume that on one who
suffers from that mental condition alcohol can have an explosive effect.
This means no more than that drink would, or at most might, result in a

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loss of self-control. But to admit that as a defence would be to allow
self-imposed intoxication to be set up as a defence of insanity, a proposition
which was emphatically negatived by this House in Beard’s case. Moreover,
there was no evidence whether the accused consumed the whisky before
or after he attacked his wife. No one suggested that at the time of his
trial he was insane ; he gave a reasonably coherent account of what he had
done and why he did it directly or very soon after the killing, but he gave
no evidence at his trial and has never suggested that he did not know
what he was doing when he killed his wife. In my opinion there was no
misdirection by the Lord Chief Justice; it was most ‘important to consider
what the mental state of this man was when he set out in the morning to visit
his wife, and equally important to consider his condition after he had killed
her. When a defence of insanity is raised there is seldom evidence of
witnesses who saw the killing; it has to be inferred in so many cases from
the history of the accused before and after the actual deed. The defence
could only rely on the evidence of Dr. Dawson, who to his credit was
careful to emphasise that he could not be positive. In my opinion his evidence
does not support the onus which was on the accused to establish insanity.

The other matter which was argued on the appeal, whether this House is
confined merely to answering the question submitted as one of general public
importance has, I admit, caused me some difficulty. Reading subsection (2)
of section I alone would seem to support the view that the House is
confined to a consideration of the point certified by the court below. But
subsection (2) requires the House to dispose of the appeal and enables it
to exercise any powers of the court below. It may well ‘be in many cases
that the answer to the specific question will dispose of the appeal, as in
the case of the appeal recently before the House where the question submitted
was whether there is still such an offence as misprision of felony. An
answer in the affirmative upheld the decision of the trial court and no
further question arose or could arise. But for the reasons given by my noble
and learned friend Lord Reid it is clear that this may not be always the
case, yet the House must dispose not merely of the question certified but
of the appeal and if to enable this to be done it becomes necessary to
consider other matters, in my opinion they must have power to do so.

I would add that this case affords a striking illustration of what may
result from the Court of Criminal Appeal in Northern Ireland, as in
England, having no power to order a new trial in an appropriate case.
Had it not been possible for the Court to certify that a point of law of
general importance arose in the case and for this House to hold it was fit
for their consideration, a man who had brutally murdered his wife and
whom a jury had declined to rind was insane would have had to be sot
at liberty free of any consequence of his crime.

Lord Tucker

my lords,

I agree that once the Court from which the appeal is brought has certified
that a point of law of general public importance is involved in the decision,
and leave to appeal has been given, either by that Court, or this House,
the jurisdiction of this House to hear the appeal is established, and there is
nothing in the Administration of Justice Act, 1960, in any way limiting
its jurisdiction. It will always be a matter for the exercise of its discretion
whether to allow a point in no way connected with the certified point of
law to be argued on the appeal, and it is not to be assumed from the
decision in this case that an appellant can as a matter of right raise any
such point. In the present case I consider the point certified of necessity
requires an examination of the decision of the Court of Criminal Appeal,
and when this decision is looked at it becomes clear that in order to
dispose of the appeal the direction of the Lord Chief Justice to the jury
on the law with regard to the defence of insanity, as applied to the evidence
given at the trial, must be considered.

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The appeal is brought by the Attorney-General for Northern Ireland under
the provisions of sections 1 and 2 of the Administration of Justice Act, 1960,
against the order of the Court of Criminal Appeal in Northern Ireland
dated 5th April, 1961, whereby it was ordered that the Respondent’s appeal
from his conviction for murder be allowed and judgment and verdict of
acquittal be entered on the indictment whereon he was convicted.

That the Respondent killed his wife is beyond all question and in the
Court of Criminal Appeal and in this House it was common ground that
the only possible verdicts were (1) guilty of murder: (2) guilty of man-
slaughter : (3) guilty but insane. A verdict of acquittal, that is, not guilty, is
the one verdict which no reasonable jury could have returned, yet this is
the verdict which the Court of Criminal Appeal has directed to be entered
on the indictment. This involves no criticism of the Court of Criminal
Appeal, but serves to expose the absurd and disastrous consequences which
may result from the restrictions which Parliament has imposed upon the
powers of the courts of criminal appeal in Northern Ireland and in
England. The language of the relevant statutes is identical and does not in
any case permit an order for a new trial nor, in a case such as the present,
give the court any discretionary powers with regard to verdict or sentence.

At the trial before the Lord Chief Justice of Northern Ireland and a jury at
the winter assizes in Belfast from the 30th January to 4th February. 1961, the
Respondent was indicted for the murder of his wife Rose Gallagher on
7th September, 1960. He pleaded not guilty, and, though, of course, no
admission was or could be made, there was no attempt to challenge the
evidence of the prosecution to the effect that the Respondent killed his wife.
The defence relied upon was that he was insane at the time within the
meaning of the M’Naghten Rules or in the alternative was by reason of
drink incapable of forming the intent necessary to constitute murder and
therefore guilty only of manslaughter.

The defence of diminished responsibility is not available in Northern
Ireland. The following is an outline of the facts proved by the uncontra-
dicted evidence of witnesses or from admissions made by the Respondent
in statements to police or other persons.

The Respondent and his wife had been married for about 16 years during
which time there were frequent quarrels, generally when he had taken drink,
and on occasions he used violence towards her. In 1957 she obtained a
separation order against him and he went to England. He was injured at
work there and in 1959 returned to Ireland and lived again with his wife and
family near Omagh. His drinking habits increased and there were further
quarrels. On 26th May, 1960. there was a serious quarrel. A doctor
was sent for who persuaded him to go for treatment to a mental hospital in
Omagh, where he was admitted as a temporary patient. On 8th June he
was allowed to go home on a 90-day trial. He again started drinking and
assaulted his wife. On 19th July she refused to let him in and he went
to his father’s house. The doctor (Lagan) visited him there and arranged
for his readmission to the mental hospital. By mid-August his condition
had improved and he was allowed to go into Omagh. On 15th of that
month his wife obtained an order for maintenance against him for £3 a week.
On 6th September he was seen by Dr. Gray at the hospital, when he appeared
to be cheerful and perfectly normal. On 7th September Mrs. Gallagher
was alone in the house after the children left for school. At 9.45 the
Respondent left the hospital and went into Omagh where he bought a
” Skyline ” knife. He then entered a public house where he bought a bottle
of ” Guinness” and a bottle of Power’s whisky. Shortly after this he was
seen riding a cycle along a road which was one of the routes leading to his
wife’s house to reach which would take him about half an hour. At 1.30 p.m.
Miss Aitken and Mrs. Speers, who lived next door to Mrs. Gallagher, heard
a noise and saw the Respondent collapsing on the kitchen floor. He had
blood on his clothes and hands and was drunk. They threw water on him.
When he had recovered they asked him what had happened to him. He
said he had killed his wife. One of them said ” Oh, no, you didn’t”, and
he replied: ” Come round and see.” They went to the house and found

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Mrs. Gallagher’s body in the bed covered with bed clothes up to her neck
and blood on the floor. They took the Respondent back to their house,
locked the door of Mrs. Gallagher’s house and sent for the police.

When the police arrived they found Mrs. Gallagher’s body naked except
for a pair of shoes. There were terrible injuries to her head and body.
The head and face were covered in blood and the sheets saturated. A
” Sky-line” knife with a seven-inch blade stained with blood to the hilt
was found in the room. On the floor beneath the bed was an old hammer
the head of which was stained with blood. On the chest of drawers was
a bottle of Power’s whisky containing about two glasses. There were blood
stains on the cellophane with which the bottle was wrapped. At about
4.15 p.m. the Respondent at Omagh Police Station said to Sergeant Coyle:
” I have no regrets: she gave me a hell of a life these past three years.”
Later, after caution, he said: ” I made up my mind to kill her about a
” fortnight or three weeks ago.”

Shortly after 7 p.m. he said: ” I am going to open up my mind to you.”
He was told: ” You don’t have to ” and again cautioned. He said: ” I will
” tell you all. I left hospital this morning about half past nine on parole
” given to me by Dr. Johnston. I went into Wellworth’s and bought a
” knife at five and three and a bottle of aspirins. After I had killed my wife
” I was going to do myself in by first taking the aspirins to deaden the pain
” and then use the knife on myself. I went into Yarrow’s pub in Bridge
” Street and drank a bottle of ‘ Guinness’ and bought a bottle of whisky
” for £2. I went out on the bicycle and hid it. You fellows will have
” bother getting it. I went into the house at almost half past eleven and
” the wife was on her own. I asked her to take me back but she wouldn’t.
” I then drank half of the whisky.”

The medical evidence showed that sexual intercourse had taken place
which could have occurred at any time from a day or two before death
until after death.

My Lords, I have found it necessary to set out this evidence in some
detail as it will be observed that nowhere does the Respondent suggest that
at any time he did not know the nature and quality of the act which he
did or that he did not know it was wrong. Nor does he ever say he was
drunk when he did it or show any regret for that which he had done. He
gave no evidence at his trial. None-the-less the defence was that he was
” labouring under such a defect of reason, from disease of the mind, as not
” to know the nature and quality of the act he was doing, or if he did know
” it. that he did not know what he was doing was wrong.” It was sought
to establish this defence by expert medical evidence directed to prove that
the Respondent is what is called ” a psychopath ” the characteristics of
which are “emotional immaturity and instability; they live in themselves
” and lack social sense ; they tend to yield to their instincts readily and lack
” self-control “. There are different types of psychopaths and the Respon-
dent is said to be of the aggressive type. i.e. one who with provocation or
on taking alcohol is apt to have a severe aggressive reaction or emotional
outburst which may result in loss of control.

Some of the medical witnesses for the prosecution had found no signs of
psychopathy in the Respondent, but they were all prepared to agree either
that he was probably a psychopath or that he might possibly be one. One
witness thought he was probably an ” inadequate psychopath ” rather than
an ” aggressive psychopath “, but the vital difference between the expert
medical witnesses for the prosecution and Dr. Dawson for the defence
was whether a man suffering from this type of disease of the mind, when
he has one of these emotional outbursts, does or does not know the nature
and quality of his acts or, assuming such acts to be criminal, that they are
wrong. The prosecution’s evidence was that this type of disease of the
mind merely produces lack of self-control and does not impair a man’s
appreciation of the nature of his acts or knowledge that they are wrong.
Dr. Dawson for the defence was not prepared to say positively that such
a disease does produce this result but expressed a doubt whether a man
suffering from this disease would, in one of these outbursts, know the nature

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of his acts or that they were wrong. Assuming for the moment that such
a doubt, if accepted by the jury in preference to the positive assertions to
the contrary by the prosecution witnesses, would suffice to establish the
defence, the fact remains that if the jury rejected the defence evidence as
to the nature of the mental disease and accepted the evidence for the prose-
cution that the Respondent was never suffering from a disease of the
mind which would produce anything more than lack of control, the defence
would fail in limine. The defence have not shown that the disease of the
mind proved is of the kind which will produce the required results from
their point of view. It was, I think, with this in mind that the Lord
Chief Justice, having regard to the nature of the evidence, focussed the
attention of the jury on the Respondent’s mental condition at 9.30 a.m.
when he left the hospital. Assuming he was then an aggressive psychopath
likely to have an explosive outburst under certain circumstances, would such
outburst produce nothing more than lack of self-control? If so he would for
present purposes be regarded as a normal being responsible in law for his
actions who could not improve his case by the consumption of alcohol, unless
such alcohol brought about some quite different type of disease such as
delirium tremens, of which there was no evidence in the present case.

It may be convenient, before turning to the summing-up which the Court
of Criminal Appeal have held to contain misdirections, to refer quite shortly
to a few passages in the evidence of the medical witnesses which summarise
the effect of their evidence. The evidence of these witnesses was dealt with
by the Lord Chief Justice in his summing-up in detail and it is not suggested
that he did not place before the jury a clear and accurate assessment of its
effect.

The evidence of Dr. Lagan, who is not a mental expert, was summarised
by the Lord Chief Justice as follows: —

” Now his evidence would seem to me to amount, in general words,
” to this: That this man is a man who has been subject to violence for
” no apparent reason ; he’s liable to something that might be called a
” brainstorm ; and Dr. Lagan added that he thought that he would have
” little knowledge of what he was doing at the time. He added that he
” was always sorry afterwards ; and it’s quite obvious from the doctor’s
” evidence as to the position on earlier occasions . . . that he regarded
” him as mental—at least in some degree—not just a drunkard, but
” a man ‘ mental’ in some degree.”

Dr. Gray had had long experience in mental institutions. He first saw the
Respondent on 26th May, 1960. He found him mildly depressed, quite
rational and rather emotional. He subsequently saw him quite often and
found no signs of mental abnormality. In cross-examination he said: “He
” possibly is a man of an aggressive psychopathic personality.” He added:
” In my opinion leaving out of account any question of alcohol, the accused
” would have known what he was doing when he struck these blows.
” If he knew what he was doing, he would have known that it was wrong.”
He added that he had never seen him in a violent state and couldn’t say
what his condition would be when committing violence.

Dr. Johnston was the Resident Medical Superintendent of the mental
hospital in Omagh. He saw the Respondent at irregular intervals in the
course of his routine work. He had allowed him out on parole and at that
time saw no evidence of mental defect. In cross-examination he agreed that
he was ” probably ” or ” possibly ” a psychopath. His intellectual age would
be about nine or ten. The maximum in this scale being fifteen. He said his
experience of an aggressive psychopath was that they are clear as to what
happened during the outburst. He added that if a psychopath was under the
influence of drink it would be more probable that his appreciation of what
he was doing would be more limited. He concluded: ” Knowing this man
” and having heard the circumstances of this case and assuming he did these
” things to his wife, my opinion is that he knew what he was doing; in my
” opinion he knew what he was doing was wrong.” It may be convenient
to refer at once to the passage in the summing-up which followed the Lord

9

Chief Justice’s reading of this last passage to the jury—which he had called
the test questions. These questions and the doctor’s answers were clearly
directed to the state of the Respondent’s mind at the moment of killing.

The learned Judge said: ” Now, if you accept that, its the end of this
” defence of insanity, because if you accept that, the man doesn’t qualify,
” according to the rules which have been laid down. He may be a psycho-
” path; he may be abnormal; he may be mentally defective—but if you

accept that opinion of Dr. Johnston’s he is not entitled to succeed in the
” defence of insanity which we are now discussing.”

The effect of the evidence of Dr. Dawson upon which the defence of
insanity rested is summarised in the following passages:

“Q. On that date (i.e. 7th September, 1960) what is your opinion
” about the state of the accused’s mind?

“A. … From the description of him when he was found, from
” the description of the terrible injuries received by his wife, it could
” be explained by a severe explosive reaction in an aggressive psychopath,
” probably to some extent, at least under the influence of drink.

” Q. What in your opinion was his mental state prior to and at the
” time of killing her?

” A. Well—this is presumption purely on what I’ve heard, and the
” nature of her injuries, and what I know of the man and of his state
” when he was discovered—therefore I cannot quite honestly go beyond
” probabilities—but I do feel it is probable that this alleged attack on
” his wife was carried out while in one of these explosive reactions. It
” would seem to me to fit what I have heard—I cannot go further than
” that.”

In the course of his answer to a further question as to the state of the
Respondent’s mind during the explosive outburst he said: ” Assuming I am
” right in considering that he might be subject to the short-circuit and
” bomb-like type of reaction ; and assuming also, my Lord, that he may
” have been under the influence of alcohol, I can only express a very real
” doubt, either to his having an appreciation of what he was doing, or that
” even it was wrong—on those assumptions, my Lord, I have given this
” question, which I knew would be asked, very anxious thought.” Asked
to explain the difference between the presence and absence of alcohol he
said: ” Well, the only distinction I can draw, my Lord, is alcohol would make
” it still more doubtful as to whether he knew the nature and quality of his
” act; but even if he hadn’t alcohol and was acting under provocation, with
” an extreme emotional reaction to that provocation, I would still have to
” express a doubt as to his appreciation of the nature and quality of his act
” —a doubt, my Lord.” This is the passage which the Lord Chief Justice
in his charge to the jury described as the high-water mark of his evidence.
He said: ” That is as far as he can put it, he says so very fairly. He can’t
” be positive ; he can’t tell you that this man, in his opinion, didn’t know
” what he was doing or didn’t know that it was wrong. He says that for him
” there is a doubt. . . . Alcohol would make it still more doubtful.”

These are the conflicting medical views. There is some difference of opinion
as to whether the Respondent is in fact an aggressive psychopath. Dr. Dawson
says he was, some of the others are prepared to accept that he might be,
but the real conflict was whether these explosive reactions or outbursts in
the case of an aggressive psychopath merely diminish or destroy the power
of self-control or whether they prevent him having any knowledge of the
nature and quality of his act or that it is wrong. It was a conflict with regard
to the nature of the disease of the mind from which the accused was suffering,
assuming he had the disease. If the witnesses for the prosecution were right
this disease does not even under provocation or the stimulus of alcohol
produce anything more than lack of self-control. If this was the true nature
of the disease from which the Respondent was suffering at 9.30 a.m. on 7th
September, 1960, and presumably still suffers today, the defence of insanity
fails at the outset. It was accordingly, in my view, not only permissible but
right and proper for the Lord Chief Justice to direct the jury to consider
the condition of the man at that time and to tell them in effect that the

10

subsequent consumption of alcohol could not assist the defence of insanity.
This does not mean that a man can never produce in himself a disease of
the mind by the excessive consumption of alcohol, e.g. delirium tremens, and
in such a case the question will arise whether the disease so produced results
in insanity within the M’Naghten Rules. This was not such a case. It
was not suggested that the Respondent became an aggressive psychopath as
a consequence of the consumption of alcohol. He was, it was said, an
aggressive psychopath liable to outbursts of violence on provocation or under
the influence of alcohol or any other exciting cause.

With these observations I turn to the judgment of the Court of Criminal
Appeal. They said: ” The main criticism on behalf of the Appellant of the
” Lord Chief Justice’s directions to the jury was that he directed them to
” apply the McNaghten test not to the time when the Appellant killed his
” wife but to the morning of that day before he opened the bottle of whisky.
” It is pointed out that he so directed the jury both in the early part of his
” summing up and also again nearer the end. This is at variance with the
” specific terms of the McNaghten Rules which definitely fix the crucial time
” as the time of committing the act. The insanity sought to be relied on in
” the present case is a very special form of mental aberration. A jury would
” be entitled, if they accepted Dr. Dawson’s evidence, to find that the
” Appellant suffered from a disease of the mind which was episodic and that
” it could only affect the Appellant’s reason during one of the explosive out-
” bursts to which Dr. Dawson referred. If their consideration was directed
” away from the actual time of the killing to some earlier period in the day
” when the disease was quiescent they might easily come to the conclusion
” that the Appellant was not then suffering from the type of affliction which
” was being relied upon by the defence. As against this it is pointed out
” that time and time again throughout the summing-up the Lord Chief
” Justice recurs to the questions ‘ Did the accused know what he was doing
” ‘ and did he know that what he was doing was wrong? ‘, and that on every
” occasion he relates these questions to the time of the fatal acts. This would
” be a conclusive answer if we could be sure the jury in deciding the issue
” of insanity addressed themselves to these questions. No one can say what
” happened in the jury room. If the jury followed in their deliberations
” the order in which the McNaghten test was placed before them in the
” summing-up it is conceivable that they may first have chosen to consider
” whether the Appellant was suffering from a mental disease—relating this
” question to the morning of the crime—and having considered that the
” answer to this question was in the negative may have concluded that the
” defence of insanity failed.”

The passages referred to are as follows: –

” Now, the next question 1 want to take up with you is in some
” ways, perhaps, the most difficult aspect—at all events for me—of this
” unfortunate case: When do you apply that M’Naghten test in this
” case? We have heard a lot here during the course of this trial about
” intoxication, about brain storms, about explosions, about sudden re-
” actions, and it’s very important, as I understand the situation, that we
” should get a pretty clear notion not only what the test is, but when it’s
” applied.

” There is a question of the man’s intoxication—which I will come
” to presently—and it raises an issue in itself; it also complicates the
” question of insanity. But, gentlemen, the whole tenor, the whole
” weight, of the evidence in this case, as I have found it, is to the effect
” that if this man was suffering from a disease of the mind, it wasn’t of
” a kind that is produced by drink. Sometimes we got cases v/here
” a man has become so sodden with drink that his mind becomes
” diseased; but that’s not this case. There is clear evidence here—
” and it hasn’t been disputed—that such mental peculiarities as he
” had may have existed when he wasn’t taking drink. There’s the
” evidence of Dr. Johnston, as well as Dr. Gray, that his mind hadn’t
” deteriorated. There’s every reason to come to the conclusion that

11

” if this man was insane, it wasn’t because of drink. I didn’t under-
” stand that was challenged; and it seems to me that in view of that,
” and in view of all the circumstances of the case, you have to regard
” his condition on the 7th of last September, before he touched a drop
” —on this question of insanity—later we have to come to another state
” of affairs—but on this question of insanity, my direction to you is
” that, in point of law, you must come to your conclusion without
” reference to the drink that the accused took on the 7th of September;
” and that you should direct your attention to the state of his mind
” on that morning before he opened the bottle of whisky.

” This defence of insanity in this case cannot be made good with the
” aid of that bottle of whisky. If the accused was responsible for his
” actions before drinking that morning, he did not, in the eyes of the
” law, bring himself within the category of insanity which makes a man
” not responsible for his actions simply by making himself drunk. In
” other words, if a man is answerable for his acts, he can’t bring
” himself over the line and be deemed not answerable by taking drink.”

And towards the end of his charge: —

” Now, apply this test which I have described to you, I am afraid,
” on several occasions now, in the light of all that evidence, of your
” own good sense, of what the medical men, out of their experience
” and skill, have told you, of all the circumstances of the case, and
” apply it to the situation as it existed that morning before the man
” started on the whisky bottle. If you come to the conclusion that,
” on the balance of probabilities, this man didn’t know what he was
” doing, or didn’t know ‘the nature, didn’t know that what he was doing
” was wrong, then you should find him guilty, but insane. On the
” other hand, if you come to the conclusion, remembering that the burden
” is on him of proving this defence of insanity, that he did know what
” he was doing when he killed his wife, then you should find against
” him on this evidence. If you think he knew what he was doing
” when he killed his wife, then you should find him guilty on this
” evidence. Remember the test, again. First of all. was he suffering
” from some disease or infirmity of mind? Is it such that he didn’t
” know what he was doing was wrong; or, if he did know, that he
” didn’t know it was wrong—I’m sorry—I’ll put that again. Is he
” suffering from a disease of the mind? As a result of that, was he
” prevented from knowing what he was doing: or, if he did know what
” he was doing, that it was wrong? “

My Lords, these passages, or parts of them, taken in isolation and quoted
in a text book on crime might be open to some criticism, but they must
be considered in the context of a careful and detailed summing-up dealing
with the medical evidence in relation to the particular kind of mental disease
relied upon by the defence. What the jury were being told was that they
should consider whether the particular mental disease from which he was
said to be then suffering 
was of the nature described by Dr. Dawson, namely
one in which violent outbursts will produce absence of knowledge of the
nature and quality of the act or its wrongness, or merely lack of loss of
self control as stated by the prosecution doctors. Reading the summing-up
as a whole this was, in my view, made abundantly clear. If, however, I am
wrong in the interpretation I have placed on the summing-up taken as a
whole, and if it is to be read in the sense impliedly attributed to it in the
grounds upon which the Court of Criminal Appeal certified that their
decision involved a point of law of general public importance, I would
have no hesitation, in view of the overwhelming nature of the evidence, con-
sisting largely of the Respondent’s own statements, in holding that there
had been no miscarriage of justice, and that the proviso to section 3 (1)
of the Criminal Appeal (Northern Ireland) Act, 1930, should be applied.

For these reasons I would allow the appeal and restore the verdict and
sentence passed at the trial.

12

Lord Denning

my lords,

Every direction which a judge gives to a jury in point of law must be
considered against the background of facts which have been proved or
admitted in the case. In this case the accused man did not give evidence
himself. And the facts proved against him were—

He had a grievance against his wife. She had obtained a maintenance
order against him and had been instrumental in getting him detained
in a mental hospital.

He had made up his mind to kill his wife. He bought a knife for
the purpose and a bottle of whisky—either to give himself Dutch
courage to do the deed or to drown his conscience after it.
He did in fact carry out his intention. He killed his wife with the
knife and drank much of the whisky before or after he killed her.

There were only two defences raised on his behalf: 1. Insanity:
2. Drunkenness.

The Lord Chief Justice directed the jury that the time when they had
to consider whether he was insane or not (within the M’Naghten Rules) was
before he started on the bottle of whisky. ” You should direct your
” attention “, he said to them, ” to the state of his mind before he opened
” the bottle of whisky.” If he was sane at that time, he could not make
good the defence of insanity ” with the aid of that bottle of whisky.”
Immediately after the jury retired, Mr. Kelly took up this point of time.
He suggested that it was inaccurate and inconsistent with the M’Naghten
Rules. But the Lord Chief Justice adhered to his view. He declined to
modify his charge to the jury on the matter. ” If I’m wrong “, he said,
” I can be put right.” It was on this very point of time that the Court
of Criminal Appeal reversed him. His direction was, they said, inconsistent
with the M’Naghten Rules, which fix the crucial time as “the time of
” committing the act”. that is. the time of the killing and not at an
earlier time.

The question is whether the direction of the Lord Chief Justice as to the
time was correct. At least, that is how I read the question posed by the
Court of Criminal Appeal. It is complicated by the fact that, according
to the medical evidence, the accused man was a psychopath. That does
not mean that he was insane. But it sharpens the point of the question.
He had a disease of the mind. It was quiescent before he started on the
whisky. So he was sane then. But the drink may have brought on an
explosive outburst in the course of which he killed her. Can he rely on
this self-induced defect of reason and put it forward as a defence of
insanity?

My Lords, this case differs from all others in the books in that the
accused man, whilst sane and sober, before he took to the drink, had already
made up ‘his mind to kill his wife. This seems to me to be far worse—
and far more deserving of condemnation—than the case of a man who.
before getting drunk, has no intention to kill, but afterwards in his cups,
whilst drunk, kills another by an act which he would not dream of doing
when sober. Yet by the law of England in this latter case his drunkenness
is no defence even though it has distorted his reason and his will-power.
So why should it be a defence in the present case? And is it made any
better by saying that the man is a psychopath?

The answer to the question is, I think, that the case falls to be decided
by the general principle of English law that, subject to very limited
exceptions, drunkenness is no defence to a criminal charge nor is a defect
of reason produced by drunkenness. This principle was stated by Sir
Matthew Hale in his Pleas of the Crown I p. 32 in words which I would
repeat here: ” This vice ” (drunkenness) ” doth deprive men of the use
” of reason, and puts many men into a perfect, but temporary phrenzy . . .
” By the laws of England such a person shall have no privilege by this

13

” voluntary contracted madness, but shall have the same judgment as if he
” were in his right senses.”

This general principle can be illustrated by looking at the various ways
in which drunkenness may produce a defect of reason:

A. It may impair a man’s powers of perception so that he may not
be able to foresee or measure the consequences of his actions as he
would if he were sober. Nevertheless he is not allowed to set up his
sell-induced want of perception as a defence. Even if he did not
himself appreciate that what he was doing was dangerous, nevertheless
if a reasonable man in his place, who was not befuddled with drink,
would have appreciated it, he is guilty, see Rex v. Meade [1909] 1 K.B.
895 as explained in Director of Public Prosecutions v. Beard [1920]
A.C. 479 at pp. 502-4.

B. It may impair a man’s power to judge between right or wrong,
so that he may do a thing when drunk which he would not dream
of doing while sober. He does not realise he is doing wrong. Never-
theless he is not allowed to set up his self-induced want of moral
sense as a defence. In Beard’s case [1920] A.C. 479 at p. 506 Lord
Birkenhead, L.C. distinctly ruled that it was not a defence for a
drunken man to say he did not know he was doing wrong.

C. It may impair a man’s power of self-control so that he may more
readily give way to provocation than if he were sober. Nevertheless
he is not allowed to set up his self-induced want of control as a defence.
The acts of provocation are to be assessed, not according to their effect
on him personally, but according to the effect they would have on a
reasonable man in his place. The law on this point was previously
in doubt (see the cases considered in Beard’s case [1920] A.C. 479 at
pp. 495-497) but it has since been resolved by Regina v. McCarthy
[1954] 2 Q.B. 105, Bedder v. Director of Public Prosecutions [1954]
1 W.L.R. 1119 and section 3 of the Homicide Act, 1957.

The general principle which I have enunciated is subject to two exceptions :

      1. If a man is charged with an offence in which a specific intention
        is essential (as in murder, though not in manslaughter) then evidence
        of drunkenness, which renders him incapable of forming that intent,
        is an answer, see Beard’s case [1920] A.C. 479 at pp. 501, 504. This
        degree of drunkenness is reached when the man is rendered so stupid
        by drink that he does not know what he is doing (see Regina v. Moore
        (1852) 3 C. & K. 319) as where, at a christening, a drunken nurse
        put the baby behind a large tire, taking it for a log of wood (Gentleman’s
        Magazine 1748, page 270) : and where a drunken man thought his
        friend (lying in his bed) was a theatrical dummy placed there and
        stabbed him to death (“Times” 13th January, 1951). In each of those
        cases it would not be murder. But it would be manslaughter.

      2. If a man by drinking brings on a distinct disease of the mind
        such as delirium tremens, so that he is temporarily insane within the
        M’Naghten Rules, that is to say, he does not at the time know what
        he is doing or that it is wrong, then he has a defence on the ground
        of insanity. See Reg. v. Davis, 14 Cox C.C. 563, and Beard’s case
        [1920] A.C. 479 at pp. 500-1.

Does the present case come within the general principle or the exceptions
to it? It certainly does not come within the first exception. This man
was not incapable of forming an intent to kill. Quite the contrary. He
knew full well what he was doing. He formed an intent to kill, he carried
out his intention and he remembered afterwards what he had done. And
the jury, properly directed on the point, have found as much, for they
found him guilty of murder. Then does the case come within the second
exception? “it does not to my mind : for the simple reason that he was not
suffering from a disease of the mind brought on by drink. He was suffering
from a different disease altogether. As the Lord Chief Justice observed
in his summing-up: ” If this man was suffering from a disease of the mind,
” it wasn’t of a kind that is produced by drink.”

14

So we have here a case of the first impression. The man is a psychopath.
That is, he has a disease of the mind which is not produced by drink.
But it is quiescent. And whilst it is quiescent, he forms an intention to
kill his wife. He knows it is wrong but still he means to kill her. Then
he gets Himself so drunk that he has an explosive outburst and kills his
wife. At that moment he knows what he is doing but he does not know
it is wrong. So in that respect—in not knowing it is wrong—fee has a
defect of reason at the moment of killing. If that defect of reason is due
to the drink, it is no defence in law. But if it is due to the disease of the
mind, it gives rise to a defence of insanity. No one can say, however,
whether it is due to the drink or to the disease. It may well be due to
both in combination. What guidance does the law give in this difficulty?
That is, as I see it, the question of general public importance which is
involved in this case.

My Lords, I think the law on this point should take a clear stand. If a
man, whilst sane and sober, forms an intention to kill and makes preparation
for it, knowing it is a wrong thing to do, and then gets himself drunk
so as to give himself Dutch courage to do the killing, and whilst drunk
carries out his intention, he cannot rely on this self-induced drunkenness
as a defence to a charge of murder, nor even as reducing it to manslaughter.
He cannot say that he got himself into such a stupid state that he was
incapable of an intent to kill. So also when he is a psychopath, he cannot
by drinking rely on his self-induced defect of reason as a defence of
insanity. The wickedness of his mind before he got drunk is enough to
condemn him, coupled with the act which he intended to do and did do.
A psychopath who goes out intending to kill, knowing it is wrong, and does
kill, cannot escape the consequences by making himself drunk before doing
it. That is, I believe, the direction which the Lord Chief Justice gave
to the jury and which the Court of Criminal Appeal found to be wrong.
I think it was right and for this reason I would allow the appeal.

I would agree, of course, that if before the killing he had discarded his
intention to kill or reversed it—and then got drunk—it would be a different
matter. But when he forms the intention to kill and without interruption
proceeds to get drunk and carry out his intention, then his drunkenness is
no defence and none the less so because it is dressed up as a defence of
insanity. There was no evidence in this case of any interruption and there
was no need for the Lord Chief Justice to mention it to the jury.

I need hardly say, of course, that I have here only considered the law
of Northern Ireland. In England a psychopath such as this man might
now be in a position to raise a defence of diminished responsibility under
section 2 of the Homicide Act, 1957.

My Lords, I have thus dealt with the case by considering the point
raised by the Court of Criminal Appeal: and by dealing with it, I think
it is possible to dispose of the appeal. If it were necessary to consider
any other point in order to dispose of the appeal, I would certainly be
prepared to do so: for I take the view that, once leave to appeal is given
to your Lordships’ House, all points are open as well as the point stated:
and that it is not correct for the Court of Criminal Appeal to limit the
appeal to the point which they consider to be of general public importance.
Your Lordships will be well able, of course, to prevent any abuse of this
power.

I would allow this appeal and restore the conviction of murder.

Lord Morris of Borth-y-Gest

my lords,

The Court of Criminal Appeal have certified that a point of law of
general public importance was involved in their decision. Their decision,
shortly stated, was that the conviction of the Appellant ought to be set

15

aside because the jury were wrongly directed. The point of law as defined
in the certificate of the Court of Criminal Appeal can only have relevance
and significance if it is related to their decision that the summing-up was
open to criticism on the ground that there was misdirection. As the point
of kw stated by the Court of Criminal Appeal is not a theoretical one but
a practical one it must be taken to postulate that there was evidence from
which the jury could have held that the accused had been in a psychopathic
condition, that such condition was quiescent, that he voluntarily consumed
intoxicating liquor, and afterwards had an “explosive outburst”, and to
raise the question whether on such basis the jury was incorrectly directed
as to the application of the rules in M’Naghten’s case. The submission of
the Appellant was that there was no misdirection.

On the part of the case dealing with insanity the issue before the jury
was whether the accused at the time of the killing was suffering from a
disease of the mind, which disease had the effect of producing a defect of
reason so that either he did not know the nature and quality of the act he
was doing or that he did not know that it was wrong. If he had any
disease of the mind he had it prior to and in the morning of the 7th
September: it was immaterial how it was caused though if the accused
had any disease of the mind it was not of a kind that was caused by drink.
If he had a disease of the mind in the morning I do not read the medical
evidence as suggesting that some later consumption of alcohol altered the
nature of the disease. Nor do I read the medical evidence as suggesting that
any disease of the mind originated during the day. It was said that the
accused had a disease of the mind which was ” episodic ” in that it made
him liable to have outbursts. If there was some explosive outburst resulting
either in his not knowing what he was doing or not knowing that it was
wrong there would only be applicability of the M’Naghten Rules if such
explosive outburst was a manifestation of, or a result of, some disease of
the mind which existed in the morning. If there was some explosive
outburst which resulted from drink and not from a disease of the mind,
then the M’Naghten Rules would not be applicable. It was for the accused
at the trial to show that his actions at the time of the killing were
manifestations of a disease of the mind and not manifestations of being
under the influence of alcohol.

Since in the present case it was not suggested that if the accused had
some disease of the mind it had not existed at the start of the day and
throughout the day, a consideration as to whether such disease existed in the
morning was equally a consideration as to whether it existed ” at the time
” of the committing of the act”. When the learned Lord Chief Justice
told the jury in his summing up that they should come to their conclusion
without reference to the drink that the accused took on the 7th September,
and should direct their attention to the state of his mind in the morning
before he opened the bottle of whisky, he was helpfully reminding them
that for the M’Naghten Rules to apply the defect of reason producing
a condition of either not knowing the nature and quality of the act being
done or of not knowing that it was wrong must be the result of a disease
of the mind and not the result of being under the influence of drink. The
learned Lord Chief Justice was pointing the difference between the possible
case where a psychopath does something because he is drunk and the
possible case where a psychopath does something because he is a psychopath.

The many references in the summing-up to the tests in regard to the
knowledge of the accused, that is, his knowledge as to the nature and
quality of the act he was doing or as to whether it was wrong) must in the
nature of things have had reference to the moment of time of the act (i.e.
the killing) which was in question. The learned Lord Chief Justice sum-
marised all the medical evidence very carefully The most that Dr. Dawson
could say in regard to the accused’s knowledge was that assuming that the
accused ” may have been under the influence of alcohol ” he (Dr. Dawson)
expressed a ” very real doubt ” as to the accused’s knowledge in the material
respects: if it were assumed that the accused had not had alcohol Dr.
Dawson expressed ” a doubt” as to the accused’s knowledge.

315I2 A4

16

If the jury thought that the accused did have a disease of the mind then
such disease of the mind existed on the morning of the 7th September, and
before the defence of insanity could succeed the jury would have had to
have been of the opinion that that disease of the mind was of such a kind
that it could produce and that it did produce a defect of reason which
had the result that the accused either did not know what he was doing
or did not know that it was wrong.

Having these considerations in mind, it seems to me that read as a whole
the summing-up did not wrongly direct the jury in their consideration of
the issue of insanity.

I would allow the appeal.

 

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