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  • ‘Irresistible impulse’: historicizing a judicial innovation in Australian insanity jurisprudence

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    Author(s)
    Finnane, Mark
    Griffith University Author(s)
    Finnane, Mark J.
    Year published
    2012
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    Abstract
    In twentieth century Australian criminal law a distinctive departure from the M'Naghten standard rules developed as a critique of the discourse of reasoning and verdicts applying in the relevant English trials from the 1880s. The English verdict of 'guilty but insane' was criticised by the leading jurists as contradictory. And in a sequence of influential judgments the jurist Owen Dixon articulated an approach to the insanity defence that made room for a medico-legal discourse that broadened the possible referents of what it meant to 'know' the legality of an act, as well as acknowledging the complex behavioural factors that ...
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    In twentieth century Australian criminal law a distinctive departure from the M'Naghten standard rules developed as a critique of the discourse of reasoning and verdicts applying in the relevant English trials from the 1880s. The English verdict of 'guilty but insane' was criticised by the leading jurists as contradictory. And in a sequence of influential judgments the jurist Owen Dixon articulated an approach to the insanity defence that made room for a medico-legal discourse that broadened the possible referents of what it meant to 'know' the legality of an act, as well as acknowledging the complex behavioural factors that might determine an act of homicide. This paper explores the shaping and significance of this departure and its comparative judicial, medical and social contexts. A concluding discussion considers whether the more flexible interpretation of the insanity defence implied by the direction of Dixon's decisions made as much of a difference to frequency of use of the defence as the contemporaneous decline and eventual abolition of capital punishment.
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    Journal Title
    History of Psychiatry
    Volume
    23
    Issue
    4
    DOI
    https://doi.org/10.1177/0957154X12450128
    Copyright Statement
    © 2012 SAGE Publications. This is the author-manuscript version of the paper. Reproduced in accordance with the copyright policy of the publisher. Please refer to the journal's website for access to the definitive, published version.
    Subject
    Legal theory, jurisprudence and legal interpretation
    Literary studies
    Historical studies
    Australian history
    History and philosophy of specific fields
    Publication URI
    http://hdl.handle.net/10072/49437
    Collection
    • Journal articles

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