Criminal Responsibility A true story of death, grief and the law

The concept of criminal responsibility in the context of the Australian legal system is explored in great detail in the text Joe Cinques Consolation written by Helen Garner1. In her novel, Garner follows the proceedings of a case of diminished responsibility in The Queen v Anu Singh [1999] ACTSC 662 . In summation, Anu Singh, a law student at Canberras Australian National University, killed her boyfriend, Joe Cinque and was found not guilty of murder, but of manslaughter due to the appellant having a substantial impairment by abnormality of mind3 . Garner explores the destruction caused to the family and friends of the victim and the accused and the desire felt by all for justice and retribution. Garner, rather than focusing on the trial itself, looks closely into the lives affected by it. The wider public, made aware of court proceedings and sentencing by the media is excluded from the story once the trial ends, ceasing the little affiliation they felt towards the victim and the families. In an effort to rectify this problem, Garner immerses herself in the tragedy that is Joe Cinques death and makes herself and her readers aware of the pain caused by the criminal actions of Anu Singh. Through the recordings of the conversations between Garner and the Cinque family, readers are faced with the reality of the shortcomings of the justice system in ameliorating their pain. This essay will explore the partial defence of diminished responsibility and what it means for those left behind by the victim.

Diminished responsibility is a partial defence to murder, operating to reduce that offence to manslaughter... As its name suggests, diminished responsibility partially excuses such persons on the basis that the fault element necessary to found a murder conviction, although present, is of
1 2 3

Helen Garner, Joe Cinques Consolation (Pan Macmillan Australia Pty Limited, 2006). The Queen v Anu Singh [1999] ACTSC 66. Crimes Amendment (Diminished Responsibility) Act 1997 (No 106) 23A 1. Page | 1

diminished quality.4 The partial defence of diminished responsibility is used in situations where a defendant displays a kind of mental dysfunction, but is not so serious as to establish the grounds for the complete defence of insanity. In the case of Anu Singh, defence psychiatrists found her to be suffering from a severe borderline personality disorder and severe depression5 contributing to an abnormality of the mind. In order to successfully claim the partial defence of diminished responsibility, the appellant must prove that their mental impairment was so debilitating and significant as to justify the reduction of their crime from murder to manslaughter. In Garners novel, Justice Crispin, the judge presiding over the Singh trial stated To be frank, Id never seen a case of diminished responsibility that was as easy to prove as that one. Though this is true in this particular case, it is certainly not true for all. In R v Christov [2006] NSWSC 9726, the appellant was considered for the partial defence of substantial impairment after he was found guilty of murdering Lynette Philips. At the conclusion of the trial, the judge found that Christovs impairments were not substantive enough to be considered as a basis for the defence of diminished responsibility as his conditions were self-induced, and were not of a pre-existing mental or physiological condition other than of a transitory nature. The onus of proof in the case of diminished responsibility is on the appellant rather than the prosecutor and from the case of R v Christov, it is made clear that proving diminished responsibility is no easy feat.

The most consequential issue with the implementation of the defence of diminished responsibility is in the way the public respond to it. The defence itself is inundated by confusion 7, making it difficult for the public to understand and distinguish it from the complete defence of

Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General. MCCOC, Fatal Offences Against the Person (at 15 April 2013) 113.
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Garner, above n 1, 38. R v Christov [2006] NSWSC 972.

New South Wales Law Reform Commission, Partial Defences to Murder: Diminished Responsibility, Report No 82 [1997]. Page | 2

insanity. As well as the issue of the public not being able to fully comprehend the complexity of this defence, is the problem with the public accepting and supporting the reduction of murder to manslaughter. Public confidence in the law and the justice system as a whole is damaged by the discernment that it functions to pardon criminals because of the strange and often, abominable ways in which they commit their crimes, as seen in Garners novel. Robert, the godson of the parents of Joe Cinque reveals The magnitude of what happened here is mind-blowing. And shes walking free. People get more time for killing a dog... My godparents feel abandoned by justice.8 Maria Cinque, mother of Joe, at the sentencing hearing is described as being transfixed by a strange, breathless need and angrily lamenting the death of her son, yelling, You demon. Rot in hell forever. Ill never ever forgive you. Shes a demon. My son - thats all? Four years? How can you sleep at night? Four years? Is that all my son is worth?9 The reduction of murder to manslaughter prompted by the defence of diminished responsibility is very clearly, unappealing to those close to the victim. As well as those who were a part of the victims party, the general public feel the injustice of the partial defence, such as onlooker Helen Garner. Here she describes her own malicious thoughts directed at the accused: Into my thoughts kept seeping fantasies of violent retribution. Of execution10 These two quotes accurately describe the disillusionment felt by members of those close to the victim and even those of outsiders - the legal system in whom they hoped would provide justice for the deceased, failed to alleviate their grief.

For the families of victims of murder, whilst their loved ones have passed, they remain, to feel and to fill the vacancies they left behind. With the death of Joe Cinque, the hurt extended not only to his parents, but his younger brother, his friends, coworkers and local community. His immediate family suffered a great deal, both mentally and physically. His mother was described by
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Garner, above n 1, 302-303. Garner, above n 1, 127. Garner, above n 1, 87. Page | 3

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her godson as a tormented soul11, he then goes on to say My godmother probably seems a very bitter person, but its a superficial bitterness. Underneath it theres a huge warmth.12 For a character of huge warmth, the changes she and her husband underwent were great, as she describes her ideal sentence for Anu Singh being Hang on that tree over there13 . To further reinforce her transformation, Maria Cinque says of herself Im a very angry person at the moment...If I ever see her walking down the street Im gonna... If theres no justice, you gotta make your own justice.
14This

excerpt exemplifies the extremity of her grief, caused by what the saw as an injustice to her

son. As well as Maria, her son Anthony, Joes brother, was traumatised by the case. Maria, in a phone call to Helen Garner confided Anthonys had a breakdown. He ran away from the psych hospital and tried to kill himself. The immense pain and suffering felt by Cinques relatives begs the question - what sentence is enough to provide closure for a dead boys family? The evidence of the detrimental effects the defence of diminished responsibility has on a victims family is substantial and convincing, which makes it difficult to comprehend why the partial defence was implemented, if looking only from the victims perspective. This idea, encourages the belief that in the current legal system, justice cant be provided for everyone. In the final chapter of Garners book, she meets Justice Crispin in his chambers to discuss the trial, and to a lesser extent, the shortcomings of the law in providing justice. Neither Garner, nor Justice Crispin is satisfied15 . Garner writes I felt the self-righteous anger seeping out of me. There was nowhere for me to go with it. All that remained was sorrow and loss.

11 12 13 14 15

Garner, above n 1, 303. Garner, above n 1, 303-304. Garner, above n 1, 129. Garner, above n 1, 193.

Fraser, Morgan, Joe Cinques Consolation (2004) 14/08/2004 The Age. Accessed at http://www.theage.com.au/ articles/2004/08/11/1092102517082.html?from=storyrhs on 19/04/2013. Page | 4

Anu Singh, at the time of the murder, could not be held fully responsible for her actions due to her impaired mental state. This defence however, provided no consolation to the family of the deceased whose lives would be forever damaged by her actions. In reducing Singhs sentence, the grief of the Cinques was increased. Singhs responsibility was to serve her sentence and to live with her guilt, not to end the Cinques pain. From inductive reasoning, it could be said that the responsibility of all criminals is to serve their time and live with what they have done.

The concept of criminal responsibility is difficult to examine, Garners novel however, did well in investigating the effects a crime has on a victim, and where the victim is deceased, the victims family. The novel makes one question the idea of justice and the overall effectiveness of the legal system in administering justice. The case of Joe Cinque is a sad and extreme example of the effects a substantial impairment by abnormality of mind has on both the accused and the victim. To ascertain what responsibility the criminal has in such a situation is extraordinarily difficult, but regarding the effects their actions have on the family of the deceased, it is clear that the defence of diminished responsibility does not provide them any closure, but worsens their pain.

Word Count: 1,501

Bibliography 1. Helen Garner, Joe Cinques Consolation (Pan Macmillan Australia Pty Limited, 2006). 2. The Queen v Anu Singh [1999] ACTSC 66. 3. Crimes Amendment (Diminished Responsibility) Act 1997 (No 106) 23A 1. 4. Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General. MCCOC, Fatal Offences Against the Person (at 15 April 2013) 113. 5. R v Christov [2006] NSWSC 972. 6. New South Wales Law Reform Commission, Partial Defences to Murder: Diminished Responsibility, Report No 82 [1997]. 7. Fraser, Morgan, Joe Cinques Consolation (2004) 14/08/2004 The Age. Accessed at http:// www.theage.com.au/articles/2004/08/11/1092102517082.html?from=storyrhs on 19/04/2013.

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