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Not Guilty by Reason of Insanity: A Critical Examination of

Section 84 of the Brunei Penal Code

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52 The Law Review 2020

Not Guilty by Reason of Insanity:

A Critical Examination of Section 84 of the
Brunei Penal Code

Ahmad Masum,* Muhammad Hassan Ahmad** and SMM Nafees***

Abstract

It has been ethically, legally and socially accepted that a person who is
suffering from insanity cannot and should not be criminally responsible for
his actions or inactions. A mentally ill person is not punished for his crime, as
he is devoid of free will, intelligence and knowledge of the act. The defence of
insanity provides protection to persons with insanity. It plays a vital role in
giving protection from criminal liability to such persons who can not
understand the nature of their acts due to their insanity. The basis of the
defence of insanity lies in the maxim Actus reus non facit reum, nisi mens sit rea
which means that no man can be proved guilty unless he has a guilty mind.
Whenever an insane person commits a crime due to the effect of his insanity,
he does not have a guilty mind to understand that what he is doing is
prohibited by law. The Brunei criminal law system has laid down the defence
of insanity under s 84 of the Brunei Penal Code (Cap 22). This paper critically
examines the law relating to the defence of insanity under the Bruneian
criminal law system by making reference to the Penal Code. The
methodology adopted in this paper is legal library-based research focusing
mainly on primary and secondary legal sources. The paper concludes that
the extent to which the defence of insanity may hold is not certain. In Brunei,
judges are not readily moved by such defence neither is the society. In
addition, legal scholars and jurists are greatly limited in the knowledge of
psychology behind abnormality and the behavioural altitudes that could
pass the definition of insanity. The paper recommends that there is a need to
return to a more common sense and humane interpretation of legal insanity
by paying closer attention to the severity of the emotional disturbance of the
individual committing the disturbed and illogical act.

*
Senior Assistant Professor, Faculty of Shariah and Law, Sultan Sharif Ali Islamic University,
Jalan Pasar Baharu, Gadong BE1310 Bandar Seri Begawan, Negara Brunei Darussalam.
Email: [email protected] or [email protected].
**
Assistant Professor, Civil Law Department, Ahmad Ibrahim Kulliyyah of Laws,
International Islamic University Malaysia, Jalan Gombak, PO Box 10, 507828
Kuala Lumpur, Malaysia: Email: [email protected].
***
Senior Lecturer, Department of Islamic Studies, Faculty of Islamic Studies and Arabic
Language, South Eastern University of Sri Lanka, Oluvil, Sri Lanka. Email:
[email protected].
 Not Guilty by Reason of Insanity:
A Critical Examination of Section 84 of the
Brunei Penal Code 53

Keywords: Brunei, criminal law, criminal liability, defence of insanity, legal

insanity, Penal Code.

1. Introduction
An insane person who commits an offence is not guilty by reason of insanity.
This is because an insane person does not have the mens rea in committing a
crime and he does not understand nor know what he was doing, or even if he
knew what he was doing, he did not know that his acts were wrong, or that
he did not know the effect and result of what he was doing is contrary to the
law.1 The defence of insanity is recognised by the Brunei Penal Code as an
answer to any criminal charge, which if successful, will result in the
accused’s acquittal on the ground of unsoundness of mind.2 Regardless of
the recognition of the defence of insanity under the Brunei Penal Code, the
subject of insanity is one of the difficulties in the whole range of law of crimes
and has given rise to endless discussions and controversies. It has been the
cause of a war of great feelings between the medical and legal profession.3
The question of insanity is really not the question of fact. The question is of
responsibility. Recent tendencies indicate a development towards
recognition of insanity not as a question of law, but as one of fact.4
The aim of this paper is to critically examine the operation of the defence of
insanity under s 84 of the Brunei Penal Code. The paper argues that the
formulation of the Penal Code defence of insanity is outdated, having been
modelled upon the M’Naghten’s rules with its 19th century views on mental
malfunctioning and criminal responsibility. The M’Naghten test only looks at
the cognitive and moral aspects of the defendant’s actions. An insane person
may therefore often know the nature and quality of his act and that the law
forbids it but yet commit it as a result of the mental disease. Hence, a major
overhaul of the provision is inevitable in terms of the administration of
justice.

This paper is divided into five parts, excluding the introduction. The first
part deals with the definition of insanity. The second part addresses the
M’Naghten rules in the context of the defence of insanity. The third part
addresses the Bruneian law on the defence of insanity. Under this part, the
authors intend to address s 84 of the Brunei Penal Code and its implications.
The fourth part addresses the criticisms on s 84 of the Brunei Penal Code. The
discussion about the criticisms of the section is vital in terms of paving way

1
Hj Mohamad Sharif Hj Abu Samah and Hjh Asida Hj Mohd Ali, Criminal Law in Malaysia
(Petaling Jaya: International Law Book Services, 2012), p 149.
2
Section 320 of the Brunei Criminal Procedure Code. See also ss 314 and 347 of the Singapore
and the Malaysian Criminal Procedure Codes respectively.
3
Raj Kumar Upadhyay, “Defence of Insanity under the Indian Legal System: An Analysis”
(2017) 7(3) International Journal of Engineering and Management Research 711-717.
4
Homer D Crotty, “The History of Insanity as a Defence to Crime in English Criminal Law”
(2017) 12 California Law Review 105-123.
54 The Law Review 2020

for reform as far as the operation of the defence of insanity is concerned. The
fifth part offers some recommendations in terms of the operation of the
defence of insanity under the Bruneian criminal legal system.

2. Definition of insanity

Insanity has a different meaning in medicine and law. Insanity in the legal
sense connotes the absence of a guilty mind.5 In determining whether a
person is legally insane at the time of the criminal act, the concept of mental
disease has been an important element since the M’Naghten rules6 were
formulated by the House of Lords. Insanity has been used historically to
denote those persons whose state has resulted from involuntary causes and
hence the analogy to physical disease was a natural one. For example, we
think of insane persons as being afflicted (acted upon rather than acting) – as
being “sick” through no fault of their own – and thus we do not hold them
criminally responsible.7 It is perhaps inevitable under these circumstances
that the term “mental disease” have come to acquire its present importance in
this area, but in several respects this development was unfortunate.8 The
term was developed in the context of legal tests of criminal responsibility, but
no legal definition evolved.

In addition, it has been generally assumed that “mental disease” is a medical

term,9 more particularly a term within the special purview of those medical
men charged with behavioural abnormalities – the psychiatrists. However, it
is unfortunate to note that there is no authoritative or generally accepted
medical definition of mental disease. In other words, there is neither a clear
definition of mental disease nor agreement on the best way to approach such
a definition. It is the contention of the authors that a definition is important
where so central a concept is involved. For example, there may be some
objectively identifiable medical conditions which ought reasonably to be
classified as mental disease on the basis of accepted medical doctrine.

5
Herbet Fingarette, “The Concept of Mental Disease in Criminal Law Insanity Tests” (1966)
33 The University of Chicago Law Review 229-248, available at https://chicago
unbound.uchicago.edu/cgi/viewcontent.cgi?article=5749&context=uclrev (accessed on
December 12, 2019).
6
“[T]o establish a defence on the ground of insanity, it must be clearly proved that, at the
time of the committing of the act, the party accused was laboring 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 he was doing what was wrong”.
M’Naghten’s case, 10 Cl & F 200, 210, 8 Eng Rep 718, 722 (HL 1843).
7
Herbet Fingarette, supra, n 5, p 232.
8
Ibid.
9
Henry Weihofen, “The Definition of Mental Illness” (1960) 21(1) Ohio State Law Journal 1-16,
available at https://kb.osu.edu/bitstream/handle/1811/68205/OSLJ_V21N1_0001.pdf
(accessed on December 12, 2019). See also Louis H Swartz, “Mental Disease: The
Groundwork for Legal Analysis and Legislative Action” (1963) 3(4) University of
Pennsylvania Law Review 389-420, available at https://scholarship.law.upenn.edu/
cgi/viewcontent.cgi?article=6827&context=penn_law_review (accessed on December 12,
2019).
 Not Guilty by Reason of Insanity:
A Critical Examination of Section 84 of the
Brunei Penal Code 55

However, the current position of the defence of insanity in Brunei has little to
do with madness or with any medical definition of insanity; the concept is
given a purely legal definition. As a result, it has been held to include
conditions such as sleep-walking and epilepsy, despite the fact that doctors
would never label such conditions as forms of insanity.

It would suffice to note that the unsatisfied need for a definition of mental
disease cannot be ignored if the defence of insanity is to be allowed to operate
in a fair manner. In other words, the notion of modernising the law of insanity
in the light of contemporary thinking concerning mental malfunctioning and
criminal responsibility is inevitable.10 For instance, in court, you may be
diagnosed by mental health professionals as schizophrenic and do irrational
things, but from a legal standpoint, if it is determined that you are capable of
knowing right from wrong and you can “appreciate” the nature of your
crime which may indeed have been guided by or encouraged by emotional
disorder, you are not, insane.11 Thus, the paper argues that the scope of legal
insanity is to be widened to incorporate some more aspects of medical
insanity.

3. The M’Naghten rules

The rules on the defence of insanity were laid down in the M’Naghten case
back in 1843. Daniel M’Naghten was obsessed with the then Prime Minister,
Sir Robert Peel, and tried to kill him. He actually killed Peel’s secretary
instead and was charged with the secretary’s murder. He was found not
guilty by reason of insanity, and this verdict produced enormous public
disapproval. One result of the outcry was that judges outlined their
reasoning on insanity as a defence, producing what became known as the
M’Naghten rules. The rules laid down were:

(a) everyone is presumed sane;

(b) in order to rebut this presumption, the accused must prove on a
balance of probabilities, that when the offence was committed, they
were labouring under such defect of reason, caused by a disease of the
mind, so that either;

(c) they did not know the nature and quality of their act; or

(d) they did not know that what they were doing was wrong in law. In
essence, this is saying that the defendant did not know what they were
doing.

10
Chan Wing Cheong, Stanley Yeo and Michael Hor, Criminal Law for the 21st Century –
A Model Code for Singapore (Singapore: Academy Publishing, 2013), p 211.
11
Ifeanyi E Okonkwo and Chikasolu E Uzoka (2014), “Defence of Insanity in Nigeria and
Present Psychological Findings: A Further Evaluation”, available at https://unzik-
edu.academia.edu/EmmanuelOkonkwo (accessed on December 12, 2019).
56 The Law Review 2020

There are three conditions to be satisfied in any case where a defence of

insanity is raised and these conditions are: i) the accused was suffering from
the disease of the mind at the time of committing the act; ii) this disease gave
rise to a defect of reason; and iii) he did not know the nature and quality of the
act he had committed, or if he did know, that he did not know that what he
was doing was wrong or contrary to law. The M’Naghten test cannot be taken
as a foolproof definition, because it fails in explaining various aspects of
insanity. For example, the M’Naghten test is based on the entirely obsolete
and misleading conception of nature of insanity, since insanity does not only
affect the cognitive faculties but affects the whole personality of the person
including both the will and the emotions.12 Furthermore, the M’Naghten test
only looks at the cognitive and moral aspects of the defendant’s action. It is
important to note that an insane person may often know the nature and
quality of his act and that the law forbids it but yet commit it as a result of the
mental disease. Thus, the paper argues that the M’Naghten test is defective
and the law must be changed in the interest of proper administration of
justice.
4. Bruneian law on the defence of insanity

In Brunei, like in many other jurisdictions, the defence of insanity is cast in

the language of the M’Naghten rules which ask in substance, whether the
defendant/accused knew what he was doing when he committed the
offence. These formulations have been received in the criminal law as part of
a tradition which makes the notion of “blame” central to criminal
responsibility and which tries to define a class of persons who fall outside the
boundaries of blame.

Insanity or unsoundness of mind is one of the general exceptions that exist in

the Brunei Penal Code that excludes an individual from criminal
responsibility. This is by virtue of s 84 of the Brunei Penal Code. The term
“insanity” however is not used under this provision. The Brunei Penal Code
uses the phrase “unsoundness of mind”. Under the Penal Code, the defence
of insanity or which can be also called as the defence of unsoundness of mind
as mentioned earlier derives its source from the M’Naghten rules. Section 84
of the Brunei Penal Code provides for an act of a person of unsound mind:
Nothing is an offence which is done by a person who, at the time of doing
it by reason of unsoundness of mind, is incapable of knowing the nature of
the act, or that he is doing what is either wrong or contrary to law.
Based on s 84 above, the paper argues that the defence of unsoundness of
mind is much wider than the word “insanity”. The word “insanity” has a

12
Raj Kumar Upadhyay, supra, n 3, p 714. See also David A Suemnick, “Insanity as a Defense
and the Problem of Definition” (1963) 46(4) Marquette Law Review 541-548, available at
https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=2792&context=mulr
(accessed on December 12, 2019).
 Not Guilty by Reason of Insanity:
A Critical Examination of Section 84 of the
Brunei Penal Code 57

very limited scope whereas “unsoundness of mind” covers a much wider

area.13 An act done by a person with unsoundness of mind does not only
include acts done by a person who is insane but also includes acts done by a
person who at the time of doing it, does not do it from his mind or his mind
was not functioning at the time he does the acts. In other words, that person
does not have any malice (mens rea) when he does the criminal act.
Therefore, the words “unsoundness of mind” as provided under s 84 of the
Brunei Penal Code includes a person who suffers from sleepwalking. For
example, John suddenly rose from his sleep at night, and in a dream state, he
took a knife and repeatedly slashed his wife who was sleeping beside him
because in his dream he was coiled by a snake hence he fought hard to
destroy the snake.

Section 84 of the Brunei Penal Code lays down the legal test of responsibility
as distinguished from the medical test. Hence, the unsoundness of mind
refers to legal insanity and not medical insanity. The term “legal insanity”
refers to certain requirements that need to be satisfied by the accused person
in accordance with specific rules set out by the law.14 Legal insanity is a
concept narrower than medical insanity. For example, it may be observed
that the absence of will arises not only from the absence of maturity of
understanding but also from a morbid condition of the mind. This morbid
condition of the mind, which affords an exemption from criminal
responsibility, differs in a medical and legal point of view. According to the
medical point of view, it is probably correct to say that every man at the time
of committing a criminal act is insane and therefore needs an exemption from
criminal responsibility.15 On the other hand, from a legal point of view, a man
must be held to be sane so long as he is able to distinguish between right and
wrong or the act done is contrary to law.16 Bearing this difficulty in mind, the
paper argues that there is a need to return to a more common sense and
humane interpretation of legal insanity by paying closer attention to the
severity of the emotional disturbance of the individual committing the
disturbed and illogical act.

In trying to understand the gists of s 84 of the Brunei Penal Code, it is equally

important to point out that the section is identical to s 84 of the Indian and
Singapore Penal Codes and therefore in analysing the section it is
appropriate to refer to Indian and Singapore authorities as well. The
following are the elements that the accused must establish in order to
successfully invoke the defence of insanity under s 84 of the Brunei Penal
Code:

13
Ajay B Sonawane and Adv Radhika S Banpel-Raje Bhonsle, “Defence of Insanity in India
and England: Comparative Legal Paradigm” (2016) 3(1) International Journal of Law and
Legal Jurisprudence Studies 146-153.
14
Ibid, p 148.
15
Raj Kumar Upadhyay, supra, n 3, p 715.
16
RC Nigam, Law of Crimes in India (New York: Asia Publishing House, 1965), p 364.
58 The Law Review 2020

4.1 Elements of the defence of insanity

For the defence under s 84 of the Brunei Penal Code to succeed, the accused
must satisfy the following requirements:
(1) that at the time of the alleged offence, he was suffering from
unsoundness of mind which,

(2) negated his capacity to know,

(3) the nature of the act, or that he was doing what was either wrong or
contrary to law.
(a) Unsoundness of mind

Section 84 requires the accused to have suffered from “unsoundness of

mind” which impaired their capacity to know the nature of their conduct or
to know that it was either wrong or contrary to law.17 The Brunei Penal Code
does not define the term “unsoundness of mind”. Unsoundness of mind is
used to describe only those conditions that affect the cognitive capacity of an
individual. So, every person who is mentally ill is not relieved from his
responsibilities. As mentioned earlier, the law makes a distinction between
medical and legal insanity. Medically, a person is termed insane if he is
suffering from any disease or disorder of the mind. Medical insanity means
the person’s consciousness of the bearing of his acts on those affected by it
and by legal insanity it means the person’s consciousness in relation to
himself.18 Conditions like emotions, fear, hatred, jealousy, revenge, anger,
perversions and lack of self-control may be termed as features of insanity in
medical term. In some of these situations, a person might become fit subject
to be admitted in a mental hospital. In the eyes of law, these aspects are not
considered. Law recognises only those conditions as insanity which impairs
the cognitive faculties of the mind.19
In addition, there can be no legal insanity unless cognitive faculties of the
mind are, as a result of unsoundness of mind are so affected as to render the
accused incapable of knowing the nature of the act or knowing that what he
is doing is wrong or contrary to law. For the purpose of criminal emphasis is,
therefore, on the degree of unsoundness of mind. In the local case of Public
Prosecutor v Arcala,20 the defendant was a Philippines national who was
employed as an amah (maid) for a family whose youngest child was an

17
Stanley Yeo, Criminal Defences in Malaysia & Singapore (Singapore: LexisNexis Butterworth,
2005), p 166. See also Stanley Yeo, Neil Morgan and Chan Wing Cheong, Criminal Law in
Malaysia and Singapore, 2nd edn (Singapore: LexisNexis, 2012), p 683.
18
YV Chandrachud, Ratanlal and Dhirajlal’s The Indian Penal Code, 28th edn (Calcutta:
Academic Publishers, 2001), pp 164-167.
19
Stanley Yeo, supra, n 17, p 170. See also Prateek Rastogi, “Section 84, Indian Penal Code: An
Analysis” (2006) 28(4) Journal of Indian Academy of Forensic Medicine 180-183, available at
http://medind.nic.in/jal/t06/i4/jalt06i4p180.pdf (accessed on December 12, 2019).
20
[1993] BLR 204.
 Not Guilty by Reason of Insanity:
A Critical Examination of Section 84 of the
Brunei Penal Code 59

18 months old boy. One of the defendant’s main tasks was to look after the
boy. Two days after commencing her employment, the defendant killed the
boy by using a chopper to inflict seven injuries to the neck and four injuries
to the hands. The defendant was charged with murder. In a statement to the
police, she admitted killing the boy but stated that while she was chopping
the child’s neck she did not know what she was doing. In her evidence at
trial, she stated that she heard voices and that when she killed the child she
thought she was killing a cat. Medical evidence adduced by both the
prosecution and the defence was to the effect that the defendant was
suffering from schizophrenia and that when she killed the child was
incapable of knowing the nature of her act or that what she was doing was
wrong. The Brunei High Court held that where insanity was raised as a
defence of murder, criminality depended not on any medical test of insanity
but on the M’Naghten test as propounded in s 84 of the Penal Code.
In another local case of Public Prosecutor v Abdul Rashid bin Haji Ishak,21 the
defendant was convicted on his own plea of guilty (after having been
certified by a doctor that he was of sound mind and capable of making his
defence) to a charge of criminal intimidation contrary to s 306 of the Penal
Code, holding out threat of injury to a public servant, contrary to s 189 of the
Penal Code; voluntary causing hurt to his wife and five months old child,
contrary to s 323 of the Penal Code and attempting to cause grievous bodily
hurt with a knife to his child, under s 326 of the Penal Code. Two medical
reports provided by Dr Ramli Hassan, the Specialist Psychiatrist, RIPAS
Hospital stated that the defendant has been suffering from abnormal
behaviour since 1996/1997 and the offences with which the defendant was
charged may have occurred as a result of the mental illness “schizophrenia”
and that the defendant was of unsound mind at the time he committed the
offences and was suffering from a defect of reason that he did not know what
he was doing at the time was wrong. He recommended long treatment with
medication and continuous supervision. The Brunei High Court held that:

(1) The medical reports were consistent with the facts of the offences
which revealed no discernible motive for the appellant to hurt his own
wife and child.

(2) On the balance of probabilities, the court finds that although the
defendant admitted to the charges, he may have been incapable at the
time of knowing the nature of the acts or that it was wrong or contrary
to law.

(3) The offences, therefore, come within s 84 of the Penal Code and he
could not be found guilty of the charges.

(4) Special finding made by the court under s 320 of the Criminal
Procedure Code and the defendant found to be of “unsound mind”

21
[2002] JCBD 91.
60 The Law Review 2020

and “insane” as not to be responsible for his actions at the time he

committed those offences.

(5) Appellant ordered to be confined to a lunatic asylum or prison or other

suitable places of custody pursuant to s 321(4) of the Criminal
Procedure Code, pending the order of the Permanent Secretary, Prime
Minister’s office.
These local cases cited above clearly show that the law only considers
disturbance of cognition as unsoundness of mind in legal terms. Therefore, it
is imperative to note that the term “unsoundness of mind” as it appears in
s 84 of the Brunei Penal Code has a highly specific meaning in criminal law.
It is not necessarily used in its medical sense but it shall be understood in its
legal meaning. The paper argues that the defence of insanity or unsoundness
of mind as provided under s 84 of the Brunei Penal Code refers to legal
insanity and not medical insanity. Hence, it is the contention of the authors
that the need to reform the defence of insanity as propounded in s 84 of the
Brunei Penal Code is very strong. We ought to remember that the M’Naghten
rules were formulated in the belief that responsibility is the essence of the
criminal law and that capacity to choose between right and wrong is the
essence of responsibility.

(b) Unsoundness of mind should exist at the time of the act

According to s 84 of the Brunei Penal Code, the unsoundness of mind should

exist at the time of committing the act or alleged offence. It is only the
presence of insanity at the time of the act which matters and not before or
after that.22 If insanity exists at the time of trial, it can only lead to
postponement of trial but not to the acquittal of the accused.23 Section 84
requires only that the cognitive incapacity was present at the time of the act.
In the local case of PP v Sinting binti Suntai,24 the defendant was charged with
the murder of one of her children and causing grievous hurt to her other two
children. At her trial, the defendant raised the defence of insanity. In
evidence, she claimed that she had suffered from mental problems since
childhood, that she had previously suffered from black-outs and had seen
apparitions and stated that her only recollections of the events were of an
apparition entering into her, that she could not remember anything else after
that and that she only learnt of what had occurred when she was in hospital
recovering from her injuries. Medical evidence was given by a psychiatrist
that the defendant was suffering from chronic paranoid schizophrenia and
that she was likely to have also been suffering from premenstrual tension at
the time of the attack. Under s 84 of the Penal Code, no offence was
committed if the person committing the act was at the time incapable by
reason of unsoundness of mind of knowing the nature of the act or that what

22
VV Pillay, Textbook of Forensic Medicine and Toxicology, 14th edn (2004), p 314.
23
See Brunei Criminal Procedure Code (Cap 7), s 315.
24
[1988] BLR 25.
 Not Guilty by Reason of Insanity:
A Critical Examination of Section 84 of the
Brunei Penal Code 61

he was doing was either wrong or contrary to law. The Brunei High Court
held that the burden lay on the accused to prove insanity. The standard of
proof required was no higher than the standard required in civil proceedings.
If the defendant’s mental condition was such that at the time he committed
the act that resulted in the death of the victim he was not conscious of what he
was doing, that amounted to insanity by reason of his mental condition
making him not responsible for his actions. Having regard to expert evidence
that the defendant was suffering from chronic paranoid schizophrenia,
which evidence the prosecution had not sought to rebut, the defence had
established on the balance of probabilities that the defendant was suffering
from a disease of the mind which brought her squarely within the parameters
of s 84 of the Penal Code.

In the Indian case of Rattan Lal v State of Madya Pradesh,25 it was well settled by
the court that the crucial point of time at which the unsoundness of mind
should be established is the time when the crime is actually committed and
whether the accused was in such a state of mind as to be entitled to benefit of
s 84 can only be established from the circumstances which preceded,
attended and followed the crime. It is the behaviour antecedent, attendant
and subsequent to the event which may be relevant in ascertaining the
mental condition of the accused at the time of commission of the offence but
not those remote in time.

In another Indian case of Kamala Bhuniya v State of West Bengal,26 the accused
was tried for the murder of her husband with an axe. A suit was filed against
the accused, she alleged to be insane at the time of the incident. The
investigating officer at the initial stage recorded about the mental insanity of
the accused. The duty of the prosecution was to arrange for a medical
examination of the accused. The accused made no attempt to fly away nor
she made any attempt to remove the incriminating weapon. The failure on
the part of the prosecution to discharge its initial onus about the presence of
mens rea at the time of the commission of the offence prompted the court to
come to the conclusion that the accused was entitled to the benefit of s 84. The
Calcutta High Court held that the accused was proved to be insane at the
time of the commission of the offence and guilty for culpable homicide and
not murder.

In the Malaysian case of PP v Mya Than,27 the accused was charged for
murder. Evidence adduced that at the time of the commission of the crime, he
was suffering from schizophrenia. The court acquitted the accused and held
that the accused had committed the actus reus of killing the deceased, but by
reason that he was, at the time of the commission of the offence, of unsound
mind and ordered to be kept in safe custody in a mental hospital.

25
AIR 1971 SC 778.
26
2006 Cri LJ 998 (Cal).
27
[2014] AMEJ 1505; [2013] 10 MLJ 890, HC.
62 The Law Review 2020

In Selvaraju Mualiar a/l Kalliparaal v PP,28 the accused was a schizophrenic

inmate of a drug rehabilitation centre. He was convicted for the murder of a
fellow inmate. In his appeal, he raised the defence of insanity arguing, inter
alia, that he could not remember whether he had taken his medication and if
so, the required dosage at the time he assaulted the victim. The Malaysian
Court of Appeal held that the question whether the accused was suffering
from unsoundness of mind at the time of the commission of his act, was
determinable not only by medical evidence and expert opinion but also by
his conduct and the state of mind before and after the crucial time. The legal
insanity defence depends very much on the evidence. Since the accused still
needed the prescription, it followed that he was still not cured of his
schizophrenia. As testified …, unless the accused took his medication, he
would suffer a replace and the full-blown effect of his schizophrenia. There
was no evidence to positively establish that the accused indeed had complied
with the medication and the dosage.
In another Malaysian case of PP v Arokiasamy a/l Alphonso,29 the accused had
confessed that he killed his sister-in-law. On the basis of the collaborative
evidence to support the confession, he was charged for the offence of murder.
He raised the defence of legal insanity on the ground that he had serious
heart disease and had experienced a change of personality after undergoing
heart surgery in 1998. This contention was also supported by his wife who
said he was not a person of an aggressive nature until he underwent the
surgery when his personality changed. On these facts, the High Court of
Johor Bahru acquitted the accused. Kang Hwee Gee J observed:
It was the test of legal insanity and not medical insanity that the accused in
this instant case must be subjected to. To decide whether the accused was
legally insane under s 84 of the Code, it would therefore be necessary to ask
whether at the time he caused the death of the deceased, the accused was
suffering from a disease of the body that caused the mind to suffer such a
defect of reason that he did not 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 …
From the court’s observation above, it is clear that the accused must be of
unsound mind at the time of the commission of the offence. In other words,
the crucial point of time at which the unsoundness of mind of the accused
should have existed is the time when the offence was actually committed.
This is a question of fact to be decided on the merits of each case. Hence,
where evidence can be adduced to show that the accused was sane at the time
of the commission of the offence, the defence is inapplicable. For example, in
the Malaysian case of Abdul Razak bin Dalek v PP,30 the accused killed his wife
by slitting her throat. There were several witnesses to the incident.

28
[2010] 6 MLJ 293.
29
[2008] 2 AMR 817; [2008] 3 MLJ 251, HC.
30
[2010] 4 MLJ 725.
 Not Guilty by Reason of Insanity:
A Critical Examination of Section 84 of the
Brunei Penal Code 63

One of the defences raised by the accused was that he was suffering from
non-insane automatism at the time of the commission of the murder. This
defence was based on the evidence of one of the witnesses that saw the
accused hitting his head against the wall after the incident. The Federal Court
upheld the conviction of the accused of murder by stating that there was no
sufficient evidence from which it could be reasonably inferred that the
accused acted in a state of non-insane automatism. On the other hand, the
evidence indicated otherwise. The accused was able to relate what had
happened prior to the stabbing with great details. The accused reflected a
sane person who wished to woo his wife back into their marriage which was
on the rock. Most important, the accused remembered taking the knife. This
indicated that he was mentally alert. The evidence on the accused’s
disassociative behaviour was only after the incident.

Similarly, in the Malaysian case of PP v Othman bin A Aziz,31 the accused

failed to fulfil the first element of s 84 i.e. that he was of unsound mind at the
time of the commission of the offence. In disallowing the defence of insanity,
the court held that in order to succeed, the accused must produce evidence to
prove he was of unsoundness of mind at the time he committed the offence.
In the present case, the defence had not produced any evidence that shows he
was of unsound mind at the material time. A mere statement in the accused’s
unsworn statement that he did not realise what actually happened cannot, by
any stretch of imagination amount to evidence to prove he was of unsound
mind at the particular time. It is a mere statement. Nothing more!
In John a/k Nyumbei v Pendakwa Raya,32 the accused had killed an 18-year-old
girl. During interrogation, he had, inter alia, admitted to killing the deceased
and had sexual intercourse with the corpse. He was charged for the offence of
murder. He raised the defence of insanity contending that a certain “Jimmy”
had threatened his life if he did not kill someone and take his head. The
accused also stated that he was scared of Jimmy whom he described as a
vengeful person. On these facts, the Malaysian Court of Appeal upheld the
conviction for murder. In relation to s 84, the court made the following
observations:

(i) The test for insanity under s 84 of the Code is a legal and not a medical
test. Legal insanity under s 84 is of such a kind that it impairs the
cognitive faculties of a person.

(ii) Where the defence of insanity is raised, the court must consider
whether the accused person has successfully established, as a
preliminary issue, that at the time of committing the act, he was of
unsound mind; and whether he has proven that his unsoundness of

31
[2013] 7 MLJ 650.
32
[2007] 3 AMR 14; [2007] 7 MLJ 206, CA.
64 The Law Review 2020

mind was of a degree to make him incapable of knowing the nature of

his act as being wrong or against the law.

(iii) The burden of proof rests upon the person who raises the defence of
insanity, which is on a balance of probabilities.

(c) Incapable of knowing

Section 84 of the Brunei Penal Code requires the accused’s unsoundness of

mind to cause him or her to be “incapable of knowing” the nature of the act
or that it is either wrong or contrary to law. The implication of the section is
that the accused is insane in every possible sense of the word and such
insanity must sweep away his capacity to appreciate the physical effects of
his acts. A closer look at s 84 of the Brunei Penal Code shows a significant
difference between the phrase “incapable of knowing” under the Code, and
the phrase “did not know” under the M’Naghten rules. It appears that the
capacity to know a thing is quite different from what a person knows. Thus,
if a person has the capacity to know the nature of his act, he cannot be
protected under the Bruneian Penal Code. Under the English law, the
question is simply whether the accused knew what he was doing. This shows
that the test of unsoundness of mind under s 84 of the Brunei Penal Code is
stricter than those under the English criminal law. For example, in the local
case of Public Prosecutor v Arcala33 cited earlier, the Brunei High Court made
it clear that on the facts of the case, the prosecution had established beyond
reasonable that the defendant had murdered the child. However, at the time
of committing the offence, she was incapable of knowing the nature of her act
by reason of unsoundness of mind and for the same reason, she was
incapable of knowing that what she was doing was wrong.

In the Malaysian case of Dourin bin Murah v PP,34 this element was not
fulfilled by the accused who had shot the deceased point blank not once but
twice while she was on the ground asking for mercy. After shooting the
deceased, the accused had confronted both the deceased’s daughter and her
husband and threatened them with violence before hitting another victim
and rendering her unconscious. On these facts, he was convicted for the
offence of murder. In his appeal, he raised the defence of non-insane
automatism. The Court of Appeal dismissed the appeal and observed that
although the accused submitted that there was some evidence of insanity
raised before the trial, i.e. that the deceased had cast a spell on the accused
that made him abnormal, this encounter had to be viewed in the light of his
other behaviours. These behaviours showed that the accused knew exactly
the nature of what he did to the deceased and the others.

33
[1993] BLR 204.
34
[2013] 5 MLJ 856.
 Not Guilty by Reason of Insanity:
A Critical Examination of Section 84 of the
Brunei Penal Code 65

(d) The nature of the act

A person is not exempt from criminal responsibility simply because he is of

unsound mind. It must be shown that the unsoundness of mind was of a kind
and severity which destroyed the accused’s capacity to know (i) the nature of
the act, or (ii) that it was either wrong or contrary to law.35 Thus, if the
accused did not know the nature of the act he was committing, then he is not
responsible for it. Similarly, if he knew the nature of the act but did not know
whether it was wrong or contrary to law, he is not liable. On the other hand,
if the accused did not know the nature of the act but knew that it is wrong or
contrary to law, he is held responsible.

In order to understand the operation of this element better, reference can be

made to the Malaysian case of Goh Yoke v PP,36 where the Federal Court made
reference to the English case of R v Kemp.37 In Goh Yoke’s case, a devoted
husband of excellent character had inexplicably attacked his wife causing her
grievous bodily harm. The cause of the motiveless attack was the accused’s
arteriosclerosis (i.e. hardening of arteries) which brought about congestion of
blood in the brain and consequent mental malfunctioning. In these
circumstances, the accused had suffered a state of insane automatism which,
by its very nature, comprised an incapacity to know the nature of his act of
assault on his wife.

In the Indian case of Geron Ali v Emperor,38 the Calcutta High Court made an
interesting observation in terms of the operation of this element and decided
that the accused (Geron Ali) knew the nature of his act, however, he did not
know that what he was doing was contrary to law. He killed these persons
without any effort of concealment and he did not try to escape after doing
this. Hence, it would suffice to note that an accused can still get the protection
of s 84 even if he knows the nature of his act but obviously he cannot be held
criminally liable in as much as he did not know that what he was doing was
either wrong or contrary to law.

(e) Wrong or contrary to law

Although an accused knows the nature of his act, for example, killing a
person, he can still raise the defence of unsound mind under s 84 of the
Brunei Penal Code if, at the time of committing the act, by reason of
unsoundness of mind, he did not know he was doing what is wrong or
contrary to law. It is very likely that in most cases where s 84 is pleaded, the
accused will rely on this limb than the one of being incapable of knowing the

35
Stanley Yeo, supra, n 17, p 171.
36
[1970] 1 MLJ 63.
37
[1957] 1 QB 399.
38
AIR 1941 Cal 129.
66 The Law Review 2020

nature of the act.39 Under this alternative limb, the accused does have the
capacity to know what he was doing but contends that, as a result of
unsoundness of mind, he was incapable of knowing either that the act was
wrong or that it was contrary to law. The following cases would shed a light
to the operation of the phrase “wrong or contrary to law” under s 84 of the
Brunei Penal Code.
In Ashiruddin Ahmed v The King,40 the accused had killed his son while acting
under the delusion of a dream believing it to be right. The accused had
dreamt that he was commanded by someone to sacrifice his son of five years
old. The next morning, the accused took his son to the mosque and killed him
by thrusting a knife in his throat. The Calcutta High Court observed that it
was a case of insanity under s 84 of the Indian Penal Code and discharged the
accused from any criminal responsibility. The court said that in order to
enable an accused to obtain the benefit of the aforesaid provision, he must
establish any one of the three elements: (i) the nature of the act was not
known to the accused; (ii) the act was not known to him to be contrary to law;
or (iii) the accused did not know that the act was wrong. The court held that
the third element was established by the accused. This was obvious on the
ground that the accused was labouring under the belief that the dream was a
reality.

In another Indian case of Lakshmi v State,41 the Allahabad High Court

criticised the decision of the Calcutta High Court in Ashiruddin Ahmed’s case
by stating that:
What s 84 lays down is not that the accused claiming protection under it
should not know an act to be right or wrong, but that the accused should be
“incapable” of knowing whether the act done by him is right or wrong. The
capacity to know a thing is quite different from what a person knows. The
former is a potentiality, the latter is the result of it. If a person possesses the
former, he cannot be protected in law, whatever might be the result of his
potentiality. Law will punish a man for doing something which he knows
to be contrary to law, whatever his private opinion may be regarding his
ethics. Similarly, if an act is contrary to law its ignorance will not protect
him when it is proved that he knew that what he was doing was morally
wrong as knowledge of the law is presumed. Thus, it is the incapacity to
know the legality as well as the morality of one’s act that gives him the
benefit of the latter part of s 84, and in presence of anyone of them, the
accused cannot avail of the protection of the section.

39
Stanley Yeo, supra, n 17, p 173. See also Stanley Yeo, Neil Morgan and Chan Wing Cheong,
supra, n 17, p 691.
40
AIR 1949 Cal 182.
41
(1959) 60 Cr LJ 1033.
 Not Guilty by Reason of Insanity:
A Critical Examination of Section 84 of the
Brunei Penal Code 67

In the Malaysian case of PP v Nageswari,42 the High Court held that:

… Mental insanity is set out in s 84 of the Penal Code … What is crucial for
the accused to show would only be one of two things. First, that accused
did not know what he was doing. Secondly, that the accused knew what he
was doing but did not know that it was either wrong or contrary to law.
The report from the … hospital would clearly be relevant evidence for the
accused to rely upon in order to establish the insanity of the accused at the
time of the commission of the crime …
Based on the cases cited above, it seems that there is a sense of confusion in
terms of interpreting the clause in s 84 specifically the words “or that he is
doing what is either wrong or contrary to law”. For example, in Ashiruddin
Ahmed’s case, the approach favoured by the court was to take the words as a
whole and not to split them. The implication of this interpretation would
convey the meaning that the accused would get the benefit of the section
even in cases in which he was only incapable of knowing that his act was
morally wrong but was aware that it was contrary to law or vice versa. This
indicates the confusion which governs and judicial attitude with regard to
the interpretation of the rules which were formulated in 1843.43 Having said
that, the paper submits that under the Brunei Penal Code the accused has to
prove that due to the unsoundness of mind he did not know that his acts were
either morally or legally wrong. In substance, therefore, the section means
that a person who is capable of knowing that his act is either morally wrong
or contrary to the law cannot claim the benefit of the section.

5. Criticisms of s 84

Section 84 of the Brunei Penal Code, which provides for the defence of
insanity or unsoundness of mind has been modelled upon the outdated
M’Naghten rules of 1843. It is important to note that the M’Naghten test is
based on the entirely obsolete and misleading conception of nature of
insanity since insanity does not only affect the cognitive faculties but affects
the whole personality of the person including both the will and emotions.44
In addition, the M’Naghten test only looks at the cognitive and moral aspects
of the defendant’s actions. The test is not, therefore, a satisfactory yardstick to
measure criminal responsibility and thus needs to be reformed. However, as
mentioned earlier, s 84 of the Brunei Penal Code is modelled upon the
outdated M’Naghten rules. Due to this fact, the following are the criticisms of
s 84:

Firstly, s 84 considers unsoundness of mind to be equivalent to disorders of

cognition. The exclusive emphasis on the cognitive (while ignoring the

42
[1994] 3 MLJ 463.
43
See the M’Naghten rules on the defence of insanity.
44
Raj Kumar Upadhyay, supra, n 3, p 714. See also Angelo de Alwis and Neil Fernando, “The
Insanity Defense and the Assessment of Criminal Responsibility in Sri Lanka” (2013) 4(2)
Sri Lanka Journal of Psychiatry 4-10.
68 The Law Review 2020

volitional capacities) makes the unsoundness of mind defence of Brunei

less comprehensive but more measurable. This is an inherent deficiency
present within many legislatures around the world due to the varied nature
of the defence of insanity or unsoundness of mind as well as the influences
of salient cases towards its development. It is indeed unfortunate that s 84
does not appear to recognise volitional defects as an independent ground
for basing the defence of unsoundness of mind.45 However, evidence of
such defects may be symptomatic of insanity. For example, a lot of crimes
are committed in a fit of anger or emotion and just after committing the act,
the person involved may realise what he has done. But at that particular
moment, emotions have controlled his actions. His cognitive functions
might be absolutely normal.
Secondly, s 84 considers such unsoundness of mind to exist at the time of
committing the act. The section does not take into consideration conditions
prior to the act. As mentioned earlier, insanity does not only affect the
cognitive faculties but affects the whole personality of the person including
both the will and the emotions. Proper assessment of the accused pre act
status or conditions leading to the cause of the act may help to figure out the
reasons for his act. A good example to cite here is a case of a pregnant woman
who just gave birth. Pregnancy and childbirth can lead to psychosis in
women due to excessive stress and strain. In this situation, she can commit
the offence of infanticide. Although her consciousness is clear and there is no
impairment of cognition, yet her emotional imbalance has led her to commit
the offence. If she is tried under s 84, she will be convicted.

Thirdly, s 84 makes it mandatory for a person to be acquitted on the ground

of unsoundness of mind if he is unaware of the nature of his act and or, its
legality. It is true that sometimes a person knows the illegality of his act, but
in a fit of anger, emotions as delusions he might commit a crime. In such
situations, conditions like an irresistible impulse, obsessive-compulsive
disorder, delusion, emotions, fits of anger can offer a ground for medical
insanity but will not constitute a legal ground for acquittal. It is important to
note that s 84 lays down the legal test of responsibility as opposed to the
medical test. Hence, the unsoundness of mind refers to legal insanity and not
medical insanity.

Fourthly, s 84 fails to address the partial defence of diminished responsibility

for the insane person committing murder. Diminished responsibility has a
very close relationship with the defence of insanity since it involves the
mental state of the accused. This defence has been emphasised by the English
criminal law particularly under the Homicide Act 1957 but it is to be noted
that this defence is only applicable to the offence of murder, whereas insanity
is a defence to any criminal charges.

45
Stanley Yeo, supra, n 17, p 175.
 Not Guilty by Reason of Insanity:
A Critical Examination of Section 84 of the
Brunei Penal Code 69

6. Recommendations

Overall, the Brunei Penal Code does not define the term “unsoundness of
mind” and, rather surprisingly, the courts have not elaborated upon it in any
detail apart from relying on the M’Naghten rules. In order for the defence of
unsoundness of mind or insanity to operate in a healthy environment, the
paper makes the following recommendations:
Firstly, the authors suggest that there is a need to provide a well-defined
definition of the term “unsoundness of mind” in order to avoid the several
controversies and confusions arising from understanding and differentiating
between the “disease of mind” and the actual unsoundness of mind sought
by the Code or the so-called “legal insanity” for the purpose of making the
defence available to the accused. Hence, there is a need for incorporating
wider concepts like emotions, pre-act situations etc. It is inevitable that the
scope of legal insanity should be widened to incorporate some more aspects
of medical insanity. Our major goal should not be to ensure that a lesser
number of criminals can apply the insanity defence because their behaviour
on the surface presents as logical. The behaviour and act itself are still highly
illogical if it is driven by severe emotional distortions of the world which are
beyond the ability of the individual to understand or control.

Secondly, the authors also suggest that the scope of s 84 defence should
likewise include volitional defects caused by unsoundness of mind. The fact
that these cases will be rare and difficult to establish are not good enough
reasons for excluding it from the operation of the defence. This is especially
needed in Brunei where the defence of diminished responsibility is not
recognised. Currently, a person who has killed as a result of a volitional
defect caused by the mental disorder has no defence whatsoever to a charge
of murder. This change should be made on the equal footings with the
defence of diminished responsibility as embraced under the defence of
insanity under the English criminal law system. However, for added clarity,
a distinction should be drawn between cases where the volitional defects are
caused by mental impairment and those which are not. Hence, s 84 should
recognise volitional defects alongside cognitive ones. It is noteworthy that
many Commonwealth jurisdictions have taken this position, with several of
them having done so recently.46
Thirdly, there is an urgent need to return to a more common sense and
humane interpretation of legal insanity by paying closer attention to the
severity of the emotional disturbance of the individual committing such
disturbed and illogical act. Therefore, to assume that someone understands
right from wrong because they plan out their criminal act is not always the
case. If an individual’s heinous acts are driven by a delusional misbelief, can

46
For example, the Australian Commonwealth, Canada, New Zealand, Ireland and South
Africa.
70 The Law Review 2020

we assume that they are sane? If a person is delusional, they are not in a
position to appreciate how their behaviour may impact negatively on others
or themselves. It is inappropriate to assume that someone is logical and can
appreciate what they do if a severely disturbed thought process is driving
them.

7. Conclusion
In Brunei, ever since the Penal Code came into operation, the interpretation
of s 84 has followed in the footsteps of the celebrated M’Naghten rules. The
courts have, by and large, refused to depart from these rules. In order to suit
the modern day scientific study of the human mind and its functions, it is
inevitable that the M’Naghten rules should be modified and amended to
incorporate the conceptions of volitional and emotional aspects of the mind.
According to modern psychology and psychiatry, the mind cannot be split
up into watertight, unrelated and autonomously functioning
compartments.47 The mind and the body are one unit in which each part
influences, and is influenced by the whole. Therefore, every case of insanity
of mind cannot be fitted into the straight jacket formula of the legal definition
prescribed in the M’Naghten rules. The paper submits that there is a need to
amend the law as specified under s 84 of the Brunei Penal Code since it was
framed based on the outdated M’Naghten rules.

47
Ajay B Sonawane and Adv Radhika S Banpel-Raje Bhonsle, supra, n 13, p 152.