Section 178 — Crimes Act 1961: Infanticide

178 Infanticide (1) Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years. (2) Where upon the trial of a woman for the murder or manslaughter of any child of hers under the age of 10 years there is evidence that would support a verdict of infanticide, the jury may return such a verdict instead of a verdict of murder or manslaughter, and the accused shall be liable accordingly. Subsection (2) of section 339 of this Act shall be read subject to the provisions of this subsection, but nothing in this subsection shall affect the power of the jury under that section to return a verdict of manslaughter. (3) Where upon the trial of a woman for infanticide, or for the murder or manslaughter of any child of hers under the age of 10 years, the jury are of opinion that at the time of the alleged offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she was insane, the jury shall return a special verdict of acquittal on account of insanity caused by childbirth. (4) If the jury returns a special verdict under subsection (3) , the Judge must order that the woman be examined by 2 medical practitioners and the following provisions apply: (a) pending the receipt by the Judge of certificates from the medical practitioners, the woman must be detained in a place that the Judge thinks appropriate, and that place must be 1 of the following: (i) a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 : (ii) a facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 : (iii) a prison: (b) if each of the medical practitioners certifies that the woman is no longer insane and that she is in no need of care and treatment in a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or in a facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 , the Judge must order that the woman be discharged from custody immediately: (c) unless each of the medical practitioners certifies in accordance with paragraph (b) , sections 23 to 29 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 apply, so far as they are applicable, as if the references in those sections to the Court were references to the Judge. (5) If, under subsection (4)(c) , the Judge makes an order that the woman be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 , section 33 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 applies. (6) [Repealed] (7) Nothing in this section shall affect the power of the jury, upon the trial of any woman for infanticide or for murder or manslaughter, to return a verdict, otherwise than under this section, of acquittal on account of insanity; and where any such verdict is returned the provisions of the Criminal Procedure (Mentally Impaired Persons) Act 2003 shall apply accordingly. (8) The fact that by virtue of this section any woman has not been or is not liable to be convicted of murder or manslaughter, whether or not she has been or is liable to be convicted of infanticide, shall not affect the question whether the homicide amounted to murder or manslaughter in the case of any other party to it. Compare: Infanticide Act 1938, s 1 (UK) Subsection (4) was amended, as from 1 April 1970, by section 5(1) Criminal Justice Amendment Act 1969 (1969 No 17) by omitting the words “ notwithstanding anything in subsection (2) of section 31 of the Mental Health Act 1911 ” . Subsection (4)(a) and (b) was amended, as from 1 April 1970, by section 5(1) Criminal Justice Amendment Act 1969 (1969 No 17) by substituting the words “ hospital within the meaning of the Mental Health Act 1969 ” for the words “ institution within the meaning of the Mental Health Act 1911 ” . Subsection (4)(c) was substituted, as from 1 April 1970, by section 5(1) Criminal Justice Amendment Act 1969 (1969 No 17). Subsection (4)(c) was amended, as from 1 October 1985, by section 8(1) Crimes Amendment Act (No 2) 1985 (1985 No 121) by substituting the words “ section 115 of the Criminal Justice Act 1985 ” for the words “ section 39G of the Criminal Justice Act 1954 ” . Subsection (4) was substituted, as from 1 September 2004, by section 51 Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115). See clause 2 Criminal Procedure (Mentally Impaired Persons) Act Commencement Order 2004 (SR 2004/147). Subsection (4)(a)(iii) was amended, as from 1 June 2005, by section 206 Corrections Act 2004 (2004 No 50) by substituting the word “ prison ” for the words “ penal institution ” . See clause 2 Corrections Act Commencement Order 2005 (SR 2005/52). Subsection (5) was substituted, as from 1 April 1970, by section 5(1) Criminal Justice Amendment Act 1969 (1969 No 17). Subsection (5) was amended by section 8(1) Crimes Amendment Act (No 2) 1985 (1985 No 121) by substituting the words “ sections 117 and 119 of the Criminal Justice Act 1985 shall apply ” for the words “ section 39I and 39X of the Criminal Justice Act 1954 shall apply; except that any direction under the said section 39I shall be given by the Minister of Health and not by the Governor-General in Council ” . Subsection (5) was substituted, as from 1 September 2004, by section 51 Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115). See clause 2 Criminal Procedure (Mentally Impaired Persons) Act Commencement Order 2004 (SR 2004/147). Subsection (6) was substituted, as from 1 April 1970, by section 5(1) Criminal Justice Amendment Act 1969 (1969 No 17). Subsection (6) was repealed, as from 1 September 2004, by section 51 Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115). See clause 2 Criminal Procedure (Mentally Impaired Persons) Act Commencement Order 2004 (SR 2004/147). Subsection (7) was amended, as from 1 April 1970, by section 5(1) Criminal Justice Amendment Act 1969 (1969 No 17) by substituting the words “ Part 5A of the Criminal Justice Act 1954 ” for the words “ Part 4 of the Mental Health Act 1911 ” . Subsection (7) was amended, as from 1 October 1985, by section 8(3) Crimes Amendment Act (No 2) 1985 (1985 No 121) by substituting the words “ Part 7 of the Criminal Justice Act 1985 ” for the words “ Part 5A of the Criminal Justice Act 1954 ” . Subsection (7) was amended, as from 1 September 2004, by section 51 Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115) by substituting the words “ the Criminal Procedure (Mentally Impaired Persons) Act 2003 ” for the words “ Part 7 of the Criminal Justice Act 1985 ” . See clause 2 Criminal Procedure (Mentally Impaired Persons) Act Commencement Order 2004 (SR 2004/147).