¹ The State of Israel v. Rohan (1969) 68 P.M. 344.

² (1955) 9 L.S.I. 132.

³ See Dweik v. Minister of Police (1959) 13 P.D. 1378; (1960) 14 P.D. 53 (on Appeal) and 1902 (on Further Hearing).

⁴ In his statement to the police, Rohan said that after setting fire to the Mosque on August 21, he intended reporting to them but the alarm raised by the guard at the Mosque confused him. Rohan himself drew attention to the photographs he had taken of the articles and equipment used by him just before starting the fire, in order to prove to the police that he had indeed done so. Whilst he got rid of the camera because he saw no need for it, he carefully kept the film as evidence.

⁵ Just as under sec. 5 of the Treatment of Mentally Sick Persons Law, 1955, the district psychiatrist is empowered without reference to any offence to order the hospitalization of a sick person likely to endanger himself or another.

⁶ Kloek, J., “Schizophrenia and Delinquency” in The Mentally Abnormal Offender, ed. Reuck, A. and Porter, R., (London, 1968) p. 19.Google Scholar Kloek tells of a young person who whilst under analysis informed the doctor of his urge to kill someone. The doctor tried to arrange for the patient's reception in a mental hospital but before he could do so, the patient killed his parents. He was found not to be responsible for his act, his mental state being a borderline case of schizophrenia. This is another instance where prompt hospitalization might have prevented the loss of life.

⁷ See Bazak, J., The Criminal Responsibility of the Mentally Sick (1964) pp. 19 ff. (in Hebrew)Google Scholar; Levy, Y., “The Treatment of Mentally-Sick Offenders” (1966) 1 Is. L.R. 421 ff.Google Scholar

⁸ Per J., Cohn in Fano v. A.C. (1962) 16 P.D. 1105, 1112.Google Scholar

⁹ Sec. 14 of the Criminal Code, 1936, provides that no criminal responsibility attaches if at the time of doing the act the person “is through any disease affecting the mind incapable of understanding what he is doing, or of knowing that he ought not to do the act.” The distinction between “mental disease” and “disease affecting the mind” is important. It was considered in R. v. Kemp [1956] 3 All E.R. 249. “Mental disease”, however, is certainly “a disease affecting the mind”. Hence the need for precise definition of the phrase is less important when mental disease has been proved.

¹⁰ Although J., Cohn observed in the Fano case (1962) 16Google ScholarP.D. that “the fact that an expert describes the defendant's state as a ‘psychosis’ will not itself be sufficient to compell or even to justify, a finding by the court that he is suffering from a disease in the legal sense”, it would appear that if the medical evidence indicates a psychosis of the kind recognized by the court as a mental disease (such as paranoiac schizophrenia in the instant case) it could not ignore the evidence where none to the contrary has been adduced.

¹¹ For the discussion of these terms, see Bazak, op. cit., pp. 41–43.

¹² The Fano case, ibid.; Gramah v. A.G. (1963) 17 P.D. 925, 935.

¹³ Mehring v. A.G. (1961) 15 P.D. 44. For the meaning of psychopathy, see Bazak, op. cit., pp. 173–85.

¹⁴ A.G. v. Joseph (1962) 16 P.D. 2710, 2717. For mental deficiency generally, see Bazak, op. cit., pp. 170 ff. For a critical review of the situation, see Bazak, , “The Modes of Hospitalization and Release of the Mentally Sick in Israel” (1969) 25 HaPraklit 666.Google Scholar

¹⁵ (1956) 2 S.J. 116; cf. Levy, op. cit.

¹⁶ (1966) 54 P.M. 335.

¹⁷ The circumstances recall those of R. v. Charlson [1955] 1 All E.R. 859, where a devoted father suddenly attacked his son with a mallet and threw him from a window, causing the child serious injuries. Again no motive existed. The medical evidence revealed an organic disorder of the nervous system, a cerebral tumour, the likely cause of the man's behaviour. The court acquitted him after holding that his actions were purely automatic.

¹⁸ At p. 336.

¹⁹ Sec. 11 provides that a person is not criminally responsible for an act which occurs independently of the exercise of his will. The court should have reached the same conclusion in Krochmalnikov v. A.G. (1963) 17 P.D. 1219. Here the defendant struck the complainant on the head with an axe and injured him. The medical diagnosis was: “Change of an organic nature and suspected epilepsy… Suspected derangement as a result of brain damage in the past, according to the patient, during war service with the Red Army in Russia…. It is conceivable that the present act was due to mental confusion occurring after provocation…. The defendant is not an epileptic…. When the act was committed the defendant was in a state of agitation and confusion as a result of the brain injury and a brain storm. He is therefore not responsible for his actions” (at p. 1223). The doctors refused to diagnose him as “mentally diseased” since his condition was not so considered in psychiatry. The point was not discussed and the court acquitted him on the ground of mental disease and not of lack of volition. It is difficult to see the difference between this case and the Greenberg case ((1966) 54 P.M. 335). The same difficulty occurs with the Charlson case ([1955] 1 All E. A. 859), and the Kemp case ([1956] 3 All E. R. 249); in the latter an old man suddenly and for no reason struck his wife on the head with a hammer. He was found to be suffering from congestion of the blood in the brain due to arteriosclerosis. On the direction of the judge, the jury held this condition to be a mental disease, because in point of law no importance attached to the question whether the confusion of mind was due to organic or psychological causes provided it was due to a disease likely to affect the mind, and arteriosclerosis was such a disease.

²⁰ (1963) 17 P.D. 925, 935.

²¹ See n. 6 supra.

²² In Ben Yaakov v. A.G. (1965) (IV) 19 P.D. 143, the court said: “No one disputes that the appellant carried out the fatal act and also that he did so under irresistible impulse. The only question is whether the source of that impulse was a mental disease in the psychiatric sense”. Three psychiatric witnesses stated that the act was committed in an “exceptional state of mind” (paranoiac tendencies) but that the appellant was not suffering from any actual mental disease. The court therefore held him responsible notwithstanding its finding of irresistible impulse.

²³ Sec. 14 of the Criminal Code Ordinance.

²⁴ Sec. 11, ibid.; the Mandelbrot case (1956) 2 S.J. 116; the Mizan case (1957) 11 P.D. 789.

²⁵ At p. 365.

²⁶ As the Supreme Court of Australia held in Stapleton (1952) A.L.R. 929; see further Bazak, op. cit., supra n. 7.

²⁷ On this subject, see generally Weihofen, H., “Capacity to appreciate wrongfulness of criminality under the A.L.I. Model Penal Code Test of Mental Responsibility” (1967) 58 J.G.L. 27.Google Scholar

²⁸ See also n. 36 infra.

²⁹ See text following note 22.

³⁰ At p. 369.

³¹ See Bazak, op. cit., pp. 54ff.

³² (1963) 17 P.D. 929. See also Williams, G., Criminal Law (2nd ed.) para. 156, pp. 480–81Google Scholar, cited by Agranat J.

³³ A similar distinction is fully recognized in Judaism. On Lev. i, 3—“and he shall present [the offering] of his own will”—the Talmud (Rosh Hashanah 6a, Yevamot 106a, Kiddushin 49a, Baba Batra 48a, Eruchin 21a) comments: “We constrain him until he says, I am willing”. Maimonides, , Hilchot Gerushin II, 20Google Scholar, explains that constraint awakens a person's true and proper will, whilst whoever is impelled by his evil inclination to commit an offence is under moral compulsion.

³⁴ A similar view is advanced by Silving, Helen, “The Criminal Law of Mental Incapacity” (1962) 53 J.C.L. 151.Google Scholar

³⁵ Durham v. U.S. 214 F. 2d 862 (1954). See Bazak, op. cit., pp. 145 ff.

³⁶ See text following note 19.

³⁷ For the tests of criminal responsibility in other systems, see Bazakj op. cit., p. 121. Most of them do not confine themselves to the question of mental capacity but also deal with the power of self-restraint.

³⁸ Eight centuries ago, Maimonides prescribed a similar test with regard to the legal competence of the mentally sick to give evidence. He stressed the fact that the test cannot be precise and the matter must be left to the judge's discretion according to the special circumstances of each case: Hilchot Edut IX, 10.

³⁹ The absence of opportunity to exercise this discretion is the weakest link of the test proposed by the American Law Institute. See Bazak, op. cit., p. 130, and the test suggested there at p. 153. Cf. Silving, loc. cit.: “No punishment shall be imposed upon a person if at the time of engaging in criminal conduct and for some time prior thereto his ego functioning was so impaired that he had a very considerably greater mental difficulty in complying with social demands and rules than does the majority of the members of the community.”

⁴⁰ See Bazak, I., “Retributive Considerations in Penal Policy” (1969) 4 Criminality and Society, 27 ff. (in Hebrew).Google Scholar