Aspects of the Insanity Defence in South Africa and New Zealand: The Case of Lauren Dickason
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Abstract
This article examines the insanity defence in South Africa and New Zealand through the lens of the widely publicised case of R v Dickason. In September 2021, Mrs Lauren Dickason killed her three daughters in Christchurch, New Zealand, and raised a plea of insanity, which was rejected, leading to her conviction for murder. Against this factual backdrop, the article explores the concept of mental illness from both a clinical and legal perspective, tracing its definitions, diagnostic classifications, and relevance for criminal responsibility. The discussion highlights similarities and differences in the development and application of the insanity defence in the two jurisdictions, with reference to leading statutory provisions and case law. By situating the Dickason case within these frameworks, the article illustrates the challenges courts face in reconciling psychiatric evidence with legal standards of culpability and responsibility and reflects on the limits of criminal law in addressing offences committed under conditions of severe mental illness.
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How to Cite
J, Burchell et al.
Aspects of the Insanity Defence in South Africa and New Zealand: The Case of Lauren Dickason.
Medical Research Archives, [S.l.], v. 13, n. 10, oct. 2025.
ISSN 2375-1924.
Available at: <https://esmed.org/MRA/mra/article/view/6954>. Date accessed: 05 dec. 2025.
doi: https://doi.org/10.18103/mra.v13i10.6954.
Section
Research Articles
The Medical Research Archives grants authors the right to publish and reproduce the unrevised contribution in whole or in part at any time and in any form for any scholarly non-commercial purpose with the condition that all publications of the contribution include a full citation to the journal as published by the Medical Research Archives.
References
1. J Burchell Principles of Criminal Law 5ed (2016) 370.
2. BA Arrigo Punishing the mentally ill: a critical analysis of law and psychiatry (2002) 105.
3. See J Burchell ‘A provocative response to subjectivity in the criminal law’ (2013) Acta Juridica 23-47.
4. This endnote is merely to provide background on sources relevant to the insanity defence to show from how early there has been written about it. Several authors have conducted research on it, for example, C Badenhorst Criminal capacity of children PhD (Unisa) (2006); M Blackbeard ‘Epilepsy and criminal liability’ (1996) 9 South African Journal of Criminal Justice 2 191-210; J Burchell ‘Non-pathological incapacity: Evaluation of psychiatric testimony’ (1995) 8 South African Journal for Criminal Justice 137-42; FJW Calitz ‘Evaluering van die geestestoestand van ‘n beskuldigde wat van ‘n misdryf aangekla is: ‘n Multiprofessionele benadering’ (1993) 18 Tydskrif vir Regswetenskap 1 31-40; PA Carstens ‘The defense of non-pathological incapacity with reference to the battered wife who kills her abusive husband’ (2000) 13 South African Journal for Criminal Justice 2 180-189; F Cassim ‘The accused person’s competency to stand trial: a comparative perspective’ (2004) 45 Codicillus 17-27; CA Gagiano ‘Unnecessary committals for forensic observation’ (1991) 108 South African Law Journal 4 714-718; JW Jonck ‘Noodsaaklikheid van toestemming deur ‘n beskuldigde by ‘n ondersoek kragtens artikel 79 van die Strafproseswet’ (1997) 22 Tydskrif vir Regswetenskap 2 196-203; L Jordaan ‘General principles of liability: Sane automatism’ (1999) 40 Codicillus 2 83-84; S Kaliski Sensation seeking, impulsivity and violence in schizophrenics found unfit to stand trial (1993); A Kruger ‘JC de Wet se bydrae tot die leerstuk van toerekeningsvatbaarheid by geestesongesteldheid (1991) 4 South African Journal for Criminal Justice 2 145-147; A Kruger ‘The insanity defence raised by the state, minister’s decision, patients and a Bill of Rights’ (1993) 6 South African Journal for Criminal Justice 2 148-154; J Le Roux ‘Strafregtelike aanspreeklikheid en die verweer van nie-patologiese oftewel gesonde outomatisme’ (2000) 33 De Jure 1 190-193; J Le Roux ‘Strafregtelike aanspreeklikheid en die verweer van tydelike nie-patologiese ontoerekeningsvatbaarheid’ (2002) 65 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 3 478-481; H Oosthuizen & T Verschoor ‘Verwysing van onverhoorbare beskuldigdes en die daarstelling van 'n verhoorbaarheidvasstellingseenheid’ (1993) 6 South African Journal for Criminal Justice 2 155-164; CR Snyman ‘Die verweer van nie-patologiese ontoerekeningsvatbaarheid in die strafreg’ (1989) 14 Tydskrif vir Regswetenskap 1 1-15; SA Strauss ‘Nie-patalogiese ontoerekenbaarheid as verweer in die strafreg’ (1995) 16 South African Practice Management 4 14-34; FFW Van Oosten ‘The insanity defence: Its place and role in criminal law’ (1990) 3 South African Journal for Criminal Justice 1 1-9; I Verster ‘Mental disorders in patients referred for psychiatric observation after committing homicide’ (1999) 24 Tydskrif vir Regswetenskap 1: 58-66.
5. Because this case is a fairly recent case there has not been much written about it and therefore the author relies mostly on internet sources. See R Davis ‘SA Killer Mum’ Lauren Dickason’s New Zealand murder trial is a chillingly strange, sad and complex affair’ Daily Maverick, 5 August 2023, available at https://www.dailymaverick.co.za/article/2023-08-05-south-africa-killer-mum-lauren-dickason-new-zealand-murder-trial/ accessed on 7 January 2025.
6. Davis op cit (n 5).
7. N McCain ‘Convicted murderer Lauren Dickason served with deportation order – reports’ News 24, 23 October 2024, available at
https://www.news24.com/news24/southafrica/news/convicted-murderer-lauren-dickason-served-with-deportation-order-reports-20241023 accessed on 7 January 2025.
8. Davis op cit (n 5).
9. N Chittock ‘Lauren Dickason trial: Jury finds mother guilty of murdering her three daughters’ New Zealand / Court, 16 August 2023, available at https://www.rnz.co.nz/news/national/495916/lauren-dickason-trial-jury-finds-mother-guilty-of-murdering-her-three-daughters accessed on 6 January 2025.
10. Chittock op cit (n 9).
11. A Leask ‘Lauren Dickason trial: alleged child murderer stopped taking antidepressants ‘for immigration purposes’ The New Zealand Herald, 9 August 2023, available at
https://www.nzherald.co.nz/nz/lauren-dickason-trial-alleged-child-murderer-stopped-taking-antidepressants-for-immigration-purposes/IM6OBGE2VVFLRLXUTCL2XSVXAA/ accessed on 7 January 2025.
12. A Leask ‘Lauren Dickason trial: Psych expert reveals killer’s last words to daughters’ The New Zealand Herald, 27 July 2023, available at
https://www.nzherald.co.nz/nz/lauren-dickason-trial-world-expert-on-reproductive-psychiatry-and-women-who-kill-their-children-to-give-evidence-supporting- accessed 6 January 2025.
13. Leask op cit (n 12).
14. Leask op cit (n 12).
15. L Davies ‘Psychiatrist recounts Dickason’s comments about day she killed girls’ Crime and Justice, 3 August 2023, available at
https://www.1news.co.nz/2023/08/03/psychiatrist-recounts-dickasons-comments-about-day-she-killed-girls/ accessed on 7 January 2025.
16. Davis op cit (n 5).
17. According to the American Psychiatric Association the term ‘mental disorder’ unfortunately implies a distinction between ‘mental disorders’ and ‘physical disorders’, which is a reductionistic anachronism of mind / body dualism. A compelling literature documents that there is much ‘physical’ in ‘mental disorders’ and much ‘mental’ in ‘physical disorders’. However, the problem raised by the term mental disorder has been much clearer than its solution, and the term will have to persist until an appropriate substitute is found. See American Psychiatric Association DSM-5 xxi. See the definition of mental disorder according to ICD-11: ‘a mental disorder is a clinically recognisable collection of symptoms or behaviour associated in most cases with distress or interference with personal functions. A deviant pattern of behaviour, whether political, religious, or sexual, or a conflict between an individual and society, is not a mental disorder unless it is symptomatic of a dysfunction in the individual’.
18. Section 1 of the Mental Health Care Act 17 of 2002.
19. See also the definition of ‘severe or profound intellectual disability’: ‘means a range of intellectual functioning extending from partial self-maintenance under close supervision, together with limited self-protection skills in a controlled environment through limited self-care and requiring constant aid and supervision, to severely restricted sensory and motor functioning and requiring nursing care’. See s 1 of the Mental Health Care Act 17 of 2002.
20. (1927-1989.) Ronald David Laing was a Scottish psychiatrist who wrote extensively on mental illness – in particular, the experience of psychosis. Laing's views on the causes and treatment of serious mental dysfunction (greatly influenced by existential philosophy) ran counter to the psychiatric orthodoxy of the day by taking the expressed feelings of the individual patient or client as valid descriptions of lived experience rather than simply as symptoms of some separate or underlying disorder. Often associated with the anti-psychiatry movement, he himself rejected the label as such, as did certain others critical of conventional psychiatry at the time. See G Miller RD Laing (2015) 7, 19.
21. (1920-.) Thomas Stephen Szasz is a Professor Emeritus of Psychiatry at the State University of New York Health Science Center in Syracuse, New York. He is a prominent figure in the anti-psychiatry movement, a well-known social critic of the moral and scientific foundations of psychiatry, and of the social control aims of medicine in modern society, as well as of scientism. He is well known for his books: The myth of mental illness (1960); and The manufacture of madness: A comparative study of the inquisition and the mental health movement, which set out some of the arguments with which he is most associated. See AL Slade A bibliography of works by and about Thomas Stephen Szasz MD, 1947-1975 (1976) 1 and onwards.
22. The term anti-psychiatry usually refers to a movement that emerged in the 1960's, which is hostile to most of the fundamental assumptions and common practices of psychiatry. The term anti-psychiatry was first used by the South African psychiatrist David Cooper in 1967. Two central contentions of the anti-psychiatry movement are that: (1) The specific definitions of, or criteria for, hundreds of current psychiatric diagnoses or disorders are vague and arbitrary, leaving too much room for opinions and interpretations to meet basic scientific standards; and (2) prevailing psychiatric treatments are ultimately far more damaging than helpful to patients. See RA Baker Mind games: Are we obsessed with therapy? (1996) 1and onwards. See also RD Laing ‘Violence and psychiatry’ 14-33 in Psychiatry and Anti-Psychiatry ((ed) D Cooper D) (1967) 14 and onwards.
23. TR stands for "text revision".
24. C Katona & M Robertson Psychiatry at a glance (2005) 10.
25. H Pretorius ‘Classification’ 7-13 in J Burns & L Roos Textbook of psychiatry for Southern Africa 2nd ed (2016) 7-8.
26. A Allan ‘Psychiatric diagnosis in legal settings’ (2005) 11 South African Journal of Psychiatry 2 55.
27. Katona & Robertson op cit (n 24) 10.
28. Katona & Robertson op cit (n 24) 11.
29. See American Psychiatric Association DSM-5 25.
30. A multiaxial system further provides a convenient format for organising and communicating clinical information, for capturing the complexity of clinical situations, and for describing the heterogeneity of individuals presenting with the same diagnosis. In addition, this system promotes the application of the bio-psychosocial model in clinical, educational and research settings. See American Psychiatric Association DSM-5 25.
31. Hammurabi's activity as king of Babylonia dates from the middle of the 23rd century BC. From a legal point of view, there is much fundamental value to be found in the Code of Hammurabi. According to Price, the legal fraternity will find that Roman law has its roots in Babylonia, Egypt, and Persia, and that the ancient world was so admirably organised as to furnish better protection, in some respects, to its subjects than does our boasted civilisation of this day. The epilogue too is a remarkable document, which describes the benefits accruing to the subjects of Hammurabi from observance of these righteous laws and calls down the wrath of the gods upon the transgressor. Like the Roman Ius civile, the Hammurabi Code is divided into three sections: Ius actionum, Ius rerum and Ius personarum (this is usually found in reversed order in Roman law). See IM Price ‘The stele of Hammurabi’ (1904) 24 Biblical World 468, 469, 472.
32. BL Diamond & JM Quen The psychiatrist in the courtroom: Selected papers of Bernard L Diamond (1994) 39 and onwards.
33. See M'Naghten's Case 1843 10 C & F 200; C Elliott The rules of insanity: Moral responsibility and the mentally ill offender (1996) 10-13; J Hall General principles of criminal law (2008) 472 and onwards.
34. For a recent discussion of the insanity defence see L Roos, and C Kotze ‘Examining the Mr Tsafendas enquiry trial: Current insights on forensic psychiatric assessment and ethics’ (2024) 17 The South African Journal of Bioethics and Law 1 available at https://doi.org/10.7196/sajbl.2024.v17i1.1600 accessed 7 January 2025.
35. Ss 77-79 of the Criminal Procedure Act 51 of 77. See also the Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters RP 69/1967 (also called the Rumpff Report).
36. S 77(1): "(1) If it appears to the court at any stage of criminal proceedings that the accused is by reason of mental illness or mental defect not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the matter be enquired into and be reported on in accordance with the provisions of section 79."
37. Burchell op cit (n 1) 372.
38. The Criminal Matters Amendment Act 68 of 1998.
39. The question of fitness to stand trial is determined by a psychiatric examination and report. A person who is found not be fit to stand trial is detained in a mental hospital or prison until they become fit to be tried. See sections 77(6) and 77(7). See also S v Leeuw 1987 (3) SA 97 (A) 17. In this case two psychiatrists, Prof WH Wessels and Dr PJ Gouse, reported in par [4] as follows: ‘Hy is weens verstandelike vertraging nie in staat om hofverrigtinge dermate te begryp dat hy sy verdediging na behore kan voer nie. … Hy was weens verstandelike vertraging ten tyde van die betrokke handeling nie in staat om die ongeoorloofdheid daarvan te besef of om ooreenkomstig ‘n besef van die ongeoorloofdheid van die betrokke handeling op te tree nie. Hy is dus nie strafregtelik toerekenbaar nie.’
40. Burchell op cit (n 1) 372.
41. CR Snyman Strafreg 6ed (2017) 164.
42. S v Mahlinza 1967 (1) SA 408 (A) at 417.
43. S v Stellmacher 1983 (2) SA 181 (SWA) at 187. In this case the accused had been on a strict weight-loss diet for a period of weeks and also performed strenuous physical labour on the day in question. He consumed at least half a bottle of brandy the evening. According to him there was in the bar a strong reflection of the setting of the sun in his eyes which shone through an empty bottle. As a result, he lapsed into an automatistic state, during which he began shooting at people in the bar, killing one person. The question was whether the accused had suffered from a mental illness as contemplated in s 78 of the Criminal Procedure Act. The state did not prove beyond reasonable doubt that the conduct of the accused was indicative of a pathological disorder which is not due to a temporary clouding of the mind not attributable to a mental abnormality. A foundation was laid in the evidence for a reliance on lack of criminal responsibility not caused by mental illness. Bearing in mind the reasonable doubt which exists regarding the cause of his lack of criminal responsibility, the accused had to be given the benefit of the doubt. He was found not guilty and discharged.
44. It is important to note that the defence of insanity should not be confused with the defence of non-pathological criminal incapacity. The defence of non-pathological criminal incapacity is not set out in any statutory provision, but forms part of the common law. Criminal incapacity is not the result of a specific cause; it may have any cause, for example, emotional collapse, fear, provocation or intoxication. If this defence succeeds, the accused leaves the court a free person and is not sent to a psychiatric hospital or prison. See Snyman op cit (n 41) 161 and onwards. See also S v Chretien 1981 (1) SA 1097 (A). In this case, the accused, after driving away from a party at which he had been drinking, drove into a crowd of people, killing one and injuring five others. He was acquitted on the basis of his lack of intention due to his level of intoxication. The court, however, accepted that there were degrees of intoxication and depending to what extent an individual was intoxicated, his or her intoxication could impair either his or her intention, criminal capacity or the voluntariness of the conduct. Due to tremendous criticism the legislature enacted a special offence in the Criminal Law Amendment Act 1 of 1988 that made it a criminal offence while intoxicated if the level of the accused's intoxication was such that he or she lacked capacity.
45. Section 78(1A) of the Criminal Procedure Act 51 of 1977.
46. Section 78(1B) of the Criminal Procedure Act 51 of 1977.
47. See also section 78(3)-(8): " (3) If the finding contained in the relevant report is the unanimous finding of the persons who under section 79 enquired into the relevant mental condition of the accused, and the finding is not disputed by the prosecutor or the accused, the court may determine the matter on such report without hearing further evidence. (4) If the said finding is not unanimous or, if unanimous, is disputed by the prosecutor or the accused, the court shall determine the matter after hearing evidence, and the prosecutor and the accused may to that end present evidence to the court, including the evidence of any person who under section 79 enquired into the mental condition of the accused. (5) Where the said finding is disputed, the party disputing the finding may subpoena and cross-examine any person who under section 79 enquired into the mental condition of the accused. (6) If the court finds that the accused committed the act in question and that he or she at the time of such commission was by reason of mental illness or mental defect not criminally responsible for such act - (a) the court shall find the accused not guilty; or (b) if the court so finds after the accused has been convicted of the offence charged but before sentence is passed, the court shall set the conviction aside and find the accused not guilty, by reason of mental illness or mental defect, as the case may be, and direct - (i) in a case where the accused is charged with murder or culpable homicide or rape or another charge involving serious violence, or if the court considers it to be necessary in the public interest that the accused be - (aa) detained in a psychiatric hospital or a prison pending the decision of a judge in chambers in terms of section 29(1)(a) of the Mental Health Act 18 of 1973; (bb) admitted to, detained and treated in an institution stated in the order in terms of Chapter 3 of the Mental Health Act, 1973 (Act No. 18 of 1973), pending discharge by a hospital board in terms of section 29(4A)(a) of that Act; (cc) treated as an outpatient in terms of section 7 of that Act pending the certification by the superintendent of that institution stating that he or she need no longer be treated as such; (dd) released subject to such conditions as the court considers appropriate; or (ee) released unconditionally; (ii) in any other case than a case contemplated in subparagraph (i), that the accused - (aa) be admitted to, detained and treated in an institution stated in the order in terms of Chapter 3 of the Mental Health Act, 1973 (Act 18 of 1973), pending discharge by a hospital board in terms of section 29(4A)(a) of that Act; (bb) be treated as an out-patient in terms of section 7 of that Act pending the certification by the superintendent of that institution stating that he or she need no longer be treated as such; (cc) be released subject to such conditions as the court considers appropriate; or (dd) be released unconditionally. (7) If the court finds that the accused at the time of the commission of the act in question was criminally responsible for the act but that his capacity to appreciate the wrongfulness of the act or to act in accordance with an appreciation of the wrongfulness of the act was diminished by reason of mental illness or mental defect, the court may take the fact of such diminished responsibility into account when sentencing the accused. (8) (a) An accused against whom a finding is made under subsection (6) may appeal against such finding if the finding is not made in consequence of an allegation by the accused under subsection (2). (b) Such an appeal shall be made in the same manner and subject to the same conditions as an appeal against a conviction by the court for an offence. (9) Where an appeal against a finding under subsection (6) is allowed, the court of appeal shall set aside the finding and the direction under that subsection and remit the case to the court which made the finding, hereupon the relevant proceedings shall be continued in the ordinary course."
48. S v Kavin 1978 (2) SA 731 (W).
49. See section 79(1)(a)(b): ‘78 - (1) Where a court issues a direction under section 77 (1) or 78 (2), the relevant enquiry shall be conducted and be reported on - (a) where the accused is charged with an offence other than one referred to in paragraph (b), by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court; or (b) where the accused is charged with murder or culpable homicide or rape or another charge involving serious violence, or if the court considers it to be necessary in the public interest, or where the court in any particular case so directs - (i) by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court; (ii) by a psychiatrist appointed by the court and who is not in the full-time service of the State; (iii) by a psychiatrist appointed for the accused by the court; and (iv) by a clinical psychologist where the court so directs.’
50. Section 79(2)(a) of the Criminal Procedure Act 51 of 1977.
51. Section 79(2)(b) of the Criminal Procedure Act 51 of 1977.
52. S Kaliski ‘The criminal defendant’ 93-111 in S Kaliski Psycholegal assessment in South Africa (2006) 97, 110-111.
53. PE Dietz ‘Mentally disordered offenders: Patterns in the relationship between mental disorder and crime’ (2009) Psychiatric Clinics of North America 540, 544, 546, 547, 549.
54. CR Hollin Criminal behaviour: A psychological approach to explanation and prevention (2022) 105 and onwards.
55. HJ Eysenck & GH Gudjonsson The causes and cures of criminality (2017) 217.
56. Malingering is the intentional feigning or exaggeration of physical or psychological symptoms, motivated by external incentives such as avoidance of work or military service, receipt of financial compensation, evasion of criminal prosecution or procurement of prescription drugs. See M Dunn et al ‘Detecting neuropsychological malingering: effects of coaching and information’ (2003) 18 Archives of Clinical Neuropsychology 121-134.
57. See also Prins HA Offenders, deviants, or patients: An introduction to the study of socio-forensic problems (2020) 41ff.
58. PE Dietz ‘Mentally disordered offenders: Patterns in the relationship between mental disorder and crime’ (2002) Psychiatric Clinics of Northern America 540-541.
59. M Swanepoel ‘Legal Aspects with Regard to Mentally Ill Offenders in South Africa’ (2015) 18 Potchefstroom Electronic Review 1 3238-3259.
60. See R Mackay & W Brookbanks The Insanity Defence: Conflict and Reform in New Zealand 2022 144-169.
61. The Crimes Act 1961.
62. Cameron v R [2017] NZSC 89.
63. The Crimes Act 1961.
64. W Brookbanks ‘The insanity defence: Is it still fit for purpose?’ (2023) 54 Victoria University of Wellington Law Review 101-126.
65. Davis op cit (n5).
66. PJ Dean ‘Child homicide and Infanticide in New Zealand’ (2004) 27 International Journal of Law and Psychiatry 4 339-348; D Wilson ‘The offence/partial defence of infanticide in New Zealand law: past, current and future use’ (2022) 17 Otago Law Review 335.
67. Chittock op cit (n 9).
68. Davis op cit (n 5).
69. Chittock op cit (n 9).
70. Chittock op cit (n 10).
71. Davis op cit (n 5).
72. Davis op cit (n 5).
73. Chittock op cit (n 9).
2. BA Arrigo Punishing the mentally ill: a critical analysis of law and psychiatry (2002) 105.
3. See J Burchell ‘A provocative response to subjectivity in the criminal law’ (2013) Acta Juridica 23-47.
4. This endnote is merely to provide background on sources relevant to the insanity defence to show from how early there has been written about it. Several authors have conducted research on it, for example, C Badenhorst Criminal capacity of children PhD (Unisa) (2006); M Blackbeard ‘Epilepsy and criminal liability’ (1996) 9 South African Journal of Criminal Justice 2 191-210; J Burchell ‘Non-pathological incapacity: Evaluation of psychiatric testimony’ (1995) 8 South African Journal for Criminal Justice 137-42; FJW Calitz ‘Evaluering van die geestestoestand van ‘n beskuldigde wat van ‘n misdryf aangekla is: ‘n Multiprofessionele benadering’ (1993) 18 Tydskrif vir Regswetenskap 1 31-40; PA Carstens ‘The defense of non-pathological incapacity with reference to the battered wife who kills her abusive husband’ (2000) 13 South African Journal for Criminal Justice 2 180-189; F Cassim ‘The accused person’s competency to stand trial: a comparative perspective’ (2004) 45 Codicillus 17-27; CA Gagiano ‘Unnecessary committals for forensic observation’ (1991) 108 South African Law Journal 4 714-718; JW Jonck ‘Noodsaaklikheid van toestemming deur ‘n beskuldigde by ‘n ondersoek kragtens artikel 79 van die Strafproseswet’ (1997) 22 Tydskrif vir Regswetenskap 2 196-203; L Jordaan ‘General principles of liability: Sane automatism’ (1999) 40 Codicillus 2 83-84; S Kaliski Sensation seeking, impulsivity and violence in schizophrenics found unfit to stand trial (1993); A Kruger ‘JC de Wet se bydrae tot die leerstuk van toerekeningsvatbaarheid by geestesongesteldheid (1991) 4 South African Journal for Criminal Justice 2 145-147; A Kruger ‘The insanity defence raised by the state, minister’s decision, patients and a Bill of Rights’ (1993) 6 South African Journal for Criminal Justice 2 148-154; J Le Roux ‘Strafregtelike aanspreeklikheid en die verweer van nie-patologiese oftewel gesonde outomatisme’ (2000) 33 De Jure 1 190-193; J Le Roux ‘Strafregtelike aanspreeklikheid en die verweer van tydelike nie-patologiese ontoerekeningsvatbaarheid’ (2002) 65 Tydskrif vir die Hedendaagse Romeins-Hollandse Reg 3 478-481; H Oosthuizen & T Verschoor ‘Verwysing van onverhoorbare beskuldigdes en die daarstelling van 'n verhoorbaarheidvasstellingseenheid’ (1993) 6 South African Journal for Criminal Justice 2 155-164; CR Snyman ‘Die verweer van nie-patologiese ontoerekeningsvatbaarheid in die strafreg’ (1989) 14 Tydskrif vir Regswetenskap 1 1-15; SA Strauss ‘Nie-patalogiese ontoerekenbaarheid as verweer in die strafreg’ (1995) 16 South African Practice Management 4 14-34; FFW Van Oosten ‘The insanity defence: Its place and role in criminal law’ (1990) 3 South African Journal for Criminal Justice 1 1-9; I Verster ‘Mental disorders in patients referred for psychiatric observation after committing homicide’ (1999) 24 Tydskrif vir Regswetenskap 1: 58-66.
5. Because this case is a fairly recent case there has not been much written about it and therefore the author relies mostly on internet sources. See R Davis ‘SA Killer Mum’ Lauren Dickason’s New Zealand murder trial is a chillingly strange, sad and complex affair’ Daily Maverick, 5 August 2023, available at https://www.dailymaverick.co.za/article/2023-08-05-south-africa-killer-mum-lauren-dickason-new-zealand-murder-trial/ accessed on 7 January 2025.
6. Davis op cit (n 5).
7. N McCain ‘Convicted murderer Lauren Dickason served with deportation order – reports’ News 24, 23 October 2024, available at
https://www.news24.com/news24/southafrica/news/convicted-murderer-lauren-dickason-served-with-deportation-order-reports-20241023 accessed on 7 January 2025.
8. Davis op cit (n 5).
9. N Chittock ‘Lauren Dickason trial: Jury finds mother guilty of murdering her three daughters’ New Zealand / Court, 16 August 2023, available at https://www.rnz.co.nz/news/national/495916/lauren-dickason-trial-jury-finds-mother-guilty-of-murdering-her-three-daughters accessed on 6 January 2025.
10. Chittock op cit (n 9).
11. A Leask ‘Lauren Dickason trial: alleged child murderer stopped taking antidepressants ‘for immigration purposes’ The New Zealand Herald, 9 August 2023, available at
https://www.nzherald.co.nz/nz/lauren-dickason-trial-alleged-child-murderer-stopped-taking-antidepressants-for-immigration-purposes/IM6OBGE2VVFLRLXUTCL2XSVXAA/ accessed on 7 January 2025.
12. A Leask ‘Lauren Dickason trial: Psych expert reveals killer’s last words to daughters’ The New Zealand Herald, 27 July 2023, available at
https://www.nzherald.co.nz/nz/lauren-dickason-trial-world-expert-on-reproductive-psychiatry-and-women-who-kill-their-children-to-give-evidence-supporting- accessed 6 January 2025.
13. Leask op cit (n 12).
14. Leask op cit (n 12).
15. L Davies ‘Psychiatrist recounts Dickason’s comments about day she killed girls’ Crime and Justice, 3 August 2023, available at
https://www.1news.co.nz/2023/08/03/psychiatrist-recounts-dickasons-comments-about-day-she-killed-girls/ accessed on 7 January 2025.
16. Davis op cit (n 5).
17. According to the American Psychiatric Association the term ‘mental disorder’ unfortunately implies a distinction between ‘mental disorders’ and ‘physical disorders’, which is a reductionistic anachronism of mind / body dualism. A compelling literature documents that there is much ‘physical’ in ‘mental disorders’ and much ‘mental’ in ‘physical disorders’. However, the problem raised by the term mental disorder has been much clearer than its solution, and the term will have to persist until an appropriate substitute is found. See American Psychiatric Association DSM-5 xxi. See the definition of mental disorder according to ICD-11: ‘a mental disorder is a clinically recognisable collection of symptoms or behaviour associated in most cases with distress or interference with personal functions. A deviant pattern of behaviour, whether political, religious, or sexual, or a conflict between an individual and society, is not a mental disorder unless it is symptomatic of a dysfunction in the individual’.
18. Section 1 of the Mental Health Care Act 17 of 2002.
19. See also the definition of ‘severe or profound intellectual disability’: ‘means a range of intellectual functioning extending from partial self-maintenance under close supervision, together with limited self-protection skills in a controlled environment through limited self-care and requiring constant aid and supervision, to severely restricted sensory and motor functioning and requiring nursing care’. See s 1 of the Mental Health Care Act 17 of 2002.
20. (1927-1989.) Ronald David Laing was a Scottish psychiatrist who wrote extensively on mental illness – in particular, the experience of psychosis. Laing's views on the causes and treatment of serious mental dysfunction (greatly influenced by existential philosophy) ran counter to the psychiatric orthodoxy of the day by taking the expressed feelings of the individual patient or client as valid descriptions of lived experience rather than simply as symptoms of some separate or underlying disorder. Often associated with the anti-psychiatry movement, he himself rejected the label as such, as did certain others critical of conventional psychiatry at the time. See G Miller RD Laing (2015) 7, 19.
21. (1920-.) Thomas Stephen Szasz is a Professor Emeritus of Psychiatry at the State University of New York Health Science Center in Syracuse, New York. He is a prominent figure in the anti-psychiatry movement, a well-known social critic of the moral and scientific foundations of psychiatry, and of the social control aims of medicine in modern society, as well as of scientism. He is well known for his books: The myth of mental illness (1960); and The manufacture of madness: A comparative study of the inquisition and the mental health movement, which set out some of the arguments with which he is most associated. See AL Slade A bibliography of works by and about Thomas Stephen Szasz MD, 1947-1975 (1976) 1 and onwards.
22. The term anti-psychiatry usually refers to a movement that emerged in the 1960's, which is hostile to most of the fundamental assumptions and common practices of psychiatry. The term anti-psychiatry was first used by the South African psychiatrist David Cooper in 1967. Two central contentions of the anti-psychiatry movement are that: (1) The specific definitions of, or criteria for, hundreds of current psychiatric diagnoses or disorders are vague and arbitrary, leaving too much room for opinions and interpretations to meet basic scientific standards; and (2) prevailing psychiatric treatments are ultimately far more damaging than helpful to patients. See RA Baker Mind games: Are we obsessed with therapy? (1996) 1and onwards. See also RD Laing ‘Violence and psychiatry’ 14-33 in Psychiatry and Anti-Psychiatry ((ed) D Cooper D) (1967) 14 and onwards.
23. TR stands for "text revision".
24. C Katona & M Robertson Psychiatry at a glance (2005) 10.
25. H Pretorius ‘Classification’ 7-13 in J Burns & L Roos Textbook of psychiatry for Southern Africa 2nd ed (2016) 7-8.
26. A Allan ‘Psychiatric diagnosis in legal settings’ (2005) 11 South African Journal of Psychiatry 2 55.
27. Katona & Robertson op cit (n 24) 10.
28. Katona & Robertson op cit (n 24) 11.
29. See American Psychiatric Association DSM-5 25.
30. A multiaxial system further provides a convenient format for organising and communicating clinical information, for capturing the complexity of clinical situations, and for describing the heterogeneity of individuals presenting with the same diagnosis. In addition, this system promotes the application of the bio-psychosocial model in clinical, educational and research settings. See American Psychiatric Association DSM-5 25.
31. Hammurabi's activity as king of Babylonia dates from the middle of the 23rd century BC. From a legal point of view, there is much fundamental value to be found in the Code of Hammurabi. According to Price, the legal fraternity will find that Roman law has its roots in Babylonia, Egypt, and Persia, and that the ancient world was so admirably organised as to furnish better protection, in some respects, to its subjects than does our boasted civilisation of this day. The epilogue too is a remarkable document, which describes the benefits accruing to the subjects of Hammurabi from observance of these righteous laws and calls down the wrath of the gods upon the transgressor. Like the Roman Ius civile, the Hammurabi Code is divided into three sections: Ius actionum, Ius rerum and Ius personarum (this is usually found in reversed order in Roman law). See IM Price ‘The stele of Hammurabi’ (1904) 24 Biblical World 468, 469, 472.
32. BL Diamond & JM Quen The psychiatrist in the courtroom: Selected papers of Bernard L Diamond (1994) 39 and onwards.
33. See M'Naghten's Case 1843 10 C & F 200; C Elliott The rules of insanity: Moral responsibility and the mentally ill offender (1996) 10-13; J Hall General principles of criminal law (2008) 472 and onwards.
34. For a recent discussion of the insanity defence see L Roos, and C Kotze ‘Examining the Mr Tsafendas enquiry trial: Current insights on forensic psychiatric assessment and ethics’ (2024) 17 The South African Journal of Bioethics and Law 1 available at https://doi.org/10.7196/sajbl.2024.v17i1.1600 accessed 7 January 2025.
35. Ss 77-79 of the Criminal Procedure Act 51 of 77. See also the Report of the Commission of Inquiry into the Responsibility of Mentally Deranged Persons and Related Matters RP 69/1967 (also called the Rumpff Report).
36. S 77(1): "(1) If it appears to the court at any stage of criminal proceedings that the accused is by reason of mental illness or mental defect not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the matter be enquired into and be reported on in accordance with the provisions of section 79."
37. Burchell op cit (n 1) 372.
38. The Criminal Matters Amendment Act 68 of 1998.
39. The question of fitness to stand trial is determined by a psychiatric examination and report. A person who is found not be fit to stand trial is detained in a mental hospital or prison until they become fit to be tried. See sections 77(6) and 77(7). See also S v Leeuw 1987 (3) SA 97 (A) 17. In this case two psychiatrists, Prof WH Wessels and Dr PJ Gouse, reported in par [4] as follows: ‘Hy is weens verstandelike vertraging nie in staat om hofverrigtinge dermate te begryp dat hy sy verdediging na behore kan voer nie. … Hy was weens verstandelike vertraging ten tyde van die betrokke handeling nie in staat om die ongeoorloofdheid daarvan te besef of om ooreenkomstig ‘n besef van die ongeoorloofdheid van die betrokke handeling op te tree nie. Hy is dus nie strafregtelik toerekenbaar nie.’
40. Burchell op cit (n 1) 372.
41. CR Snyman Strafreg 6ed (2017) 164.
42. S v Mahlinza 1967 (1) SA 408 (A) at 417.
43. S v Stellmacher 1983 (2) SA 181 (SWA) at 187. In this case the accused had been on a strict weight-loss diet for a period of weeks and also performed strenuous physical labour on the day in question. He consumed at least half a bottle of brandy the evening. According to him there was in the bar a strong reflection of the setting of the sun in his eyes which shone through an empty bottle. As a result, he lapsed into an automatistic state, during which he began shooting at people in the bar, killing one person. The question was whether the accused had suffered from a mental illness as contemplated in s 78 of the Criminal Procedure Act. The state did not prove beyond reasonable doubt that the conduct of the accused was indicative of a pathological disorder which is not due to a temporary clouding of the mind not attributable to a mental abnormality. A foundation was laid in the evidence for a reliance on lack of criminal responsibility not caused by mental illness. Bearing in mind the reasonable doubt which exists regarding the cause of his lack of criminal responsibility, the accused had to be given the benefit of the doubt. He was found not guilty and discharged.
44. It is important to note that the defence of insanity should not be confused with the defence of non-pathological criminal incapacity. The defence of non-pathological criminal incapacity is not set out in any statutory provision, but forms part of the common law. Criminal incapacity is not the result of a specific cause; it may have any cause, for example, emotional collapse, fear, provocation or intoxication. If this defence succeeds, the accused leaves the court a free person and is not sent to a psychiatric hospital or prison. See Snyman op cit (n 41) 161 and onwards. See also S v Chretien 1981 (1) SA 1097 (A). In this case, the accused, after driving away from a party at which he had been drinking, drove into a crowd of people, killing one and injuring five others. He was acquitted on the basis of his lack of intention due to his level of intoxication. The court, however, accepted that there were degrees of intoxication and depending to what extent an individual was intoxicated, his or her intoxication could impair either his or her intention, criminal capacity or the voluntariness of the conduct. Due to tremendous criticism the legislature enacted a special offence in the Criminal Law Amendment Act 1 of 1988 that made it a criminal offence while intoxicated if the level of the accused's intoxication was such that he or she lacked capacity.
45. Section 78(1A) of the Criminal Procedure Act 51 of 1977.
46. Section 78(1B) of the Criminal Procedure Act 51 of 1977.
47. See also section 78(3)-(8): " (3) If the finding contained in the relevant report is the unanimous finding of the persons who under section 79 enquired into the relevant mental condition of the accused, and the finding is not disputed by the prosecutor or the accused, the court may determine the matter on such report without hearing further evidence. (4) If the said finding is not unanimous or, if unanimous, is disputed by the prosecutor or the accused, the court shall determine the matter after hearing evidence, and the prosecutor and the accused may to that end present evidence to the court, including the evidence of any person who under section 79 enquired into the mental condition of the accused. (5) Where the said finding is disputed, the party disputing the finding may subpoena and cross-examine any person who under section 79 enquired into the mental condition of the accused. (6) If the court finds that the accused committed the act in question and that he or she at the time of such commission was by reason of mental illness or mental defect not criminally responsible for such act - (a) the court shall find the accused not guilty; or (b) if the court so finds after the accused has been convicted of the offence charged but before sentence is passed, the court shall set the conviction aside and find the accused not guilty, by reason of mental illness or mental defect, as the case may be, and direct - (i) in a case where the accused is charged with murder or culpable homicide or rape or another charge involving serious violence, or if the court considers it to be necessary in the public interest that the accused be - (aa) detained in a psychiatric hospital or a prison pending the decision of a judge in chambers in terms of section 29(1)(a) of the Mental Health Act 18 of 1973; (bb) admitted to, detained and treated in an institution stated in the order in terms of Chapter 3 of the Mental Health Act, 1973 (Act No. 18 of 1973), pending discharge by a hospital board in terms of section 29(4A)(a) of that Act; (cc) treated as an outpatient in terms of section 7 of that Act pending the certification by the superintendent of that institution stating that he or she need no longer be treated as such; (dd) released subject to such conditions as the court considers appropriate; or (ee) released unconditionally; (ii) in any other case than a case contemplated in subparagraph (i), that the accused - (aa) be admitted to, detained and treated in an institution stated in the order in terms of Chapter 3 of the Mental Health Act, 1973 (Act 18 of 1973), pending discharge by a hospital board in terms of section 29(4A)(a) of that Act; (bb) be treated as an out-patient in terms of section 7 of that Act pending the certification by the superintendent of that institution stating that he or she need no longer be treated as such; (cc) be released subject to such conditions as the court considers appropriate; or (dd) be released unconditionally. (7) If the court finds that the accused at the time of the commission of the act in question was criminally responsible for the act but that his capacity to appreciate the wrongfulness of the act or to act in accordance with an appreciation of the wrongfulness of the act was diminished by reason of mental illness or mental defect, the court may take the fact of such diminished responsibility into account when sentencing the accused. (8) (a) An accused against whom a finding is made under subsection (6) may appeal against such finding if the finding is not made in consequence of an allegation by the accused under subsection (2). (b) Such an appeal shall be made in the same manner and subject to the same conditions as an appeal against a conviction by the court for an offence. (9) Where an appeal against a finding under subsection (6) is allowed, the court of appeal shall set aside the finding and the direction under that subsection and remit the case to the court which made the finding, hereupon the relevant proceedings shall be continued in the ordinary course."
48. S v Kavin 1978 (2) SA 731 (W).
49. See section 79(1)(a)(b): ‘78 - (1) Where a court issues a direction under section 77 (1) or 78 (2), the relevant enquiry shall be conducted and be reported on - (a) where the accused is charged with an offence other than one referred to in paragraph (b), by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court; or (b) where the accused is charged with murder or culpable homicide or rape or another charge involving serious violence, or if the court considers it to be necessary in the public interest, or where the court in any particular case so directs - (i) by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court; (ii) by a psychiatrist appointed by the court and who is not in the full-time service of the State; (iii) by a psychiatrist appointed for the accused by the court; and (iv) by a clinical psychologist where the court so directs.’
50. Section 79(2)(a) of the Criminal Procedure Act 51 of 1977.
51. Section 79(2)(b) of the Criminal Procedure Act 51 of 1977.
52. S Kaliski ‘The criminal defendant’ 93-111 in S Kaliski Psycholegal assessment in South Africa (2006) 97, 110-111.
53. PE Dietz ‘Mentally disordered offenders: Patterns in the relationship between mental disorder and crime’ (2009) Psychiatric Clinics of North America 540, 544, 546, 547, 549.
54. CR Hollin Criminal behaviour: A psychological approach to explanation and prevention (2022) 105 and onwards.
55. HJ Eysenck & GH Gudjonsson The causes and cures of criminality (2017) 217.
56. Malingering is the intentional feigning or exaggeration of physical or psychological symptoms, motivated by external incentives such as avoidance of work or military service, receipt of financial compensation, evasion of criminal prosecution or procurement of prescription drugs. See M Dunn et al ‘Detecting neuropsychological malingering: effects of coaching and information’ (2003) 18 Archives of Clinical Neuropsychology 121-134.
57. See also Prins HA Offenders, deviants, or patients: An introduction to the study of socio-forensic problems (2020) 41ff.
58. PE Dietz ‘Mentally disordered offenders: Patterns in the relationship between mental disorder and crime’ (2002) Psychiatric Clinics of Northern America 540-541.
59. M Swanepoel ‘Legal Aspects with Regard to Mentally Ill Offenders in South Africa’ (2015) 18 Potchefstroom Electronic Review 1 3238-3259.
60. See R Mackay & W Brookbanks The Insanity Defence: Conflict and Reform in New Zealand 2022 144-169.
61. The Crimes Act 1961.
62. Cameron v R [2017] NZSC 89.
63. The Crimes Act 1961.
64. W Brookbanks ‘The insanity defence: Is it still fit for purpose?’ (2023) 54 Victoria University of Wellington Law Review 101-126.
65. Davis op cit (n5).
66. PJ Dean ‘Child homicide and Infanticide in New Zealand’ (2004) 27 International Journal of Law and Psychiatry 4 339-348; D Wilson ‘The offence/partial defence of infanticide in New Zealand law: past, current and future use’ (2022) 17 Otago Law Review 335.
67. Chittock op cit (n 9).
68. Davis op cit (n 5).
69. Chittock op cit (n 9).
70. Chittock op cit (n 10).
71. Davis op cit (n 5).
72. Davis op cit (n 5).
73. Chittock op cit (n 9).