DPP v Connors
[2022] ACTSC 279
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Connors |
Citation: | [2022] ACTSC 279 |
Hearing Date: | 10 October 2022 |
DecisionDate: | 10 October 2022 |
Reasons Date: | 11 October 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [67] |
Catchwords: | CRIMINAL LAW – JURISDICTION – PRACTICE AND PROCEDURE – pleas of not guilty by way of mental impairment – proof of offences – determination of mental impairment – whether offence of property damage is a “serious offence” |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 30, 302, 304, 323, 324, 327, 381 |
Cases Cited: | R v Aleer [2016] ACTSC 75 |
Parties: | Director of Public Prosecutions (Prosecution) Douglas Roy Connors (Accused) |
Representation: | Counsel S Saikal-Skea (Plaintiff) J De Bruin (Accused) |
| Solicitors ACT Director of Public Prosecutions (Prosecution) ACT Legal Aid (Accused) | |
File Number: | SCC 234 and 235 of 2021 |
LOUKAS-KARLSSON J:
Introduction
On 10 October 2022, Douglas Roy Connors (the accused), with the assistance of counsel, pleaded not guilty by way of mental impairment to the following offences:
a) Count 1: CC 2021/4223 – aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code). The offence has a maximum penalty of 20 years imprisonment.
b) Count 2: CC 2021/2533 – damage property contrary to s 403 of the Criminal Code. The offence has a maximum penalty of 10 years imprisonment.
c) Count 3: CC 2021/6257 – assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT) (Crimes Act). The offence has a maximum penalty of 5 years imprisonment.
d) Count 4: CC 2021/2534 – threat to kill contrary to s 30 Crimes Act. The offence has a maximum penalty of 10 years imprisonment.
On 10 October 2022, the accused’s counsel also entered on his behalf a plea of not guilty by way of mental impairment to a charge of possess an offensive weapon with intent contrary to s 381 of the Crimes Act (the transfer charge). That charge has a maximum penalty of $2,000 or imprisonment for one year, or both.
That charge had been transferred to the Supreme Court in accordance with pt 8 of the Supreme Court Act 1933 (ACT) (Supreme Court Act). The Court has the same powers in relation to that offence as the Magistrates Court.
In accordance with ss 321 and 327 of the Crimes Act the prosecution agreed with the entering of a special verdict for each count on the indictment and the summary offence. Despite that indication, the Court must independently consider whether verdicts of not guilty by way of mental impairment are appropriate for each of the charges.
On 10 October 2022 I made orders entering verdicts of not guilty by way of mental impairment for the offences. These are my reasons for making those orders.
As I will explain later in these reasons, having made those orders I indicated to the parties that the matter would be re-listed on 11 October 2022 for consideration of the appropriate indicative sentence length as required by ss 302 and 304 of the Crimes Act.
Statutory Scheme Relating to Mental Impairment
Section 321 of the Crimes Act outlines the scheme relating to the entry of a special verdict for reason of mental impairment:
321Supreme Court—plea of not guilty because of mental impairment
(1)This section applies if an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court.
(2)The Supreme Court must enter a special verdict that the person is not guilty of the offence because of mental impairment if—
(a)the court considers the verdict appropriate; and
(b)the prosecution agrees to the entering of the verdict.
That legislative scheme applies in relation to the four counts on the indictment.
The procedure the Court must follow in determining whether the verdict is appropriate was outlined in R v Aleer [2016] ACTSC 75 (R v Aleer) at [13]. Relevantly, the Court must be satisfied that the prosecution has proven beyond reasonable doubt that the accused committed the physical acts which would constitute the offence if done intentionally and voluntarily. The Court must further be satisfied that the accused is mentally impaired, such as to meet the criteria outlined in s 28 of the Criminal Code.
I will address each of these matters in turn.
In relation to the transfer charge, as counsel for the accused correctly submitted a different statutory provision applies, namely, s 327 of the Crimes Act. The same procedure applies in relation to the determination of whether a special verdict should be entered for the transfer charge.
Where a special verdict is entered, the Court must then make orders under ss 323, 324, 327 or 328 of the Crimes Act (depending on whether the offences are serious offences and whether the offences are transfer charges).
Approach to the Evidence
All evidence was admitted by consent, with no examination or cross-examination of any witness. In accordance with established principles, the procedure for s 321(2) of the Crimes Act is one of a judge alone trial conducted in accordance with s 68C of the Supreme Court Act 1933 (ACT): R v Aleer. As outlined above at [11] that process will also apply in relation to the transfer charge.
I have given myself relevant directions regarding the nature of a criminal trial: R v Mulcahy [2010] ACTSC 98 at [13]–[24] and expert evidence: R v Sidaros (No 5) [2020] ACTSC 354 at [23], [24] and [26].
Prosecution Case Statement
The Prosecution Case Statement was tendered as part of the Prosecution Tender Bundle which formed Exhibit 1. That case statement outlines the prosecution case in relation to the physical elements of the offence. The defendant did not dispute the facts as contained in that statement.
The statement indicates that on Saturday 6 March 2021 the accused arrived at his former partner’s residence. For convenience, I will refer to the accused’s former partner as the complainant in these reasons. At that residence was the complainant and one of her relatives.
After arriving at the address, the accused yelled that he wanted to be let into the house and struck the door. The accused was in possession of a machete and a smaller silver knife. After the complainant refused to let him in, the accused kicked a vehicle belonging to the complainant causing indentations to the rear and front passenger doors
The accused then broke one of the complainant’s glass bedroom windows while she was inside the bedroom.
The damage to the window and the car is alleged to constitute count 2, damage to property.
While the accused was outside, he yelled out “I’m going to take your life”, “I’m the King” and “I’m number one. I will end your life”.
The accused then gained entry to the residence while in possession of the machete and smaller knife. This conduct is alleged to constitute count 1, aggravated burglary.
While he was inside, the accused was asked to leave by the complainant, and he refused. While he was inside the accused pushed the complainant into a wall and punched her in the face. As a result of the punch a dead tooth was dislodged from the complainant’s mouth. This conduct is alleged to constitute count 3, assault occasioning actual bodily harm.
Subsequently, the accused entered the complainant’s bedroom and sat on the bed. Whilst sitting on the bed, the accused asked the complainant “do you want me to take your life, or do you want someone else to take your life?”. After being asked what he meant by this, the accused said “I’m going to take your life, slut”. This conduct is alleged to constitute count 4, threat to kill.
The accused then left the property, after which the complainant locked the doors. A short time later, the accused returned and yelled to be let in. At this time, the complainant called the police and made statements as to what had occurred.
A short time later police arrived at the address and spoke with the complainant who directed them to the back yard where they located the accused and advised the accused that he was under arrest.
As the police placed a hand on the accused’s left arm, the accused produced a machete from the waistband of his shorts with his right hand and pulled away from the police. This conduct is alleged to constitute the transfer charge.
The accused then produced a smaller knife in his left hand after which the police fired tasers at the accused. After this, the accused dropped the machete and was arrested.
Photographs taken from the complainant’s residence also form part of the Prosecution Tender Bundle and I have had regard to those images.
Elements of the Offences
I do not understand there to be any issue between the parties as to the physical elements of the offences.
The elements of the offence of aggravated burglary (count 1) are:
a) The accused entered or remained in a building;
b) The accused intended to enter or remain in the building;
c) The accused was a trespasser;
d) At the time of entering or remaining in the building the accused intended to commit an offence that involved causing harm, or threatening to cause harm, to anyone in the building;
e) The accused had an offensive weapon with them at the time of committing the burglary; and
f) The accused intended to have an offensive weapon with them at the time of committing the burglary.
The elements of the offence of damage property (count 2) are:
a) The accused engages in conduct;
b) The accused intends to engage in conduct;
c) The accused’s conduct causes damage to property;
d) The accused intends to cause damage to the property or any other property belong to someone else, or the accused is reckless about causing damage to the property or any property belonging to someone else;
e) The property belongs to someone else; and
f) The accused is reckless as to whether the property belongs to someone else.
The elements of the offence of assault occasioning actual bodily harm (count 3) are:
a) The accused applied force to another person without that person’s consent;
b) The accused intended to apply force to another person;
c) The other person suffered actual bodily harm; and
d) The application of force caused the actual bodily harm.
The elements of the offence of threat to kill (count 4) are:
a) The accused made a threat to kill another person;
b) The accused made the threat to kill intending or being reckless as to whether or not the other person would fear that the threat would be carried out;
c) The threat is made without lawful excuse; and
d) The threat is made within circumstances in which a reasonable person would fear that the threat would be carried out.
The elements of the offence of possess offensive weapon with intent (transfer charge) are:
a) The defendant possessed an item;
b) The defendant intended to possess the item;
c) The item was an offensive weapon; and
d) The defendant possessed the item in circumstances which indicated the defendant intended to use the offensive weapon to commit an offence involving actual or threatened violence.
From the uncontested statements of facts contained in the Prosecution Case Statement, and on the basis that the accused does not contest any of those facts, I am satisfied that the prosecution has proven beyond reasonable doubt that the accused committed the physical elements of all of the offences: see R v Griffiths [2020] ACTSC 51 at [35].
I note that, as the facts outlined above indicate, all of the relevant conduct occurred on the same day. This is relevant when determining whether the accused was suffering from a mental impairment at the time of the relevant conduct.
Mental Impairment
The principles that apply in relation to mental impairment were summarised by Mossop J in R v Walker [2021] ACTSC 42 at [56]-[60].
In summary, the Court must determine whether the accused was suffering from a mental impairment at the time the accused carried out the conduct required for the offence and whether that impairment has one of the effects described in s 28(1) of the Criminal Code, namely that:
a) the person did not know the nature and quality of the conduct;
b) the person did not know that the conduct was wrong; or
c) the person could not control the conduct.
Mental impairment is defined in s 27 of the Criminal Code, which provides:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
Mental illness is defined as:
mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.
As discussed in R v Aleer, this is done through the provision of expert reports which must satisfy the Court as to the criteria set out in s 28 of the Criminal Code. As outlined by Refshauge J:
This does not need to be proved beyond reasonable doubt. The court, however, needs to be satisfied that the mental impairment has been made out to a standard sufficient to justify the potential significant interference with the freedom and liberty of the accused.
Before me are three expert reports, two authored by Dr Richard Furst dated 17 November 2021 and 10 December 2021 and one authored by Dr Stephen Allnutt dated 25 August 2022. Both doctors are forensic psychiatrists and there is no challenge to either of their expertise or qualifications. I note that both doctors have previously provided evidence in cases similar to this case.
The reports were tendered as part of the Prosecution Tender Bundle and neither doctor was required to give oral evidence.
Also before me are four exhibits tendered by counsel for the accused with no objection that relate to the accused’s psychiatric condition. Those documents relate to a psychiatric treatment order dated 1 September 2022 made by the ACAT. I have had regard to those documents, which counsel for the accused submitted provide further up-to-date information in relation to the accused’s condition.
As outlined in Dr Furst’s first report, Dr Furst assessed the accused by an AVL appointment and had access to other documentary material. Based on that assessment and the other material available to him, Dr Furst is of the opinion that:
Mr Connors suffers from a chronic mental illness by virtue of schizophrenia, with the differential diagnosis being schizoaffective disorder, both of which are pathological infirmities of the mind and permanent conditions. I note that he was acutely psychotic and disturbed in his mood at the time of the alleged offending …
Dr Furst’s evidence is that the accused at the relevant time, did not know that the conduct was wrong, in the relevant sense and, as a result of his condition, was not able to control his conduct at the relevant time.
Dr Furst stated, relevantly, that:
… [the accused] was unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure about whether his alleged conduct on the [relevant date] … as seen by a reasonable person, was wrong.
Dr Furst also indicated that, in his expert opinion, at the time of the relevant conduct the accused could not control the conduct.
Dr Furst’s second report was written after Dr Furst was provided with the indictment and Prosecution Case Statement. Having reviewed those documents, Dr Furst was of the view that none of this additional material altered his opinions as expressed in his first report.
Dr Allnutt conducted a clinical evaluation of the accused while he was in custody. Dr Allnutt indicated in his report that:
… there is adequate evidence to conclude that the accused suffers from a diagnosable psychiatric condition namely a chronic psychotic disorder …
Dr Allnutt agreed with Dr Furst that the accused has a long history of psychotic symptoms and that these were “entrenched”. In particular, Dr Allnutt agreed that there was “a long history of grandiose delusions associated with psychosis”.
Dr Allnutt concluded that the accused “has a schizophrenia or schizoaffective disorder, but possible underlying depressive and post traumatic stress symptoms”.
Dr Allnutt was satisfied that at the time of the alleged offence the accused was suffering from “grandiose delusions, paranoid ideas [and] probable thought disorder”.
Dr Allnutt concluded that, in his view:
I believe there would be reasonable grounds to conclude that [the accused] was unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure about whether his alleged conduct [at the relevant time] as seen by a reasonable person was wrong …
Dr Allnutt did, however, believe that the accused maintained capacity at the relevant time to know the “nature and quality of his conduct” but that the accused’s psychosis would have “significantly undermined his capacity to lose control and that on balance, [the accused] lacked capacity to control himself”.
Having reviewed the expert medical reports and the other documents tendered by counsel for the accused regarding his mental condition I am satisfied that at the relevant time the accused was suffering from a mental impairment.
I am also satisfied that due to his mental impairment at the relevant time, the accused either did not know that the conduct was wrong or was not able to control that conduct.
In the result it is appropriate that special verdicts by way of mental impairment be entered in relation to the charges on the indictment and the transfer charge.
Concluding matters
The matter was listed for consideration of the appropriate indicative sentence on 11 October 2022.
There is one final matter to turn to, and that is whether the offence of damage property is a “serious offence”. Whether an offence is a serious offence or not determines whether the Court must make an order under s 323 or s 324 of the Crimes Act following a finding that an accused is not guilty of the offence by way of mental impairment.
There appears to be no dispute between the parties that the other counts on the indictment are serious offences and for those counts an order under s 324 must be made. There also appears to be no dispute between the parties that the transfer charge is a serious offence and so an order under s 329 will be made in relation to that charge.
A serious offence for these purposes is an offence “involving actual or threatened violence”. Plainly the offence of aggravated burglary, assault occasioning actual bodily harm, threat to kill and possess an offensive weapon (in this case a knife) with intent are serious offences.
In relation to the offence of damage property this is less clear. In R v Kristy Louise McGuckin (No 2) [2014] ACTSC 365, Refshauge ACJ stated at [6]:
… The offence of damaging property is more problematic. In common parlance it may be said to be an offence of violence, but I addressed that matter in R v Smith (2012) 269 FLR 233 and held there that violence in the context of whether or not an offence is a serious offence does not include violence against property.
In this matter, the prosecution indicated that given that the other counts were clearly serious offences they did not advance a submission that the offence of damage property was a serious offence as, in effect, the matter was largely academic.
The prosecution expressed, however, that that position may not be taken in future cases (I infer in circumstances where there are not other counts which are plainly serious offences).
While it would be useful for the legislature to provide guidance on this issue, in circumstances where no party has suggested that Refshauge ACJ was plainly wrong and, in any event, where his Honour’s comments, in my view, have some force, I will deal with the offence of damage property on the basis that it is not a serious offence for the purposes of mental impairment.
Orders
I confirm the following orders:
1. I direct that special verdicts that the accused is not guilty by way of mental impairment be entered in relation to the four counts on the indictment (CC 2021/4223, CC 2021/2533, CC 2021/6257, CC 2021/2534).
2. I find that the accused is not guilty because of mental impairment pursuant to s 327 of the Crimes Act 1900 (ACT) in relation to the transfer charge (CAN 2535/21).
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Andrew Ray Date: 12 October 2022 |
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