O'Meara v Dominican Fathers - [2003] ACTSC 24

THE QUEEN v DENNIS ARDLER [2003] ACTSC 24 (11 April 2003)

CRIMINAL LAW – accused found unfit to plead – special hearing of charges – nature of hearing – issue whether the Court is satisfied beyond reasonable doubt that the accused “committed the acts which constitute the offence charged” – whether necessary for Crown to prove mens rea.
CRIMINAL LAW – accused found unfit to plead – particular difficulties when accused suffering from significant mental impairment or psychiatric illness at the time of the alleged offence – allegation of sexual intercourse without consent – whether evidence proved beyond reasonable doubt that accused must have known or been reckless as to absence of consent –issues dependent upon perceptions of accused - relevance of finding of unfitness - inferences not to be drawn against accused due to failure to give evidence - need for special caution in scrutinising the evidence.
CRIMINAL LAW - special hearing by judge alone – whether acts constituting offence proven beyond reasonable doubt.

Crimes Act 1900 (ACT), ss 12, 50, 301-303, 308, 310, 315, 316, 317, 319, 320, 324, subss 316(2), (8), 317(4), 319 (2)
Mental Health (Treatment and Care) Act 1994 (ACT), s 11, subs 68(3)
Guardianship and Management of Property Act 1991 (ACT)
Supreme Court Act 1933 (ACT), s 20, 68C
Evidence Act 1995 (Cth), s 144
Criminal Law Consolidation Act 1935 (SA), s 269M B
Crimes Amendment Bill 1994 (ACT), ss 428K, 428J, 428M B

R v Morris (2002) 128 A Crim R 110
R v Bailiff [2000] ACTSC 79 (unreported, 16 August 2002)
R v T (1999) 75 SASR 235
Haughton v Smith [1975] AC 476
R v Miller [1983] 2 AC 161
DPP v Morgan [1976] AC 182
R v Kimber (1983) 1 WLR 1118
R v Satnam S (1983) 78 Cr App R 149
R v Brown (1975) 10 SASR 139
R v Kitchener (1993) 29 NSWLR 696
R v Tolmie (1995) 37 NSWLR 660
Weissensteiner v The Queen (1993) 178 CLR 217
Azzopardi v The Queen (2001) 205 CLR 50
R vKurtic (1996) 85 A Crim R 57

Simon Bronitt “The Direction of Rape Law in Australia: Toward a Positive Consent Standard” (1994) 18 Crim Law J 249

No. SCC 135 of 2002

Judge: Crispin J
Supreme Court of the ACT
Date: 11 April 2003

IN THE SUPREME COURT OF THE       )
  )          No. SCC 135 of 2002
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN

v

DENNIS ARDLER

ORDER

Judge:  Crispin J
Date:  11 April 2003
Place:  Canberra

THE COURT FINDS THAT:

the accused is not guilty of the offence charged, namely that on 6 May 2002 he engaged in sexual intercourse with the complainant without her consent, knowing or being reckless as to whether she consented to the sexual intercourse.

THE COURT ORDERS THAT:

the accused submit himself to the jurisdiction of the Mental Health Tribunal to enable the Tribunal to determine whether orders should be made in respect of his treatment, care, control, rehabilitation and protection.

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] ACTSC 24
Decision Date

CaseChat Overview and Summary

This case involved a defendant who was found unfit to plead due to significant mental impairment. The defendant was charged with sexual intercourse without consent, and the case was heard in the Supreme Court of the Australian Capital Territory. The primary legal issue was whether the Crown needed to prove all essential elements of the offence, including the mental elements, during a special hearing for an unfit to plead defendant. The court held that the Crown must prove all essential elements of the offence, including the mental elements, in order to satisfy the test of proving beyond reasonable doubt that the defendant committed the acts constituting the offence.

The court found that the complainant was a credible witness and that the defendant had engaged in sexual intercourse with her without her consent. However, the court was unable to determine whether the defendant knew or was reckless as to the complainant's lack of consent due to his significant mental impairment. As the Crown could not prove this element of the offence, the defendant was acquitted. The court also noted that the existing provisions governing hearings for unfit to plead defendants may be inadequate and suggested that further consideration be given to replacing the current system with provisions that would better protect the community from potentially dangerous individuals.

Orders