R v Andison - [2021] ACTSC 32

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Andison
Citation:	[2021] ACTSC 32
Hearing Date:	26 February 2021
DecisionDate:	26 February 2021
Before:	Elkaim J
Decision:	See [26]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Pre-trial hearing – determination of mental impairment – referral to ACAT
Legislation Cited:	Crimes Act 1900 (ACT) ss 300, 321, 323(3)(b), 324 Criminal Code 2002 (ACT) ss 27, 28, 404(1) Mental Health Act 2015 (ACT)
Cases Cited:	R v Singsathitsuk [2021] ACTSC 26
Parties:	The Queen (Crown) Daniel James Andison (Accused)
Representation:	Counsel S Jerome (Crown) H Hayunga (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Accused)
File Number:	SCC 158 of 2019

ELKAIM J:

The accused, Mr Daniel Andison, was arraigned before me this morning. He pleaded not guilty by reason of mental impairment to the offence of causing damage by fire to a building, [redacted], intending to cause, or being reckless about causing damage to that building (s 404(1) of the Criminal Code 2002 (ACT)).

The matter essentially proceeded by way of documentary evidence, included in both Exhibits A, B and 1.

The relevant legislation is to be found in Part 2.3 of the Criminal Code 2002. Section 27 contains the relevant definitions of “mental impairment” and “mental illness”. Section 28 is as follows:

28Mental impairment and criminal responsibility
(1)A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that—
(a)the person did not know the nature and quality of the conduct; or
(b)the person did not know that the conduct was wrong; or
(c)the person could not control the conduct.

(2)For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.
(3)The question whether a person was suffering from a mental impairment is a question of fact.
(4)A person is presumed not to have been suffering from a mental impairment.
(5)The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.
(6)The prosecution may rely on this section only if the court gives leave.
(7)If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must—
(a)for an offence dealt with before the Supreme Court—return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or
(b)for any other offence—find the person not guilty of the offence because of mental impairment.

The next relevant legislation is s 321 of the Crimes Act 1900 (ACT), which states:

321Supreme Court—plea of not guilty because of mental impairment
(1)This section applies if an accused pleads not…

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.

Continue reading R v Andison

Details

AGLC: R v Andison [2021] ACTSC 32
Case: [2021] ACTSC 32
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the Crown prosecuted Daniel James Andison for an act of arson committed at a residence. Andison pleaded not guilty by reason of mental impairment. The court was required to determine whether Andison was suffering from a mental impairment at the time of the offence, and if so, whether this rendered him not criminally responsible. The court also had to decide if the offence was serious and, if so, whether Andison should be referred to the Administrative Appeals Tribunal for a mental health or forensic mental health order.

The court considered the opinions of two experts, Dr Reid, a neuropsychologist, and Dr Furst, a psychiatrist. Both experts concluded that Andison was suffering from a mental impairment, although their opinions differed on the specifics of his impairment. The court found that Andison's intellectual disability and related cognitive deficits likely impaired his capacity to control his conduct. As both expert opinions fell within the bounds of the relevant legislation, the court was satisfied that Andison was not criminally responsible due to mental impairment. The court also found that the physical elements of the offence had been proven beyond reasonable doubt, but concluded that the offence was not serious as it did not involve actual or threatened violence. Finally, the court ordered Andison to submit to the jurisdiction of the Administrative Appeals Tribunal to allow for the making of a mental health or forensic mental health order.

The court's final orders were that Andison be found not guilty by reason of mental impairment and that he be referred to the Administrative Appeals Tribunal under the Crimes Act to allow for the making of a mental health or forensic mental health order.

Orders