R v Ardler
[2004] ACTCA 4
THE QUEEN v DENNIS ARDLER
[2004] ACTCA 4 (30 March 2004)
CRIMINAL LAW – appeal – accused found unfit to plead – special hearing by judge alone – finding of not guilty and subsequent acquittal to charge of sexual intercourse without consent - whether finding of not guilty and consequential acquittal is appealable – whether offends principle of double jeopardy – appeal incompetent.
CRIMINAL LAW – reference appeal – accused found unfit to plead – special hearing by judge alone - what has to be proved to determine whether accused “committed the acts that constitute the offence charged” – extent to which crown must prove mens rea – whether awareness of lack of consent was one of the acts constituting the offence which must be proved – extent to which Crown must negative defences going to mens rea element such as mental impairment, diminished responsibility and provocation.
Crimes Act 1900 (ACT), Div 13.6, ss 13, 14, 30, 54(1), 117, 300, 301(1), (2), 303, 307, 308, 310(3),(1), 315, 316(1), (2), (2)(b)(ii), (4)(b), (6), (8), 9(c), 317(1), (3,) (4), 318(1)(b)(i), 319(1)(b)(i), 320, 332, 333, 334, 335, 335(2), 336, 375(1)(b)(ii)
Supreme Court Act 1933 (ACT), ss 37E(2)(a)(ii), (2)(b), 37S, 68B
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (UK), s 4A
Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A
Human Rights Act 1998 (UK)
Mental Health (Criminal Procedure) Act1990 (NSW), s 22
Crimes (MentalImpairment and Unfitness to be Tried) Act1997 (Vic), s 17
Criminal Law Consolidation Act 1935 (SA), s 269A
Criminal Law Consolidation (Mental Impairment) Amendment Act 2000 (SA), ss 9,10
Criminal Procedure (Insanity) Act 1964 (UK), s 4A
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (UK), s 2
Homicide Act 1957 (UK), s 2
UN International Covenant on Civil and Political Rights, Article 14(7)
US Constitution, 5th Amendment
Bill of Rights Act 1990 (NZ), s 26(2)
Charter of Fundamental Rights of the European Union (2000) Article 50
Canadian Charter of Rights and Freedoms (1982), s 11(h)
European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) Article 6
Thompson v Mastertouch TV Service Ltd (1978) 19 ALR 547
Davern v Messel (1984) 155 CLR 21
R v Carroll (2002) 194 ALR 1 [2002] HCA 55, 77 ALJR 157
Rogers v R (1994) 181 CLR 251
R v M; R v Kerr; R v H [2002] 1 Cr App R 25
R v H [2003] 2 Cr App R 2
R v Grant [2002] 1 Cr App R 38
R v Antoine [2001] 1 AC 340
Attorney-General’s Reference (No 3 of1998) [2000] QB 401
Zecevic v DPP (Vic) (1987) 162 CLR 645, 657
Parker v The Queen (1963) 111 CLR 610
Attorney-General’s Reference (No 3 of1998) [2000] QB 401
Smith & Hogan, Criminal Law 9th ed. (1999)
The Mental Element in the Actus Reus (1982) 98 Law Quarterly Review 109
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 9 and 10 - 2003
No. SCC 135 of 2002
Judges: Higgins CJ, Gray and Whitlam JJ
Court of Appeal of the Australian Capital Territory
Date: 30 March 2004
IN THE SUPREME COURT OF THE ) No. ACTCA 9 and 10 - 2003
) No. SCC 135 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
THE QUEEN
v
DENNIS ARDLER
ORDER
Judges: Higgins CJ, Gray and Whitlam JJ
Date: 30 March 2004
Place: Canberra
THE COURT ORDERS THAT:
The question – what has to be proved when a Special Hearing is embarked upon under Division 13.2 of the Crimes Act 1900 to determine whether the accused “committed the acts that constitute the offence charged” – be answered in the following terms:
When a Special Hearing is embarked upon under Div 13.2 of the Crimes Act 1900, the prosecution is required to prove beyond reasonable doubt the physical acts of the offence charged which would constitute an offence if done intentionally and voluntarily and with any particular intent or knowledge specified as an element of the offence but is not required to negative lack of mental capacity to act intentionally or voluntarily or to have the specific knowledge or intention specified as an element of the offence unless there is objective evidence which raises such an issue including mistake, accident, lack of any specific intent or knowledge of the particularity necessary to constitute the offence that is an element of the offence or self-defence in which case the prosecution must negative that issue beyond reasonable doubt.
Pleas of mental impairment, provocation, or diminished responsibility are not able to be relied upon at a Special Hearing.
IN THE SUPREME COURT OF THE ) No. ACTCA 9 and 10 - 2003
) No. SCC 135 of 2002
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
THE QUEEN
v
DENNIS ARDLER
Judges: Higgins CJ, Gray and Whitlam JJ
Date: 30 March 2004
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
This appeal arises out of a special hearing completed by a finding of acquittal made by Crispin J on 11 April 2003 for reasons then handed down.
The special hearing was commenced on 10 April 2003. The respondent had been charged on indictment alleging that on 6 May 2002 he had engaged in sexual intercourse with the complainant, without her consent, knowing that she did not consent or being reckless as to whether she consented to the sexual intercourse. We note that the indictment as framed could well have been challenged as being bad for reasons of duplicity but no point was taken as to this.
A special hearing, rather than a trial by jury or before a judge alone in the usual manner, was necessary because of the respondent’s mental state. On 6 May 2002, he had appeared before Magistrate Somes in the ACT Magistrates Court charged with the offence later made the subject of the indictment.
Magistrate Somes referred the respondent to the Mental Health Tribunal to determine his fitness to plead to the charge.
On 27 June 2002 the Mental Health Tribunal determined that the respondent was unfit to plead and was unlikely to become fit to plead within 12 months. There is no challenge to that finding.
On 3 October 2002 Magistrate Somes committed the respondent for trial in respect of the offence referred to in the indictment.
The determination made on 27 June 2002, pursuant to the order made by Magistrate Somes under s 310(3) Crimes Act 1900 (ACT) (Crimes Act), had application only if the matter was to be dealt with pursuant to Div 13.6 of the Crimes Act (ss 332-336). That is, if the Magistrates Court had decided to hear the matter summarily the Magistrate would then have conducted a special hearing pursuant to s 335(2).
Having found a prima facie case of an offence against s 54(1) of the Crimes Act (sexual intercourse without consent), the learned Magistrate had no jurisdiction to entertain the summary disposal of the matter (see s 375(1)(b)(ii) of the Crimes Act). Hence, the issue of the respondent’s fitness to plead came before the Supreme Court by virtue of s 310(1) of that Act.
Accordingly, on 10 October 2002, Gray J referred the respondent to the Mental Health Tribunal to assess his fitness to plead in this Court. On 28 November 2002, having received a determination confirming the finding of 27 June 2002, Gray J, pursuant to s 315 Crimes Act, directed that a special hearing be conducted.
The Community Advocate was, on 29 November 2002, appointed to be the respondent’s guardian for the purposes of making an election for trial by Judge alone or by jury (see s 316(2) and s 316(4)(b). The Community Advocate, purportedly pursuant to s 68B of the Supreme Court Act 1933 (ACT) (Supreme Court Act) but in truth pursuant to s 316(2)(b)(ii) of the Crimes Act, notified the Court on 5 December 2002 that the respondent elected that the special hearing be conducted by a single judge without a jury. Nothing turns on the incorrect citation of s 68B, Supreme Court Act.
Thus, on 11 April 2003, the matter came before Crispin J as a special hearing.
By virtue of s 316(6) of the Crimes Act, the respondent was entitled to be, and was, legally represented notwithstanding his unfitness to plead and, by virtue of s 316(8), was deemed to have pleaded “not guilty” to the offence charged.
Section 317(3) of the Crimes Act provides -
If, at a special hearing by a single judge without a jury, the judge is not satisfied beyond reasonable doubt that the accused committed the acts that constitute the offence charged –
(a) the judge shall find the accused not guilty of the offence charged; and
(b) the accused shall be dealt with as if the accused had been found not guilty at an ordinary trial.
Section 318 of the Crimes Act makes provision in respect of “non-serious” offences and s 319 for “serious” offences in the event of a finding of non-acquittal. The accused in both cases may be detained and is subject to the jurisdiction of the Mental Health Tribunal.
“Serious offence” is defined by s 300 to mean –
(a) an indictable offence involving actual or threatened violence; or
(b) an offence against section 27(3) or (4).
In each case the power to detain and further deal with the person accused is activated if, and only if –
… the judge is satisfied beyond reasonable doubt that the accused committed the acts that constitute the offence charged.
If there is such a finding in the case of a “serious” offence, as was the offence with which the respondent was charged, the person accused must then be detained unless the criteria for release are satisfied. If, having regard to those criteria, it is considered “more appropriate” to do so, the person accused will be referred to the Mental Health Tribunal. The criteria for detention are specified in s 308 of the Crimes Act. It is in that respect that the consequences of non-acquittal of a serious offence differ from non-acquittal of a non-serious offence.
Where, after a non-acquittal order under s 318 or 319, an accused person is, by order, detained in custody until the Mental Health Tribunal orders otherwise, the court shall, per s 301(1), indicate –
… whether, if the special hearing had been normal criminal proceedings against a person who was fit to be tried for and convicted of the offence with which the accused is charged, it would have imposed a sentence of imprisonment.
If so, then s 301(2) is applicable and requires the court to –
… nominate a term in respect of that offence, that is the best estimate of the sentence it would have considered appropriate if the special hearing had been normal criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence.
The purpose of that nomination is to limit the period of detention that may be ordered. It may not exceed the term so nominated (s 303). The process for fixing that term is prescribed by s 307 –
… the relevant court may inform itself and consider the evidence and submissions that it would were the court determining the sentence to be imposed in normal criminal proceedings.
Whilst a special hearing cannot convict a person of an offence, a finding of acquittal bars any further proceedings in respect of the “acts that constitute the offence charged”. Consistently with that approach, s 316(1) provides –
Subject to this section, the Supreme Court shall conduct a special hearing as nearly as possible as if it were an ordinary criminal proceeding.
Thus the rules of evidence and procedure, save as expressly modified, are to be as closely as possible those that would be applicable if the hearing was an ordinary criminal trial of the offence or offences charged in the indictment.
THE ISSUES
On the hearing of this appeal two issues have been agitated by the Director of Public Prosecutions (DPP). The first is whether an appeal lies against a finding of not guilty and consequential acquittal of an accused in respect of the offence charged, notwithstanding the common law principle that, as a rule, an acquittal made by a court of competent jurisdiction cannot be questioned nor may proceedings in respect of the offence charged be brought again before that or any other court (see Thompson v Mastertouch TV Service Ltd (1978) 19 ALR 547 approved in Davern v Messel (1984) 155 CLR 21 at 46, 63, and 66). The principle is regarded as a fundamental part of the rule against double jeopardy (See: UN International Covenant on Civil and Political Rights, Article 14(7); US Constitution, 5th Amendment; Bill of Rights Act 1990 (NZ), s 26(2); Charter of Fundamental Rights of the European Union (2000) Article 50; Canadian Charter of Rights and Freedoms (1982), s 11(h)). Indeed, it has recently been held that to indict an acquitted person for perjury committed at his or her trial where the essence of the charge would be to contradict the verdict of acquittal is an abuse of process – see R v Carroll (2002) 194 ALR 1 [2002] HCA 55, 77 ALJR 157. The principle has also been held to prevent the tender of evidence which, if accepted, would have challenged a ruling excluding that evidence in a prior criminal trial and so indirectly challenge the acquittal entered in that trial – see Rogers v R (1994) 181 CLR 251.
The second issue relates to the meaning to be given to the words appearing in ss 316(9)(c), 317(1), (3), 318(1)(b)(i); 319(1)(b)(i) – “the acts that constitute the offence charged”. To what extent is the prosecution relieved of the need to prove beyond reasonable doubt that the accused person had the criminal intent necessary to make the acts done by that accused a criminal offence?
In the present case, the learned trial judge had found that, in part by reason of the respondent’s proven mentally dysfunctional state, it was not proved that he was aware that he was acting without the complainant’s consent or was reckless as to that fact. The DPP challenges the relevance of that lack of satisfaction arguing that it is enough that the act of intercourse in fact proceeded, as the trial judge expressly found, without the consent of the victim of that act. In other words, it was contended that awareness of lack of consent was not one of the acts constituting the offence.
THE APPLICABILITY OF THE MASTERTOUCH PRINCIPLE – DOUBLE JEOPARDY
The applicable legislative provisions seek to achieve the objective of equating as nearly as practicable the conduct and outcome of a special hearing with an ordinary criminal trial. That even extends to the imposition of a maximum period of detention. There is, expressly in the case of a jury verdict, a total finality to the proceedings even if the accused person should later become fit to plead, preventing the presentation of a fresh indictment or the taking of fresh proceedings based on the same acts or omissions. The same finality, it is apparent, must be afforded to a hearing by a judge alone.
The DPP conceded that the likelihood was that the Thompson v Mastertouch (supra) principle was, by analogy, intended to apply but pointed to a number of recent English decisions which, he contended, suggested otherwise.
The first of those decisions was R v M; R v Kerr; R v H [2002] 1 Cr App R 25. The issue in that case, however, was whether the proposal to hold a hearing in accordance with s 4A of the UK Act in respect of accused persons found unfit to plead breached Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953). That submission was founded on the likelihood that such a hearing, similar to a ‘special hearing’ under the ACT Crimes Act, would be inherently unfair because the accused was not fit to instruct counsel or give evidence on his own behalf.
The Court of Appeal (Rose LJ (V-P); Bell and Stanley Burnton JJ) rejected this objection saying, at 296 [19] –
In our judgment, the criminal charge provisions of Article 6 do not apply to proceedings which cannot result in a conviction. The object of the Convention is to protect the citizen against abuse of his rights by the State. The protection afforded by Article 6 is unnecessary if the proceedings in question cannot lead to the conviction and punishment of the accused. A procedure that can lead only to an acquittal of a criminal charge is not within Article 6.
Contrary to the DPP’s submissions, this statement does not support a conclusion that the “acquittal of a criminal charge” afforded by a special hearing is any less effective or of an inferior quality to the acquittal of the same accused in ordinary criminal proceedings.
The decision that the right to fair trial was not breached by provisions for a hearing under the UK legislation was affirmed by the House of Lords in R v H [2003] 2 Cr App R 2.
Lord Bingham, in that case in fact supported the proposition that whilst an adverse finding could not be a criminal conviction, a favourable finding is an effective acquittal. At 35, his Lordship said of the prescribed hearing process –
The procedure can result in a final acquittal, but it cannot result in a conviction and it cannot result in punishment.
R v Grant [2002] 1 Cr App R 38 was also referred to. The primary issue in that case was whether a jury on a charge of murder could, on such a prescribed hearing, consider defences of lack of intent to kill and of provocation. Again, objection was raised on the basis that the statutory provisions were incompatible with the European Convention.
The Queen’s Bench Division Court rejected that objection on grounds similar to those referred to in R v H (supra). The Court held the appeals competent, being against an adverse finding that the appellant did the acts charged. Those findings did not amount to verdicts of either conviction or of not guilty on the ground of insanity.
Unlike the ACT Crimes Act the UK legislation permitted trial on indictment where an adverse order was made if the accused later became fit to plead. At that trial defences could be considered. The Court expressly noted, at 537-8 [15]:
If a defendant were allowed to establish a defence of diminished responsibility in the context of section 4A [hearing after unfitness to plead is found] in a case charging both murder and manslaughter, then the jury would be required to acquit him of the murder charge pursuant to s 4A(4) but would find under section 4A(3) that he did the act charged in the manslaughter count. He would then be liable to a hospital order under section 5(2). If, however, he recovered so as to be fit to be tried, the power to remit him for trial under paragraph 4 of Schedule 1 to the 1991 Act would be effectively frustrated. He could not be tried for murder because the jury had previously acquitted him in respect of that count and he could not be convicted of manslaughter because he would not be a person who but for the section “would be liable … to be convicted of murder” under section 2 of the 1957 Act.
It may be observed that there are two significant differences in the Territory legislation from that in the United Kingdom. First, as already referred to, under the Territory legislation if an adverse finding is made then, even if the accused later becomes fit to plead, he or she cannot be re-charged. Second, the relevant Territory Court is obliged to fix, having made an adverse finding, a limit to detention to be equated to such sentence of imprisonment as would have been imposed had the accused been found guilty of the offence in ordinary criminal proceedings. (c.f. Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (UK)).
Thus, although it may be said that an adverse finding is not to be equated with conviction, the clear legislative intent, is that an acquittal should not be treated differently or as having any less effect than an acquittal in ordinary criminal proceedings.
Section 37E(2)(a)(ii) of the Supreme Court Act provides:
The following matters may be brought before, and heard by, the Court of Appeal;
(a) appeals in relation to the following judgments:
(i)judgments of the Master …
(ii)other judgments of the court (except judgments of the registrar, the Full Court exercising appellant jurisdiction or the Court of Appeal itself): …
There is nothing in this provision which would indicate an intention not to give effect to the principle for which Davern v Messel (supra) stands as authority. Indeed that conclusion is supported by the specific reference in s 37E(2)(b) to reference appeals following acquittal on indictment pursuant to s 37S of the Supreme Court Act.
The submission was put by the DPP that s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) assists his argument. That provision gives the Supreme Court all appellate jurisdiction “that is necessary for the administration of justice in the Territory”. That is not to the point. The issue is whether section 37E of the Supreme Court Act permits an appeal from an acquittal. Its general words cannot prevail against the undoubted common law right of a person not to be again placed in jeopardy by an appeal from an acquittal.
It follows that the appeal from the verdict of acquittal entered by Crispin J is incompetent and must be dismissed accordingly.
THE REFERENCE APPEAL
Recognising the likelihood that no appeal lay against the verdict of acquittal, the DPP also sought to challenge the finding of acquittal by way of a reference appeal. The Supreme Court Act permits such appeals pursuant to s 37S. That provides –
(1) This section applies if a person has been tried on indictment in the court and acquitted in relation to all or any part of the indictment.
(2) The Court of Appeal may, on application by the Attorney-General or the director of public prosecutions (the applicant), hear and decide (by a reference appeal) any question of law arising at or in relation to the trial.
In advancing the argument that the principle applied in Thompson vMastertouch (supra) did not apply to the construction of the appeal provisions, the DPP specifically drew attention to the decisions in R v M, Kerr and H [2002] (supra) and R v Grant [2002] (supra) and contended that the Court of Appeal had determined that similar proceedings, although commenced by indictment, were not a trial on indictment. Although the latter of those cases does use the expression “trial on indictment”, both cases were strictly speaking only concerned with the question of whether the proceeding was a “criminal proceeding” notwithstanding that the proceedings were commenced by an indictment. The purpose was to determine whether those provisions were incompatible with the Human Rights Act 1998 (UK) which applied Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The expression “trial on indictment” was used in the context of that consideration. It does not affirmatively or persuasively decide that the proceedings after an accused is adjudged unfit to plead may not be included in the expression “trial on indictment”.
In any event, an important distinction is that under the UK fitness to plead regime an adverse finding does not bar a full criminal trial if an accused recovers. That may be contrasted with the bar to further prosecution provided by s 317(4) of the Crimes Act. The consequence referred to earlier is that full effect should be given to a verdict entered in such a proceeding.
There does not appear to be any difficulty in holding that in the context of whether or not a reference appeal is available to the D.P.P. in respect of a verdict or finding of not guilty pursuant to s 317 of the Crimes Act, it can be said that the person “has been tried on indictment in the court and acquitted in relation to the indictment”. The verdict, finding or acquittal, satisfies the particular indictment and is conclusive as to the circumstances that are its subject.
Though the reference appeal as currently notified is out of time, there is power to extend it. It is our view, not contested by the respondent, that an extension of time should be granted to enable the issues in question to be agitated. In any event, whilst the present notice is dated 25 July 2003, an earlier application, albeit posing a different question of law, was filed, within time, on 30 April 2003.
THE ISSUE AS TO WHETHER THE RESPONDENT “COMMITED THE ACTS THAT CONSITUTE THE OFFENCE CHARGED”
The original question of law posed was –
Is the Crown required to prove the subjective elements of the offence under consideration in a Special Hearing conducted under Division 13.2 of the Crimes Act 1900?
The amended application poses the following question –
What has to be proved when a Special Hearing is embarked upon under Division 13.2 of the Crimes Act 1900 to determine whether the accused “committed the acts that constitute the offence charged”?
The question raised on the reference appeal does not admit of any easy answer. The mischief to which the provisions in question are directed has two aspects. The first is the injustice of confining a person by reason of the suspicion that they have committed an offence when they are not fit, by reason of mental dysfunction, to instruct counsel or even, perhaps, to give evidence in their own defence. It is plain that if the accused would be acquitted on an ordinary criminal trial, notwithstanding those disadvantages, otherwise than by reason of a defence of mental impairment, then the person accused should be acquitted and burdened no further by the criminal justice system. The second consideration is the protection of the community from persons who, though mentally unfit to be tried (or who are acquitted by reason of mental impairment), have committed an anti-social act which would be an offence if they had been of sound mind. The need is to minimise the danger to the community such persons pose and to address the problem by means of treatment and mental health orders.
In the course of argument, the court was referred to three broadly similar schemes as to what needs to be found in a hearing into an accused’s involvement in the matter charged to warrant a finding of non-acquittal. In each case those schemes recognise the limited nature of the inquiry in light of the finding as to an accused’s lack of fitness to plead.
NEW SOUTH WALES AND VICTORIA
In New South Wales and Victoria whether tried by jury or judge alone the obligation on the court is to determine whether the accused committed the offence charged. Verdicts of not guilty and not guilty on the ground of metal impairment or illness are available (Mental Health (Criminal Procedure) Act 1990 (NSW) s 22 and Crimes (MentalImpairment and Unfitness to be Tried) Act1997 (Vic) s 17.
SOUTH AUSTRALIA
In South Australia the inquiry is limited to that which is termed the “objective element” of the offence. The Criminal Law Consolidation Act 1935 (SA), s 269A defines the objective element as an element that is not a subjective element. “Subjective element” is defined. It:
… means voluntariness, intention, knowledge or some other mental state that is an element of the offence.
The legislation originally permitted an acquittal if there be on the evidence before the court a defence to the charge “on the assumption that the defendant’s mental faculties were not impaired at the time of the alleged offence”. A later amendment removed from the courts consideration “ any question of whether the defendant’s conduct is defensible” (Criminal Law Consolidation (Mental Impairment) Amendment Act 2000 (SA), ss 9 and 10)
UNITED KINGDOM
In the United Kingdom the jury, in cases of unfitness to plead, is called upon to determine whether the accused “did the act or made the omission charged against him as the offence”. (Criminal Procedure (Insanity) Act 1964 (UK), s 4A as substituted by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (UK), s 2).
GENERALLY
An adverse finding in each of the jurisdictions referred to results in the making of a supervisory and/or detaining order with some form of limiting term referable to the potential sentence that might have been imposed had there been a full trial. Leaving aside the difficulties in setting such a period and the artificiality of so doing (in Victoria, it is an arbitrary nominal term) the purpose is to afford treatment to the accused within a regime referable to (and limited by) what might have been the accused’s liability to punishment had the offence been proved against the accused in an ordinary criminal trial.
ACT
The provisions in the Crimes Act, referred to earlier, provide in this case for an inquiry by way of a special hearing into whether “the accused committed the acts that constitute the offence charged” (see s 317 Crimes Act). The formulation of the issue in this way is close to the legislative provision adopted in the United Kingdom. However, the requirement to determine the “acts that constitute the offence charged” gives rise to an uncertainty as to what the legislature intended. In considering what it was intended should constitute proof of the case in such proceedings there are three possibilities. One is proof only of the commission of the physical act or acts. Such is the case under the South Australian scheme, but a far more elaborate and deliberate definition is used to achieve that objective. Another is to regard “acts that constitute the offence” as including the specific mental elements involved in making out the offence. However, to do so ignores the way in which the legislature has expressed the finding that is required. If a finding of the commission of the offence was intended, the words “acts that constitute” are superfluous. The third possibility is to recognise that the phrase “acts that constitute the offence” describes something that is unlawful (in a broad sense) so as to be an offence or an element of an offence but not to require proof of the full mental element necessary in law to establish the commission of the offence. It is that third possibility that is deserving of further exploration.
The common law has long accepted the theory of dividing offences into elements and as part of such elements referring to actus reus and mens rea. The expression “acts that constitute the offence charged” points towards a conclusion that what was intended was the exclusion of intent from the act. However, this is too simplistic a categorisation of the spectrum of offences encompassed by the criminal law. On such a limited view it would include purely involuntary actions and it is not readily apparent that the legislature would have intended that result. It also does not meet the difficulty that a large number of offences are constituted by the mental element involved in the act. As the authors of Smith & Hogan, Criminal Law 9th ed. (1999) observe:
“The only concept known to the law is the crime; and the crime exists only when actus reus and mens rea coincide. It is not always possible to separate actus reus from mens rea. Sometimes a word which describes the actus reus, or part of it, implies a mental element. Without that mental element the actus reus simply cannot exist. There are many offences of possession of proscribed objects and it has always been recognised that possession consists in a mental as well as physical element. The same is true of words like “permits”, “appropriates”, “cultivates”, “abandons” and many more. Having an offensive weapon in a public place is the actus reus of an offence; but whether an article is an offensive weapon depends, in some circumstances, on the intention with which it is carried. In the absence of that intention, the thing is not an offensive weapon and there is no actus reus. The significance of this is that any mental element which is part of the actus reus is necessarily an element of the offence”
(See also A.C.E. Lynch The Mental Element in the Actus Reus (1982) 98 Law Quarterly Review 109).
It is not necessary to further develop how this assessment might affect the standard doctrine of actus reus and mens rea except to indicate that it may have an effect on crimes constituted by conspiracy and accessorial liability so as to bring them within the purview of the special hearing provisions from which they would be excluded if acts that are confined to the physical only fall within the purview of the special hearing.
The issue of construction raised by the expression “did the act or made the omission charged against him” in the comparable provision in the United Kingdom legislation was considered by the House of Lords in R v Antoine [2001] 1 AC 340. This was not a decision to which Crispin J was referred by counsel in the case before him, but was relied upon and, as we understand it, is now accepted by the D.P.P. as representing the appropriate construction of the provision.
In R v Antoine (supra), the accused was charged with murder and manslaughter. It appeared that the accused had killed the deceased whilst in company with another clearly insane person. The accused was found unfit to plead. The other person had pleaded guilty to manslaughter and was then subjected to a “hospital order”. The same result would have followed had either accused been acquitted on the ground of insanity.
Lord Hutton’s speech was the only judgment. It was concurred in by Lord Nicholls of Birkenhead, Lord Mackay of Clashfern, Lord Nolan and Lord Hope of Craighead. It was held that it was not incumbent on the prosecution to have excluded the defence of diminished responsibility. That followed from the terms of that statutory defence because the accused was not, on a special hearing, “liable to be convicted of murder” -see Section 2 Homicide Act 1957 (UK). The same reasoning would apply to the provision relating to diminished responsibility in s 14 of the Crimes Act. In such a case s 14 would not apply as the procedure under s 317 Crimes Act does not put a person “on trial for murder” as s 14 requires.
However, their Lordships differed from the Court of Appeal and the trial judge as to whether the Crown had, nevertheless, to prove the existence of the mens rea of murder. Those earlier hearings had accepted, and the Crown had not challenged the proposition, that the Crown had to prove that the defendant’s conduct “satisfied to the requisite extent all the ingredients of what otherwise, were it not for the disability, would be properly characterised as an offence” (p 369 A-B).
Reference was made by their Lordships to Attorney-General’s Reference (No 3 of1998) [2000] QB 401. In that case, though fit to plead, the accused had been insane when he broke into a house and seriously assaulted the occupant with a view to protecting himself from imagined evil. He did not believe it was wrong to do so. The Court of Appeal had held that, in the case of insanity at the time of committing the act, mens rea was to be deemed irrelevant. That was so, whether, by reason of the disease of the mind in question, the accused did not know the nature or quality of the acts he had done or did not know them to be wrong.
Lord Hutton supported that view, saying, at 374 D –
… where it is established that the defendant was insane under either limbs of the McNaghten Rules at the time of the alleged offence the jury should no longer be concerned with the mental responsibility of the defendant for that offence and a jury making a determination under section 4A(2) should not consider the issue of mens rea.
The same result follows under the Crimes Act by parity of reasoning with that applying to the issue of the effect of diminished responsibility on a charge of murder dealt with by way of a special hearing. The concept of insanity as a defence to a charge has been replaced in the Crimes Act with acquittal on the grounds of mental impairment (which incorporates the limbs of the McNaghten Rules referred to by Lord Hutton). Section 320 of the Crimes Act establishes an entitlement to acquittal of an indictable offence on the grounds of mental impairment which is not a “verdict” which is available under s 317 of the Crimes Act in respect of a special hearing.
That, of course, does not address the problem where the “acts”, though committed, would, but for the issue of unfitness to plead or of insanity, have been such as to fail to persuade the tribunal of fact that an offence had been committed. For example, in a case of theft it might appear to be a reasonable hypothesis that the mentally dysfunctional person intended merely to borrow the item in question or had taken it inadvertently.
Lord Hutton did address that difficulty, pointing to a number of options which, if adopted, might resolve those situations.
At 375 F – G, his Lordship said –
In very many cases the prosecution seeks to prove the requisite mens rea for the offence by proving the actions of the defendant and asking the jury to infer the mens rea from those actions. If the defence considers that the facts relied upon by the prosecution do not give rise to the prima facia inference that the defendant had the requisite mens rea for the offence charged, it may request the court under section 4(2) to permit the trial to proceed and at the conclusion of the prosecution case it can then make a submission of no case to answer.
That option is not available under s 315 of the Crimes Act. A special hearing is mandatory if an accused person is subject to an order under s 310(1). In any event, it would be “courageous” to the point of folly for counsel to advise such a course which, if unsuccessful, could result in the conviction of a person in fact unfit to plead. Nor would there be, subject to the role of mens rea, any advantage in such a course. If the case would have failed because of lack of evidence that the accused had committed “acts that constitute the offence”, then the acquittal on a special hearing is no different from an acquittal at an ordinary trial. It does, however, emphasise that the “acts” must, at least, constitute prima facia evidence of the commission of the offence charged (but for the existence of the relevant mental dysfunction).
Of interest, for present purposes, is his Lordship’s endorsement of the reasoning of Judge LJ in Attorney-General’s Reference (No. 3 of 1998) (supra) at 411 –
Where on an indictment for rape it is proved that sexual intercourse has taken place without the consent of the woman, and the defendant has established insanity, he should not be entitled to an acquittal on the basis that he mistakenly, but insanely, understood or believed that she was consenting.
That, of course, was a case of lack of criminal responsibility by reason of insanity. It was not a case where, though insane, the accused, otherwise than by reason of his insanity, appeared to have understood or believed that there was consent or, at least, it appeared to be a reasonable hypothesis that the accused may have so understood or believed even had he not been mentally dysfunctional.
Further, his Lordship noted, the division between the actus reus and the mens rea is by no means to be equated with a dichotomy between physical or external actions and the exercise of the mind to will those actions. Thus, in his Lordship’s view, a question might reasonably be posed (at 376), namely –
… should the jury … decide that the defendant did not do the “act” if the defendant would have had an arguable defence of accident or mistake or self-defence which he could have raised if he had not been under a disability and the trial had proceeded in the normal way.
Lord Hutton proposed the following solution to that difficulty (at 376-77 H – D) –
I would hold that it should be resolved in this way. If there is objective evidence which raises the issue of mistake or accident or self-defence, then the jury should not find that the defendant did the “act” unless it is satisfied beyond reasonable doubt on all the evidence that the prosecution has negatived that defence. For example, if the defendant had struck another person with his fist and the blow had caused death, it would be open to the jury under section 4A(4) to acquit the defendant charged with manslaughter if a witness gave evidence that the victim had attacked the defendant with a knife before the defendant struck him. Again, if a woman was charged with theft of a handbag and a witness gave evidence that on sitting down at a table in a restaurant the defendant had placed her own handbag on the floor and, on getting up to leave, picked up the handbag placed beside her by a woman at the next table, it would be open to the jury to acquit.
But what the defence cannot do, in the absence of a witness whose evidence raises the defence, is to suggest to the jury that the defendant may have acted under a mistake, or by accident, or in self-defence, and to submit that the jury should acquit unless the prosecution satisfies them that there is no reasonable possibility that that suggestion is correct. I consider that the same approach is to be taken if defence counsel wishes to advance the defence that the defendant, in law, did not do the “act” because his action was involuntary, as when a man kicks out and strikes another in the course of an uncontrollable fit brought about by a medical condition. In such a case there would have to be evidence that the defendant suffered from the condition.
In many cases, the cause of the unfitness to plead may well have also enabled the accused to benefit from a verdict of not guilty by reason of mental impairment. In others, the same condition, though falling short of that defence, may have negatived a specific intent as where particular consequences are to be foreseen (for example, s 30 of the Crimes Act - Threat to kill) albeit that a lesser offence might be made out. In yet other instances, the cause of the unfitness to plead may have arisen after the alleged offence.
It would plainly be unsatisfactory so far as the accused is concerned, if, on the facts as proved to the requisite degree, it appears that the accused should have been acquitted of the offence charged because there was reason to doubt that a specific intent, an element of that offence, existed. It may even be the case that it is apparent, by reason of, for example, mental retardation, that the accused could not have had that specific intent. It would be plainly absurd to find that the accused had committed the acts constituting that offence when it appears that the accused did not have a specific intent or specific knowledge necessary to constitute one offence rather than another, perhaps, lesser offence - for example, assault occasioning actual bodily harm, as opposed to assault with intent to cause grievous bodily harm.
On the other hand, in a case such as was considered in Antoine (supra), the accused had voluntarily and intentionally killed a person. His mental state at the time may have entitled him to rely on diminished responsibility or even insanity. Had either of those pleas succeeded, a committal to hospital on a mental health order was a likely result. Indeed, as noted, a co-accused was so committed on acceptance of a plea to manslaughter by reason of diminished responsibility. It would be anomalous that an accused could be entirely acquitted if unfit to plead by reason of the same or a similar mental impairment but if tried might, at best, be found not guilty on the ground of insanity and then detained under a similar order.
It seems to us that it is consistent with the purpose of the legislation for the Crown to be relieved of the obligation to prove that the accused had the requisite mens rea for the offence where there is evidence of mental impairment warranting a finding of diminished responsibility or of insanity which, otherwise, would be a defence.
Nevertheless, if the offence charged requires a specific intent of the particularity necessary to constitute the offence, such as the offence of arson referred to in s 117 Crimes Act, “to endanger the life of another person”, that specific intent must be proved in order that the “acts” proved will constitute that offence rather than a lesser offence.
If the specific intent or knowledge is present, it is no answer for it to appear that that specific intent or knowledge was the consequence of mental impairment. However, the mental impairment will be relevant to the question whether that intent or knowledge was in fact present.
That, it seems to us, is the consequence of Lord Hutton’s speech in Antoine (supra). His Lordship points to the fact that a person unfit to plead, as with any other person who offers no answer to the prosecution case, will be at greater risk of adverse findings if the evidence adduced satisfies the jury that the acts constituting the offence were done apparently voluntarily and intentionally. In such a case, unless some matter of excuse appeared, at least as a reasonable hypothesis (for example, self-defence or accident), the offence would be made out.
This is no different from the situation where a person who is fit to plead faces a charge, say, of assault. The prosecution does not have to negative self-defence unless from the evidence it appears that it is reasonably possible that the act in question was done in self-defence (see Zecevic v DPP (Vic) (1987) 162 CLR 645, 657). Some objective evidence must appear which fairly raises that hypothesis.
It is not incumbent on the Crown to prove that the accused was of sound mind at the time the alleged offence was committed. However, even in cases where insanity is relied upon as a defence, the Crown is not relieved of the burden of proving that the acts allegedly done were done voluntarily and intentionally and that any specific intent or knowledge necessary to constitute the particular offence alleged was present. To hold otherwise would lead to the ludicrous situation that possession of stolen goods would lead to liability for incarceration, at least on a mental health order, if the alleged offender was unfit to plead, but not if it appeared at trial that he lacked knowledge that the goods had been stolen. It would be no answer to say that, had the accused not been mentally impaired, he would have realised that the goods were stolen.
It is different where the facts as proved would warrant a finding adverse to the accused but for the application of the mental impairment defence. In that case, the mentally impaired defendant is not guilty on the ground of mental impairment and would be treated in the same way as that same defendant would be treated at a special hearing following a non-acquittal. Indeed, given that a person unfit to plead cannot elect an ordinary criminal trial, a different result would be anomalous.
The Crown is assisted by the presumption that an accused person is of sound mind, at least to the extent of being, until the contrary is proved, of normal understanding and awareness.
There is no legal presumption as to acts done being voluntary and intentional – see Parker v The Queen (1963) 111 CLR 610. However, in the absence of evidence to the contrary a jury (or judge alone) is entitled to infer that the act in question was voluntary and intentional. Further, to find that an apparently voluntary and intentional act is a product of mental impairment depends on proof of that fact at least to the civil standard.
It is consistent with Antoine that where the evidence otherwise reveals a voluntary and intentional act and, if required by the offence charged, actual knowledge or specific intent in relation to a particular matter, then it is open for a tribunal of fact so to conclude unless there is raised by the evidence some reason to doubt that conclusion apart from the potential application of the defence of mental impairment (or, if applicable, diminished responsibility).
In other words, lack of intent, specific or general, arising from mental impairment or, where relevant, diminished responsibility, falls outside the scope of “acts constituting the offence”.
Similarly, “diminished responsibility” as a defence (s 14 Crimes Act) does not need to be negatived by the Crown. It is applicable only on a trial for murder where the accused is in jeopardy of being convicted of murder. The evidence that might support a conclusion of diminished responsibility could in some circumstances support a finding that, doubt being raised as to the voluntariness of the act in question, or as to a specific state of knowledge or intention, the Crown has failed to dispel that doubt. However the two questions are not identical.
Similarly the defence of provocation (s 13 Crimes Act) will be unavailable on a special hearing. It applies only to a trial for murder where the accused person could otherwise be convicted of murder.
THE PRESENT CASE
In view of the fact that Antoine’s case was not drawn to Crispin J’s attention in the case the subject of this reference it is not surprising that His Honour opted for an interpretation of the expression the acts which constitute to the offence charged which required proof of each element of the offence without reference to the qualification that may be inferred from that decision. Nevertheless, his Honour’s reasons properly and usefully canvass the unsatisfactory position of having to choose between a requirement that the prosecution prove beyond reasonable doubt each element of the relevant offence or only the objective elements absent any mental element. Having regard to the analysis that we have adopted it is unnecessary to further consider that stark choice with which his Honour considered he was faced. Nor is there any reason to doubt that, given his Honour was not able to conclude that, even absent his mental impairment the respondent might not have concluded that the complainant was not consenting to the act of sexual intercourse that occurred, the result of the case would have been the same.
We would modify the question of law to be decided in the manner proposed by the DPP in his amended application so that the question asks:
What has to be proved when a Special Hearing is embarked upon under Division 13.2 of the Crimes Act 1900 to determine whether the accused “committed the acts that constitute the offence charged”?
We answer that question as follows:
When a Special Hearing is embarked upon under Div 13.2 of the Crimes Act 1900, the prosecution is required to prove beyond reasonable doubt the physical acts of the offence charged which would constitute an offence if done intentionally and voluntarily and with any particular intent or knowledge specified as an element of the offence but is not required to negative lack of mental capacity to act intentionally or voluntarily or to have the specific knowledge or intention specified as an element of the offence unless there is objective evidence which raises such an issue including mistake, accident, lack of any specific intent or knowledge of the particularity necessary to constitute the offence that is an element of the offence or self-defence in which case the prosecution must negative that issue beyond reasonable doubt.
Pleas of mental impairment, provocation, or diminished responsibility are not able to be relied upon at a Special Hearing.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 30 March 2004
Counsel for the Appellant: Mr R Refshauge SC and Ms J Whitbread
Solicitor for the Appellant: ACT Director of Public Prosecutions
Counsel for the Respondent: Ms J Morrish QC and Mr Alyn Doig
Solicitor for the Respondent: South Eastern Aboriginal Legal Service
Date of hearing: 24 July 2003
Date of judgment: 30 March 2004
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