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R v Ardler

R v Ardler

Case [2004] ACTCA 4 30 March 2004

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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, 5^th 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 9^th 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…

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 Ardler

Details

AGLC: R v Ardler [2004] ACTCA 4
Case: [2004] ACTCA 4
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions appealed to the Court of Appeal of the Australian Capital Territory against a decision of Crispin J. The dispute concerned a special hearing conducted under the *Crimes Act 1900* (ACT) where the respondent, Dennis Ardler, had been found not guilty and acquitted of a charge of sexual intercourse without consent. This special hearing was necessitated by a finding that the respondent was unfit to plead due to his mental state.

The Court of Appeal was required to determine two principal legal issues. Firstly, whether an appeal lay against a finding of not guilty and the consequential acquittal in a special hearing, particularly in light of the principle of double jeopardy. Secondly, the Court had to consider the extent to which the prosecution must prove the *mens rea* element of an offence during a special hearing, specifically what constitutes "the acts that constitute the offence charged" and whether awareness of lack of consent, or other defences relating to mental impairment, diminished responsibility, or provocation, needed to be negatived by the Crown.

The Court held that an appeal against an acquittal in a special hearing is incompetent, as it offends the fundamental principle of double jeopardy, which prevents an acquitted person from being tried again for the same offence. The Court reasoned that a special hearing, while having procedural differences, ultimately results in an acquittal that bars further proceedings. Regarding the second issue, the Court clarified that at a special hearing, the prosecution must prove beyond reasonable doubt the physical acts that would constitute the offence if done with the requisite intent and voluntariness. However, the prosecution is not required to prove the mental element, such as lack of capacity to act intentionally or with specific knowledge, unless there is objective evidence raising such an issue. Defences going to the mental element, such as mental impairment, diminished responsibility, or provocation, are not available at a special hearing.

The Court of Appeal therefore dismissed the appeal as incompetent.

Orders