R v Ardler

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.