R v Chan - [2008] SADC 120

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CHAN
[2008] SADC 120
Reasons for the Order of His Honour Judge Nicholson
24 September 2008
CRIMINAL LAW
Investigation into mental competence to commit four offences of aggravated threatening life, one offence of aggravated serious criminal trespass in a place of residence, two offences of false imprisonment and one offence of possessing a firearm without a licence - decided that the objective elements were established beyond reasonable doubt - decided that at the time of the conduct alleged to give rise to the offences the defendant was suffering a mental impairment and, in consequence of that mental impairment, he did not know that the conduct was wrong - defendant declared to be mentally incompetent to commit the offences and declared to be liable to supervision - limiting term fixed - supervision order made releasing defendant on licence on conditions decided by the court and specified in the licence.
Criminal Law Consolidation Act 1935 ss19(1), 170(1) Part 8A; Firearms Act 1977 s11, referred to.
R v Brown [2006] SADC 82, considered.

R v CHAN
[2008] SADC 120
Introduction

Justin Chan was charged on an Information in this court with four counts of aggravated threatening life contrary to s19(1) of the Criminal Law Consolidation Act 1935 (“the Act”); one count of aggravated serious criminal trespass in a place of residence contrary to s170(1) of the Act; two counts of the common law offence of false imprisonment and one count of possessing a firearm without a licence contrary to s11 of the Firearms Act 1977.
The particulars of each of the four counts of aggravated threatening life are identical save that two counts relate to one of the complainants and two counts relate to the other complainant. The particulars are as follows:
Justin Chan between the 9th day of May 2007 and the 10th day of May 2007 at Mansfield Park, threatened to kill Hue Linh Ly [Phat Van Tran], intending to arouse a fear that the threat was likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused.
It is further alleged that Justin Chan used an offensive weapon, namely a shotgun, when committing the offence.
The particulars of the one count of aggravated serious criminal trespass in a place of residence are that:
Justin Chan between the 9th day of May 2007 and the 10th day of May 2007 at Mansfield Park, remained in the place of residence of Hue Linh Ly and Phat Van Tran as a trespasser, with the intention of committing an offence therein, namely an offence against the person.
It is further alleged that Hue Linh Ly and Phat Van Tran were lawfully present in the said place of residence and that Justin Chan knew of their presence, or was recklessly indifferent as to whether anyone was in the said place of residence.
It is further alleged that Justin Chan used an offensive weapon, namely a shotgun, when committing 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.

Continue reading R v Chan

Details

AGLC: R v Chan [2008] SADC 120
Case: [2008] SADC 120
Decision Date: 24 September 2008

CaseChat Overview and Summary

Justin Chan was acquitted of eight serious offences by the District Court of South Australia on the basis of mental incompetence. The offences included multiple counts of aggravated threatening to kill, aggravated serious criminal trespass, false imprisonment and possessing a firearm without a licence. The Court found the objective elements of the offences were established beyond reasonable doubt and that Chan was suffering from chronic paranoid schizophrenia with delusions and was acutely psychotic at the time of the offending. The Court therefore found that Chan did not know that his conduct was wrong due to his mental impairment. The Court made a declaration that Chan was liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 and ordered a limiting term of 7 years and 3 months. The Court made a supervision order releasing Chan on licence on conditions, including that Chan comply with prescribed medication as directed by the Director of the Forensic Mental Health Service or the Director’s nominee. The Court also imposed restrictions on Chan’s consumption of alcohol, use of drugs, possession of firearms, communication with the victims and travel outside of South Australia.

Orders