R v Cross
[2017] ACTSC 91
•6 March, 10 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cross |
Citation: | [2017] ACTSC 91 |
Hearing Date: | 6 March 2017 |
DecisionDate: | 6 March, 10 May 2017 |
Before: | Penfold J |
Decision: | 1 On the charge of arson on 31 December 2015, the accused is not guilty by reason of mental impairment. 2 The offence as charged is an offence other than a “serious offence”, and is to be dealt with under s 323 of the Crimes Act 1900 (ACT). |
Catchwords: | CRIMINAL LAW – PRACTICE AND PROCEDURE – Judge-alone trial – criminal responsibility – plea of not guilty by way of mental impairment – prosecution must prove physical elements of offence beyond reasonable doubt – whether accused was suffering from a mental impairment on balance of probabilities. CRIMINAL LAW – Arson offence – consequences of mental impairment verdict depend on whether offence is a “serious offence” or not – “serious offence” involves actual or threatened violence – where violence not an element of offence, offence to be assessed as committed – threat only affecting property does not make offence “serious” – offence not “serious” – offence to be dealt with under s 323, Crimes Act 1900 (ACT). |
Legislation Cited: | Criminal Code 2002 (ACT) ss 28(1), 404 Crimes Act 1900 (ACT) ss 27, 300, 309, 321, 323, 324 Supreme Court Act 1933 (ACT) s 68C |
Cases Cited: | Fleming v The Queen [1998] HCA 68; 197 CLR 250 R v Aleer [2016] ACTSC 75 R v Steurer [2009] ACTSC 150; 3 ACTLR 272 |
Parties: | The Queen (Crown) Graham Cross (Accused) |
Representation: | Counsel Ms K McCann (Crown) Mr R Davies (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Number: | SCC 100 of 2016 |
Introduction
Graham Cross was charged with arson arising under s 404(1) of the Criminal Code 2002 (ACT) as a result of an incident on 31 December 2015 when he set fire to his vehicle during a public fireworks display in Canberra.
He elected for a judge-alone trial, and in November 2016 a plea of not guilty by reason of mental impairment was foreshadowed. That plea was entered at the beginning of the trial on 6 March 2017.
The Crown consented to the entry of a special verdict of not guilty by reason of mental impairment in relation to the charge.
No question of Mr Cross’s fitness to plead was raised by the parties, and nothing that I saw in court raised any question of fitness in my mind.
If I consider such a verdict to be appropriate, I am required, under s 321 of the Crimes Act 1900 (ACT), to enter a special verdict of not guilty by reason of mental impairment in relation to the charge.
Trial by judge alone
Procedures for trial
Section 68C of the Supreme Court Act 1933 (ACT) specifies the procedures to be followed for a trial by judge alone. In summary:
(a)the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;
(b)the judge must provide a judgment setting out the principles of law she applied and the findings of fact she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict: Fleming v The Queen [1998] HCA 68; 197 CLR 250); and
(c)the judge must, in considering her verdict, take into account any warning or direction that would, under a Territory law, have had to be given, or any comment that would have to have been made, to a jury, in the proceedings.
Issues for determination
Section 321 of the Crimes Act provides:
Supreme Court—plea of not guilty because of mental impairment
(1)This section applies if an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court.
(2)The Supreme Court must enter a verdict that the person is not guilty of the offence because of mental impairment if—
(a) the court considers the verdict appropriate; and
(b) the prosecution agrees to the entering of the verdict.
In R v Steurer [2009] ACTSC 150; 3 ACTLR 272 at [49] I considered the steps involved in determination of whether a verdict of not guilty by reason of mental impairment under s 321 of the Crimes Act is appropriate:
First, the prosecution must prove Mr Steurer’s conduct ... but not including any mental element of the offence, beyond reasonable doubt. If this is not done, then Mr Steurer is entitled to an ordinary verdict of not guilty. If it is done, the question then becomes Mr Steurer’s responsibility for that conduct. Unless the prosecution has already done so, the defence may then point to evidence suggesting a reasonable possibility that Mr Steurer was suffering from a mental impairment such that he cannot be held criminally responsible for his conduct. If:
(a) evidence suggesting a reasonable possibility of a mental impairment is identified; and
(b) I am satisfied on the balance of probabilities that Mr Steurer was suffering from such a mental impairment; and
(c) I consider appropriate a verdict of not guilty because of mental impairment; and
(d) the prosecution agrees to the entering of that verdict;
then I must enter a special verdict that Mr Steurer is not guilty because of mental impairment.
Effectively the same approach to determining whether a verdict of not guilty by reason of mental impairment under s 321 of the Crimes Act is appropriate was adopted by Nield AJ in R v Aranyi [2013] ACTSC 169; 278 FLR 409 and by Refshauge J in R v Smith [2012] ACTSC 146; 269 FLR 233 (Smith); R v Aleer [2016] ACTSC 75 (Aleer), and R v Barker [2014] ACTSC 374, in which his Honour said at [13]:
The need to consider that the verdict is appropriate involves the consideration of two matters: whether the facts sustain the charges in accordance with the elements of each offence and whether the mental impairment [is] made out in the terms required by s 28 of the Criminal Code.
The evidence
Agreed statement of facts
The Crown tendered a statement of facts, which has been agreed with the defence, and statements made by Constables Ireland and Macgregor.
The statement of facts was relevantly as follows:
2.The accused, his wife Helen Cross and their three children travelled to Canberra, in the Australian Capital Territory from Longreach, Queensland on 20 December 2015. Between 20 December 2015 and 22 December 2015, the accused and his family travelled to Tuross Head, New South Wales. At about this time, the accused had in his possession 1 or 2 ‘jerry cans’ which he filled with petrol.
3.At about 8.00pm on Thursday 31 December 2015, the accused and his family attended a New Years Eve Fireworks display located near Lake Burley Griffin. The accused drove himself and his family to the location in a white Toyota Hilux, bearing Queensland Registration, 913VHN (“the vehicle”). The vehicle was a dual cab model, with a canopy on the tray. The accused parked the vehicle on a large grassed area, near Commonwealth Avenue. The accused and his family moved a short distance away from the vehicle to commence watching the fireworks display.
4.At about 9.00pm, the accused the [sic] left the area and went back to the vehicle. A ‘jerry can’ containing petrol was located in the tray of the vehicle. The accused tipped the ‘jerry can’ over, spilling the petrol in the tray. The accused then lit a match from a box of matches and threw it into the tray, causing flames to ignite in the back of the vehicle. The accused threw the box of matches away. The accused then approached the front passenger seat of the vehicle and located Mrs Cross’ handbag which he removed from the vehicle. At this time, Mrs Cross was alerted to the fire, and walked back towards the vehicle. The accused ran from the vehicle towards Mrs Cross and handed her the handbag.
5.Constable Emma Ireland and Constable James McGregor attended the scene, and observed the accused taking the handbag out of the passenger side of the vehicle. The accused was wearing a dark t-shirt, shorts and a pair of thongs. Constable Ireland approached the accused, and had the following conversation with him:
IRELAND:“Is anyone in the car hurt?”
ACCUSED:“No”
IRELAND:“What happened?”
ACCUSED: “I don’t know, I just looked over and the car was on fire”
IRELAND: “How much petrol is in the car?”
ACCUSED:“There are two jerry cans of diesel in the back”
IRELAND:“Ok, stay here until the fire brigade come”
6.Constable McGregor attempted to extinguish the fire with a small fire extinguisher without success. At this time, the fire engulfed the entire vehicle. A short time after, members of the ACT Fire Brigade attended and the fire was extinguished. The fire caused substantial damage to the vehicle.
7.Constable Andrew Hutcheon also attended the scene and spoke with a member of the public who advised him that a person matching the appearance of the accused was observed throwing a flame, similar to a match into the rear of the vehicle which caught fire. Constable Ireland spoke with Mrs Cross at the scene who told her she believed the accused had started the fire. Mrs Cross later told police she smelt the odour of petrol on the accused.
8.Following this, the accused was taken by police to the City Police Station and agreed to participate in a Taped Record of Interview. During that interview, the accused made the following admissions:
· He was experiencing voices which gave him directions to do things
· The thoughts about destroying the car began in the afternoon
· If he got rid of the car it meant that something good would come to his family
· There was a jerry can in the car that had petrol in it
· He never wanted to hurt anyone and he made sure the area was safe in order to set the car on fire
· He threw the box of matches away
· He went over to the vehicle tipped over the petrol and threw a match in
· He went and grabbed Mrs Cross’ bag and ran away
· The vehicle was registered in both his and Mrs Cross’ names
Police statements
Constable Ireland’s statement reported that she had been on duty at a location described as London Circuit and Commonwealth Avenue to patrol the crowd assembled to watch the 9 pm New Year’s Eve fireworks. She estimated that there were 250 to 300 people in the area. She reported hearing a loud bang, and then seeing the vehicle on fire. She observed Constable Macgregor’s attempt to put out the fire with a small fire extinguisher, but that he was unsuccessful because “the fire had engulfed the entire vehicle and was beginning to spread to the overhanging trees and bushes adjacent to a full carpark”.
Constable Macgregor reported being on duty in “a grassed area located between London Circuit and Commonwealth Avenue”. He also mentioned the presence of 250 to 300 people who had gathered to watch the fireworks. He described trying to extinguish the fire, and that “the fire continued to burn with flames soon reaching the overhanging branches of nearby trees”. He thought that “there was a danger of the fire spreading through foliage to a nearby, full, carpark”.
The offence
The offence of arson is created by s 404 of the Criminal Code, which is relevantly as follows:
404Arson
(1)A person commits an offence if the person—
(a)causes damage to a ... vehicle by fire or explosive; and
(b)intends to cause, or is reckless about causing, damage to that or any other ... vehicle.
Maximum penalty: 1 500 penalty units, imprisonment for 15 years or both.
...
(4)In this section:
...
vehicle means motor vehicle, motorised vessel or aircraft.
Establishing the offence of arson would in this case require that the following matters are proved beyond reasonable doubt:
(a)that Mr Cross engaged in conduct;
(b)that he intended to engage in the conduct;
(c)that his conduct caused damage to a vehicle by fire; and
(d)that he intended to cause, or was reckless about causing, such damage.
Findings of fact
There is nothing in the statement of facts that raises any doubt in my mind that Mr Cross engaged in the conduct described in the statement of facts agreed between the parties, and that he had the state of mind in relation to that conduct that he explained to police.
Accordingly, I am satisfied beyond reasonable doubt:
(a)that Mr Cross engaged in conduct constituted by throwing a lighted match into the tray of his vehicle, in which were two jerry-cans of petrol;
(b)that he intended to engage in that conduct;
(c)that his conduct caused damage to the vehicle by fire; and
(d)that he intended damage to be caused (an intention suggested in particular by his actions in rescuing his wife’s handbag from the vehicle after he started the fire).
That is, Mr Cross has engaged in the conduct required to establish the offence of arson. He has engaged in that conduct intentionally (rather than, for instance, accidentally or by mistake).
Criminal responsibility
The next question to be determined is whether Mr Cross was criminally responsible for that conduct, which involves consideration of:
(a)whether he was suffering from a mental impairment when he engaged in that conduct; and
(b)if so, the impact of that mental impairment on his conduct.
Sections 27 and 28 of the Criminal Code are as follows:
27Definition—mental impairment
(1)In this Act:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(2)In this section:
mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.
(3)However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
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.
Evidence of mental impairment
In relation to the question of mental impairment, I had before me:
(a)a preliminary assessment of Mr Cross’s mental state made by Dr Arne Ahlin shortly after the offence was committed;
(b)an assessment by Dr Owen Samuels, Clinical Director Forensic Services in the Alexander Maconochie Centre Mental Health Service dated 29 January 2016 and referring to an interview with Mr Cross on 21 January 2016 (three weeks after the offence was committed);
(c)a forensic psychiatric report by Dr Bree Wyeth, who spoke to Mr Cross on 24 March 2016;
(d)a psychiatric report provided by Dr Anna Farrar, who saw Mr Cross in Sydney in November 2016; as well as her two-hour meeting with Mr Cross, Dr Farrar spoke to Mr Cross’s wife, and had access to:
(i)the police case statement (the forerunner of the agreed statement of facts);
(ii)an Australian Federal Police (AFP) record of an interview with Mr Cross;
(iii)several earlier assessments of Mr Cross’s mental state; and
(iv)medical records from Canberra Hospital for 2009 and 2016 and from Queensland Health Longreach for November 2012;
(e)a letter from Michelle Champagne, a social worker with Forensic Mental Health Services; and
(f)Canberra Hospital clinical records.
Preliminary assessment
After his arrest on 1 January 2016, Mr Cross was assessed in the Adult Mental Health Unit pursuant to an order under s 309 of the Crimes Act. Dr Ahlin reported a diagnosis of schizophrenia and an ongoing psychotic state, but no thoughts of harming himself or others.
Dr Samuels’ assessment
Dr Owen Samuels assessed Mr Cross on 21 January 2016 (at [21(b)] above). Dr Samuels noted that Mr Cross was known to mental health services in Queensland (Longreach, Rockhampton, Toowoomba), had previously been diagnosed with depression and paranoid schizophrenia, had spent some time in hospital, and had been prescribed relevant medications. However, Mr Cross had last seen his psychiatrist in Queensland 12 months earlier, and there were apparently concerns about Mr Cross’s compliance with his prescribed medication regime. Dr Samuels reached the following conclusions and made the following recommendations:
Continue paliperidone 100mg monthly. Mr Cross is experiencing no side effects to this medication.
...
Discussed need for long term treatment and compliance. Mr Cross has expressed a desire to be admitted to hospital upon release. I am of the opinion that he would benefit from longer term psychological interventions in terms of psychoeducation, relapse signature and relapse prevention, offence related work and insight into the ling [sic] between illness and his offences. At this time, this could be delivered either as an outpatient or inpatient. The most appropriate facility will need to be considered at the time of Mr Cross’s release from custody. He will however need allocation of a case manager to ensure compliance and engagement.
Dr Wyeth’s assessment
Dr Wyeth, a consultant psychiatrist, assessed Mr Cross on 24 March 2016. She concluded:
Mr Cross does in my opinion have a diagnosis of paranoid schizophrenia. His case is one of a later onset type and in these settings a person’s personality, affect, thought process and language are usually well preserved so they can appear quite well especially when their symptoms are well controlled. From the information available to me I would make a note that Mr Cross does not have a history consistent with premorbid antisocial personality. There is no prior criminal record known and there is no history of risk taking, violence or other concerning behaviour.
I believe that Mr Cross’s actions were driven by his psychotic illness; specifically he has experienced thought insertion and delusions of passivity/being controlled. He believed that he needed to light these fires as part of the delusional symptoms he experienced in the weeks leading up to the index offence.
Dr Farrar’s assessment
Dr Farrar’s conclusions, set out under the heading “Opinion & Recommendations”, repeated (rather than summarising) much of the material set out in the earlier parts of her report, as follows:
At the time of assessment on 1 November 2016, Mr Cross met the DSM-5 diagnostic criteria for Schizophrenia, multiple episodes, currently in partial remission. He did not meet the criteria for any other disorder, including: personality disorder or substance use disorder.
Mr Cross had experienced psychotic symptoms since at least 2010, including, auditory hallucinations, delusions about his wife's infidelity and paranoia leading him and his wife to seek community treatment in January 2010 In Longreach, QLD where he received treatment with aripiprazole (antipsychotic) and sertraline (antidepressant) from Longreach Mental Health Service. He was initially diagnosed with Psychotic Depression and Delusional Disorder. He was admitted to a private clinic in Toowoomba in April 2010 and treated with aripiprazole and desvenlafaxine (antidepressant). He required inpatient treatment at Longreach and Rockhampton psychiatric units from 6 November to 12 November 2011 due to suicidal ideation, delusions about his wife's infidelity, auditory hallucinations, thoughts to harm his family and the belief that he was getting special messages from the radio and having thoughts inserted in his mind. He received assertive mental health follow-up following his discharge, but was lost to follow up from 2012-2014 after missing appointments. Mr Cross was documented to have experienced ongoing psychotic symptoms from 2011-2012 despite antipsychotic treatment, including passivity phenomenon (the belief that he was being controlled), ideas of references (receiving special messages from TV, radio and symbols), thought insertion, and complex delusions involving the military and NATO which compel him to perform certain acts including driving as part of a big plan. Due to prominent delusions he was commenced on antipsychotic olanzapine in 2012 but was subsequently lost to follow-up and discharged in November 2012. Mr Cross self-referred to Longreach Community Mental Health Service in 2014 and was recommenced on antipsychotic medication (aripiprazole) due to ongoing psychotic symptoms of poor sleep and delusional jealousy towards his wife. His diagnosis revised to Paranoid Schizophrenia in 2014 due to the prominence of psychotic symptoms. He was discharged to the care of his GP in May 2014 and had limited mental follow-up after that time.
At assessment on 1 November 2016, Mr Cross reported multiple psychotic symptoms, which had re-emerged in mid to late 2015 in the context of his medication non-adherence, lack of psychiatric follow-up and stress relating to allegations against a builder about home renovations and the death of his mother. He developed prominent intrusive thoughts and delusions concerning religion, war, and power. He believed that he was no longer in control of his actions and was being controlled by an external force (passivity phenomenon). He endorsed thoughts being inserted into his mind. He believed that he had to follow the instructions of these thoughts and delusions in order to gain peace for him, his family and the world. The delusions had biblical themes concerning Moses and the burning of the bush. There was grandiose quality to the delusions as Mr Cross believed he was specially chosen and his behaviour would not lead to any adverse outcomes, but would in fact lead to world peace. Some of the delusions reported to other psychiatrists after the alleged offence involved astrology and dates. Mr Cross was getting special messages (also known as ideas of reference or delusions of reference) that words, street signs, and number plates had special meaning and messages for him that he needed to follow. Mr Cross' delusions had led to a number of seemingly irrational decisions in the weeks prior to the alleged offences on 31 December 2015, including allegedly having his dogs put down (because dog was god spelled backwards) and allegedly setting fire to the home he was renovating in Longreach around November 2015. There was evidence of some mood or manic symptoms in association with the psychotic symptoms, including excessive exercise in mid 2015 with weight loss, poor sleep, and excessive spending (purchasing four horses in 2015 for his daughter). Mr Cross did not recognise that his symptoms were part of a mental illness and did not seek help. Although he had recommenced antipsychotic medication (risperidone 1 mg) around 21 December 2016 after being persuaded to see a GP in Canberra by his wife, his psychotic symptoms persisted, likely due to intensity of the symptoms, sub-therapeutic dosage of antipsychotic, short duration of treatment and unclear compliance with treatment.
In addition to evidence of delusions, there was evidence of other diagnostic features of Schizophrenia at the time of the alleged offences on 31 December 2015 and in the weeks prior, including disorganised speech (noted during his AFP interview and his treatment at Canberra Hospital), and disorganised behaviour including having problems following directions and getting back to his hotel in Brisbane in late 2015, allegedly setting fire to his home in Longreach, and following delusional beliefs to cross the road, drive a certain way or follow signs which had special meaning for him.
Mr Cross received inpatient psychiatric treatment at Canberra Hospital following the alleged offence, from 2 January 2016 to 8 January 2016, with similar psychotic symptoms noted during his admission, including delusions of reference, delusions concerning Moses and burning the bush, intrusive thoughts compelling him to act in order to have good things happen to his family, and thought-disorder, which attenuated with treatment with oral and depot antipsychotic paliperidone. Mr Cross continued to receive outpatient mental health treatment from the Canberra Forensic Community Mental Health Team following his discharge from Canberra Hospital, including in custody at Alexander Maconochie Correctional Centre and when he was released on bail with reported resolution of his delusional beliefs and psychotic symptoms. He was receiving antipsychotic injection Paliperidone 100 mg monthly with regular mental health follow-up and review.
At the time of the alleged offence on 31 December 2015, Mr Cross' function was impaired in occupational and interpersonal domains. His relationship with his wife was strained, he was unable to work, and his family was forced to relocate to Canberra, ACT for additional support from his wife's family after Mr Cross had become mentally unwell and allegedly set fire to and burnt down their house in Longreach, QLD.
A differential diagnosis of Schizoaffective Disorder was considered due to the presence of depressive features in 2010 and manic features in late 2015, but it appeared that the mood symptoms only occurred during periods of active psychosis and the mood symptoms have been present for a minority of the total duration of the active and residual periods of psychosis, making a diagnosis of Schizophrenia more appropriate.
At the time of assessment on 1 November 2016, Mr Cross was in partial remission from Schizophrenia. His delusions appeared to be in remission according to information from Mr Cross and his wife at interview on 1 November 2016 and reports from the Canberra Community Forensic Mental Health Service. However, he had ongoing mild thought-disorder, with only partial insight into the nature of his illness, and there were negative symptoms of Schizophrenia including affect blunting and mild cognitive impairment, with ongoing deficits in occupational (he had not returned to work) and relationship domains (strained relationship with wife with period of living separately). Mr Cross was accepting treatment with paliperidone injection (100 mg monthly) which appeared to beneficial in terms of treating his delusions, and controlling his behaviour, with no reported side-effects, however there may be scope to optimize his treatment further, either by increasing the dose of paliperidone, augmenting with an oral antipsychotic, or trialing clozapine.
Criminal Responsibility
In my professional opinion, at the time of the alleged offence on 31 December 2015, Mr Cross was suffering from a mental impairment, as per the meaning of Section 27 of the ACT Criminal Code, namely Schizophrenia, a mental illness. Mr Cross had symptoms of Schizophrenia since 2010, with the diagnosis of Paranoid Schizophrenia made in 2014. Mr Cross' illness was characterized by multiple chronic psychotic symptoms, beginning in 2010 and continuing until the time of assessment on 1 November 2016, which had responded to antipsychotic treatment in the past, however Mr Cross had poor insight into the nature of his illness and the need for treatment, and had periods of non-adherence with treatment and was lost to follow-up between 2012-2014 and 2014-2015. He had stopped taking antipsychotic medication (aripiprazole 15 mg) shortly after being discharged from the care of Longreach Community Mental Health Service on 27 May 2014. His mental state had slowly deteriorated over the course of many months, although he had kept his symptoms hidden from his family and GP. He was experiencing delusions of a religious and grandiose nature - he believed that he was part of a special plan to save himself, his family and the world, and bring peace and end war, by carrying out acts of lighting fires, and likened himself to being like biblical Moses. He endorsed chronic, intrusive thoughts instructing him and compelling him to set fire to his vehicle on 31 December 2015. He was unable to control these thoughts or his subsequent behaviour leading to the Arson offence on 31 December 2015, in which he was compelled by his delusional beliefs to set fire to his car. At the time, he was also misinterpreting signs around him, such as street signs, words and number plates. He believed he was under control and that thoughts were being inserted into his mind. Although Mr Cross may have known or understood that the nature of the act he was doing was wrong (setting fire to his vehicle), he was getting special messages (intrusive thoughts as part of a complex delusional belief system concerning Moses and saving the world) that it was safe to carry out the task, and that no one would be harmed, as there were no people in direct proximity of the car, and police were close by, that compelled him to act in the way he did on 31 December 2015. He was under the delusional belief that if he followed the instructions of his thoughts, commanding him to set fire to his car, good things would happen to him and his family and the world. At the time of the offence, he had reportedly recently (around 21 December 2015) restarted antipsychotic medication, risperidone 1 mg, prescribed by a GP in Canberra but he continued to experience psychotic symptoms, despite the medication.
Mr Cross was therefore not criminally responsible for the Arson offence on 31 December 2015, on the basis that he was suffering from a mental impairment and that he could not control his conduct as per Section 1(c) of Section 28 of the ACT Criminal Code. In addition, his mental illness with active psychotic symptoms would have impaired his ability to exercise appropriate judgement, as he was compelled to act on his delusions in the misguided belief that if he did so good would come to him, his family and the world. His mental impairment would have impaired his ability to make calm and rational decisions, or to think clearly, in that he was preoccupied by his delusions beliefs to the extent that he made decisions on the basis of these beliefs and not on the basis of making rational decisions – the offence was an example of this as was having his dogs put down.
His mental illness may have had a disinhibiting effect on him, as the alleged offences were committed in public in full view of his family, the public and police at a time (New Year's Eve) where there were multiple persons gathering publicly in the area to celebrate. His mental impairment would have impaired his ability to appreciate the wrongfulness (and seriousness) of the conduct in that although he had an appreciation that the act was illegal and dangerous, he had delusional beliefs that because the police were nearby and there were no people near his car, this was a sign for him to proceed with the act and that no one would get hurt and that the act would ultimately benefit people. Mr Cross's mental impairment would have obscured his intent to commit the offences, in that his intent was not to cause harm, but to help himself and others due to his delusional thinking (free himself from intrusive thoughts, help his family and lead to world peace). His mental impairment would have contributed causally to the commission of the offences in that Mr Cross was acting on delusional beliefs that by setting his car on fire, he would be like Moses and good would come of it.
(emphasis in original)
In summary, the unchallenged evidence is:
(a)that in the period leading up to the offence, shortly after the time of the offence, and over subsequent months, Mr Cross was suffering a mental illness, being schizophrenia;
(b)that since 2010 Mr Cross had suffered psychotic symptoms; and
(c)that those symptoms were present, in particular, immediately after he had set fire to his vehicle in December 2015.
Dr Farrar described delusions suffered by Mr Cross at the time he caused the fire, and noted:
Although Mr Cross may have known or understood that the nature of the act he was doing was wrong (setting fire to his vehicle), he was getting special messages (intrusive thoughts as part of a complex delusional belief system concerning Moses and saving the world) that it was safe to carry out the task, and that no one would be harmed, as there were no people in direct proximity of the car, and police were close by, that compelled him to act in the way he did on 31 December 2015. He was under the delusional belief that if he followed the instructions of his thoughts, commanding him to set fire to his car, good things would happen to him and his family and the world. At the time of the offence, he had reportedly recently (around 21 December 2015) restarted antipsychotic medication, risperidone 1 mg, prescribed by a GP in Canberra but he continued to experience psychotic symptoms, despite the medication.
I am satisfied for the purposes of s 28(1) of the Criminal Code that at the time he set the fire, Mr Cross was suffering from a mental impairment, being the mental illness schizophrenia, and that at the relevant time he was suffering active psychotic symptoms.
Was Mr Cross criminally responsible?
Dr Farrar concluded that because of his mental impairment, Mr Cross:
(a)could not control the conduct by which he set fire to the vehicle; and
(b)would have had an impaired ability to know that his conduct was wrong.
Dr Farrar did not explicitly state that Mr Cross would not have been able to reason with a moderate degree of sense and composure about whether his conduct was wrong, but this seems to be the burden of her comments about the effect of his delusional belief that setting fire to the car was something he should do to help himself and others, including because it would lead to world peace.
In particular, Dr Farrar noted Mr Cross’s delusional beliefs that he needed to follow the “instructions” he believed he was receiving to set fire to his car, in order that good things would follow for himself and for the world.
I am satisfied on the balance of probabilities that, as a result of acute psychosis arising from his long-standing schizophrenia, Mr Cross, when he set fire to his car:
(a)was not able to control his conduct, because of his belief about why he needed to burn the vehicle, and what he would achieve thereby; and
(b)although probably understanding that his conduct was illegal, did not know that it was wrong (because of what he believed about why he was being called on to burn the vehicle).
Verdict: not guilty by reason of mental impairment
Having reached those conclusions about Mr Cross’s conduct, I considered it appropriate to enter a verdict of not guilty because of mental impairment (s 321(2)(a) of the Crimes Act).
The prosecution agreed to the entering of such a verdict (s 321(2)(b) of the Crimes Act).
Accordingly, I found Mr Cross not guilty, by reason of mental impairment, of arson on 31 December 2015.
Next steps
After an accused has in the Supreme Court been found not guilty by reason of mental impairment, the next step depends on whether s 323 or s 324 of the Crimes Act applies, which in turn depends on whether the offence concerned is a serious offence (s 324) or an offence other than a serious offence (s 323).
A serious or non-serious offence
What is a “serious offence”?
The relevant definition of “serious offence” is set out in s 300 of the Crimes Act as follows:
serious offence means—
(a)an offence involving actual or threatened violence and punishable by imprisonment for longer than 12 months; or
(b)an offence against section 27(3) or (4).
Sections 27(3) and (4) are as follows:
(3)A person who intentionally and unlawfully—
(a)chokes, suffocates or strangles another person so as to render that person insensible or unconscious or, by any other means, renders another person insensible or unconscious; or
(b)administers to, or causes to be taken by, another person any stupefying or overpowering drug or poison or any other injurious substance likely to endanger human life or cause a person grievous bodily harm; or
(c)uses against another person any offensive weapon likely to endanger human life or cause a person grievous bodily harm; or
(d)discharges any loaded arms at another person or so as to cause another person reasonable apprehension for his or her safety; or
(e)causes an explosion or throws, places, sends or otherwise uses any explosive device or any explosive, corrosive or inflammable substance in circumstances likely to endanger human life or cause a person grievous bodily harm; or
(f)sets a trap or device for the purpose of creating circumstances likely to endanger human life or cause a person (including a trespasser) grievous bodily harm; or
(g)interferes with any conveyance or transport facility or any public utility service in circumstances likely to endanger human life or cause a person grievous bodily harm; or
(h)interferes with a prescribed traffic control device (within the meaning of the Road Transport (Safety and Traffic Management) Act 1999) in circumstances likely to endanger life or cause a person grievous bodily harm;
is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
(4)A person who does an act referred to in subsection (3)—
(a)intending to commit an indictable offence against this part punishable by imprisonment for a maximum period exceeding 10 years; or
(b)intending to prevent or hinder his or her lawful apprehension or detention or that of another person; or
(c)intending to prevent or hinder a police officer from lawfully investigating an act or matter that reasonably calls for investigation by the officer;
is guilty of an offence punishable, on conviction, by imprisonment for 15 years.
Section 27 offences
In Smith, Refshauge ACJ, considering an offence of arson, said:
43. Section 27(3) makes it an offence to inflict a range of violence on another person, none of which is relevant here, and s 27(4) is an aggravated form of that offence. Section 27(3) does, however, refer to a number of offences where the action is not directed towards a particular individual, but is in circumstances where the offence would lead to a risk of grievous bodily harm or death in relation to an individual. To that extent it may extend, or it may have an effect on, the meaning of violence in sub-s (a) of the definition, so as not to encompass within that definition occasions where violence is not directed at an individual.
44. The only question then is whether arson is an offence involving actual or threatened violence. It seems to me that this means whether the offence, as committed, involves violence, not whether an element of the offence involves violence, for the legislation is clearly protective and should be interpreted that way. (emphasis added)
Does violence include damage to property?
In Smith, Refshauge ACJ concluded that the arson offence before him had not caused any real risk of direct injury to other persons, and that accordingly it was not a “serious offence” for the purposes of s 323, saying:
60. In the circumstances, there is no evidence of likely harm here to other persons. The fire was in the house. There were no other persons in the house. The neighbour who came on the scene was able, without apparent difficulty, to extinguish the fire that was outside in the tree and, although extensive damage was done, there was no material before me that suggested there was, to use the words of Wright J, “substantial risk of direct injury resulting therefrom to other persons”.
61. In my view, this was not a crime of violence within the meaning of the definition of “serious offence” in s 300 of the Crimes Act.
In R v McGuckin (No 2) [2014] ACTSC 365 (McGuckin), Refshauge J, dealing with several offences including one of recklessly causing damage to property, said:
6.There is no doubt, therefore, that offences of aggravated robbery and assault occasioning actual bodily harm are both serious offences within the meaning of s 300 of the Crimes Act. The offence of damaging property is more problematic. In common parlance it may be said to be an offence of violence, but I addressed that matter in R v Smith (2012) 269 FLR 233 and held there that violence in the context of whether or not an offence is a serious offence does not include violence against property.
7.Accordingly, while the offences of aggravated robbery and assault occasioning actual bodily harm are serious offences, it does not seem to me that the offence of recklessly causing damage to property is a serious offence.
In Aleer, Refshauge J concluded that the arson offence in that case was a serious offence, saying:
75.The options available to me depend, to some extent, on whether the offences of which I have found Mr Aleer not guilty by reason of mental impairment are what are defined, for the purposes of Pt 13 of the Crimes Act, as “serious offences”. Section 300(1) of that Act defines a ‘serious offence’ as:
a)an offence involving actual or threatened violence and punishable by imprisonment for longer than 12 months; or
b)an offence against [Crimes Act] s 27 (3) or (4).
76.Section 27(3) of the Crimes Act makes it an offence to inflict a range of violence on another person, none of which is relevant here and s 27(4) is an aggravated form of that offence.
77.Section 27(3) of the Crimes Act does, however, refer to a number of offences where the action is not directed towards a particular individual, but is in circumstances where the offence would lead to a risk of grievous bodily harm or death in relation to an individual. To that extent it may extend, or it may have an effect on, the meaning of violence in the definition of ‘serious offence’ in s 300(1)(a), so as not to encompass within that definition occasions where violence is not directed at an individual.
78.There can be no doubt that assault occasioning actual bodily harm is a serious offence within that definition. I must, however, deal with each offence.
79.In R v Smith at 241-4; [45]-[61], I dealt with that issue. In that case, I found that the offence there committed, though arson, was not one "involving actual threatened violence" because there was no persons [sic] actually threatened, the fire was easily extinguished and there was no “substantial risk of direct injury” resulting from the fire to other persons, as required in the interpretation of a similar provision by Wright J in R v Hueston (1995) 5 Tas R 210 at 215.
80.In this case, on the other hand, there was a very direct risk to persons who were in the house and who may have been injured if the flames had in fact reached the eaves, or the vehicle had exploded more intensely than it did.
81.In my view, all three of the counts in the indictment were, for these proceedings, serious offences. As a result, I must proceed in accordance with s 324 of the Crimes Act ...
Effect of s 27 reference
I am not sure whether Refshauge ACJ in Smith at [43] and Aleer at [77] was seeking to distinguish violence directed to a particular individual:
(a)from violence directed at a larger group of people, none of whom is necessarily known to the alleged offender; or
(b)only from violence not in fact directed at people at all but simply at property or even, perhaps, landscape items (eg trees).
In case his Honour was expressing a view about the application of paragraph (a) of the definition of “serious offence” in relation to violence directed at a group of people as distinct from a specific individual, I note that even if “serious offence” does not extend to violence towards goods or other “property”, I consider that it does extend to violence directed at people, even if no individual member of the group put at risk is known to the alleged offender or contemplated by the alleged offender as a possible victim.
I am inclined to the view that ss 27(3) and (4) should not be interpreted as limiting the scope of paragraph (a) of the definition of “serious offence” to exclude incidents in which violence is not directed at a particular individual, but instead should be read, if anything, as including in that paragraph any kind of violence or threatened violence that, although not directed at a particular individual and although not described in s 27, may cause a risk of death or grievous bodily harm to any person.
On the other hand, I also consider that the reference in the definition of “serious offence” to ss 27(3) and (4), with the emphasis of those provisions on endangering human life or causing grievous bodily harm, provides considerable support for the proposition, considered in Smith and McGuckin, that “violence” when used in that definition does not include violence involving only property damage or threatened property damage.
Was Mr Cross’s offence a “serious offence”?
The matters that seem to me to be relevant in considering whether Mr Cross’s offence was a “serious offence” are:
(a)Mr Cross’s unchallenged claim to police that he did not intend to hurt anyone, and made sure that the area where his vehicle was located was safe before he set the vehicle on fire;
(b)Mr Cross’s claim to Dr Wyeth that “recognizing that there were police in the vicinity ... was yet another reassurance to him of the safety [of his intended conduct]”;
(c)Mr Cross’s claim to Dr Farrar that the presence of police and the absence of people near his vehicle were a sign for him to proceed with setting fire to the vehicle;
(d)that the evidence as explained in court, including by use of an image of the area in question, was:
(i)that Mr Cross’s vehicle was parked on a grass verge, near several trees and beside a paved carpark, which was described by Constable Macgregor as full (but which I assume to have been full of vehicles rather than people); and
(ii)that the 250 or 300 people present were some metres away, across a narrow paved slip road and on a grassed but almost entirely treeless area, with no restrictions on the capacity of people to leave that area by routes other than through the paved carpark.
The effect of that evidence is, in summary, that Mr Cross had no intention of causing harm to any person, and that there was no immediate or even likely risk to the people present to watch the fireworks, but that there might have been a risk of damage to trees in the vicinity of Mr Cross’s vehicle and possibly also to the cars in the nearby carpark.
In the instant case it seems to me that both paragraphs of the definition of “serious offence” must be considered.
First, there is the question whether Mr Cross’s actions fall within s 27(3)(e), which refers relevantly to an offence involving using “any ... inflammable substance in circumstances likely to endanger human life or cause a person grievous bodily harm”.
Secondly, there is the question whether, if Mr Cross’s actions cannot be thus described, they can otherwise be described as an offence involving actual or threatened violence to a person, although not necessarily any particular person.
Section 27(3)(e)
On the basis of the evidence as summarised at [48] above, I am not satisfied that Mr Cross’s actions were “likely to endanger human life or cause a person grievous bodily harm”.
Offence of violence or threatened violence
The evidence as summarised at [48] above, in my view, also excludes a finding that in setting fire to his vehicle, Mr Cross intended violence to anyone in particular or to any of the 300-odd people in the general vicinity at the time.
Since I agree with Refshauge J’s view that violence or threatened violence towards property does not amount to a “serious offence”, I conclude that the offence with which Mr Cross has been charged, as committed, was not a serious offence as relevantly defined in paragraph (a) of the definition of “serious offence” in s 300 of the Crimes Act.
Conclusions
Arson is an offence that does not necessarily involve violence, so is not necessarily a serious offence for s 324 of the Crimes Act. For reasons set out above, I consider that the conduct by Mr Cross did not involve violence or threatened violence to any person, and was accordingly not a “serious offence” under s 300 of the Crimes Act; the matter is therefore to be dealt with under s 323 of the Crimes Act.
Orders
At the end of the hearing I made the following orders:
(1) That the conduct necessary to constitute the offence has been proved.
(2) That, having regard to the psychiatric evidence, Mr Cross was mentally impaired at the time he set fire to his vehicle.
(3) That a verdict of not guilty by reason of mental impairment was accordingly appropriate, and was entered.
In the expectation that I would find that Mr Cross’s conduct did not constitute a serious offence under s 324(1)(a) of the Crimes Act, I also ordered Mr Cross to submit to the jurisdiction of the ACT Civil and Administrative Tribunal (ACAT) to enable ACAT to make recommendations about how he should be dealt with from this point. Having now made the finding that the offence was not a serious offence, I propose to make orders under s 323 having regard to any recommendations provided by ACAT.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Nishadee Perera Date: 10 May 2017 |
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