R v Cross

Case [2017] ACTSC 91

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 Aranyi [2013] ACTSC 169; 278 FLR 409
R v Barker [2014] ACTSC 374
R v McGuckin (No 2) [2014] ACTSC 365
R v Smith [2012] ACTSC 146; 269 FLR 233

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

  1. 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.

  1. 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.

  1. The Crown consented to the entry of a special verdict of not guilty by reason of mental impairment in relation to the charge.

  1. 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.

  1. 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

  1. Section 68C of the Supreme…

Continue reading R v Cross

Sign in free to access the full text

Details
AGLC
R v Cross [2017] ACTSC 91
Case
[2017] ACTSC 91
Decision Date

CaseChat Overview and Summary

The appellant was charged with an arson offence committed on 31 December 2015, and pleaded not guilty by reason of mental impairment. The case was heard by a judge sitting alone in the Magistrates Court of the Australian Capital Territory. The central legal issue was whether the appellant was suffering from a mental impairment at the time of the offence on the balance of probabilities, and if so, whether the arson offence constituted a “serious offence” as defined by the relevant legislation.

The court examined the prosecution's burden to prove the physical elements of the offence beyond reasonable doubt, in light of the appellant's plea of not guilty by reason of mental impairment. It was determined that the prosecution must establish the physical elements of the offence to this standard, regardless of the appellant's mental state at the time of the offence. In considering whether the offence was “serious”, the court held that an offence is “serious” if it involves actual or threatened violence, and where violence is not an element of the offence, the offence is to be assessed as it was committed. Since the arson offence did not involve actual or threatened violence, it was not considered a “serious offence”. Consequently, the court held that the arson offence fell under section 323 of the Crimes Act 1900 (ACT).

The court found the appellant not guilty by reason of mental impairment on the charge of arson, and declared the offence to be one other than a “serious offence”, to be dealt with under section 323 of the Crimes Act 1900 (ACT). The court's decision was based on the lack of actual or threatened violence in the offence, and the appellant's mental state at the time of the offence. The orders made by the court reflected these findings, with the appellant being found not guilty by reason of mental impairment on the arson charge and the offence being dealt with under section 323 of the relevant Act.

Orders

Orders of the court

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).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.