R v Edet
[2020] ACTSC 276
•9 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Mkpo-Uto Aniefiok Edet |
Citation: | [2020] ACTSC 276 |
Hearing Date: | 8 October 2020 |
DecisionDate: | 9 October 2020 |
Before: | Elkaim J |
Decision: | See [29] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – pleas of not guilty due to mental impairment -– proof of offences – proof of mental impairment – consequential orders – referral to ACAT |
Legislation Cited: | Crimes Act 1900 (ACT), ss 24, 26, 52(1), 54(1), 300, 308, 324, 328 |
Parties: | The Queen (Crown) Mkpo-Uto Aniefiok Edet (Accused) |
Representation: | Counsel P Dixon (Crown) S McLaughlin (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 284 of 2019; SCC 285 of 2019 |
ELKAIM J:
The accused, Mr Edet, was facing an indictment, dated 13 December 2019, containing the following three charges:
(a)Attempted sexual intercourse without consent and being reckless as to whether the other person consents to the sexual intercourse (CC5911/2019), contrary to s 54(1) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is imprisonment for 12 years.
(b)Sexual assault in the 2nd degree (CC4954/2019), contrary to s 52(1) of the Crimes Act 1900 (ACT). The maximum penalty for this offence is imprisonment for 14 years.
(c)In the alternative to Count 2, assault occasioning actual bodily harm (CC4953/2019), contrary to s 24 of the Crimes Act. The maximum penalty for this offence is imprisonment for 5 years.
Additionally, the following summary charges were transferred from the Magistrates Court:
(a)Minor theft of property (CAN4952/2019), contrary to s 321 of the Criminal Code 2002 (ACT). The maximum penalty for this offence is imprisonment for 6 months, a fine of $8,000 or both.
(b)Common assault (CAN5912/2019), contrary to s 26 of the Crimes Act. The maximum penalty for this offence is imprisonment for 5 years.
Mr Edet was arraigned before me. He said he was not guilty of all of the above offences by reason of mental impairment. The same plea was made to the transferred charges through Mr Edet’s solicitor.
The Crown then indicated that it accepted a special verdict of not guilty by reason of mental impairment.
The parties then agreed that I should follow the following procedure:
(a)Allow the Crown to tender such evidence as it saw fit to prove the ingredients of the offences beyond reasonable doubt, on the assumption that the offences had been carried out intentionally and voluntarily. Subject to the consent of the accused, the evidence could be put before the Court by way of statements.
(b)Decide on the basis of medical evidence, to meet the conditions in s 28 of the Criminal Code, whether I was satisfied that mental impairment had been made out to a standard sufficient to justify the potential significant interference with the freedom and liberty of the accused.
(c)Decide whether the verdict was appropriate.
(d)On the assumption that I was satisfied as to the matters in (a), (b) and (c) above, then move on to consider s 324 of the Crimes Act.
Although the parties agreed that I should be satisfied as required in the different stages of the above process, it was nevertheless necessary for me to reach the same result to my own satisfaction.
Starting with the evidence said to prove the ingredients of the offences, the Crown relied upon the Statement of Facts dated 30 September 2020 (Exhibit A). This document was tendered by consent together with a concession that it has established each of the elements of the charged offences. This included Count 2 in the indictment, therefore making it unnecessary to consider Count 3.
The concession in respect of Exhibit A effectively made it an ‘Agreed Statement of Facts’. The detail of the offences is set out from [8]. Having regard to the agreement between the parties I do not think it necessary go through each element of the offences which are plainly encompassed within the description. I think it suffices for me to quote from the summary:
4Around 10:30pm on 29 April 2019, Ms Smith (a pseudonym) and Ms Jones (a pseudonym) were walking on the trails through the University of Canberra campus towards Hungry Jacks in Belconnen. As they approached a traffic intersection, Mr Edet was walking behind them. After crossing the road, Mr Edet approached Ms Smith and Ms Jones and spoke to them. He suggested they head in a particular direction. Ms Smith and Ms Jones commenced walking in that direction but stopped to check if it was the right direction on their phones. Mr Edet approached them again. He suddenly grabbed Ms Jones by the collar and punched her in the face (Count 2 and Count 3). Ms Smith went to Ms Jones’ defence however Mr Edet pushed Ms Smith down to the ground and held her down. Whilst holding her down, Mr Edet pulled Ms Smith’s pants and underwear down to her knees and also undid his belt and loosened his pants (Count 1). Ms Jones attempted to remove Mr Edet from Ms Smith however was punched in the face again by Mr Edet (Count 2 and Count 3).
5Earlier that day at about 9:00pm-9:30pm, Mr Tyron Catania was working as a security guard at the University of Canberra when his attention was alerted by a cleaner to Mr Edet sleeping in a hallway within a building on campus. Mr Catania woke Mr Edet up and told him he had to leave the building. As Mr Edet was leaving, he splashed water onto Mr Catania’s back from his water bottle. Mr Catania did not give permission for Mr Edet to splash water onto his person (CC2019/5912 – common assault).
6Shortly later at about 10:00pm, Ms Judy Southwell commenced her shift as a security guard at the University of Canberra. She parked her black Ford Falcon sedan in the carpark of the Campus Living Village off Telita St, Bruce. She observed Mr Edet as she left her vehicle and briefly greeted him, however felt uncomfortable about his behaviour. Shortly later, Ms Southwell returned to her vehicle and saw Mr Edet sitting in the driver’s seat. Ms Southwell went into a building and called Police. By the time she returned to the vehicle, Mr Edet was gone. Ms Southwell later realised that her ‘black 511 tactical boots’ which she had left inside the vehicle was missing. Also missing from the vehicle was Ms Southwell’s ‘Blackhawk Logistics jacket’. When Mr Edet was arrested after the assault on Ms Jones and Ms Smith, he was wearing Ms Southwell’s ‘511 tactical boots’. Ms Southwell’s ‘Blackhawk Logistics jacket’ was also on the ground next to Mr Edet when he was arrested. Ms Southwell did not give permission for Mr Edet to take her ‘511 tactical boots’ or ‘Blackhawk Logistics jacket’. The replacement value of the ‘511 tactical boots’ is approximately $170. The Blackhawk Logistics jacket was worth approximately $100 (CC2019/4952 – minor theft).
On the basis of the agreed facts I have little difficulty in concluding that the Crown has proved, beyond reasonable doubt, that, on the assumption the accused was acting voluntarily, that he committed the charged offences. This conclusion, of course, excludes Count 3 in the indictment.
The next step is to review the medical evidence that was placed before me. The reports of Dr Kasinathan, Professor Greenberg and Dr Furst make up Exhibit C.
Dr Kasinathan, a psychiatrist, provided a report in response to a request from Magistrate Lawton, on 30 May 2019, for a Forensic Mental Health Report and Psychiatric Report. For the purposes of his report the doctor interviewed the accused on 26 July 2019. He also had access to the accused’s electronic mental health record and his criminal history.
Dr Kasinathan concluded in this way:
The presence of a mental illness was demonstrated by the presence of delusions, hallucinations and behaviour indicating the presence of the above symptoms. From the information made available to the writer, it is the writer’s opinion with reasonable medical certainty that Mr Edet has a relevant psychiatric diagnosis as per DSM-5 (American Psychiatric Association 2013), consistent with schizophrenia, recurrent episodes, currently improved with treatment.
Regarding Verdins (R v Verdins (2007) 16 VR 269; 169 A Crim R 581), from the information made available to the writer, including a perusal of Mr Edet’s mental health record, there were specific psychiatric symptoms suffered by Mr Edet at the time of the alleged offending that were the direct result of schizophrenia. He held a paranoid delusion and was experiencing auditory hallucinations at the material time which likely contributed to the offending and likely impaired his ability to exercise appropriate judgment or make calm, rational decisions. Due to the severity of his psychosis at the material time, it was likely that he was unable to appreciate the nature and quality of his alleged offending conduct. At the material time, the severity of psychotic illness required involuntary psychiatric admission as outlined above in the present report. Sadly then he was too guided too describe his symptoms.
On 17 March 2020 Professor Greenberg, a forensic psychiatrist, provided a medico-legal forensic psychiatric report to the Crown. Professor Greenberg was asked two specific questions: Did Mr Edet have a mental impairment as defined in s 27 of the Criminal Code, and if so, did the mental impairment have an effect on one of the matters listed in s 28(1)(a) –(c)?
Because Professor Greenberg was refused permission to conduct an assessment of the accused, his report is based on his review of the documents provided to him by the Crown. These are set out on page 3 of his report. I do note that Professor Greenberg was able to view CCTV footage of the accused while he was being held at the ACT Watch House over a period in excess of eight hours. These are the conclusions reached by Professor Greenberg:
I am of the opinion that on balance, Mr Edet likely qualifies for a legal concept of ‘mental impairment’. Mr Edet likely had a relapse of his Schizophrenic Disorder which is a mental impairment with psychotic symptoms (paranoid delusions).
I’m of the opinion that on balance, at the time of the alleged offences, Mr Edet mental impairment likely had the effect that Mr Edet did know the nature and quality of his conduct at the time of the alleged offences.
…
I am of the opinion that on balance, Mr Edet likely did not know that his conduct was wrong at the time of the alleged offences. His alleged conduct was likely based on highly disorganised thinking with thought disorder, thought blocking and likely perceptual disturbance (auditory hallucinations). He was disinhibited in his sexual conduct based on his dysfunctional disorganised thoughts. His communication ability was also grossly disturbed and he was noted to be perplexed, guarded, evasive, unwilling to engage with prolonged latency in his responses and poverty of thoughts. He likely could not reason with a moderate degree of sense and composure about whether his conduct, as seen by a reasonable person, was wrong.
…
I am of the opinion that on balance, Mr Edet likely could not control his conduct at the time of the alleged offences because of his grossly disorganised thought process and disinhibited mental state.
On balance, I am of the opinion that Mr Edet likely has a defence of mental impairment available to him and was likely suffering from a mental impairment so as not to be responsible for his actions in accordance with the test set down in section 28(1)(a-c).
Dr Furst, also a forensic psychiatrist, provided a report on 9 May 2020 at the request of Legal Aid ACT, which is acting on behalf of the accused. Dr Furst was essentially asked the same questions as those that had been posed to Professor Greenberg.
Dr Furst was able to assess the accused, which he did on 8 April 2020. In addition he had access to the Case Statement and the report of Professor Greenberg.
Dr Furst stated that he thought the accused was suffering from a mental impairment as defined in s 27 of the Criminal Code. His diagnosis, within DSM-5 was of schizophrenia with catatonic features. He thought that the mental impairment pre-existed the commission of the offences and continued at the time of the offences. He did not think that the accused knew that his conduct was wrong because, at the time, he was experiencing “delusional ideation, auditory hallucinations, thought disorder and mood disturbance, such that he lacked the capacity to reason with a moderate degree of sense and composure about whether his alleged conduct, as seen by a reasonable person, was wrong”.
As to whether the accused could have controlled his conduct at the time of the offences, Dr Furst stated:
The available history suggests that Mr Edet was acutely psychotic at the time of the alleged offences, making it likely that he lacked the capacity to control his conduct at the time of the alleged offences as a product of his poorly controlled schizophrenic illness.
It is plainly apparent that the above three psychiatrists share the same opinion, namely that the accused was suffering from a mental impairment at the time of the alleged offences. There is no opinion to the contrary. Accordingly I have little difficulty in concluding, in the terms required by the Criminal Code, that the accused was mentally impaired at the time of the alleged offences. I note that no submission to the contrary was made by either party.
Having regard to my satisfaction that the Crown has proved its case beyond reasonable doubt, and then my satisfaction as to the mental condition of the accused at the time of the commission of the offences, I am in turn satisfied that the special verdicts of not guilty by reason of mental impairment are appropriate. I therefore enter verdicts to that effect.
It is now necessary to return to s 300 of the Crimes Act and record that Counts 1 and 2 and the charge of common assault are serious offences within the meaning of this section. The minor theft charge is not such an offence.
The next step, pursuant to s 324 of the Crimes Act is to decide which order to make of the two alternatives provided by s 324(2). The first alternative is to detain the accused in custody for immediate review by the ACT Civil and Administrative Tribunal (ACAT) under the Mental Health Act 2015 (ACT). The second alternative, after considering s 308, is to order that the accused “submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015”.
Once again the parties had a joint approach, namely that I should proceed under the second alternative, as dictated by s 324(2)(b). To be more precise, the Crown said that there was no reason that I should not take this course.
The Crown pointed out that Mr Edet had been subject to strict conditions of bail since 22 August 2019 and that he had complied with those conditions. The Crown informed me that it had contacted ACT Corrective Services on 2 October 2020 and spoken to Mr Edet’s supervising officer. The officer reported that whilst under supervision Mr Edet had been “very compliant”; “had never missed an appointment”; and “he had done extremely well while on bail”.
Mr McLaughlin also referred me to the opinion of Dr Kasinathan, at page 4 of his report, where he stated:
Subsequent to assertive psychiatric treatment, Mr Edet had a good response to psychiatric medication and had markedly improved psychiatric symptoms at the present time. Thus there was no effect on his present mental capacity.
Section 308 sets out the criteria for detention. Criteria (c) is perhaps against Mr Edet because of the seriousness, in particular, of Count 1. However criteria (b) and (d) I think favour the option preferred by the parties. As submitted by the Crown:
Ultimately it is a matter for the Court, but the Crown submits that, in considering the matters set out in section 308, that the Court does not need to make an order that Mr Edet be detained for immediate review pursuant to section 324(2)(a).
I agree with the position taken by the parties. I did express a concern that having regard to the nature of the offences the approach I took might be seen as Mr Edet avoiding punishment for his actions. I was reminded however of the wide powers available to the ACAT and also the fundamental finding that Mr Edet was not guilty, albeit by reason of mental impairment.
In relation to the minor theft charge, this is dealt with under s 328 of the Crimes Act. Once again with the support of the parties I intend to adopt the suggestion made by the Crown that I proceed under s 328(1)(b) and note the entry of the verdict but take no further action.
I make the following orders:
(a)Verdicts of not guilty by reason of mental impairment are entered in respect of the following offences:
(i)Attempted sexual intercourse without consent and being reckless as to whether the other person consents to the sexual intercourse (CC5911/2019).
(ii)Sexual assault in the 2nd degree (CC4954/2019).
(iii)Minor theft of property (CAN4952/2019).
(iv)Common assault (CAN5912/2019).
(b)Pursuant to s 324(2)(b) of the Crimes Act Mr Edet is ordered to submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015. This order is made in respect of the following offences:
(i)Attempted sexual intercourse without consent and being reckless as to whether the other person consents to the sexual intercourse (CC5911/2019).
(ii)Sexual assault in the 2nd degree (CC4954/2019).
(iii)Common assault (CAN5912/2019).
(c)In respect of the offence of minor theft the Court notes the entry of a verdict of not guilty by reason of mental impairment and takes no further action.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 9 October 2020 |
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