R v Edmund Thomas Leong

R v EDMUND THOMAS LEONG [2009] ACTSC 173 (17 December 2009)

CRIMINAL LAW – offence of act of indecency on a child under the age of 10 years –special verdict of not guilty by reason of mental impairment entered – consequences of special verdict depend on whether offence is a “serious offence” – whether definition of “serious offence” applies to the offence as described in legislation or to the conduct that constituted the particular offence.

Crimes Act 1900 (ACT), ss 321, 324, 323, 300, 61, 308
Criminal Code 2002 (ACT), ss 27, 28, 56, 57, 58, 59, 60
Explanatory Memorandum for the Crimes (Amendment) Act 1994 (ACT)

EX TEMPORE JUDGMENT

No. SCC 404 of 2008

Judge:              Penfold J
Supreme Court of the ACT

Date:               17 December 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 404 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          

R

v

EDMUND THOMAS LEONG

ORDER

Judge:  Penfold J
Date:  17 December 2009
Place:  Canberra

THE COURT ENTERS A SPECIAL VERDICT THAT Edmund Thomas Leong is not guilty by reason of mental impairment of the offence of act of indecency on a child under the age of 10 years.

THE COURT ORDERS THAT:

1. ACAT be asked to provide a recommendation in relation to Mr Leong for the purposes of s 308(e) of the Crimes Act 1900 (ACT).

1. Mr Leong’s bail is continued on the same terms and conditions.   

Background

1. Edmund Thomas Leong has been charged with an offence on 14 June 2008, specifically the offence of committing an act of indecency on a girl who was then under the age of 10 years.

1. Mr Leong initially pleaded guilty to this charge and a sentencing date in 2009 was listed.  After that, questions arose about Mr Leong’s fitness to plead, and in December 2008 Dr Steven Allnutt provided a report to Mr Leong’s lawyers which said that Mr Leong was fit to plead but which also raised the possibility of a verdict of not guilty by reason of mental impairment.  No formal finding of Mr Leong’s fitness to plead was made before he was arraigned on 31 March 2009 at which point he entered a plea of not guilty by reason of mental impairment.  Before that he had elected for trial by judge alone. 

The trial

1. In a judge-alone trial the judge must give herself certain directions equivalent to those that would be given to a jury.  I do not propose to read those directions out today but note that they relate to the presumption of innocence, the burden of proof generally and the way evidence should be dealt with, and that I shall attach a copy of the directions to these reasons when they are published.  I shall also attach a note specifically relating to burdens of proof in relation to mental impairment and the processes for a trial in which an accused person has pleaded not guilty by reason of mental impairment. 

1. Mr Leong’s trial began on 3 November 2009.  Dr Steven Allnutt gave evidence…