R v Hongfeng Ma
[2011] ACTSC 126
•28 July 2011
R v HONGFENG MA
[2011] ACTSC 126 (28 July 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – real or substantial question raised about fitness to plead in the Magistrates Court – committed to the Supreme Court for trial.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – special hearing – accused engaged in the conduct required for the offences.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – disposition following non-acquittal – ancillary orders – accused ordered to submit to the jurisdiction of ACAT.
Court Procedures Rules 2006 (ACT), r 4733
Crimes Act 1900 (ACT), ss 308, 314, 316, 317, 319
Supreme Court Act 1933 (ACT), s 68C
Evidence Act 1995 (Cth), ss 184, 190
R v Whitney [2011] ACTSC 105
R v Fisher (No 2) [2011] ACTSC 100
R v Zvonaric (2001) 54 NSWLR 1
EX TEMPORE JUDGMENT
No. SCC 394 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 28 July 2011
IN THE SUPREME COURT OF THE )
) No. SCC 394 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
V
HONGFENG MA
ORDER
Judge: Refshauge J
Date: 28 July 2011
Place: Canberra
THE COURT FINDS THAT:
Under s 317 of the Crimes Act 1900 (ACT) and beyond reasonable doubt Hongfeng Ma engaged in the conduct required for each offence charged on the indictment dated 2 June 2011.
It is not necessary for Hongfeng Ma to be detained in custody, having regard to the criteria for detention set out in s 308 of the Crimes Act 1900 (ACT).
AND THE COURT ORDERS THAT:
Hongfeng Ma submit to the jurisdiction of the ACT Civil and Administrative Tribunal (ACAT) for the purpose of ACAT making a Mental Health Order.
Proceedings
Following an incident on 16 August 2010 in Dickson, the accused, Hongfeng Ma, was arrested and charged in the Magistrates Court with inflicting grievous bodily harm on another person, by intentionally and unlawfully using a Swiss pocket knife likely to cause a person grievous bodily harm and recklessly inflicting actual bodily harm on another person.
It became clear during the proceedings in the Magistrates Court that there was a real and substantial question about the fitness of Mr Ma to plead. While a Forensic Mental Health Assessment as to his fitness to plead was ordered and a report dated 30 November 2010 was prepared by Consultant Psychiatrist Dr Graham George in which he concluded that Mr Ma was, indeed, unfit to plead, no further proceedings seemed to be taken in respect of that matter in the Magistrates Court.
Indeed, notwithstanding that report, Mr Ma was, on 9 December 2010, committed to this court for trial. At the first directions hearing after committal (see r 4733 of the Court Procedures Rules 2006 (ACT)), I was satisfied, as required under s 314(1) of the Crimes Act 1900 (ACT) (the Crimes Act), that there was a real and substantial question as to the fitness of Mr Ma to plead and I ordered a further assessment and set the matter down for investigation.
Dr George prepared a further report dated 21 January 2011, after he had again examined Mr Ma and, after noting that Mr Ma was under the care of another psychiatrist who was prescribing depot antipsychotic medication, oral antipsychotic medication and antidepressant medication, confirmed his earlier opinion that Mr Ma remained unfit to plead.
On 22 February 2011, Nield AJ found Mr Ma unfit to plead. His Honour also found that Mr Ma was unable to elect for trial by judge alone (see: s 316 of the Crimes Act). As I noted in R v Whitney [2011] ACTSC 105 (at [75]), while not mandated to be done at the time of the investigation and finding as to fitness to plead, this is a very convenient way to proceed and resolves issues of difficulty in ensuring that there is a proper opportunity for the accused and his or her legal advisors to consider the matter of the method of trial appropriately before the opportunity is lost, namely when a date is set for the special hearing that follows from the finding that the accused is unfit to plead.
In accordance with s 316 of the Crimes Act, his Honour directed the ACT Civil and Administrative Tribunal (ACAT) to appoint a guardian for the purposes of that Act. The matter then came before me on 31 March 2011, when it appeared that a guardian had not then been appointed. On 7 April 2011, by when a guardian appeared still not to have been appointed, I made a further order for that purpose. It may be that the earlier order had not been formally taken out and served on the ACAT, as no copy was on the file.
In any event, the matter came again before me on 26 May 2011 and Ms Anita Phillips, the Public Advocate, appeared before me and expressed the opinion under s 316 of the Crimes Act that it was in Mr Ma’s best interests that the trial be by judge alone. I considered that this satisfied the section. As the opinion was expressed orally, I caused a copy of the transcript of the proceedings at that stage to be prepared and placed on the court file to ensure a proper record of the opinion expressed.
The matter was then adjourned and, ultimately, was listed for special hearing today, under s 316 of the Crimes Act. With the consent of the parties, I also ordered a Forensic Mental Health Report, so as to be ready in the event that I found, following the special hearing, that Mr Ma had engaged in the conduct required for the offence charged.
Despite the desirability of doing so before the investigation of Mr Ma’s fitness to plead (as to which, see R v Fisher (No 2) [2011] ACTSC 100), no indictment had been presented. It was presented today and alleged:
... THAT on 16 August 2010 at Canberra in the Australian Capital Territory HONGFENG MA assaulted Qiang Zhou and thereby occasioned to him grievous bodily harm.
... THAT on 16 August 2010 at Canberra aforesaid HONGFENG MA intentionally and unlawfully used an offensive weapon, namely, a Swiss [sic] pocket knife in circumstances likely to cause a person grievous bodily harm.
... THAT on 16 August 2010 at Canberra aforesaid HONGFENG MA assaulted Tong Tai Shi and thereby occasioned to him actual bodily harm.
I had it read out. Though the legislation, and so procedure, is a little different in New South Wales, this is recommended by that State’s Court of Criminal Appeal, see: R v Zvonaric (2001) 54 NSWLR 1.
Special hearing by judge alone
Section 316(1) of the Crimes Act provides that a special hearing shall be conducted as nearly as possible as if it were an ordinary criminal trial. In this regard, I accept that the approach taken to trials by judge alone under s 68C of the Supreme Court Act 1933 (ACT) is a proper approach to take to a special hearing where it is to be conducted by a single judge without a jury.
Of course, all that has to be determined, under s 317 of the Crimes Act, is whether I am satisfied “beyond reasonable doubt that the accused engaged in the conduct required for the offence charged”.
Applying this, I then approached the task in the following way. Sitting as a judge alone, I may make any finding that could have been made by a jury as to whether Mr Ma engaged in the relevant conduct and any such finding has the same effect as the verdict of a jury. I am required to include in my judgment the principles of law that I apply and the findings of fact upon which I rely. Where a warning would have been required to be given to a jury were the proceedings a trial before a judge and jury, I am required to take the warning into account when considering my verdict.
General directions
I give myself the general directions that would ordinarily be given to a jury before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the judge of fact, as well as the judge of law, it is my function to find the facts and to draw inferences from them, as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving that Mr Ma engaged in the relevant conduct lies wholly on the prosecution and no burden at all lies on him.
If Mr Ma makes or points to an explanation which is consistent with innocence, he does not have to prove it. It is for the prosecution to disprove it or to show that it is irrelevant. Otherwise, the prosecution will not have proved its case. Mr Ma is presumed not to have engaged in the relevant conduct until, at the conclusion of the hearing, the evidence establishes that fact. Both the onus and the standard of proof lie upon the prosecution and the prosecution must prove each and every element of the relevant conduct and whether Mr Ma engaged in it beyond reasonable doubt.
Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I must reach that finding having been satisfied beyond reasonable doubt.
It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a finding that Mr Ma engaged in the relevant conduct can be made. If I am satisfied that there may be an explanation consistent with Mr Ma not having engaged in the relevant conduct in respect of the charge on the indictment or I am unsure where the truth lies, then in those circumstances I must find that Mr Ma is not guilty of the offence charged to the level of satisfaction required by the law and must acquit him in respect of that charge.
The proceedings
The prosecution sought to prove its case by the tender of certain documents. Mr P Bevan, who appeared for Mr Ma, consented to the tender of those documents. I was satisfied that, for that consent to be accepted, the provisions of s 184 or, alternatively, s 190 of the Evidence Act 1995 (Cth) had been met, having regard to the reports of Dr George.
Mr Bevan expressly affirmed that he had advised Mr Ma as required and that Mr Ma understood the consequences of the consent to the tender of the documents and having regard to the reports of Dr George and to the assurances of Mr Bevan, I accepted the documents and marked them.
As a result, I admitted the following into evidence:
(a) Statement Tong Tai Shi dated 19 August 2010;
(b) Statement of Qiang Zhou dated 21 August 2010;
(c) Statement of Qiang Zhou dated 30August 2010;
(d) Statement of Hong Li Feng dated 19 August 2010;
(e) Statement of Yuk Ting Leung dated 18 August 2010;
(f) Statement of Yuk Ting Leung dated 26 August 2010;
(g) Statement of Hol Kit Mak dated 17 August 2010;
(h) Statement of Daniel Cuthill dated 22 August 2010;
(i) Statement of Yuan Yuan Qi dated 21 August 2010;
(j) Statement of Bokum Chen dated 26 August 2010;
(k) Three photographs of Quang Zhou taken 17 August 2010; and
(l) Four photographs of Qiang Zhou taken 21 August 2010.
The facts
From these documents, I find the following facts.
Mr Ma was, as at 16 August 2010, employed at a Chinese restaurant in Dickson. Prior to that time, he had spoken to another employee indicating his affection for her and wishing to form a relationship with her. She already had a boyfriend and so declined his invitation. Whether that was a contributing factor or the only cause to the subsequent events is not clear. It is clear that Mr Ma saw that other employee talking to the victim of these offences at some time prior to the commission of these offences.
On 16 August 2010, at about 9.30 pm to 9.45 pm, Mr Ma was working in the kitchen of the restaurant, as was the victim and a number of other persons. Mr Ma then pulled out a knife, which appears to have been the Swiss pocket-knife, the subject of the second count on the indictment, and then proceeded to stab the victim, saying that he wanted to kill him. Other persons who were in the restaurant rushed over and restrained Mr Ma. In the course of restraining him, one of the other staff members, the other victim, was also cut and injured.
The victim of the stabbing suffered severe injuries. I had photographs tendered before me of cuts to his face and to his head. The cuts to his face were clearly serious and required a number of stitches. Injuries to a person’s face are also serious because they are so obvious and usually remain with the victim for the rest of their life. They can be a source of embarrassment. Clearly, the injuries suffered by the victim referred to in the first count on the indictment, amount to grievous bodily harm. Clearly also, that harm was inflicted by Mr Ma.
The other victim of the knife attack by Mr Ma clearly also suffered actual bodily harm and I am satisfied from those facts that Mr Ma engaged in the conduct required for those offences.
The disposition
The disposition of these proceedings is both simple and problematic. The offences are serious offences within that meaning of the Crimes Act and thus my finding means that I have the powers set out in s 319(2) of the Crimes Act. That section relevantly provides:
319 Non-acquittal at special hearing – serious offences
(2)... the Supreme Court shall order that the accused be detained in custody until the ACAT orders otherwise unless, in consideration of the criteria for detention in section 308, it is satisfied that it is more appropriate to order that the accused submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order.
As I have said, Dr George prepared an additional Forensic Mental Health Report. He confirmed the diagnosis of Mr Ma as suffering chronic paranoid schizophrenia.
Personal circumstances
Born in China, Mr Ma came to Australia aged about seventeen years. He is now thirty-five years old. It appears that his father came first and his mother followed, leaving him and his sister behind to be cared for by an aunt or uncle until they could join their parents in Australia. Having learned English on his arrival, he completed his education at Phillip College when he was about 18 years of age.
He has been employed fairly continuously since leaving school, mainly as a cook in various restaurants. In the statements, I read comments about Mr Ma’s character, made by fellow workers. In one it was said:
In the time I have known Ma, he does not have a temper or get angry, he does not drink alcohol or take drugs. I do not believe that he has any mental illnesses or appear to be stressed. The only habit that I am aware that he has is smoking cigarettes. I can say that Ma Chai is a really nice person, he jokes around and is liked by everyone that works at the [restaurant name].
Another said:
I have known Brother Ma for about two years. We have worked in the same place before; that was the [restaurant name] in Dickson. Brother Ma is very kind. I have never seen Brother Ma get violent before. I have seen Brother Ma slam his hand on tables and chairs very hard, like he is mad. Normally he is very calm at work and talks a lot.
In the Forensic Mental Health Report, Dr George recorded:
... that there have been no further charges since [Mr Ma was] last seen [and has been on medication]. [Mr Ma] said he continued to live with his father, sister and brother-in-law in the suburb of Kambah. [Mr Ma] said he was not working but has a Newstart Allowance from Centrelink.
[Mr Ma] continues to attend the Tuggeranong Mental Health Centre and has a case worker. He sees [a Psychiatrist] every two months. [Mr Ma] indicated that he had a depot injection of medication, presumably antipsychotic medication ... [and also oral medication].
Dr George expressed the following opinion in summary:
Mr Hong Feng Ma is a 35 year old man who presents with a documented history of chronic paranoid schizophrenia. He continues with both a mixture of acute symptoms of this illness as well as chronic symptoms. There does appear to be a degree of cognitive deterioration over time.
He is under constant care through ACT Mental Health and specifically, the Tuggeranong Mental Health Unit. He has been treated with depot antipsychotic medications regularly every two weeks in the past and previously, he had taken Risperdal Consta. He continues to take oral medication regularly. He had little idea of what particular treatment he was having currently.
My general assessment is that Mr Ma continues with chronic Paranoid Schizophrenia. He has poor judgement and insight. He has a mixture of both acute and chronic symptoms which would affect him on a daily basis and interfere with his ability to engage in ongoing daily activities, which the majority of people take for granted. He needs to remain under continuous psychiatric care. He will need to remain under a Treatment Order, because he has no insight into his illness and without a Treatment Order, I doubt that he would be compliant with medication.
I note also that Mr Ma is a gambler, but this does not appear to be particularly linked with these offences or any matter that I need to consider.
Conclusion
The real issue is whether Mr Ma should be detained in custody or whether he should not. The only real option is for him to submit to the orders of ACAT ultimately, but my only decision is whether he should be remanded in custody. That matter, is, of course, of some concern because of the serious and violent nature of the attacks and the harm that they were caused. Nevertheless, it is clear that while he is on medication, Mr Ma has committed no further offences and indeed, appears to have returned to the relatively tranquil behaviour that is described in some of those statements to which I referred.
I note also that the Crown has accepted that, when Mr Ma is medicated, he is no real risk to the community. This means that it is important to see that he is medicated and it may be, particularly relying on Dr George’s report, that a Psychiatric Treatment Order should be made. I cannot do so. It is a matter for the Tribunal and I cannot bind them as to how to deal with that matter.
In all the circumstances, I am satisfied, however, that it is not necessary to remand Mr Ma in custody. However, it is necessary for him to submit to the jurisdiction of ACAT.
Orders
I will record a finding that I am satisfied beyond reasonable doubt that Mr Ma engaged in the conduct required for each of the offences charged on the indictment.
Having regard to the criteria for detention set out in s 308 of the Crimes Act, I will order that it is not necessary for Mr Ma to be detained in custody.
I will order that he submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 12 August 2011
Counsel for the prosecution: Mr S Drumgold
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the accused: Mr P Bevan
Solicitor for the accused: BevanSnell Lawyers
Date of hearing: 28 July 2011
Date of judgment: 28 July 2011
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