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R v Jackson

R v Jackson

Case [2021] ACTSC 120 10 June 2021

Mens Rea & Intention

Mental Impairment

Unjustifiable Risk

Not Guilty by Reason of Mental Impairment

Recklessness

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Jackson
Citation:	[2021] ACTSC 120
Hearing Dates:	7 – 10 June 2021
DecisionDate:	10 June 2021
Before:	Mossop J
Decision:	See [154]
Catchwords:	CRIMINAL LAW – TRIAL BY JUDGE ALONE – Arson – whether fault element of recklessness must be established where accused has a mental impairment – special verdict – not guilty by reason of mental impairment – whether offence is a serious offence – serious offence not established – offence to be dealt with under s 323 of the Crimes Act 1900 (ACT)
Legislation Cited:	Crimes Act1900 (ACT), ss 300, 321, 322, 323, 324 Criminal Code 2002 (ACT), ss 20, 27, 28, 29, 404(1) Evidence Act 2011 (ACT), ss 165, 191 Mental Health Act 2015 (ACT), s 180 Supreme Court Act 1933 (ACT), ss 68B, 68C
Texts Cited:	Explanatory Memorandum, Crimes (Amendment) Bill 1994 Jeremy Gans, Modern Criminal Law of Australia (Cambridge University Press, 2^nd ed, 2017) Stephen Odgers, Principles of Federal Criminal Law (Lawbook Co, 4^th ed, 2019)
Cases Cited:	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) [2020] FCA 1070; 299 IR 231 K Generation Pty Ltd v Liquor Licencing Court [2009] HCA 4; 237 CLR 501 Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196 North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 R v Aleer [2016] ACTSC 75 R v Butcher (1986) VR 43 R v Cross [2017] ACTSC 91; 319 FLR 288 R v Falconer (1990) 171 CLR 30 R v Home Secretary; Ex parte Simms [2000] 2 AC 115 R v Hueston (1995) 5 Tas R 210 R v Mulcahy [2010] ACTSC 98 R v Pahl [2017] ACTSC 68; 266 A Crim R 41 R v Sidaros (No 5) [2020] ACTSC 354 R v Singsathitsuk [2021] ACTSC 26 R v Smith [2012] ACTSC 146; 269 FLR 233
Parties:	The Queen ( Crown) Kelly Jackson ( Accused)
Representation:	Counsel S Naidu ( Crown) K Ginges ( Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) McKenna Taylor ( Accused)
File Numbers:	SCC 97 of 2020 SCC 98 of 2020

MOSSOP J:

Introduction

The accused, Kelly Jackson, has been charged with one count of arson contrary to s 404(1) of the Criminal Code 2002 (ACT).

The position of the accused was that she contested whether the Crown could prove the elements of the offence beyond reasonable doubt. If it did, then she wished to contend that she was not guilty by reason of mental impairment under s 28 of the Criminal Code. The Crown indicated that it would agree, for the purposes of s 321 of the Crimes Act1900 (ACT), to the entry of a verdict of not guilty by reason of mental impairment.

Section 321 does not apply in this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jackson

Details

AGLC: R v Jackson [2021] ACTSC 120
Case: [2021] ACTSC 120
Decision Date

CaseChat Overview and Summary

The case of R v Jackson involved an appeal against a decision of Mossop J in the Supreme Court of the Australian Capital Territory. Kelly Jackson had been charged with one count of arson contrary to s 404(1) of the Criminal Code 2002 (ACT). The accused contested whether the Crown could prove the elements of the offence beyond reasonable doubt. If it did, then she wished to contend that she was not guilty by reason of mental impairment under s 28 of the Criminal Code. The Crown indicated that it would agree, for the purposes of s 321 of the Crimes Act 1900 (ACT), to the entry of a verdict of not guilty by reason of mental impairment. Mossop J found that the accused lit a fire and did so intentionally. He also found that the lighting of the fire caused damage to the building by fire. Finally, he found that the accused was reckless about causing the damage to the building. The court found that the accused was suffering from a mental impairment that had one or more of the effects set out in s 28(1) of the Criminal Code. The court found that the appropriate verdict was the special verdict of not guilty by reason of mental impairment. The court found that the offence of arson in the present case was a non-serious offence. The court found that the relevant provision in relation to orders following the special verdict was s 323 of the Crimes Act 1900 (ACT). The order of the Court was that on the charge of arson a verdict of not guilty because of mental impairment was to be entered.

Orders