R v Jacob Bul [No 2]
[2012] ACTSC 65
•26 April 2012
R v JACOB BUL [NO 2]
[2012] ACTSC 65 (26 April 2012)
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 offence.
LAW REFORM – absence of provision for ensuring orders following a special hearing can be effected.
Crimes Act 1900 (ACT), ss 27, 300, 308, 315C, 316, 317, 318, 319
Supreme Court Act1933 (ACT), s 68
Evidence Act 2011 (ACT), ss 184, 190
Criminal Code 2002 (ACT), s 309
R v Bul [2012] ACTSC 59
R v Zvonaric (2001) 54 NSWLR 1
R v Fisher (No 2) [2011] ACTSC 100
R v Ardler (2004) 144 A Crim R 552
EX TEMPORE JUDGMENT
SCC No. 278 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 26 April 2012
IN THE SUPREME COURT OF THE )
) SCC No. 278 of 2011
AUSTRALIAN CAPITAL TERRITORY )
R
v
JACOB BUL
ORDER
Judge: Refshauge J
Date: 26 April 2012
Place: Canberra
THE COURT ORDERS THAT:
Mr Bul submit to the jurisdiction of the ACT Civil and Administrative Tribunal to enable the Tribunal to make a Mental Health Order if so required.
Introduction
On 23 April 2012, I found Jacob Bul unfit to plead and unlikely to become fit within 12 months: R v Bul [2012] ACTSC 59. As a result I was required, under s 315C of the Crimes Act 1900 (ACT), to hold a special hearing under s 316 of that Act. Before I gave any directions or fixed the date for the special hearing, I was informed that the Public Advocate of the ACT had been appointed guardian of Mr Bul.
In this case, I was satisfied that Mr Bul was incapable of making the election for trial by a single judge without a jury. This was principally because of his lack of understanding about challenging jurors and the jury, as set out in the reports of Dr George and Dr Kasinathan, which were received in the hearing as to his fitness to plead. As the Public Advocate had been appointed to be Mr Bul’s guardian for the purposes of deciding whether the special hearing should be by judge alone it was not necessary for me to act under s 316(3) of the Crimes Act. The Public Advocate has expressed the view required under s 316(2)(b)(ii) of the Crimes Act and, accordingly, the special hearing will be a hearing by judge alone. I also had a copy of the Guardianship Order. That may not be necessary in all cases but it was helpful to ensure that the position was clear.
After I had delivered my earlier decision, and been notified of the guardian’s opinion, an indictment dated 24 April 2012 was filed containing one count, namely, “that on
8 June 2011 at Canberra in the Australian Capital Territory Jacob Bul did steal Australian currency from St George Bank Pty Ltd and at the time of doing so used force against Indira Picket.” The particulars of the goods stolen were $660 in cash.
Naturally, Mr Bul was not arraigned on the indictment for my finding as to his fitness to plead precluded that step from being taken. It appears, however, that the charge in the indictment should be formally read out, as was suggested in R v Zvonaric
(2001) 54 NSWLR 1 at 4; [3], although there does not seem to be the need for a formal arraignment in this Territory for the reasons I set out in R v Fisher (No 2) [2011] ACTSC 100 at [20].
On presentation of the indictment I turned to setting a hearing date for the special hearing. It was agreed by counsel that it should commence immediately and I proceeded accordingly.
Section 316(1) of the Crimes Act provides that the special hearing shall be conducted “as nearly as possible as if it were an ordinary criminal proceeding”. In this regard, I accept that the approach taken to trials by judge alone under s 68C of the Supreme Court Act1933 (ACT) is the proper approach to take to special hearings 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.
Directions
Sitting as a judge alone, I may make any finding that could have been made by a jury as to whether Mr Bul 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 to take the warning into account when considering my verdict.
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 Bul engaged in the relevant conduct lies wholly on the prosecution and no burden at all lies upon him. If Mr Bul 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 Bul 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 Bul 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 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 Bul engaged in the relevant conduct can be made. If I am satisfied that there may be an explanation consistent with Mr Bul not having engaged in the relevant conduct in respect of the charge in the indictment, or I am unsure where the truth lies then in those circumstances, I must find that Mr Bul 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
Mr A Williamson, who initially appeared for the prosecution, sought to prove the case by the tender of some documents. Ms M Moss, who now appears for the prosecution, tendered those documents. Ms S Boxall, who then appeared for Mr Bul, consented to the tender of the documents. Mr C Lynch, who has now appeared for Mr Bul, has also consented to the tender of those documents.
I am satisfied that, for that consent to be accepted, the provisions of s 184 or, alternatively, s 190 of the Evidence Act 2011 (ACT) have been met, having regard to my findings on the issues in respect of Mr Bul’s fitness to plead.
Counsel expressly affirmed that Mr Bul had been advised as required, and that he understood the consequences of consenting to the tender of the documents. Having regard to my findings as to his fitness to plead, I am satisfied that he understood the consequences of making the admission.
As noted, Mr Bul was represented by Ms Boxall and then Mr Lynch. Such representation is mandated unless the Court otherwise orders under s 316(6) of the Crimes Act. The finding of unfitness does not mean there can be no relevant interaction between the accused person and his or her legal representatives.
As a result of this, I admitted the following into evidence:
(a) a statement of facts prepared by the Australian Federal Police; and
(b) two statements made by two bank tellers who were, at the time, employed by St George Bank at City Walk, Canberra City.
From these documents I find the following facts.
The facts
Mr Bul attended at that bank on 8 June 2011 and demanded service at the counter. He was acting in an aggressive manner when he did so. He came to the counter without a service ticket but refused to leave the counter in order to wait his turn, where those who were also attending the bank were waiting for service. He continued, however, to push in front of other customers and one of the tellers found that the customer she was actually serving walked away. Mr Bul, standing in an aggressive manner, then stuck his left hand through the security screen and said “I need to sign this”. There was, in fact, nothing he needed to sign but he pushed the teller’s right hand as she tried to pull the papers that she had been working on away from him.
Mr Bul became more aggressive, clenched his fist and started to throw punches towards the bank teller. She moved back so that he did not make contact.
At that time, there was $660 in various denominations of Australian cash on the counter. The teller bent down to press a button which closes the security screen, but in the time that this occurred Mr Bul had taken the money from the counter. He then left the bank.
A short time later police arrived and statements were taken.
The conduct involved in the charge was:
(a) the dishonest taking of property;
(b) with the intent to permanently deprive the owner of that property; and
(c) at the time of doing so using force.
The element of dishonesty and the intent to permanently deprive are both, it seems to me, part of the mental element of the charge which I do not need to consider. See
R v Ardler(2004) 144 A Crim R 552 at 567; [90], though that case was concerned with legislation that was worded slightly differently.
It does seem to me, however, that the clear lack of consent of the owner is part of the dishonesty in the taking of the property and so is a factor that I should and do take into account.
Conclusion
On the facts as I have found them, I am satisfied beyond reasonable doubt that Jacob Bul engaged in the conduct required for the offence with which he has been charged in the indictment.
The offence specified in the indictment was an offence contrary to s 309 of the Criminal Code 2002 (ACT). It carries a maximum penalty of 1 400 penalty units, which at the time amounted to a fine of $154 000, or imprisonment for 14 years or both.
Further conduct of the proceedings
In order to decide how to proceed, I need to determine whether the offences are serious offences: if they are, s 319 of the Crimes Act applies; if they are not,
s 318 applies.
“Serious offence” is defined in s 300 of the Crimes Act to mean:
(a) an offence involving actual or threatened violence and punishable by imprisonment for longer than 12 months; or
(b) an offence under section 27(3) or (4).
Section 27 is not relevant here because that is not the section under which either of the charges in the indictment is laid.
In my view, the offence involves actual or threatened violence and, accordingly, it is a serious offence attracting the application of Crimes Act s 319(2), which provides:
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.
Under that sub-section I must order that Mr Bul be detained in custody until ACAT orders otherwise, unless in consideration of the criteria for detention in s 308, I am satisfied that it is more appropriate to order that he submit to the jurisdiction of the ACAT to enable the ACAT to make a Mental Health Order. That is a little problematic in this case because Mr Bul is already subject to a Mental Health Treatment Order which is supervised by the ACAT. Neither party suggested that I consider Mr Bul should be detained in custody.
I am required, however, to consider the criteria set out in s 308 of the Crimes Act, which are as follows:
(a) the nature and extent of the accused’s mental impairment, including the effect it is likely to have on the person’s behaviour in the future;
(b) whether or not, if released–
(i) the accused’s health and safety is likely to be substantially impaired; or
(ii) the accused is likely to be a danger to the community
(c) the nature and circumstances of the offence with which the accused is charged;
(d) the principle that a person should not be detained in a correctional centre unless no other reasonable option is available;
(e) any recommendation made by the ACAT about how the accused should be dealt with.
On previous occasions, I have suggested that there is a gap in the legislation because if I do not detain Mr Bul in custody I have no mechanism of requiring him to attend before ACAT by grant of bail or similar condition. This should be considered by the legislature. I have set out some of my concerns about that matter in R v Fisher(No 2) at [62]–[68], and I adopt them here.
In the circumstances, it seems to me that there is no requirement, having regard to the matters set out in s 308, for Mr Bul to be detained in custody. Therefore, all I need to do is to make an order that he submit to the jurisdiction of the ACT Civil and Administrative Tribunal to enable the Tribunal to make a Mental Health Order if so required.
I certify that the preceding thirty three (33) numbered paragraphs are a true copy of the Ex Tempore Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2012
Counsel for the Crown: Ms M Moss
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the accused: Mr C Lynch
Solicitor for the accused: Craig Lynch & Associates
Date of hearing: 26 April 2012
Date of judgment: 26 April 2012
0
4
0