R v Mason
[2019] ACTSC 161
•26 June 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Mason |
Citation: | [2019] ACTSC 161 |
Hearing Dates: | 7, 8, 9 and 22 July, 28 October, 5 and 23 November 2015 |
DecisionDate: | 26 June 2019 |
Before: | Penfold J |
Decision: | The verdicts are as follows: Counts on the indictment: Count 1: Not guilty Count 2: Not guilty Transferred charges Light unauthorised fire (5 January 2014): Not guilty Light unauthorised fire (16 January 2014): Not guilty Possession of knife in public place: Not guilty Trespass: Guilty Theft: Guilty |
Catchwords: | CRIMINAL LAW – GENERAL MATTERS – Trial by judge alone – two charges of causing bushfires – analysis of physical and fault elements – offences of specific intent – mental impairment defence – nature of burden imposed on defence by form of ACT Criminal Code. CRIMINAL LAW – GENERAL MATTERS – Trial by judge alone – two charges of causing bushfires – physical element of offences not made out beyond reasonable doubt – verdicts of not guilty. CRIMINAL LAW – GENERAL MATTERS – Trial by judge alone – five charges transferred from Magistrates Court – two backup charges of lighting fires – physical element of offences not made out beyond reasonable doubt – charge of possessing knife in public – reasonable excuse for possession found – verdicts of not guilty on three charges – one charge each of trespass and theft – physical elements made out – mental impairment defence not established – verdicts of guilty on charges of trespass and theft. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 309, 382 Criminal Code 2002 (ACT) ss 13, 14, 15, 18, 20, 27, 28, 29, 56, 57, 58, 59, 60, 301, 304, 321, 405, dictionary Supreme Court Act 1933 (ACT) ss 68C, 68CA, 68E, 68D(2) |
Cases Cited: | DPP v Scheele [2016] ACTCA 23 Edwards v The Queen (1993) 178 CLR 193 Shepard v The Queen (1990) 170 CLR 573 |
Texts Cited: | Ian Freckelton QC and Hugh Selby, Expert Evidence (Thomson Reuters, 5th ed, 2013) |
Parties: | The Queen (Crown) Shane John Mason (Accused) |
Representation: | Counsel A Jamieson-Williams (Crown) R Livingston (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 124 of 2014; SCC 125 of 2014 |
Introduction
The accused, Shane Mason, was arraigned before me on 7 July 2015 on the following charges (the bushfire charges):
(a)Count 1: that on 5 January 2014 he recklessly caused a fire and was reckless about the spread of the fire to vegetation on property belonging to someone else.
(b)Count 2: that on 16 January 2014 he recklessly caused a fire and was reckless about the spread of the fire to vegetation on property belonging to someone else.
The accused pleaded not guilty to both the bushfire charges.
Transferred charges
Mr Mason had also been charged in the Magistrates Court with several other offences (the transferred charges), being:
(a)two back-up charges of lighting a fire without authorisation, relating to the same fires dealt with in the bushfire charges;
(b)one charge each of unauthorised possession of a knife and possession of cannabis, relating to items found in Mr Mason’s possession after the fire that is the subject of the first bushfire charge (the 5 January fire); and
(c)one charge each of trespass and theft, relating to the removal of a dog from RSPCA premises shortly before the fire that is the subject of the second bushfire charge (the 16 January fire).
Mr Mason had pleaded guilty to the cannabis possession charge in the Magistrates Court, but not guilty to the other five charges.
All six charges were transferred to the Supreme Court, under s 68E of the Supreme Court Act 1933 (ACT) (the Supreme Court Act), as back-up or related charges (as defined in s 68CA of that Act) in respect of the bushfire charges. Under s 68D(2) of that Act, at the conclusion of this trial or in the course of any resulting sentencing proceeding, I must deal with those back-up or related charges if I consider that it is in the interests of justice to do so.
Some of the evidence relevant to the transferred charges would in any case have been given in the course of the trial of the indictable offences, but some was not relevant to that trial and could only be given by leave, which was granted on the first day of the trial.
Trial by judge alone
Election
The accused elected to be tried by judge alone.
Procedures for trial
Section 68C of the Supreme Court Act specifies the procedures to be followed for a trial by judge alone. In summary:
(a)the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;
(b)the judge must provide a judgment setting out the principles of law he or she applied and the findings of fact he or she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict, Fleming v The Queen [1998] HCA 68; 197 CLR 250); and
(c)the judge must, in considering her verdict, take into account any warning or direction that would, under a Territory law, have had to be given, or any comment that would have had to be made, to a jury, in the proceedings.
Directions that would be given to a jury
In a judge-alone trial the judge must give herself certain general directions equivalent to those that would be given to a jury. As well as the general directions that are always required, the Crown identified certain other directions required in this case, relating to:
(a)dealing with a circumstantial case;
(b)consciousness of guilt;
(c)coincidence evidence; and
(d)expert evidence.
The general directions, including those relating to dealing with a circumstantial case, are set out immediately below. The proper treatment of evidence said to suggest a consciousness of guilt, coincidence evidence, and expert evidence is dealt with at the relevant parts of this judgment, although not in the form of directions suitable for a jury (respectively at [424]–[447], [465], and [517]–[577] below).
General directions
General directions relate to the presumption of innocence, the burden of proof generally, and the way evidence should be dealt with.
Accordingly, I direct myself that the prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely, beyond reasonable doubt.
To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt. It is not enough for the prosecution to persuade me that the accused is probably guilty, or even that he is very likely guilty.
If the accused offers or suggests an explanation that is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.
In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness’s evidence. I may, if I think fit, accept part and reject part of the same witness’s evidence.
There is no need for all the verdicts to be the same. Each count must be considered separately in the light of the evidence that applies to it by asking, as to each count separately, “Am I satisfied beyond reasonable doubt by the evidence that the accused is guilty of this offence?”
Even in a circumstantial case, the onus of proving Mr Mason’s guilt in respect of the charges is on the Crown. It must establish his guilt beyond reasonable doubt. Each of the elements of the offence concerned must be established beyond reasonable doubt before I may find Mr Mason guilty of that offence.
In determining whether any particular fact has been established by the evidence, I may draw reasonable inferences or conclusions from the facts I find established.
In this case, the Crown relies largely if not entirely on “circumstantial evidence”; it asks me to find certain basic facts and then, from those facts, to draw a conclusion as to the existence of further facts.
Circumstantial evidence can be contrasted with direct evidence, being what a witness says that he or she saw, heard or did. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the accused.
In a circumstantial case, the Crown lacks direct evidence of that kind, and no individual fact can prove the guilt of the accused. I am accordingly asked to reason in a staged approach. The Crown first asks me to find certain basic facts established by the evidence which do not, however, need to be proved beyond reasonable doubt. Taken by themselves they cannot prove Mr Mason’s guilt. I am then asked to infer from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks me to find based upon the basic facts is that Mr Mason is guilty of the offences charged.
A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole, and upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. I must approach the circumstantial case by considering and weighing, as a whole, all the facts I find established by the evidence. I must not consider any particular fact in isolation and ask whether that fact proves Mr Mason’s guilt, or whether there is any explanation for that particular fact or circumstance which is inconsistent with Mr Mason’s guilt.
The correct approach is, first, to determine what facts I find established by the evidence (which facts do not need to be proved beyond reasonable doubt). I must then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that Mr Mason is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown’s circumstantial case fails, and I must find Mr Mason not guilty.
If I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts then, before I can find Mr Mason guilty, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion that the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with Mr Mason’s guilt, the circumstantial case also fails, because I cannot be satisfied beyond reasonable doubt of Mr Mason’s guilt.
In drawing a conclusion from one set of established facts to find that another fact is proved I must apply a logical and rational process of reasoning, and must not rely on mere speculation, conjecture or supposition.
In short, in order to satisfy me beyond reasonable doubt of Mr Mason’s guilt of an offence, the Crown must first persuade me that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find established by the evidence, and must then prove that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole is that Mr Mason is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks me to find, then the Crown’s circumstantial case has failed.
Procedural and related matters
Pleas
Although Mr Mason had initially entered simple pleas of not guilty, the defence had notified the prosecution very shortly before the start of the trial that a mental impairment defence would be relied on if Mr Mason were found to have started either of the fires.
Coincidence application
The defence consented to the two bushfire charges being tried together, but reserved, until the evidence had been given, its position on whether any of the evidence could be used for coincidence reasoning. The prosecutor suggested that, in fairness to the accused, the coincidence application should be determined at the end of the Crown case, but defence counsel did not pursue this suggestion, and in the end the application was left to be determined on written submissions after all the evidence had been given (at [517] to [576] below).
Trial processes
The trial was originally estimated to run for three or four days, but for some reason was listed, for two days only, in the middle of a period when jury trials were also being listed before me.
However, despite the agreement to defer discussion of matters such as the coincidence application, the first three days were not sufficient even for all the prosecution evidence to be heard before I had to adjourn Mr Mason’s trial and preside over a jury trial; in fairness to the Crown, I note that some defence evidence, specifically from psychiatrist Dr Stephen Allnutt, was interposed, to suit Dr Allnutt’s availability, before the prosecution evidence had been completed.
Mr Mason’s trial then resumed for one day later in the same month (day 4), at which point Dr Allnutt completed his evidence. The trial was then adjourned again, this time for three months. On day 5, Dr Barker (called by the Crown) gave further evidence, the Crown closed its case, and Mr Mason began giving his evidence. Mr Mason continued to give evidence on day 6, just over a week later, and his ex-wife gave her evidence. On day 7, a further two weeks later, Dr Barker was recalled for further cross-examination, and Mr Mason was also recalled. Four more witnesses gave evidence for the defence.
Those last four defence witnesses had been called long after the trial began, at the point when it became apparent to defence counsel that the Crown did not simply dispute the availability of a mental impairment defence on the grounds that there was insufficient evidence to suggest (or prove) that Mr Mason’s mental impairment had meant that he was not criminally responsible (at [59] below), but also disputed that, at the time of the offences, Mr Mason had been suffering from a mental impairment at all.
In short, this trial was disorganised and disjointed from start to finish; it has not been easy to make sense of it in this judgment.
Background to the charges
The fires that are the subject of the two bushfire charges started in two separate locations in a rural area in Canberra (near the Molonglo River below Scrivener Dam), on 5 and 16 January 2014 respectively. Before the first of the fires mentioned in the indictment, there had been a fire in the same general location on 20 December 2013 in which Mr Mason’s car was destroyed. For this reason, I shall refer in this judgment to the car fire, the 5 January fire and the 16 January fire.
The 5 January fire
Some time after 7am on 5 January 2014, two people observed smoke rising from a rural area in Weston Creek near the Molonglo River, not far from a small concrete bridge. Both of them made emergency calls to report their observations to ACT Fire and Rescue. At approximately 7.45am fire-fighters attended the block and observed a fire, roughly 4 m x 4 m (16 m2) in area, burning in long grass near the river.
Fire and Rescue staff initially saw Mr Mason standing next to the fire. As they approached, he left the area of the fire, and he was subsequently found nearby lying face-down in long grass.
The 16 January fire
Around 5am on 16 January 2014, a woman walking her dog along the Molonglo River in the Molonglo Valley District observed a fire in an area between the river and a nearby pine plantation. She saw Mr Mason standing next to the fire, and called out to him, but he disappeared. The woman then left the area and returned home to make an emergency call.
Constable Sean Evans responded to the emergency call shortly after 5.30am. When he reached the area, he observed a fire roughly 10 m x 10 m in area, burning to a height of 12 m to 15 m in a tree. Shortly after arriving, Constable Evans observed Mr Mason lying face-down under a causeway over the river near the scene of the fire. He was partially submerged in water. Mr Mason had suffered burns to his right arm and was subsequently taken to hospital for treatment. Fire-fighters extinguished the fire, which by then had spread to cover an area of around 20 m x 20 m.
The two bridges
The causeway referred to at [38] above appeared to consist of several large pipes (through which such water as was released from the Scrivener Dam continued to flow as the Molonglo River), set into concrete which held the pipes in place and provided a surface that, most of the time, would have permitted pedestrians and cyclists to cross the river. It is referred to variously in the evidence as a “causeway”, a “bridge” and a “concrete bridge” (not to be confused with the small concrete bridge, also referred to as a “footbridge” and serving pedestrians and cyclists, that crosses a creek that flows into the Molonglo River near the site of the 5 January fire, and is referred to in some of the evidence relating to that fire).
Transferred charges
The connections between the transferred charges and the two fires giving rise to the bushfire charges are explained at [3] above.
Openings
Apart from outlining the evidence to be given, the prosecutor indicated an intention to rely on flight, and lies, as showing a consciousness of guilt in relation to the 5 January fire. The asserted flight is Mr Mason’s attempt to hide in long grass from fire-fighters and police officers attending the fire, and the lies are said to be constituted by claims made by Mr Mason to Dr Allnutt and to Dr Barker to the effect that he had put out that fire.
The prosecutor indicated that the Crown sought to rely on coincidence evidence in relation to both bushfire charges, and identified a number of similarities between the two events.
Defence counsel explained that Mr Mason denies lighting either of the fires. However, counsel said, if the evidence establishes that he lit either or both of the fires, and was reckless about the spread of the fire when he did so, then a mental impairment defence would be relied on. Counsel noted that, since Mr Mason maintained his denial of having lit either of the fires, and claimed to have no memory of relevant events, he had been unable to give Dr Allnutt any information about his mental functioning at the time that the fires were started. Accordingly, he said, Dr Allnutt has been unable to provide any direct assessment of Mr Mason’s condition at the time of the relevant events, but in his report he had suggested conclusions that he believes can reasonably be drawn from the evidence that has been available to him, including:
(a)that at the time of the fires Mr Mason had relapsed into mania and psychosis, which is known to contribute to reduced concern about the consequences of one’s behaviour, as well as to disinhibition; and
(b)that if he did light a fire then, because of some kind of delusion, Mr Mason might not have known that his action was wrong.
Counsel noted that it was unlikely that Mr Mason’s mental impairment had impaired his understanding of the nature or quality of his conduct or his ability to control his conduct.
Legal issues
Because of the way in which the case was conducted and the issues that were raised, it is useful to outline first the legal issues arising and the approach that will be required in addressing those issues.
The bushfire offences – elements
The offence of causing a bushfire is created by s 405 of the Criminal Code 2002 (ACT):
405 Causing bushfires
(1) A person commits an offence if the person—
(a) intentionally or recklessly causes a fire; and
(b) is reckless about the spread of the fire to vegetation on property belonging to someone else.
Maximum penalty: 1 500 penalty units, imprisonment for 15 years or both.
Note The fault element of recklessness can be satisfied by proof of intention, knowledge or recklessness (see s 20 (4)).
(2) In this section:
causes a fire—a person causes a fire if the person does any of the following:
(a) lights a fire;
(b) maintains a fire;
(c) fails to contain or extinguish a fire that was lit by the person if it is not beyond the person’s capacity to contain or extinguish it.
spread, of a fire, means spread of the fire beyond the capacity of the person who caused the fire to contain or extinguish it.
Other relevant provisions of the Criminal Code are as follows:
13Definitions—conduct and engage in conduct
In this Act:
conduct means an act, an omission to do an act or a state of affairs.
…
engage in conduct means—
(a)do an act; or
(b)omit to do an act.
14Physical elements
A physical element of an offence may be—
(a)conduct; or
(b)a result of conduct; or
(c)a circumstance in which conduct, or a result of conduct, happens.
15Voluntariness
(1) Conduct can only be a physical element if it is voluntary.
(2) Conduct is voluntary only if it is a product of the will of the person whose conduct it is.
Examples of conduct that is not voluntary
1a spasm, convulsion or other unwilled bodily movement
2an act done during sleep or unconsciousness
3an act done during impaired consciousness depriving the person of the will to act
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(3) An omission to do an act is voluntary only if the act omitted is an act that the person can do.
…
18Intention
(1) A person has intention in relation to conduct if the person means to engage in the conduct.
(2) A person has intention in relation to a result if the person means to bring it about or is aware that it will happen in the ordinary course of events.
(3) A person has intention in relation to a circumstance if the person believes that it exists or will exist.
20Recklessness
(1) A person is reckless in relation to a result if—
(a)the person is aware of a substantial risk that the result will happen; and
(b)having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(2) …
(3) The question whether taking a risk is unjustifiable is a question of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.
The Crown submissions provided the following analysis of the elements of the offence:
the elements of the offence are:
· The accused engaged in conduct (physical element of conduct)
· The accused intended to engage in conduct (default element of intention – s22)
· The accused’s conduct causes a fire (s405(2): a person causes a fire if the person does any of the following:
§ lights a fire;
§ maintains a fire;
§ fails to contain or extinguish a fire that was lit by the person if it is not beyond the person’s capacity to contain or extinguish it. – physical element of result)
· The accused is reckless about whether his conduct causes a fire (fault element provided by section)
· The accused is reckless about the spread of the fire to vegetation on property belonging to someone else (s 405(2): spread, of a fire, means spread of the fire beyond the capacity of the person who caused the fire to contain or extinguish it. – ulterior fault element provided by section) [p 4, para 10 of revised submissions]
I am not entirely convinced by this analysis, because although the use of the word “causes” suggests a reference to a “result of conduct” rather than to conduct as such, the word “causes” is in fact only used as a marker (that is, a defined term) to provide a shorthand reference to the several items of conduct any of which could provide the physical element of the offence (being lighting a fire; maintaining a fire; or failing to contain or extinguish a fire that was lit by the person if it is not beyond the person’s capacity to contain or extinguish it).
For this reason, the Crown’s attempt to separate the accused’s conduct from the “causing” of the resulting fire, and to give each aspect of the physical element its own (different) fault element, may produce confusion rather than clarity.
An alternative analysis would require the following matters to be established:
(a)to satisfy s 405(1)(a), that:
(i)A engaged in conduct consisting of lighting a fire; maintaining a fire; or failing to contain or extinguish a fire that was lit by A if it was not beyond A’s capacity to contain or extinguish it;
(ii)A’s conduct was intentional and voluntary (as distinct from accidental or involuntary: ss 15 and 18 of the Criminal Code);
(iii)A engaged in that conduct intending to “cause” or produce a fire, or reckless about whether his conduct would “cause” or produce a fire (fault element provided by s 405);
(b)to satisfy s 405(1)(b), that when A engaged in that conduct, he was also reckless about whether the resulting fire would spread to vegetation on property belonging to someone other than himself.
I note, however, that both approaches are complicated by the fact that “fire” is a difficult concept in this context. For instance, a fire that starts with a single burning match may develop (directly or via a careless campfire) into a fire that destroys a whole forest. Whether the burning match, the campfire and the forest fire are the same fire, and if not, when does the first fire end and each subsequent fire begin, are difficult philosophical questions that may cause real difficulties in applying the offence provision concerned. It is implicit in each of the analyses set out above (but not necessarily correct) that the initial fire (for instance, the burning match or flaming cigarette lighter) can meaningfully be separated from the resulting fire that might, in turn, spread to vegetation and develop into a bushfire.
There are also several uncertainties in the concept of a fire “spreading” to “vegetation” on “property belonging to someone else”. In this case, the question might arise whether “property belonging to someone else” means “property belonging to someone other than the accused” or “property belonging to a person other than the person on whose property the fire is caused”. If the former, this element of the offence is unlikely to present any problems for the Crown; if the latter, the Crown might, given the location of the fires concerned, struggle to establish an intent on Mr Mason’s part relating to the spread of a fire to property not held by the Territory.
For present purposes, I accept the essence of the Crown’s analysis, which seems to require the Crown to establish, for a bushfire charge, that:
(a)Mr Mason voluntarily and intentionally did an act;
(b)the act caused a fire;
(c)Mr Mason intended the act to cause a fire, or was reckless about whether it would cause a fire; and
(d)when he did the act, Mr Mason was reckless about the fire spreading to vegetation on someone else’s property.
Mr Mason would have been reckless about causing a fire if he was aware of a substantial risk that a fire would be caused and, having regard to the circumstances known to him, it was unjustifiable to take the risk. He would have been reckless about the spread of the fire if he intended such a spread (Criminal Code, s 20(4)) or was aware of a substantial risk that the fire would spread and, having regard to the circumstances known to him, it was unjustifiable to take the risk.
Even where the Crown relies on a circumstantial case of the kind in which there is no need to prove each item of circumstantial evidence to any particular standard (a “strands in a cable” case), each element of the offence must be proved beyond reasonable doubt before the accused can be found guilty (Shepherd v The Queen (1990) 170 CLR 573 at 579-580).
Mental impairment – burden and standard of proof
Mr Mason’s defence is first, that he did not start either of the fires. He also says, however, that if he did start either of them, he is not criminally responsible because of the effect of a mental impairment that he was suffering at the time.
Several provisions of the Criminal Code are applicable in dealing with the issue of mental impairment in this trial. They are relevantly as follows:
27Definition—mental impairment
(1) In this Act:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(2) In this section:
mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.
(3)However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
28Mental impairment and criminal responsibility
(1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that—
(a)the person did not know the nature and quality of the conduct; or
(b)the person did not know that the conduct was wrong; or
(c)the person could not control the conduct.
(2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.
(3) The question whether a person was suffering from a mental impairment is a question of fact.
(4) A person is presumed not to have been suffering from a mental impairment.
(5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.
(6) The prosecution may rely on this section only if the court gives leave.
(7) If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must—
(a)for an offence dealt with before the Supreme Court—return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or
(b) for any other offence—find the person not guilty of the offence because of mental impairment.
29Mental impairment and other defences
(1) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility.
(2) If the trier of fact is satisfied that a person carried out conduct because of a delusion caused by a mental impairment, the delusion itself cannot be relied on as a defence, but the person may rely on the mental impairment to deny criminal responsibility.
…
56Legal burden of proof—prosecution
(1) The prosecution has the legal burden of proving every element of an offence relevant to the guilt of the person charged.
NoteSee s 11 (Elements) on what elements are relevant to a person’s guilt.
(2) The prosecution also has the legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof on the defendant.
(3) In this Act:
legal burden, in relation to a matter, means the burden of proving the existence of the matter.
57Standard of proof—prosecution
(1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
…
58 Evidential burden of proof—defence
(1) Subject to section 59 (Legal burden of proof—defence), a burden of proof that a law imposes on a defendant is an evidential burden only.
(2) A defendant who wishes to deny criminal responsibility by relying on a provision of part 2.3 (Circumstances where there is no criminal responsibility) has an evidential burden in relation to the matter.
…
(5) The defendant no longer has the evidential burden in relation to a matter if evidence sufficient to discharge the burden is presented by the prosecution.
(6) The question whether an evidential burden has been discharged is a question of law.
(7) In this Act:
evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
59Legal burden of proof—defence
A burden of proof that a law imposes on the defendant is a legal burden only if the law expressly—
(a)provides that the burden of proof in relation to the matter in question is a legal burden; or
(b)requires the defendant to prove the matter; or
(c)creates a presumption that the matter exists unless the contrary is proved.
60Standard of proof—defence
A legal burden of proof on the defendant must be discharged on the balance of probabilities.
Section 28 is the core provision for present purposes. It provides (at s 28(1)) that a person is not criminally responsible for an offence constituted by conduct if, at the time of the conduct, the person was suffering from a mental impairment (defined at s 27) that, in general terms, had the effect that the person did not have a proper understanding of his conduct (ss 28(1)(a) and (c)) or could not control it (s 28(1)(b)). I shall refer to each of these effects as a relevant effect.
There is a presumption against a person being mentally impaired (s 28(4)), but that presumption can be displaced by proof of mental impairment on the balance of probabilities (s 28(5)). That proof may come from the prosecution or the defence, but for present purposes, the effect of ss 28(4) and (5) and s 59(c) is that the defence has the legal burden of proving mental impairment on the balance of probabilities (s 60).
A mental impairment, however, is not a condition that necessarily excludes criminal responsibility. Section 28 makes it clear that criminal responsibility is only excluded if the mental impairment is shown to have had a relevant effect in relation to the conduct constituting the offence.
The Crown submission was that the defence also bore the legal burden of proving that the mental impairment had a relevant effect. However, the statutory presumption that a person is not mentally impaired is not the same as a statutory presumption that a mental impairment that is suffered by a person does not cause any relevant effect, and there is no other applicable statutory presumption. Nor is there an express provision of the kind referred to in s 59(a) or (b) about the impact of mental impairment on a person’s functioning.
As far as I can see, this means that proof of a relevant effect is subject to s 58(2), such that, if and when the defence has discharged the legal burden of establishing mental impairment on the balance of probabilities, the defence then bears only an evidential burden of establishing a relevant effect.
The Crown submission, that the defence carried a legal rather than evidential burden of establishing a relevant effect, relied on the proposition that in enacting s 28 of the Criminal Code, the ACT was adopting a provision equivalent to s 7.3 of the Commonwealth Criminal Code (the Commonwealth Code), set out in the Schedule to the Criminal Code Act 1995 (Cth). The intention of the ACT Legislative Assembly to enact a provision equivalent to s 7.3 is said to be indicated in the Explanatory Statement for the ACT Criminal Code, which was relevantly as follows:
Clause 28 Mental impairment and criminal responsibility
This clause provides that a person is not criminally responsible for an offence if, at the time of the relevant conduct, the person was suffering from a mental impairment that had the effect that (a) the person did not know the nature and quality of the conduct; or (b) that the person did not know that the conduct was wrong; or (c) that the person was unable to control the conduct. A mentally impaired person is not criminally responsible if any one of these effects is present at the time of his or her conduct.
The Commonwealth Explanatory Memorandum explained:
The provision is based on the McNaghten test. The McNaghten test proceeds in two stages. First, it must be established that the defendant has a "disease of the mind". Then it must be shown that the "disease of the mind" caused the defendant not to "know" the nature and quality of his or her act, or that it was wrong.
The first arm of the test in [subclause 28(1)] follows McNaghten closely. The second arm of the test also follows McNaghten but incorporates the famous formulation, often used by trial courts to this day, formulated by Mr Justice Dixon in Porter (1933) 55 CLR 182.
…
[Paragraph 28(1)(c)] adds a third head to the McNaghten rules: inability to control conduct. …
…
Under [Subclause 28(4)] there is a presumption that a person is not suffering from a mental impairment. This can be displaced by either the prosecution or defence on the balance of probabilities.
In all jurisdictions, if the defendant wishes to rely on the insanity defence, he or she bears the burden of proving the defence on the balance of probabilities.
The last sentence quoted from the Commonwealth Explanatory Memorandum, in context, seems to refer to the jurisdictions consulted about the new Code, rather than to jurisdictions which might subsequently adopt similar provisions to those set out in the Commonwealth Code. Given that the Commonwealth Code preceded the ACT Criminal Code by some seven years, it is unlikely that the commentary prepared before the enactment of the Commonwealth Code was, as such, intended to apply to any generally equivalent legislation the ACT subsequently chose to enact.
Section 7.3 of the Commonwealth Code, the model for s 28, was as follows:
Mental impairment
7.3(1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:
(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
(c) the person was unable to control the conduct.
(2) The question whether the person was suffering from a mental impairment is one of fact.
(3) A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment.
(emphasis added)
(4) The prosecution can only rely on this section if the court gives leave.
(5) The tribunal of fact must return a special verdict that a person is not guilty of an offence because of mental impairment if and only if it is satisfied that the person is not criminally responsible for the offence only because of a mental impairment.
(6) A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element but may rely on this section to deny criminal responsibility.
(7) If the tribunal of fact is satisfied that a person carried out conduct as a result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as a defence.
(8) In this section:
"mental impairment" includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(9) The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
The Commonwealth Explanatory Memorandum indicates that the mental impairment “defence” is a two-stage test, requiring first that there was a mental impairment and then that the mental impairment had one of the specified effects on the accused’s mental state at the time of the relevant events.
Section 7.3 of the Commonwealth Code makes it clear that the burden imposed on the defence applies to both stage of the mental impairment “defence”, because s 7.3(3) refers (twice) to “such a mental impairment”; this can only sensibly refer to a mental impairment that has one of the effects described in s 7.3(1).
The problem for the Crown, however, is that s 28 of the ACT Criminal Code does not exactly repeat s 7.3 of the Commonwealth Code. In particular, the relevant provisions (ss 28(3) and (4)) do not refer to “such a mental impairment”, but only to “a mental impairment”, an expression which is a defined term under s 27 and is not limited by any requirement that relevant conditions have a an effect as described in s 28(1). It may be true that “such” is sometimes used in formal writing for no good reason, and this may be why the word has been dropped from the ACT provision. However, in this case the word does seem to have had a purpose. The “defining such”, that is, “such” used to mean “as defined above”, has been recognised as:
A useful device in drafting legal documents, where precision is all-important … so as to avoid ambiguity without having to repeat the defining words[1]
That is, in creating the presumption about mental impairment (s 28(4)) that then determines where the burden of proof falls (s 28(5)) and the nature of that burden (relevantly, ss 59 and 60), s 28 has been deprived of the “defining such” which would have identified the reference in s 28(4) as a reference to the particular form of mental impairment described in s 28(1) rather than the wider form of mental impairment defined in s 27.
Given the difference in the grammatical effect of the two provisions, it is also an available conclusion that the ACT provision is relevantly different from the Commonwealth provision because it was intended to mean something different.
In short, the Commonwealth legislation clearly applies the presumption in s 7.3(3) to both parts of the mental impairment test, and accordingly s 13.4 of the Commonwealth Code imposes a legal burden on the defence in respect of both aspects of the mental impairment defence.
The ACT version of the provision, on the other hand, says nothing to indicate that the s 28(4) presumption applies not just to mental impairment as defined in s 27 but also to the effects of mental impairment described in s 28(1).
In DPP v Scheele [2016] ACTCA 23 (Scheele), the Court of Appeal said:
62. Finally, the construction urged by the Director would extend the operation of the offence provisions in the Firearms Act, including s 42, beyond the scope otherwise suggested by the clear words used. The effect would be that, despite the clear words used in s 7, a person could be charged and convicted of using or possessing a prohibited firearm that was not a firearm. That would be contrary to the well established principle of statutory construction that the court will not disregard the clear words of a legislative provision so as to extend the scope of criminal liability, even if it thinks that, by inadvertence or error, the legislature has failed to deal with that matter: Krakouer v The Queen (1998) 194 CLR 202 at 223 [62]-[63] (McHugh J). In Ex parte Fitzgerald, Re Gordon (1945) 45 SR (NSW) 182 at 186, Jordan CJ put the principle in the following terms:
If conduct of a particular kind stands outside the language of a penal section, the fact that a court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits.
In this case the relevant provisions of the Criminal Code relate to burdens of proof rather than to criminal liability directly. However, the imposition of a burden of proof on the defendant in a criminal matter may have a significant impact. Accordingly, it seems to me that the principle identified by the Court of Appeal in Scheele would also be offended in this case by reading a provision that has been deliberately altered by the legislature in a grammatically significant way as if, despite that alteration, it imposed the same, heavier, burden of proof on a defendant in a criminal case as was effectively imposed by the original version of the provision.
For these reasons, I am inclined to the view that s 59 of the Criminal Code should not be read as imposing a legal burden (rather than merely an evidential burden) on the defence in respect of the second part of the mental impairment test, that is, whether a mental impairment had a relevant effect.
Consideration of evidence – offences of specific intent
The Crown submissions drew attention to the approach adopted in Hawkins v The Queen (1994) 179 CLR 500 (Hawkins) and followed in NSW in R v Stables [2014] NSWSC 967, which requires the issues in a case involving an offence of specific intent to be determined in the following order:
(a)Did the accused do the act necessary to constitute the offence?
(b)If so, was he criminally responsible for doing the act (that is, does he have a mental impairment defence)?
(c)If not, was the act done with the necessary fault element?
The application of this approach to the current case relies on the proposition that the bushfire offence is an offence of specific intent because:
(a)it is an element of the offence that the accused was reckless about the spread of the fire (s 405(1)(b)); and
(b)“recklessness” includes intention and knowledge (s 20(4)).
That is, making out the offence requires, in general terms, proof not only that the accused intentionally or recklessly caused the fire but also that when he engaged in that conduct he had the necessary state of mind about the particular result of the conduct specified (in this case, that he intended, or was reckless about, the spread of the fire).
The significance of the application of this approach is that, if I conclude that Mr Mason engaged in the relevant conduct (causing the fire), I will then be required to consider whether a mental impairment defence is available to Mr Mason before I consider whether he had the specific intent (related to the spread of the fire) required to make out the offence.
The evidence
The Crown called 20 witnesses, and the defence 7 witnesses.
Crown witnesses – general
Kerry Tanner
On 5 January 2014, at around 7.15am, Kerry Tanner was walking in the Yarralumla horse paddocks with two family members. Another woman, Kaye, who also owned a horse, approached Ms Tanner and told her that she thought she could see smoke coming from down near the river. Ms Tanner looked and saw smoke, which she described as “just sort of a small, like a campfire smoke going straight up in the air”.
Ms Tanner telephoned 000 and said that she could see smoke and that she was concerned that, if the wind picked up, the fire might come straight up through the horse paddocks. It had been a warm morning.
She believed that the fire was about a kilometre away from her; she could not see the fire itself but only the smoke going straight up in the air. She could see a person walking around the far side of the fire. Shortly after making the 000 phone call, which was received at 7.39am, she left the area.
Lisa Studdart
On 5 January 2014, at around 6.15am, Lisa Studdart began a walk around Lake Burley Griffin. Shortly before 7.00am, she had walked past the Yarralumla Yacht Club and through “that forest area”. As she approached Scrivener Dam, she observed in the direction of the dam a single plume of smoke rising; she thought this was unusual, particularly for that time of year.
When she got closer to Scrivener Dam, she could see that the smoke came from a gully near a concrete foot bridge. When she was only 10 to 20 metres away from the source of the smoke, she decided she should call the fire brigade, and took out her mobile phone.
She continued walking towards the smoke, and saw a man come out of the gully from the direction of the fire. She described him as middle-aged, “a bit scruffy-looking”, and unshaven, as if he had been camping. He was wearing a heavy dark-coloured overcoat.
Ms Studdart asked the man, “Is everything alright there? Should I call it in?” He answered, in what she described as an aggressive and intimidating tone, “Why would you want to do that? Fucking do-gooder. Why would you waste the police time? Mind you own business.”
Ms Studdart felt uncomfortable. She said “Don’t worry, I’m putting my phone away” and walked on. When she was some distance away from where she had encountered the man, she called 000. Her call was received at 7.52am, and the operator told her that there was already “a truck on the way to that”.
In her 000 call Ms Studdart mentioned to the Fire Brigade operator that she had seen a burnt-out car next to the fire, and described the man she had met as “quite abusive” to her.
Pressed to describe the man’s behaviour, Ms Studdart repeated that he was aggressive and intimidating, that he clearly didn’t want her to make a phone call, and that she felt uncomfortable.
Ms Studdart was not cross-examined.
Brett Keary
In January 2014, a week or two before 16 January, Brett Keary was walking his dog on a fire trail in Stromlo Pine Forest, heading towards Scrivener Dam. It was around 7:00am or 8:00am when he heard radio chatter from a CB in a vehicle. As he got closer, he saw that the fire brigade was present and he believed that they had just put out a fire in an abandoned car on the other side of the river.
From a distance of about 150 or 200 metres, he noticed that a couple of the fire brigade officers were walking around as if they were looking for something, and then he noticed, around 100 to 150 metres away from the abandoned car, a person hiding in the bushes and watching the two officers. He said the man was wearing something like a Drizabone coat and an Akubra-style hat; he was staring at the two fire brigade officers, and as they came closer he “ducked and disappeared into some scrub”.
Mr Keary called out to the officers that there was someone hiding in the bushes. As they approached the area where he had seen the man duck into the bushes he called out “That’s where I saw him”. He then heard one of the officers asking a person to stand up. The man in the Drizabone and Akubra stood up out of the bushes. Mr Keary then moved on.
On 16 January 2014, around 5:30am or 6:00am, Mr Keary was again walking his dog in the same area. He was walking towards Scrivener Dam, with the river on his right and the pine forest on his left. When he reached a concrete river crossing, he could see smoke in the distance. He kept walking, and noticed a fire truck parked on the Tuggeranong Parkway. He took several photographs (one of the smoke rising, one of the fire itself, and one of the area after the fire-fighters had put out the fire). He said that as he approached the fire, the flames seemed to be at least a few metres high and starting to go up into the pine trees. The fire was burning leaves, pine needles and other bush material on the ground.
As Mr Keary passed the fire truck, he noticed a police officer with a motorbike parked on the causeway and a person sitting in the river “crying out in pain that they had been burnt and they thought their throat was burnt”. There was also a small white dog with black markings “hanging around” with the person sitting in the river.
Mr Keary was not cross-examined. However, I note that Mr Keary’s evidence about his role in pointing out a person in the vicinity of a fire at some point before 16 January clearly related to the 5 January fire; Mr Keary was apparently the man referred to by Station Officer Samuel Evans as a “jogger” who had called out to fire-fighters about the man hiding in the bushes (at [105] below). It is not disputed that Mr Mason’s car was burned in late December 2013 (at [111]–[113] below), and that the 5 January fire occurred near Mr Mason’s burnt-out car but did not involve the car burning.
Samuel Evans
Samuel Evans was a Station Officer at ACT Fire and Rescue Service at Philip Fire Station. He had been a fire-fighter in the ACT for nine years before being promoted to a Station Officer position. He had undertaken courses in fire investigation, which included training in identifying points of origin and causes of fires.
At 7.45am on 5 January 2014 Mr Evans, accompanied by two other fire-fighters, responded to a report of a fire in the Yarralumla vicinity. Mr Evans parked the fire truck off Lady Denman Drive and radioed to the communication centre to say they had arrived. They could see a small plume of smoke from where they parked.
Mr Evans and the two other officers then took a portable fire extinguisher and walked down a fire trail to where the fire was. He could see that there had been a previous fire in the area, and there was a burnt-out car, and there was a very small active fire issuing smoke. He could see a man standing near the burnt-out car, no more than 20 metres away from the active fire, wearing a dark coat and an Akubra-style hat.
The other fire-fighters extinguished the active fire, and after Mr Evans had looked at both fire sites the man in the coat and hat had disappeared.
Mr Evans said that the active fire had covered an area of about 16m2, the flames were less than 30cm in height, and the rate of flame spread was low. There was negligible wind. Between the burnt-out car and the fire there was unburned grass.
Mr Evans saw a number of personal possessions in the area around the car, including clothes and some tins of food.
Shortly after that ACT police arrived. One of the other fire-fighters, Mr Orwin, radioed to Mr Evans that he had seen a person standing upstream from where Mr Evans was talking to police officers, and so Mr Evans and the police officers began to walk upstream. Then Mr Orwin radioed to Mr Evans that he had seen a person stand up and then duck back down out of sight. As well, a jogger using the fire trail on the other side of the river told them that he had seen a person lying in the grass.
Mr Evans and the police officers walked towards the area which the jogger had pointed out. Mr Evans then saw one of the police officers talking to someone who was lying in the grass. The man stood up and Mr Evans saw him taken into custody. The man was wearing a dark broad-brimmed hat and a dark coat. Mr Evans had a brief conversation with the man, saying to him: “Mate, I’m from the fire brigade. Do you know anything about this fire?” The man said, “I don’t know about a fire”, and that he did not know that the fire brigade had attended.
Mr Evans returned to the scene of the fire, where he saw a small amount of “active flame” that was spreading away from the Molonglo River towards the bike path.
In the area around the fire, Mr Evans saw no cooking appliances, and no formed fireplace. He did see some broken glass in the area of the active fire and also in the area of the earlier fire. However, he did not see any buckets or other vessels that could have been used to fight the fires. Nor did he see any cigarette butts.
Daniel Orwin
Daniel Orwin was a fire-fighter with ACT Fire and Rescue. Around 7.45am on 5 January 2014, he had responded, with three other fire crew members, to a report about a possible fire near Yarralumla Creek. He had stayed with the truck, which he parked at the top of the hill, while the other crew members went down towards the fire.
He then heard a report from one of his crew members that someone who might have been involved in lighting the fire had been seen leaving the area. He climbed on top of the truck and used binoculars and a thermal imaging camera to look for anyone still around the area. Then he saw a male “pop up in the grass” for 15 to 25 seconds, which he immediately reported via radio to Mr Evans. Mr Orwin then guided the fire crew in the direction of the place where he had spotted the man. The next thing he saw was the police and fire crew walking through the long grass, and then he saw them escorting a man up the hill and sitting him down next to a tree. Mr Orwin said that while he was with the police the man looked relaxed and there was no tension.
In cross-examination, Mr Orwin gave evidence that on 20 December 2013 around 8:00pm he had attended a fire, in the same area, in which a car was engulfed in flames.
On that occasion, Mr Orwin said, he saw a man, of the same general description as the man he saw on 5 January 2014, lying on the ground some way up the hill between the burnt out vehicle and a fire truck parked on Lady Denman Drive. The man was wearing tight fitting jeans and boots and no shirt, and was rolling around on the ground, repeating over and over, “I’m such an idiot”, and that he couldn’t believe what he’d done.
Mr Orwin said that two of his colleagues had administered first aid to the man, while Mr Orwin tried to reassure him. He was transported to hospital by ambulance. Mr Orwin agreed that in his police statement he had described the man as “very erratic”.
Benjamin Claughton
Benjamin Claughton was an ACT Ambulance Service paramedic who had been qualified for two years when he gave evidence. He had had three months experience working in the Mental Health Unit (which he undertook while training to be a nurse).
Around mid-morning on 5 January 2014, Mr Claughton was called to the regional watch house in the City Police Station. Mr Claughton and the nurse he was paired with arrived at the watch house shortly afterwards. Mr Claughton was introduced to Shane Mason, and examined him. He said that during the examination Mr Mason seemed anxious but otherwise relatively normal.
Mr Mason was complaining of chest pain, so Mr Claughton “went down [the] basic … acute coronary syndrome pathway for anyone with ischemic chest pain”, and decided to take him to Canberra Hospital for assessment.
He also examined Mr Mason to determine his Glasgow Coma Score (GCS), which is an assessment of a patient’s level of consciousness or alertness. Mr Mason had achieved the maximum score of 15, which Mr Claughton explained meant that he was alert and oriented to day and time, had his eyes open and was willing and able to obey commands. . He explained that in assessing verbal responses, possible descriptions were “oriented, confused, … using inappropriate words, … making inappropriate sounds or … no verbal at all”.
Mr Claughton said that Mr Mason was “a little bit anxious”, but was basically complaining of chest pain. He had asked Mr Mason whether he had been drinking, and Mr Mason said he had been drinking the night before, but Mr Claughton could not recall whether Mr Mason said how much he had drunk.
Mr Claughton said that when they transported a patient from the watch house to hospital, they would be accompanied by a police officer if the person was in custody or if the ambulance officer feared for his own safety; in this case, Mr Mason had been granted bail and Mr Claughton had no concerns for his own safety, so only Mr Mason, Mr Claughton and the other nurse were in the car.
He transported Mr Mason to hospital in the car. All told, he was probably with Mr Mason for about 20 minutes.
Tegan King
In January 2014 Tegan King was an Animal Care Assistant at the RSPCA in Weston Creek. Shortly before 4:30pm on 14 January 2014, she fed a black and white puppy which was being held in kennel 2. The kennel was “completely fenced over”, and secured by a lock with a big padlock on it. After cleaning the kennel, she locked it, with the puppy inside. At the end of the day she placed the key in a secure box to be locked by her supervisor.
Frances Simpson
Frances Simpson (formerly Marsh) was employed as a senior behavioural trainer at the RSPCA. Shortly after she started work on 15 January 2014 she noticed that there was a hole in the fence of kennel 2 and that the dog was missing from the kennel. She made a note for the next staff member to come in.
At 7:30am the next day (16 January 2014) she was working at the RSPCA when police arrived with a black and white puppy. She believed it was the puppy that had been missing the day before. She checked the dog’s microchip and confirmed that it was the dog which had previously gone missing. Ms Simpson said that the cost of buying a puppy less than six months old from the RSPCA was around $495.
Ms Simpson confirmed that photographs put to her showed the cage from which the dog had been removed and the damage to the cage.
Exhibit H includes a photograph of a dog; Ms Simpson identified the dog as the one that had gone missing and had been returned.
Christine Allen
Christine Allen was employed as an animal care attendant at the RSPCA in January 2014. At 8:30am on 15 January 2014 she was cleaning kennel 2, where she found two pieces of metal (shown in several of the photographs in Exhibit H). She gave the metal pieces to her supervisor, Julie Sobey.
Julie Sobey
In January 2014 Julie Sobey was employed by the RSPCA as a kennel supervisor. She gave evidence that the RSPCA is surrounded by a 6-foot-high cyclone fence secured with padlocks. She said that the front gate is padlocked at night time and each of the kennels is also secured with padlocks.
On the morning of 15 January, Ms Marsh (Simpson) had given Ms Sobey a note saying that a dog was missing. Ms Sobey checked the kennel and had a close look at the hole, and confirmed that the dog was missing. Later that day, Ms Allen gave Ms Sobey two shards of metal that looked as if they fitted together; they had been found in the kennel. After that, Ms Sobey had contacted the police.
To Ms Sobey’s knowledge, no-one from the RSPCA had given permission for the dog to be taken. She confirmed that it would have cost $495 to adopt the dog.
In cross-examination counsel established that the dog had been named “Rocky”, and that after Rocky was returned to the RSPCA he had been adopted.
Adrian Janssen
Constable Adrian Janssen was an Australian Federal Police (AFP) officer, and on 5 January 2014 he was partnered with Constable Shaun Timmiss. At 8:15am that day he and Constable Timmiss responded to a radio transmission seeking assistance in Yarralumla near the Scrivener Dam. They arrived at the scene at 8:25am, parked near the fire trucks on Lady Denman Drive and walked down to the scene of the fire.
Constable Janssen saw a burnt-out vehicle and a small burnt-out area to the side. Station Officer Evans told him that when the fire-fighters arrived they had seen a man leaving the area, and that one of the fire-fighters had seen him going along the riverbank.
He and Constable Timmiss, with Mr Evans, walked along the riverbank towards Scrivener Dam. Mr Evans received a radio transmission from Mr Orwin, who had seen a male in that area. As well, a jogger on the other side of the river had yelled out “The person is in front of you”.
Constable Janssen went through the scrub towards the riverbank, and saw a man lying face down in the grass. The man was wearing a jacket and dark jeans and possibly had an Akubra hat on the ground next to him. He also had a leather knife sheath attached to his belt.
Constable Janssen asked the man to stand up, which he did, and Constable Janssen then asked him “Where’s the knife? Do you have the knife or any weapons?”. The man replied “No, I left the knife at the camp. I’ve only got the knife sheath”.
Constable Janssen asked the man his name; he said he was Shane Mason, and his identify was able to be established using photographic identification.
Constable Janssen then checked the grass area where Mr Mason had been lying, and found various items, including sunglasses, a brown and silver case, and a knife. Mr Mason said the items belonged to him. In the case Constable Janssen found green vegetable matter that he suspected was cannabis (this was later confirmed by analysis).
At this point Constable Janssen cautioned Mr Mason to the effect that he didn’t have to say or do anything; he said he had intended to, but subsequently didn’t, ask Mr Mason any more questions. After that there was only “general chit chat” which he said they had when they were standing near the police vehicles up the hill.
Constable Janssen described Mr Mason’s demeanour while they were together. He said Mr Mason was “quiet, … well-spoken, … able to have a general conversation quite smoothly”, and that there was nothing in his behaviour that was erratic or that suggested a lack of sleep or any mental health problem. In re-examination he was asked about Mr Mason’s demeanour again, and said that he was “slightly anxious, however, very calm and in terms of his talking [he] was able to hold a lucid conversation”.
Constable Janssen identified the items shown in photographs 1-3 in Exhibit I as items found at the scene of the fire and seized, and those in photograph 4 as items taken from Mr Mason’s pockets at the watch house (being keys, a lighter, money, pens, and possibly a smoking implement).
Constable Janssen confirmed that the area in which Mr Mason was arrested was land owned by the ACT Government).
He also identified another bundle of photographs as photographs of the scene of the fire, including photograph 3 which showed, on the roof of the burnt-out car, items found at the scene of the fire (the evidence is not clear whether the items were found on the car roof by fire-fighters or police or put there to be photographed). The items included a box of matches, an open packets of Vitaweats, some sliced bread and several containers of spreads that might be used on bread (or Vitaweats).
Shaun Timmiss
Shortly after 8.15am on 5 January 2014, Constable Shaun Timmiss, with Constable Janssen, responded to a report of a fire off Lady Denman Drive in Yarralumla. When they arrived at the scene, he saw fire trucks parked, and a fire fighter standing on top of one of the fire trucks pointing down towards the river, where Station Officer Evans was standing near a burnt-out car. Mr Evans told Constable Timmiss that a man wearing a hat and trench coat was still somewhere in the vicinity. The two police officers and Mr Evans then walked along the river, through long grass, looking for the man. Then a man who was walking a dog along the cycle path called out that there was a man lying in the grass about 10m from them. Constable Janssen found the man and asked him to stand up. When the man stood up, Constable Timmiss heard the man say words to the effect that “he didn’t think we would find him”. Constable Timmiss said that “it was apparent that he’d been hiding from us”.
Constable Timmiss said that he saw Constable Janssen pick up a large knife from the grass. After cautioning the man, Constable Janssen asked the man what he could tell him about the knife, and the man said it was his and he had been using it for fishing. Constable Timmiss then asked the man if he knew how the fire had started, and the man said “I don’t know. Maybe I threw a cigarette.”
Constable Timmiss said that the man was “calm and polite”, was talking at a normal pace, and answered all the questions. Asked about the man’s body language, Constable Timmiss said:
he’s ‘sturdy’ on his feet as he stood up. He obviously was a bit dishevelled, he looked like he’d been living down by the river for a while; but, yeah, he was stable and was quite conversant in having a conversation, understood what we were saying.
Constable Timmiss said he had no concerns for the man’s mental health at the time.
After the man was taken away, Constable Timmiss went back to the scene of the fire and took a number of photographs.
Debra Rollings
Around 5am on 16 January 2014, Debra Rollings was walking her dogs from the area of the Yarralumla woolshed towards the pine forest across the Molonglo River. It was still dark as she neared the river, and she saw a fire on the other side of the river.
As she approached the footbridge over the river, Ms Rollings could see a tree, and some of the undergrowth, well alight. From a distance of about 10 metres, she could see a person on her side of the tree, and the person (who she thought was a man) appeared to be fanning the fire. The person was moving his outstretched arms, bent at the elbows, up and down, not very fast. He did this for a few seconds. She could not see if he was holding anything in his hands. Ms Rollings said that the fire appeared to be going up the tree fairly rapidly.
Ms Rollings said that:
there was just lots of crackling and spitting of the fire. There were pine cones … so it was just really taking off.
Asked about other sounds, she gave the following evidence:
Did you hear any other sounds apart from the crackling of the fire?---Not really, no it was really just the fire.
Did you hear any sound of any explosion?---Well, the pine cones go off so that was that sort of spitting and you know the pine cones explode when they get in the fire so there was sort of those little explosion sounds when the pine cones were alight so it was that kind of crackling and bang and you know.
So crackling and banging?---Yes, just of the dry timber and - - -
Ms Rollings yelled at the person, “What are you doing? Are you lighting a fire?” When she yelled out, the person stopped doing the fanning motion and disappeared from view. He did not re-appear. She ran up the hill closer to the fire to try to spot the person, but she could not see him and she assumed he was hiding. Ms Rollings could see the undergrowth was also alight, and she also saw a small white dog, “a bit scruffy but just as cool as a cucumber standing in front of the fire”.
After receiving no response to her yelling, Ms Rollings said “I’m going to go call the cops”, but there was still no response. She then ran home and telephoned the fire brigade.
Ms Rollings recalled that the day of the fire was going to be very hot, and there was no rain. When she saw the fire and the person, it was still dark, and the fire provided the main source of light. The person was silhouetted against the flames. Her head torch was no real help in seeing what was happening, because it didn’t light a great distance, just what was immediately in front of her.
Sean Evans
Constable Sean Evans was a police motorcyclist attached to ACT police traffic operations. He was on duty on the morning of 16 January 2014, and around 5.30am he heard a patrol being dispatched to deal with a report of “a suspicious male possibly lighting fires” in the pine forest near Cotter Road. He rode his bike north along a footpath near the river until he could see a fire around 500m away. He spoke to a cyclist on the footpath, who said that he had seen a white dog in the area.
Constable Evans said that when he first saw the fire it appeared to be about 10m by 10m in area and it was “climbing the canopy of that small clump of trees”, and was also “still involved in the grassland immediately around it”. He then rode his bike down a gully towards the concrete footbridge, and stopped on the footbridge. Exhibit O is a map of the area on which Constable Evans has marked his route from the footpath down to the footbridge.
Constable Evans parked his bike on the footbridge with the lights flashing, and walked closer to the fire, but when he got to within 15 or 20 metres of the fire it became too hot, so he went back to his motor bike and contacted ACT Police Operations to say that the fire brigade was needed.
Constable Evans then started looking in the area of the bridge for the white dog. In the shallow muddy water he saw a bicycle, a backpack, and a Drizabone or windbreaker-style jacket with singe marks on it. He got down on the river bank to look at the items, and then looked under the bridge.
In one of the drainage channels under the bridge he saw a man lying on his stomach. The man was half submerged, with his torso above the water on a mound of dirt, and his arms under the water. He appeared to be “[trying] to stay as flat as possible”. Constable Evans said that he told the man, “I see you. This is the police. Do not move unless I tell you to do so.”
Constable Evans was shown a photograph of the bridge, and gave the following evidence
And the drainage channels, are they depicted in that photograph?---They are. They're the holes through the bridge that you can see there.
Are you able to identify which one it was that you saw the person underneath the bridge?---I can. There's actually three although I refer to it as the second one because the first one isn't actually able to drain, the water level doesn't get that high. So the beginning of the one that you can see on the left is not what I count as number 1. The second one from the left is what I count as number 1 and the one where his bicycle was was the one that I believe he was - which is what I referred to as drainage channel number 2.
And it was that channel that he was in?---I believe so, yes.
Can you tell the court what it is you observed when you looked into that drainage hole?---Sure. I saw a male lying on his stomach or prone. His feet were facing north and his body was facing south. I was on the northern side of the bridge at the time. I saw he was lying down flat with his lower half of his body and his torso suspended above the water on a mound of dirt that was in the drainage channel. The upper half including his arms and I don't know if his face was submerged or not but his head were in the water and he was lying out prone as in to try and stay - what looked to me to try and stay as flat as possible, with his heels touching or closer together and his toes splayed outwards.
Were you able to see anything of the person from either end of the bridge?---No. He would have had to have crawled at least 30 to 60 centimetres to actually get that far into the bridge. There was still another 30 to 60 centimetres of him crawling forwards before he would have then been visible from the southern end of the bridge.
Is there anything else that you saw under the bridge there?---There is. I also saw the little white dog that the cyclists had referred to earlier, and it resembled the one that I saw from when I was speaking with the cyclist.
Did you say something at this stage?---I can't remember the words exactly, however I'll get them as close as possible. I said, "I see you. This is the police. Do not move unless I tell you to do so."
Is there anything else that you said?---Later on I told him to exit the - or to crawl forwards out of the tunnel or out of the bridge, and then further to not do anything unless I told him to do so.
Did he do that?---He did.
In cross-examination Constable Evans agreed that in his written statement he had recorded that in response to his initial direction to the man, the man said “Fuck, it just exploded as I was trying to put it out.” He had also recorded that the man had continued to yell words to the effect of “I was trying to put it out”, and had claimed to have been asleep until woken up by a woman, after which he “tried to put it out”. Constable Evans’ statement was not in evidence, and the course of cross-examination was not straightforward. In the end, it appeared that the written statement recorded both of the following claims as having been made by Mr Mason:
(a)“I was asleep until that woman woke me up and then I tried to put it out”.
(b)“I was sleeping and some woman woke me up. I tried to put it out and it fucking blew up”.
Constable Evans said he then told the man to crawl forwards out of the tunnel and not to do anything else, and that the man had complied. Constable Evans then cautioned him; on request, the man identified himself as Shane Mason and gave his birth date.
Constable Evans said that Mr Mason was wearing boots, pants and a t-shirt, all dark-coloured, and he could see “skin that was visibly peeling and hanging off his arms from what appeared to be burns”. His behaviour was erratic “as if he was in a high degree of pain”. Constable Evans said that every time he spoke, Mr Mason interrupted him with grunts of pain.
Constable Evans had a brief conversation with Mr Mason about the dog; Mr Mason told him the dog was named Woof or Wolf (Constable Evans was not sure which name the man was saying), that it was his dog, and that he had had it for a few weeks.
Constable Evans called for an ambulance, and went closer to the fire. He was confident that Mr Mason “wasn’t going anywhere, he was in too much pain”.
The fire had started to spread, licking up into another set of trees. Constable Evans became concerned that it was going to spread. The heat was more intense than before, and he realised there was nothing he could do about the fire, so he returned to Mr Mason intending to try to calm him down, while he kept his burns in the river water, until medical assistance arrived. Shortly afterwards the fire brigade arrived, then more police officers and then the ambulance officers.
Matthew Yeend
Constable Matthew Yeend also attended the scene of the 16 January fire, where he found Constable Evans standing on the bridge over the Molonglo River speaking to a man. The man was lying in the river, and was calling out in what Constable Yeend believed to be pain. The man gave his name as Shane Mason, and said that he “was in a fair amount of pain because he had attempted to put out a fire and he’d been subsequently burnt”.
Constable Yeend asked if he could help with the burns, and Mr Mason said that the items he had in his pockets were causing him pain. Constable Yeend took several items out of Mr Mason’s pockets, being a wallet, a notepad, a Bic lighter, something he described as “a Swiss Army knife in pieces”, and some loose change. Constable Yeend later gave those items to Constable Rebecca Graham.
Mr Mason told Constable Yeend that he had been camping in the area for approximately three weeks, and that the white dog that Constable Yeend saw running around belonged to him.
Deborah Kruger
Deborah Kruger was an ACT Ambulance paramedic. She had been working as an ambulance officer since March 2008, and had qualified as a paramedic in March 2011. As an ambulance officer, she had some experience working with people with mental health issues, having dealt with patients with schizophrenia, bipolar and other acute mental health issues.
At 6:25am on 16 January 2015, Ms Kruger attended the scene of the fire, where she treated Mr Mason for burns to his right arm and right buttock. In accordance with usual practice, she assessed Mr Mason over time using the GCS. She explained that the purpose of the GCS was “to identify a patient’s mental capabilities, stability and also in relation to the decline or increase of GCS with head injuries”, and then gave the following description of how the score is assessed, and of her assessment of Mr Mason:
The circumstantial case
Evidence relied on by the Crown
The Crown’s circumstantial case as to the first element of each offence, that Mr Mason intentionally or recklessly caused the two fires (which I shall refer to, for convenience, as whether he deliberately – rather than accidentally or inadvertently – caused the fires) can be summarised as follows.
In relation to the 5 January fire:
(a)the following matters are directly established by the evidence:
(i)Mr Mason was at the scene of the fire. He tried to persuade a passer-by not to report the fire to police. When fire-fighters arrived, he left the area and tried to hide. He told a police officer that he might have caused the fire by throwing a cigarette away. No cigarette butt was found at the scene of the fire.
(ii)Mr Mason had a cigarette lighter in his possession, and knew how to use it.
(iii)Later Mr Mason told his Legal Aid solicitor that he “accepted that [he] might have lit [the fires]”; and
(b)the only inference available from the expert evidence is that the fire was deliberately lit, that it was not an accident, and that it was lit by Mr Mason.
In relation to the 16 January fire:
(a)the following matters are directly established by the evidence:
(i)Mr Mason was at the scene of the fire. A passer-by saw him doing something that she interpreted as fanning the fire. He ignored the attempts of the passer-by to speak to him about the fire. He concealed himself in the water under the causeway and, despite recognising that he needed medical attention, did not call attention to his presence when a police officer arrived.
(ii)Mr Mason had a cigarette lighter in his possession, and knew how to use it.
(iii)Later Mr Mason told his Legal Aid solicitor that he “accepted that [he] might have lit [the fires]”.
(b)If Mr Mason was fanning the fire, the only available inference is that he lit it.
(c)That Mr Mason’s location under the causeway when Constable Evans found him was not consistent with Mr Mason’s claim to have run towards the river, tripped, and fallen into the river.
(d)The expert evidence is (from Mr Woods) that the second fire was deliberately lit (at [188] above) and (from Ms Trebilcock) that it must have started with the introduction of an ignition source to the scene.
(e)That:
[t]he version provided by [Mr Mason] to Dr Barker (and subsequently repeated to a number of health professionals) is not a version that is consistent with innocence. This is an attempt on the part of [Mr Mason] to provide an explanation for the evidence that is against him and ought to be disregarded by the Court.
I have commented on my assessment of the expert evidence about the cause of the fires (at [438] to [446] above).
As to the claim that Mr Mason’s location when Constable Evans saw him is inconsistent with his claim to have fallen into the river, the evidence given about this matter by Constable Evans and Mr Mason is set out respectively at [160] and [291] above. It is not clear to me, and it is not explained in the Crown submissions, how these accounts are inconsistent – if at all – in any significant way.
As to the submission set out at [580(e)] above, I note that apart from suggesting confusion about where the burden of proof lies at this point, this submission seems to go no further than that Mr Mason’s evidence should be disregarded because it is inconsistent with the Crown case theory. It is also hard to see why the Crown would want the Court to disregard a version of events from Mr Mason that the Crown says is not consistent with innocence. However, if the real claim is that the version is not consistent with the other evidence, it is worth noting that, as far as I can see, the only piece of evidence given by Mr Mason about this fire that is explicitly inconsistent with other evidence is his claim that when Ms Rollings saw him, he was attempting to put out the fire. To base the circumstantial case substantially on the difference between:
(a)Mr Mason’s claim about his actions, made in his first exchange with the first responder Constable Evans (at [161] above), and maintained at each relevant point thereafter; and
(b)Ms Rollings’ interpretation of the same actions, given her evidence at [149] and [154] above that it was dark, that the main source of light was the fire, that Mr Mason was silhouetted against the flames, and that she observed Mr Mason’s actions for a few seconds;
can only be an indication of the flimsiness of the case as a whole.
As well as the evidence outlined, and commented on, above, the Crown relied also on such coincidence evidence as I admitted at [576] above.
Because I have not been satisfied, beyond reasonable doubt, that Mr Mason deliberately caused the 5 January fire, the accepted similarities between the two fires could not be relied on to prove that Mr Mason also deliberately caused the 16 January fire. Nor do the similarities justify the Crown’s submission that:
[The coincidence] evidence is relevant in establishing that there is no innocent explanation for [Mr Mason’s] presence at the fires. The coincidence evidence negates the possibility that [Mr Mason] had a reason for being at the scene of both fires other than to cause them.
In my view, the evidence did not permit coincidence reasoning to any conclusion beyond the proposition that Mr Mason was somehow connected with both the fires specified in the bushfire charges.
Other relevant evidence
In considering the strength of the circumstantial case it is also necessary to consider other evidence that is not relied on by the Crown.
I note first the evidence, including but not only from Mr Mason himself, that he had a very limited memory of the period of the fires, and indeed of other aspects of his history. Dr Allnutt’s report records various matters in relation to which Mr Mason apparently struggled to provide useful information; for instance, Dr Allnutt recorded that in discussion about the period after Mr Mason’s admission to hospital in November 2013, Mr Mason:
was prescribed Epilim and believed he took it for a period but was unclear about this. Initially he thought it was two or three weeks but then said he was unsure whether he took it at all. He was unsure whether he had any follow-up with mental health services after that.
Dr Allnutt’s conclusions included the comment that:
[Mr Mason’s] recollection of his mental state in the time leading up to and during the alleged offences is relatively patchy. He said at the time he thought there was nothing wrong with him but in interview with me it appeared to him, in retrospect, that he was probably experiencing a mental illness.
It is of course possible that Mr Mason was malingering in suggesting memory difficulties about the circumstances of the fires, but this would not necessarily have been the most useful way of obtaining a report which, he apparently hoped, would establish a mental impairment defence for him if, despite his denials, he was found to have caused the fires. Furthermore, Mr Mason seemed to have an adequate grasp of the symptoms of mania when he spoke to Dr Allnutt: he did not need to feign memory loss in order to obtain a diagnosis of mania despite an inability to describe relevant symptoms.
The following evidence is also relevant:
(a)At the time of each of the two fires, Mr Mason was effectively homeless, and was camping in the area where the fires broke out. Although the two fires began at locations some 500 m apart (Ex A), it seems that at the time of each fire, Mr Mason had been sleeping near the scene of that fire.
(b)Mr Mason gave evidence that in the period between when he left his ex-wife’s garage around 20 December and the 16 January fire, he had slept in various different locations along a stretch of the river bank possibly as long as 2 km (Ex A); he provided some explanation for his moves relating to weather conditions.
(c)Mr Mason’s behaviour during that period was unstable and erratic (for present purposes I do not need to address the question whether he was suffering a manic episode of a bipolar disorder, another kind of psychotic episode, or the effects of repeated or prolonged intoxication).
(d)In late December, the car in which he had been living, and most of his possessions, were destroyed in a fire close to the site of the 5 January fire. In his evidence he provided an explanation for the car fire involving conduct by him which, as it turned out, was ill-advised and perhaps quite stupid, but not apparently aimed at starting a fire.
(e)Both the fire brigade and ambulance service attended the car fire, and Mr Mason was taken to hospital. He clearly did not want to stay (his evidence was: “When I realised they were taking me to the psychiatric ward I took a quick left and it took five of them to hold me off the ground”: at [252] above).
(f)On several occasions between the car fire and the 5 January fire, Mr Mason was again taken to hospital by police (at [357(k)] above).
(g)From the beginning, Mr Mason repeatedly denied involvement in starting the fires. I do not regard these denials as compromised by his concession that he “might have lit the fires”, since this concession apparently emerged at the point when his legal advisers were considering seeking a psychiatric report on which to base a “fall-back” mental impairment defence. If Mr Mason was being advised that despite his denials he was at risk of being found guilty of the bushfire charges, a concession sufficient to permit the development of an alternative defence (without conceding any deliberate action on his part) is not surprising.
Finally, the Crown has not suggested that Mr Mason had any kind of motive for starting either of the fires. Of course, the Crown is not required to establish a motive, but the existence of an obvious, or even possible, motive would be helpful when, as here, the other evidence about how the fires started, or about Mr Mason’s involvement in the start of the fires, is far from conclusive.
I note in passing that there are brief references in the medical and psychiatric material to other occasions on which Mr Mason has sustained minor burns as a result of careless or foolish behaviour – however, in the absence of any attempt by the Crown to rely on those events as some kind of tendency evidence, I place no weight on them either way.
Conclusion – physical elements of bushfire offences
The evidence relied on by the Crown certainly raises the possibility that Mr Mason was connected with the start of the two January fires. However, the other evidence referred to puts a somewhat different complexion on that first-mentioned evidence. In particular, Mr Mason’s presence in the bushland can more readily be attributed to his homelessness than to any particular inclination to start bushfires; Mr Mason’s possession of a cigarette lighter and the knowledge of how to use it do not, since Mr Mason was a smoker, seem remotely sinister; Mr Mason’s wish to avoid the involvement of the authorities (the AFP, fire-fighters and ambulance officers) could be attributed not to a guilty conscience but to his expectation (based on very recent past experience) that contact with such people was likely to result in his delivery to hospital and possible confinement there against his wishes.
In short, the evidence before me is consistent with Mr Mason having been involved in the causing of the two January fires, and it may even be that the evidence is more likely to reflect Mr Mason’s deliberate involvement in the start of the fires than anything else. However, having regard to:
(a)the absence of any evidence or explanation that went beyond ruling out some (but not all) possible ways in which the fires might have started without Mr Mason’s deliberate involvement;
(b)the absence of any suggestion of a motive on Mr Mason’s part for deliberately starting either of the fires;
(c)the evidence of Mr Mason’s apparently accidental starting of the car fire;
(d)the evidence explaining Mr Mason’s aversion to engagement with police and other authorities otherwise than by reference to a guilty conscience; and
(e)the evidence that, for whatever reason, Mr Mason was not functioning particularly well during much of the period he spent camping near the Molonglo River around the time of the fires;
the evidence taken as a whole is simply not sufficient to satisfy me, beyond reasonable doubt, that Mr Mason caused either of the January fires, or that if he did cause either of them he did so intentionally or recklessly rather than accidentally or inadvertently.
That is, the physical element of the bushfire offence is not made out in relation to either fire, and therefore there must be verdicts of not guilty on each of the two bushfire charges. The question whether, if Mr Mason did start a fire, he had the specific intent relating to the spread of the fire that would be required to make out a bushfire charge is therefore irrelevant.
It is also not necessary to consider the mental impairment defence in relation to the bushfire charges, although this remains potentially relevant in relation to the transferred charges.
Transferred charges
None of the other charges that I need to determine is an offence of specific intent, so the order of consideration required by Hawkins (at [80] above) is no longer relevant; for the remaining charges the only question, if the elements of the offence are established, is whether a mental impairment defence has been made out. Accordingly, being satisfied as required by s 68D(2) of the Supreme Court Act that it would be in the interests of justice to do so, I turn now to considering the elements of the transferred charges.
Lighting a fire without authorisation (two charges)
The offence of lighting a fire without authorisation is created by s 125 of the Emergencies Act 2004 (ACT):
125Offence—lighting unauthorised fire
(1) A person commits an offence if—
(a)the person—
(i) intentionally lights, maintains or uses a fire in the open air, or burns flammable material, on any land; or
(ii) engages in conduct reckless about whether the conduct would cause a fire to be lit or maintained in the open air, or flammable material to be burnt, on any land; and
(b)the lighting or burning is not permitted under this Act or done for fire prevention by anyone acting under this Act.
Maximum penalty:
(a)if the offence is committed in the bushfire season—100 penalty units, imprisonment for 1 year or both; and
(b)in any other case—50 penalty units, imprisonment for 6 months or both.
(2) In this section:
flammable material includes wood, straw, stubble, grass and herbage.
The two charges are “back-up” charges relating to the two January fires. If I had found:
(f)that Mr Mason had intentionally or recklessly caused a fire in the open air, being a fire mentioned in the indictment; and
(g)that Mr Mason did not have a mental impairment defence;
but had not been able to find that he had the specific intent necessary to make out the offence charged in the indictment, I could have found him guilty of the backup “lighting unauthorised fire” offence relating to that fire.
However, because I have not even been able to find that Mr Mason caused either of the fires, intentionally or recklessly or at all, I must also find him not guilty of the two back-up offences.
Possession of knife in public place
The offence of possession of a knife in a public place is created under s 382 of the Crimes Act, as follows:
382Possession of knife in public place or school
(1) A person shall not, without reasonable excuse, have a knife in his or her possession in a public place or school.
Maximum penalty: 10 penalty units, imprisonment for 6 months or both.
(2) Without limiting what may constitute a reasonable excuse, it is a reasonable excuse for a person to have a knife in his or her possession in a public place or school if—
(a)the possession is necessary or reasonable for, or for a purpose incidental to—
(i) the lawful pursuit of the person’s occupation; or
(ii) the preparation or consumption of food; or
(iii) participation in a lawful entertainment, recreation or sport; or
(iv) the exhibition of knives for retail or other trade purposes; or
(v) an organised exhibition by knife collectors; or
(vi) the wearing of an official uniform; or
(vii) religious purposes; or
(b)the possession is of a prescribed kind.
(3) It is not a reasonable excuse for a person to have a knife in his or her possession in a public place or school solely for the purpose of self-defence or the defence of another person.
The charge relates to the knife that Mr Mason had in his possession at the time of the 5 January fire. He lied to Constable Janssen about this, and subsequently made different statements about the knife to various people, for instance telling Dr Barker that he had his “big hunting knife” because he was on his way to Lake Eucumbene.
Section 382 provides a list of reasonable excuses for possession of a knife including “the preparation or consumption of food”. Mr Mason did not claim to use his knife for food preparation until during the trial, when he was recalled and specifically asked about it by defence counsel.
Mr Mason gave evidence (at [306]–[308] above) that he had originally acquired the knife “as a camping knife, to cut up meat, and if he had caught a fish he would have used it to gut the fish”, but that he had not volunteered this explanation earlier; he suggested, in effect, that this had obviously been why he had the knife.
Mr Mason’s evidence that police had taken “a couple of knives” from him earlier was his explanation for choosing to lie when Constable Janssen had asked him whether he had a knife with him; that evidence is supported by the hospital records at Exhibit 3, which suggest that there had been concerns about Mr Mason’s interest in knives, and the possibility of self-harm, during 2013.
He agreed that he had not claimed to have used the knife to cut up meat, but that cutting up meat, and fish if he’d caught any, was the purpose of possessing it. He said it was the only utensil he had at the time, and that he had meat at the camp and he had intended to use the knife to eat it. He agreed that he had not, at any earlier point in the trial, raised this as the purpose of possessing the knife, but said he hadn’t needed to think about this explanation “because that is what I had it for”.
The Crown relies heavily on what are said to be missed opportunities for Mr Mason to explain his possession of the knife by reference to food preparation.
However, the opportunities cited are not cases in which Mr Mason was asked to provide a reasonable excuse for having the knife, but cases in which he was asked different questions (in particular, whether he had a knife, and whether the knife on the ground belonged to him) which did not seem to require information about the purpose for which he had the knife. Telling Dr Barker that he planned to take his knife to Lake Eucumbene is not inconsistent with his subsequent claim, when he was asked explicitly by his counsel, that he used it for food preparation; Mr Mason might reasonably have felt that taking a large knife on a camping trip needed no more specific explanation.
In short, the fact that Mr Mason did not answer a question that was not asked, even though it was relevant to the offence charged, until he was asked the question specifically during the trial, does not seem to me a sound basis for concluding that the answer ultimately given was untrue.
I understand that there are circumstances in which police might consider it desirable or even necessary to take a knife away from a person who presents as either manic or severely intoxicated, and I make no criticism of such police action. However, I am not convinced that a homeless person, camping in bushland, who identifies his knife as his only utensil, and claims to possess it for preparing and eating food, does not have a reasonable excuse for the purposes of s 382.
Accordingly, I find Mr Mason not guilty of possessing a knife without reasonable excuse.
The RSPCA charges: trespass and theft
The trespass and theft charges, which relate to the removal of the dog from RSPCA premises shortly before the 16 January fire, arise respectively under the Public Order (Protection of Persons and Property) Act 1971 (Cth) and the ACT Criminal Code, which relevantly contain the following provisions:
Public Order (Protection of Persons and Property) Act
11Additional offences on premises in a Territory
(1) A person who trespasses on premises in a Territory commits an offence, punishable on conviction by a fine of not more than 10 penalty units.
…
(2A) For the purposes of an offence against subsection (1) or (2), absolute liability applies to the physical element of circumstance of the offence, that the premises are in a Territory.
Note: For absolute liability, see section 6.2 of the Criminal Code.
(2B) Subsection (1) and paragraph (2)(c) do not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2B) (see subsection 13.3(3) of the Criminal Code).
(3) Notwithstanding section 23, the consent of the Director of Public Prosecutions, or of a person, or of a person included in a class of persons, authorized by the Director of Public Prosecutions for the purposes of subsection (2) of that section, is not required for the institution of proceedings for the prosecution of an offence against this section.
(3A) This section is not intended to exclude or limit the concurrent operation of any law of the Australian Capital Territory.
(4) In this section, premises does not include Commonwealth premises.
Criminal Code
301 Person to whom property belongs for ch 3
(1)Property belongs to anyone having possession or control of it, or having any proprietary right or interest in it (other than an equitable interest arising only from an agreement to transfer or grant an interest, or from a constructive trust).
….
304Appropriation of property for pt 3.2
(1)Any assumption of the rights of an owner to ownership, possession or control of property, without the consent of a person to whom the property belongs, is an appropriation of the property.
…
321Minor theft
(1)A person commits an offence (also theft) if—
(a)the person dishonestly appropriates property belonging to someone else with the intention of permanently depriving the other person of the property; and
(b)the property has a replacement value of $2 000 or less when it is appropriated.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(2)Absolute liability applies to subsection (1) (b).
…
Dictionary
property—
(a)for this Act generally—includes the following:
(i) electricity;
(ii) gas;
(iii) water;
(iv) a wild creature that is tamed or ordinarily kept in captivity or that is, or is being taken into, someone’s possession;
(v) any organ or part of a human body and any blood, ova, semen or other substance extracted from a human body; and
(b)for part 4.1 (Property damage offences)—see section 400.
Note For further definition of property, see the Legislation Act, dict, pt 1.
I note first Mr Mason’s evidence that he honestly did not know whether he had gone into the RSPCA, broken into the dog’s cage, and taken the dog, but that he could have done that, and that he seemed “to have a blank period in there somewhere” (at [288] above).
Trespass
I am satisfied beyond reasonable doubt by the evidence of Ms King, Ms Simpson, Ms Allen, Ms Sobey and Ms Trebilcock:
(a)that at some point on 14 or 15 January 2014 a person entered the RSPCA premises in Weston and cut open the cage in which the dog known as Rocky was secured;
(b)that to open the cage, the person used a metal implement which broke in the process, and that parts of the implement were left in the area of the cage; and
(c)that Mr Mason was found in possession of pieces of metal that appear to be the remaining parts of the broken implement.
I am satisfied beyond reasonable doubt that Mr Mason was the person who entered the RSPCA premises, and that he had no lawful excuse for doing so.
Theft
I am also satisfied that it was Mr Mason who opened the dog’s cage, and that the dog left the cage as a result of the cage being cut open. However, in order for the offence of theft to be established, I must be satisfied that Mr Mason “appropriated” the dog, that is, that he assumed “the rights of an owner to ownership, possession or control of” the dog.
Neither the photographs of the damaged cage, which show a reasonably sizeable hole in the cage wire some way above the floor of the cage, nor the evidence of any of the RSPCA staff members, provides an answer to the question whether, once the hole had been opened up in the cage wire, Mr Mason would have had to reach in and take the dog or whether the dog could have simply jumped out of the cage. Thus, whether Mr Mason actually removed the dog and took it with him, or simply allowed the dog out of the cage and allowed or encouraged it to accompany him back to his campsite, is not clear.
The evidence was that the dog was “hanging around” the area where Mr Mason was found on 16 January (at [97] above). Mr Mason told Constable Evans that it was his dog, that he had had the dog for several weeks, and gave the dog’s name as Woof or Wolf (at [164] above). He also told Constable Yeend that the dog was his (at [169] above). There was, however, no evidence that Mr Mason had restrained the dog at any point, and nor was that fact established by Mr Mason’s evidence that he wanted to keep the dog (at [288] above).
It may be arguable whether befriending a dog that is not otherwise constrained to remain in one’s company, or even naming it, involves “appropriating” the dog. However, I am satisfied that, in making a hole in the cage wire sufficient to allow the dog to escape, Mr Mason did assume the right of the owner of the dog to control it, and exercised that right by, at least, enabling the dog to break free of his overnight confinement in the cage.
I am satisfied, although based on an inference from the definition of property quoted above rather than an explicit statement in the legislation, that a dog is “property” for the purposes of the theft offence. There was no claim that at any stage the dog had belonged to Mr Mason, and so I am further satisfied that Mr Mason dishonestly appropriated property (the dog) belonging to someone else (the dog belonged to the RSPCA by virtue of being in the RSPCA’s possession), and that he intended to permanently deprive the RSPCA of that property.
There was evidence from Ms Sobey that it would have cost $495 for a person to “buy” Rocky from the RSPCA (at [129] above), and therefore the replacement value of the dog makes the s 321 offence available in this case.
Accordingly, I find that Mr Mason deliberately engaged in the conduct constituting the offences of trespass and theft.
The next question is whether Mr Mason has a mental impairment defence to the trespass and theft charges.
Did Mr Mason have a mental impairment?
If I had needed to determine the availability of a mental impairment defence in relation to the fires, I would have concluded (as did both Dr Barker and Dr Allnutt):
(a)first, that at the time of each fire, Mr Mason was suffering from a mental impairment, being a mental illness, probably in the nature of bipolar affective disorder but possibly schizoaffective disorder; and
(b)secondly, that in the period between mid-December 2013 and the 16 January 2014 fire, he was in a manic phase of his illness.
It is possible, as asserted by the Crown, that some of Mr Mason’s behaviour was caused by intoxication, but neither Dr Allnutt nor Dr Barker suggested that intoxication as an explanation for his behaviour at the relevant times was sufficient to exclude an underlying mental illness significantly affecting his behaviour.
I would also have been satisfied that a conclusion of mental impairment, manifesting as mania, was available in relation to the bushfire charges, despite the evidence of a number of witnesses who dealt with Mr Mason after the fires that he seemed anxious, but also lucid, calm, and able to have a sensible conversation (see, for instance, at [110], [139] and [145] above), and that he had a GCS of 15. In reaching that conclusion I would have relied on the evidence of Ms Kruger at [171] above, Dr Barker at [216] above, and Dr Allnutt at [407] above (to the general effect that Mr Mason’s GCS of 15 on multiple occasions was irrelevant to whether he was suffering mania at those times), and more generally on Dr Allnutt’s evidence at [397], [400] and [401] about how easily an observer could miss symptoms of mania and how easily some sufferers can disguise their symptoms.
The conclusion that Mr Mason was in a manic phase of a mental illness at the time of the 16 January fire, and had been at least since the second half of December 2013, is in my view also available in relation to the time of the trespass and theft offences charged, which were committed only a day or so before the 16 January fire.
Did the mental impairment have a relevant effect?
The next question is whether Mr Mason’s mental impairment affected him at the time of the RSPCA offences so that he did not know the nature and quality of his conduct, did not know that the conduct was wrong, or could not control the conduct (s 28(1) of the Criminal Code, at [58] above).
Neither of the doctors specifically addressed Mr Mason’s position in relation to the RSPCA offences (committed on the night of 14/15 January, a bit more than 24 hours before the start of the 16 January fire), although Dr Allnutt said that everything he had described as symptoms of mental illness was applicable to 14 and 15 January as well as 16 January (at [357(j)] above). Thus, the most relevant evidence about this matter is the evidence relating to the 16 January fire.
Neither of the doctors considered that at the time of that fire, Mr Mason’s mental impairment meant that he would not have known the nature and quality of his conduct.
Dr Barker said (in relation to the 16 January fire, if Mr Mason had indeed caused it) that Mr Mason’s ability to control his conduct would have been impaired to some extent but not non-existent, and that Mr Mason’s ability to reason with a moderate degree of sense and composure about whether his conduct was wrong would have been less than perfect but more than basic (at [239] above).
Dr Allnutt believed that Mr Mason was able to control his actions. He opined that the evidence suggested that Mr Mason (if he did cause the 16 January fire) was at least aware that lighting the fire was wrong “in a legal sense”, but was not willing to say that Mr Mason was also aware that it was morally wrong, noting that such an inference was a matter for the court. Pointing to the “apparent lack of motive”, however, Dr Allnutt said that “it would be reasonable to infer that [Mr Mason’s] offending was likely driven by symptoms of a mental illness and a mental impairment defence can be inferred”. That is, Dr Allnutt’s willingness to infer that, if Mr Mason caused either of the fires, his actions reflected a lack of understanding that his conduct was morally wrong was significantly based on the apparent absence of any motive for Mr Mason to cause the fires.
In relation to the RSPCA offences, however, there seems to be a clear enough motive. The evidence is that Mr Mason was keen to obtain a dog, and given where he was camping, the nearby RSPCA shelter was an obvious source.
For that reason, Dr Allnutt’s suggestion (at [335] and [350] above), that if Mr Mason had caused either of the fires he might have been acting under the influence of some kind of delusion, does not seem to be relevant to the RSPCA offences. Nor is there any other evidence about how Mr Mason’s mental impairment might have affected his decision to enter the RSPCA premises and take a dog.
In short, there is nothing in the evidence that provides a basis for finding, on the balance of probabilities, that Mr Mason did not know that it was morally wrong to break into the RSPCA premises and take a dog. In fact, there is nothing in the evidence even to raise the possibility that, as far as the RSPCA offences were concerned, Mr Mason’s mental impairment had any relevant effect as described in s 28(1) of the Criminal Code.
For these reasons, the question dealt with at [76] above (whether the defence bears a legal burden, or only an evidential one, in relation to whether an accused person’s mental impairment affected him in any of the ways set out in s 28(1) of the Criminal Code) does not matter to the resolution of the trespass and theft charges, and I do not need to express a final view on the question; however, in my view that issue should be further considered by those responsible for the form of the ACT’s mental impairment provisions found in the Criminal Code.
Conclusion
I find Mr Mason guilty of the two RSPCA offences, namely trespass and theft.
Possession of prohibited substance (cannabis)
As previously noted, Mr Mason has pleaded guilty to this offence, and will accordingly be sentenced for it in conjunction with being sentenced for the trespass and theft offences.
Orders
Accordingly, the verdicts in this trial are as follows:
Count 1 (causing bushfire on 5 January 2014): Not guilty
Count 2 (causing bushfire on 16 January 2014): Not guilty
CC2014/5635 (light unauthorised fire on 5 January 2014): Not guilty
CC2014/1574 (light unauthorised fire on 16 January 2014): Not guilty
CC2014/1255 (trespass): Guilty
CC2014/1254 (theft): Guilty
CC2014/1041 (possession of knife in public place): Not guilty.
| I certify that the preceding six hundred and forty [640] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: |
[1] Henry Watson Fowler, A Dictionary of Modern English Usage (Oxford University Press, 2nd ed, 1965) 602. A more recent edition of this text (Robert William Burchfield, Fowler’s Modern English Usage (Oxford University Press, revised 3rd ed, 2004) 749) does not refer to the “defining such”, but simply includes examples of its use among examples of “incontestably legitimate uses” of “such”.
This usage in legislation, and sometimes elsewhere, has also been long recognised (see for instance Ernest Gowers, The Complete Plain Words (Pelican Books, 1970) 197):
The draftsman … escapes the need for repeating words of limitation by the use of such …. But using such in the way lawyers use it is not always out of place in ordinary writing. Sometimes it is proper and useful.
One month’s notice in writing must be given to terminate this agreement. As no such notice has been received from you …
Here it is important for the writer to show that in the second sentence he is referring to the same sort of notice as in the first and the such device is the neatest way of doing it.
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