R v Matthews
[2022] ACTSC 105
•5 May 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Matthews |
Citation: | [2022] ACTSC 105 |
Hearing Date: | 5 May 2022 |
DecisionDate: | 5 May 2022 |
ReasonsDate: | 10 May 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [94] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Pleas of not guilty because of mental impairment – proof of offences – determination of mental impairment – consequential orders – referral to ACAT |
Legislation Cited: | Crimes Act 1900 (ACT) ss 27, 300, 308, 321, 323, 324 Criminal Code 2002 (ACT) ss 27, 28, 404 Supreme Court Act 1933 (ACT) s 68C |
Cases Cited: | R v Aleer [2016] ACTSC 75 R v Andison [2021] ACTSC 32 R v Smith [2012] ACTSC 146; 269 FLR 233 |
Parties: | The Queen (Crown) Thomas Matthews (Accused) |
Representation: | Counsel A Williamson (Crown) J Pappas (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Hugo Law Group (Accused) | |
File Number: | SCC 288 of 2021 |
LOUKAS-KARLSSON J:
Introduction
On 5 May 2022, Thomas Matthews (the accused), with the assistance of his counsel, pleaded not guilty by way of mental impairment to the following offences:
(a)Count 1: Arson (CC2021/5164) contrary to s 404(1) of the Criminal Code 2002 (ACT) (Criminal Code). The maximum penalty for this offence is 15 years’ imprisonment, a fine of $240,000 (1500 penalty units) or both.
(b)Count 2: Act endangering life, namely using an offensive weapon in circumstances likely to endanger human life with the intention of preventing his lawful detention (SCCAN2022/3) contrary to s 27(4)(b) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 15 years’ imprisonment.
In accordance with s 321(1)(b) of the Crimes Act, “the prosecution agrees to the entering” of a special verdict on each count; that the accused is not guilty of the offences because of mental impairment.
Pursuant to s 321(1)(a) of the Crimes Act, the Court must consider whether verdicts of not guilty because of mental impairment are appropriate.
Approach to the Evidence and Directions
All of the evidence was admitted by consent. There was no sworn evidence or cross-examination of any witnesses. As observed by Refshauge J in R v Aleer [2016] ACTSC 75 (R v Aleer) at [21]-[22] and myself in R v Griffiths [2020] ACTSC 51 (R v Griffiths) at [24]-[28] and R v Chemhere [2021] ACTSC 45 (R v Chemhere), the procedure for s 321(2) of the Crimes Act may be characterised as a trial by judge alone. It is therefore to be conducted in accordance with s 68C of the Supreme Court Act 1933 (ACT).
Agreed Statement of Facts
The Court received an Agreed Statement of Facts tendered by consent which became Exhibit 1. The Agreed Statement of Facts sets out the outline of the prosecution case in relation to establishing the physical elements of the offences and the background to the prosecution agreeing to the entering of special verdicts.
At all relevant times, the accused lived in a unit within a three-storey apartment building in Bruce. The accused’s residence is located on level three of the building.
On 14 May 2021, the accused’s mother contacted ACT Mental Health and requested an assessment of the accused as she had concerns for his mental health due to recent paranoia relating to the Australian Security Intelligence Organisation (ASIO).
At about 10:40AM, ACT Forensic Mental Health registered nurses and case workers Ms Debbie Hunter and Ms Nkemdirim Obele attended the accused’s residence. They rang the intercom at the entrance of the building a number of times to raise the accused but did not get a response. They then rang the accused’s mother to find out his whereabouts. The accused’s mother told Ms Hunter and Ms Obele that the accused was likely to be home.
Ms Hunter and Ms Obele saw the accused standing inside the glass security door to the apartment building and had a brief conversation with him. They considered that the accused may be a risk to the public and wanted to therapeutically detain the accused. They wanted to have the accused taken to hospital for emergency action and called Police Operations. Thereafter, Police Operations dispatched a patrol to the location.
At about 10:50AM, Senior Constable Adrien Janssen and First Constable Andrew Wood arrived at the residence. Police were able to gain access to the apartment building by another resident.
Senior Constable Janssen and First Constable Wood spoke to Ms Hunter and Ms Obele, who stated that the accused was currently experiencing psychosis but that he had refused to engage with them further. Ms Hunter and Ms Obele told the police officers that the accused was aggressive but did not appear violent. Ms Hunter and Ms Obele confirmed they were concerned about the accused’s welfare and intended to therapeutically detain the accused and take him to hospital for emergency action.
The case workers and police officers went to the accused’s unit. Police attempted to communicate with the accused. However, the accused refused to open the door. Police then requested a locksmith attend to unlock the door to the accused’s residence so that they could detain the accused.
At about 11:39AM, a locksmith attended the residence. The locksmith was initially unable to unlock the door as there seemed to be something blocking the door from the inside. The locksmith continued to work on the lock and police continued to attempt to raise the accused. Eventually, the accused responded and told police that it was unlawful for them to enter his property.
Both police and the nurses told the accused that they wanted to check on him because they were concerned for his welfare. The locksmith was able to pick the lock and unlock the door to the accused’s unit. The locksmith and the case workers stepped away from the door and Senior Constable Janssen and First Constable Wood approached the door to apprehend the accused.
Senior Constable Janssen pushed the handle of the door and began pushing the door open. The accused was behind the door with his right hand behind him and his left hand slightly outreached towards the door handle.
Senior Constable Janssen reached out to grab the accused’s left arm as he was less than a metre away from the accused. First Constable Wood said, “what’s in your hand?”. The accused raised his right hand from behind his back and was holding a large knife in that hand. The knife was a large silver knife approximately 30cm long.
The accused raised the knife above his head and struck down towards Senior Constable Janssen’s head and neck (Count 2). As he did so, First Constable Wood grabbed Senior Constable Janssen from behind and pulled him backwards. Senior Constable Janssen yelled out “knife!”. The door then closed.
Senior Constable Janssen drew his conducted electrical weapon and First Constable Wood drew his firearm. The police officers requested additional resources and asked the case workers and the locksmith to leave the location.
The accused was inside the residence and lit a fire inside which began to spread rapidly (Count 1). The Emergency Warning and Intercommunication System (EWIS) within the apartment complex activated with a loud audible warning alarm and smoke could be seen coming from under the accused’s door and through the lock. As police could smell smoke from the accused’s residence, ACT Fire and Rescue were contacted to attend.
Police made repeated requests to the accused to come out as they were concerned for him due to the fire. The EWIS then changed from a warning alarm to an evacuation alarm and there was a strong smell of acrid smoke. Police evacuated the building.
The accused was on his balcony and was still holding the knife. The accused then dropped the knife on the balcony below and tried to climb over his balcony. Police told the accused to stay on his balcony and wait for ACT Fire and Rescue.
At about 11:53AM, AFP Tactical Response team members attended the residence. The Tactical Response members forced the door open and entered the accused’s unit. A large plume of acrid black smoke billowed out of the open door. There was a flame in the middle of the living room about 50cm to 1m high. The accused was on the balcony, laying on his stomach. The accused was restrained. It was observed that the accused was the only person located inside the unit. ACT Fire and Rescue extinguished the rest of the fire.
The accused was taken in an ambulance with police to the Canberra Hospital for further assessment and monitoring. Whilst at the Canberra Hospital, the accused told police the following:
(a) He had locked himself inside his house because he did not want to get dragged out for a mental health assessment;
(b) He became afraid that the police would bust in and get him, and drag him out;
(c) He did not know what to do, so he grabbed a knife;
(d) He had set fire to items in his house because he was scared about what police would do when they came into his residence and he panicked.
Once the accused was medically cleared for custody by a doctor, he was arrested and transported to the ACT Regional Watch House.
AFP Forensics attended the accused’s residence after the fire had been extinguished. An assessment was conducted by AFP Forensics who identified there were two separate starting points of the fire inside the accused’s unit.
AFP Forensics determined that the two fires were suspicious and were likely to have started due to direct human intervention. AFP Forensics considered that the fire was likely to have spread via direct flame impingement onto the combustible materials.
On 3 May 2022, the accused’s solicitors disclosed an expert opinion prepared by Associate Professor Andrew Carroll AM. Based on that opinion, and evidence disclosed to the prosecution by ACT Forensic Mental Health nurses, the prosecution conceded the defence of mental impairment pursuant to s 28 of the Criminal Code was established in relation to the offences.
Exhibits
The following documents were tendered and marked as exhibits at the hearing:
(a) Agreed Statement of Facts, as set out above.
(b) A Psychiatric Report of Forensic Psychiatrist Associate Professor Andrew Carroll AM dated 23 April 2022, commissioned by the accused’s solicitors (the Carroll Report).
(c) A Psychiatric Treatment Order (PTO) dated 3 March 2022.
Procedure and Statutory Scheme Relating to Mental Impairment
Section 321 of the Crimes Act provides for the entry of a special verdict:
321Supreme Court—plea of not guilty because of mental impairment
(1)This section applies if an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court.
(2)The Supreme Court must enter a special verdict that the person is not guilty of the offence because of mental impairment if—
(a)the court considers the verdict appropriate; and
(b)the prosecution agrees to the entering of the verdict.
In R v Aleer at [13] Refshauge J set out the appropriate procedure as to s 321 of the Crimes Act as follows:
(1) The accused should be arraigned in the usual way.
(2) If they plead not guilty by reason of mental impairment, the Crown should be asked if it agrees to the entry of a special verdict. Such agreement need not be in writing.
(3) If not, the trial proceeds in the usual way (as in for example, R v McGuckin [2014] ACTSC 242).
(4) If so, then the court must consider whether a verdict is appropriate.
(5) The Crown must prove its case, beyond reasonable doubt, that the accused has committed the physical acts of the offence charged which would constitute the offence if done intentionally and voluntarily and with any particular fault element, such as intent or knowledge, specified as an element of the offence, but is not required to negative any such fault element, other than where objective evidence raises such an issue, such as mistake, accident, lack of specific intent, or knowledge of the particularity necessary to constitute the offence that is an element of the offence itself, or self-defence, in which case the Prosecution must negative that issue beyond reasonable doubt: R v Ardler [2004] ACTCA 4; 144 A Crim R 552 at [90]
(6) Such evidence may be adduced in statements tendered and admitted into evidence if consent is given to such a procedure under ss 148 or 190 of the Evidence Act 2011 (ACT).
(7) The Court must be provided with such expert evidence as would satisfy it that the accused is mentally impaired, sufficient to meet the criteria set out in s 28 if the Criminal Code, which may also be achieved by the tender of reports from appropriately qualified medical experts. This does not need to be proved beyond reasonable doubt. The Court, however, needs to be satisfied that the mental impairment has been made out to a standard sufficient to justify the potential significant interference with the freedom and liberty of the accused.
(8) Once these matters are satisfied, it would appear that this would meet the criteria that the entry of a special verdict was appropriate.
The approach outlined by Refshauge J in R v Aleer has subsequently been followed by Elkaim J in R v Edet [2020] ACTSC 276 at [5], R v Singsathitsuk [2021] ACTSC 26 (R v Singsathitsuk) and R v Andison [2021] ACTSC 32 (R v Andison). It is the approach that I adopted in R v Griffiths, R v Chemhere and in this matter. See also the decisions of Refshauge J in R v Smith [2012] ACTSC 146; 269 FLR 233 (R v Smith) at [8]-[23] and R v Barker [2014] ACTSC 374.
Elements of the Offences
The evidence to be relied upon by the prosecution to establish the physical elements of both of the offences beyond reasonable doubt were set out in the Agreed Statement of Facts.
The elements of the offence of arson (Count 1) are:
(a) The accused engaged in conduct;
(b) The accused intended to engage in the conduct;
(c) The conduct engaged in caused damage to a building by fire;
(d) The accused intended or was reckless about causing damage to a building by fire.
The elements of the offence of act endangering life, using an offensive weapon with intent to prevent or hinder lawful detention (Count 2) are:
(a) The accused used an offensive weapon;
(b) The accused used the offensive weapon against another person;
(c) The accused intended to use the offensive weapon against another person;
(d) The offensive weapon was likely to endanger human life or cause grievous bodily harm;
(e) The accused acted in a way that was unlawful;
(f) The accused knew he was acting in a way that was unlawful; and
(g) The accused committed the offence intending to prevent or hinder his lawful detention.
On the basis of the Agreed Statement of Facts, I am satisfied that the prosecution has proven beyond reasonable doubt that the accused committed the physical elements relevant to both Count 1 and Count 2. See: R v Griffiths at [35].
Mental Impairment
The next stage of the inquiry is determining whether the accused was suffering from a mental impairment at the time of the offences, and secondly, whether that mental impairment had an effect as described in s 28(1) of the Criminal Code.
The definitions of “mental impairment” and “mental illness” are contained within s 27 of the Criminal Code:
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.
The subsequent impact of mental impairment on criminal responsibility is addressed in s 28 of the Criminal Code:
28 Mental 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 that had an effect mentioned in subsection (1).
(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 that had an effect mentioned in subsection (1).
(6)The prosecution may rely on this section only if the court gives leave.
Mental Impairment – Consideration
The Carroll Report
The Carroll Report addresses the accused’s mental state at the time of the present offences. Associate Professor Carroll is a Forensic Psychiatrist. Associate Professor Carroll conducted a telephone assessment with the accused on 13 April 2022 and reviewed material to reach his opinion.
Associate Professor Carroll opined that at the time of the assessment, he could find no current evidence of the accused experiencing active psychotic symptoms, nor delusions, hallucinations or disorders of thought possession. The accused described an improved understanding of his mental health problems since commencing antipsychotic treatment in 2021. When asked about past symptoms of schizophrenia, the accused was able to retrospectively relabel his paranoia, hearing “banging noises”, and thinking his neighbours were working for ASIO as indicative of his mental illness. The accused informed Associate Professor Carroll that he was not opposed to accepting his current injectable depot antipsychotic medication, although he believed that he is subject to a compulsory order that would require him to be taken to hospital for administration of medication if he was to refuse. Associate Professor Carroll concluded that the accused accepted he has a mental illness, was able to relabel past symptoms as being pathological in nature, and was accepting of the need for ongoing treatment for his condition.
The Carroll Report notes that the accused now has an established diagnosis of schizophrenia. The accused currently sees a psychiatrist at the Alexander Maconochie Centre (AMC) and is in receipt of depot antipsychotic Paliperidone 75mg every month and the antipsychotic Olanzapine 5mg at night. The accused informed Associate Professor Carroll that the Olanzapine had been added to his regime to assist in sleeping.
Associate Professor Carroll referred to the accused’s clinical files which established that the accused was first referred to mental health services in the ACT in May 2021 by his mother. The accused’s mother was concerned that there had been significant deterioration in the accused’s functioning over the previous 18 months. The accused’s clinical files at the time noted that this decline had been
Associated with persecutory ideas about being monitored by ASIO, telephone being bugged and alleging a neighbour downstairs worked for ASIO, leading to [the accused] leaving some powder at the neighbour’s door… has told his mother ASIO are poisoning his food. [The accused] is not eating much and he is losing weight.
The accused’s clinical records also revealed that on 28 May 2021, the accused informed a consultant psychiatrist that on three previous occasions, people had entered his apartment and the accused believed there were security operatives who had access to his residence based on counterterrorism measures.
The Carroll Report notes that the accused has denied ever having an alcohol problem and the accused has abstained from alcohol use since converting to Islam. The accused also has no history of illicit drug use, but the accused reported smoking approximately two cigarettes daily.
The accused was born and raised in the ACT. The accused’s mother is a public servant. The accused’s father worked as a chef and is now working as a trainer in the mental health field. The material provided to Associate Professor Carroll refers to the accused’s father living with bipolar affective disorder. The accused’s stepfather is a retired public servant. The accused informed Associate Professor Carroll that he believes he was around five years old when his parents split up and that he continued to see his father most weekends thereafter. The accused has two sisters: an older sister and a younger sister. He also has a younger paternal half-brother. The accused described his childhood memories as “good” and denied any history of neglect or abuse of any kind.
The accused spoke positively about his school life and said that he did “pretty well” academically. The accused reported no problems with his peers or discipline and completed year 12. The accused studied architecture at the University of Canberra but dropped out after two years because he found the work/study balance to be too difficult. The accused reported that he has subsequently mainly worked as a security guard and would like to eventually return to work in that field or resume university studies in a different subject.
The accused told Associate Professor Carroll that approximately five years ago, he had decided to convert to Islam. After converting, the accused started to attend a mosque, pray five times daily, and desist from pork and alcohol. The accused reported that he has not remained in touch with old friends from before he converted. The accused said that he did form “a lot” of friendships at the mosque, but currently has no ongoing contact with them.
The accused also noted that he had had two serious relationships with women: an Indonesian Islamic girlfriend, with whom he was together for approximately a year; and a subsequent marriage to an Algerian Islamic woman with whom he had a son. The accused’s son is now five years old. The accused married his wife in 2016 but after some four years, “decided to divorce” her because there had been “a lot of pressure on [his] marriage with work and [he] didn’t think [his] wife was happy”. The accused is not in regular contact with his ex-wife or his son currently and his ex-wife has subsequently remarried.
The Carroll Report sets out the history relevant to the offences that occurred on 14 May 2021 as obtained from the accused’s clinical files. On 13 May 2021 at 5:52PM a social worker at ACT Mental Health triage made the following notes:
Referral from mother deteriorating mental health lately, delusional themes believes ASIOs are following him, not using phone thinks his phone is bugged. Body corporate contacting mother today. Reporting [the accused] is harassing his neighbour who lives beneath his apartment, family hasn’t seen him for past two months – they received an email a week ago.
The accused’s mother then contacted ACT Mental Health to request an assessment due to concerns for the accused’s mental health. ACT Mental Health records state that the accused’s mother reported that “she is the only person [the accused] has contact with in the world. [The accused] has converted to Islam and asked if we [have] any Muslims on our team as this may help engage him”.
The Carroll Report proceeds to recount the events that took place at the accused’s residence on 14 May 2021, as recorded in clinical notes retained by ACT Mental Health. As those events are already detailed in the Agreed Statement of Facts, it is unnecessary to repeat them here.
At a review on 28 May 2021 with a consultant psychiatrist, the accused spoke of the events on 14 May 2021. The notes from the consultant psychiatrist record that the accused had “put a mattress in front of the door to his apartment and set it alight”. The accused said to the consultant psychiatrist “I wasn’t really thinking – it was a pretty stupid thing to do, I was just reacting thinking that the police were going to come in guns blazing”.
The Carroll Report also sets out the accused’s account given at the assessment of the events that occurred on 14 May 2021. At the assessment, the accused recalled living alone in the apartment in Bruce in May 2021. The accused reported that he had become increasingly isolated. The accused told Associate Professor Carroll that he was still attending mosque “to a degree” and never ceased going at least once per week.
The accused reported that he had developed the belief for at least several months leading up to the events of 14 May 2021 that he was being targeted by ASIO. The accused said, “I used to hear banging noises…I thought it was my neighbours banging on the wall” and believed at the time that his neighbours were doing this on behalf of ASIO. The accused said, “I used to think it was ASIO trying to keep me awake at night”. The accused reported that the noises continued to be a problem for approximately six months and only ceased following his admission to hospital in late May 2021. The accused said that in hindsight, he was “probably mistaken and it was maybe a problem with my brain”.
The accused stated that when living alone in the apartment, he had at times been troubled by a distressing experience wherein he “felt like [he] was kind of getting [his] brain penetrated from across the wall when [he] was sitting on the wall” and had a sense that whatever was causing this experience was “something that would give [him] cancer”. At the time it was occurring, the accused attributed this to a technology created by ASIO. At the assessment, the accused confirmed he now thinks that such thoughts are “silly”.
The accused reported that he had never heard any hallucinatory voices. There was no evidence of any olfactory or visual hallucinations. The accused further denied ever having a sense that other people knew what he was thinking.
The accused reported to Associate Professor Carroll that over the period when he believed that he was being persecuted by ASIO, he also had experiences that made him “not have any trust in the police”. The accused recalled an incident wherein an unmarked police vehicle with two uniformed officers inside pulled in front of his car in a dangerous fashion. The accused described encountering men on two different occasions who had let themselves into his apartment using a key. The accused stated that the first man stood at the door and started filming him, while the second man claimed to be visiting to carry out some electrical work which the accused knew could not be the case. The accused noted that at the time, he thought these men were probably ASIO operatives working undercover. At the time of the assessment, the accused acknowledged in hindsight he was perplexed by these experiences and said he sometimes thinks he “could have been hallucinating”.
Regarding the lead up to the events on 14 May 2021, the accused said to Associate Professor Carroll:
I spoke with mental health and they told me they wanted to have a chat, I asked what about and I told them I wasn’t interested. They told me if police came then I should let them in or they’d knock the door down. I asked why police would come and they didn’t say anything and left.
The accused then recounted that approximately an hour later, police attended with a locksmith. The accused said “I thought that it was very unreasonable that they were letting themselves in without any reason. I didn’t know they wanted to take me to hospital”.
The accused formed the belief at the time that the police were not engaged in “proper police work” but rather were planning to “harm [him] in some way” for reasons linked to what the accused considered to be their role; acting on behalf of ASIO. The accused said, “when they opened my door, I had a knife in my hand’. The accused initially said he did not “really remember” why he had the knife, but when prompted whether it was with a view to defending himself, the accused said “perhaps”.
The accused said he was “absolutely” in fear of his life at the time when the police forced entry. The accused said that whilst the police were attempting to gain entry which took a while, he was “panicking, thinking the worst that they might harm [him] or be there to do something unreasonable to [him], maybe [he] might be killed. [He] thought the police were working with ASIO to persecute [him]”.
The accused reported that when the police officers saw him with the knife, they “jumped back” and the accused slammed the door shut. The accused said to Associate Professor Carroll:
I was panicking and thought they’d come in guns blazing after they saw the knife so I set fire to the apartment. I wasn’t really thinking straight. I thought it would make them leave me alone or delay them coming in.
When asked by Associate Professor Carroll whether he considered the legality or wrongfulness of his actions at the time, the accused said that at the time, he had not thought about that. When asked how he had set the fires, the accused said that as best as he can recall, he set fire to some newspapers using the flame from his gas stove.
The Carroll Report further summarises the accused’s clinical records as to his progress after 14 May 2021. The accused was released on bail on 15 May 2021. The clinical records note that on 18 May 2021, ACT Mental Health contacted the accused’s mother by telephone. The accused’s mother stated that the accused “has been okay however he remains delusional and is positive that ASIO are after him”. ACT Mental Health contacted ACT Corrective Services and the latter noted that the accused had attended for an appointment on the previous day and they had “no major concerns about his presentation”.
Clinical ACT Mental Health notes for 19 May 2021 state that the accused “does not use his mobile phone due to paranoia”. On 21 May 2021, the accused was assessed by a psychiatrist. The notes of that psychiatrist state:
(a) “He is unable to explain how he decided to set the fire”.
(b) “He identified police and ASIO as two agencies that were involved in this harassment”.
(c) “He claims plain-clothed police have pulled him over while he has been driving”.
(d) “He first became aware of this harassment around 18 months ago when he travelled interstate and was suddenly aware of the large number of police that he saw. When asked by he was being watched by these authorities he stated it is because he is a Muslim. He converted to Islam around five years ago”.
(e) “He denied experiencing perceptual disturbances however HAART assessment includes his complaint that he can hear ASIO officers on his roof”.
On this occasion, the psychiatrist diagnosed the accused with schizophrenia and offered the antipsychotic Risperidone. The accused declined antipsychotic medication and insisted on a second opinion.
On 1 June 2021, the ACT Civil and Administrative Tribunal (ACAT) made a PTO for three months. On 18 June 2021, the accused was diagnosed with schizophrenia and treated with Paliperidone via depot injection. The accused’s loading dose was due on 22 June 2021 and the accused received 100mg of Paliperidone via depot injection on that date.
The final section of the Carroll report contains Associate Professor Carroll’s opinion as to whether the accused can rely on the defence of mental impairment pursuant to s 28 of the Criminal Code. Associate Professor Carroll notes that the accused is a 31 year old man who reports an unremarkable developmental history, with no history of trauma, neglect or abuse. The Carroll Report states that there is significant genetic loading for mental illness.
The Carroll Report notes that the accused now has an established diagnosis of schizophrenia. Associate Professor Carroll opined that the accused’s schizophrenia appears to have had its onset at some stage in his mid to late twenties. The Carroll Report states that after the onset of schizophrenia, the accused became increasingly “isolative” and eventually developed a persecutory delusional system which centred on his being put under surveillance and certain forms of attack from ASIO. As well as delusional beliefs, the accused’s symptoms included: auditory hallucinations in the form of noises which he attributed to his neighbours working on behalf of ASIO; and somatic hallucinations, which he attributed to some kind of technological device created by ASIO intended to give him cancer.
Associate Professor Carroll opined that following commencement of treatment on an involuntary basis in May 2021 in the form of the antipsychotic medication Paliperidone, the accused appears to have made a “very good recovery from his schizophrenia” and is currently free of any active psychotic symptoms.
The Carroll Report also addresses specific questions requested by the accused’s solicitors. Associate Professor Carroll opined that the accused suffers with the mental illness schizophrenia, which had its onset in the accused’s mid-twenties and is currently in full remission on appropriate medication. Associate Professor Carroll did not find evidence of other emotional and/ or psychological dysfunction aside from the accused’s mental illness of schizophrenia. Associate Professor Carroll noted that schizophrenia falls within the DSM-5 diagnostic criteria and is coded DSM-5 295.20.
The accused’s solicitors requested that Associate Professor Carroll give his opinion as to whether at the time of the offences on 14 May 2021 the accused suffered from any condition or disorder, to what extent and with what effect, having regard to s 28 of the Criminal Code. The Carroll Report provides the following answer:
At the time of the [14 May 2021] offences, [the accused] was untreated and was acutely psychotic due to his schizophrenia. As a direct result of his psychotic symptoms, at the time when he used an offensive weapon (knife) and committed arson:
· He was in the grip of a longstanding delusional belief system that he was under persecution from ASIO, reinforced by both auditory and somatic hallucinations;
· He believed that the police were acting at the behest of ASIO;
· He was in a state of intense fear, believing that he was at imminent risk of serious harm – possibly death – from the police;
As a result of the above, in my opinion [the accused] believed that he was morally justified in defending himself with a knife to his apartment, in order to forestall what he considered to be the high likelihood of his being apprehended and seriously harmed (possibly killed) by police.
In my opinion, at the relevant time:
· He knew the nature and quality of his conduct.
· He was able to control his conduct.
· He was unable to reason with a moderate degree of sense and composure about whether his conduct as seen by a reasonable person was wrong, as a result of his mental impairment.
I would therefore be supportive of a defence under s 28 of the Criminal Code, but ultimately this is a matter for the court to determine.
The accused’s solicitors also requested that Associate Professor Carroll address the likelihood, having regard to the accused’s mental impairment at or about the time of the events on 14 May 2021, of his capacity to form the specific intent necessary to carry out the “conduct” underlying the offence of arson, that is lighting a fire with the intention of, or being reckless as to, causing damage to the unit. The Carroll Report notes:
Notwithstanding his active psychotic state at the time, [the accused], in my opinion, retained the capacity to form the specific intent necessary to carry out the lighting of a fire with the intention of causing damage to the unit. He described the fire-setting as a deliberate act in order to save himself from anticipated serious harm from the police.
On the basis of the Carroll Report, I am satisfied on the balance of probabilities that at the time of the offences, the accused was suffering from a mental impairment, namely schizophrenia, that had the effect that the accused did not know the conduct was wrong: s 28(1)(b) Criminal Code. I note s 28(2) provides that 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. I accept that at the time of the offences, the accused could not reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, was wrong. The accused is therefore not criminally responsible for the offences: s 28(1)(b) Criminal Code.
Consequently, in relation to both of the offences, I consider that a verdict of not guilty because of mental impairment is appropriate. The prosecution confirmed that it agrees to the entering of a special verdict. I therefore enter a special verdict of not guilty by reason of mental impairment for each offence.
Disposition
Having entered a special verdict of not guilty by reason of mental impairment for each offence, the options as to disposition by ss 323 or 324 of the Crimes Act depend on whether the offences are a “serious offence”. A “serious offence” is defined in s 300(1) of the Crimes Act:
300Definitions for pt 13
(1)In this part:
…
serious offence means—
(a)an offence involving actual or threatened violence and punishable by imprisonment for longer than 12 months; or
(b)an offence against section 27 (3) or (4).
Section 323 of the Crimes Act has application for an offence other than a serious offence and provides as follows:
323Supreme Court orders following special verdict of not guilty because of mental impairment—non-serious offence
(1)If an accused has been charged with an indictable offence other than a serious offence and a special verdict of not guilty because of mental impairment is returned or entered, the Supreme Court may—
(a)make an order requiring the accused to submit to the jurisdiction of the ACAT to enable the ACAT to make recommendations as to how he or she should be dealt with; or
(b)make any other orders it considers appropriate.
(2)If—
(a)the Supreme Court makes an order under subsection (1) (a); and
(b)the ACAT notifies the court of its recommendations;
the court shall, in consideration of the ACAT’s recommendations, make any further orders it considers appropriate.
(3)The Supreme Court may make the orders that it considers appropriate, including—
(a)that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or
(b)that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015.
Section 234 of the Crimes Act is the relevant section where the offence is a serious offence:
324Supreme Court orders following special verdict of not guilty because of mental impairment—serious offence
(1)This section applies if an accused is charged with a serious offence and a special verdict of not guilty because of mental impairment is returned or entered by the Supreme Court.
(2)The Supreme Court must—
(a)order that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or
(b)if, taking into account the criteria for detention in section 308, it is more appropriate—order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015.
As made plain by (b) of the definition of “serious offence” in s 300, Count 2 is clearly a “serious offence”. Consideration must be given to whether Count 1, being an offence of arson, is a “serious offence”. Counsel for the prosecution and counsel for the accused both submitted that Count 1 was a “serious offence”. In the alternative, both counsel agreed that as Count 2 was a “serious offence”, the question of whether Count 1 was a “serious offence” was merely academic and need not be resolved in the present matter.
In R v Smith Refshauge ACJ, as his Honour then was, usefully embarked on the inquiry as to whether an offence of arson could meet the definition of a “serious offence”. His Honour set out the relevant authorities as to the meaning of “violence” at [45]-[59]. Refshauge ACJ adopted the interpretation of Wright J in R v Hueston (1995) 5 Tas R 210 at 215 that an offence that involves damage to property will involve “violence”, if there is evidence of likely harm to other persons. Applying those authorities to that matter, his Honour stated at [60]-[61]:
In the circumstances, there is no evidence of likely harm here to other persons. The fire was in the house. There were no other persons in the house. The neighbour who came on the scene was able, without apparent difficulty, to extinguish the fire that was outside in the free and, although extensive damage was done, there was no material before me that suggested there was, to use the words of Wright J, “substantial risk of direct injury resulting therefore to other persons”.
In my view, this was not a crime of violence within the meaning of the definition of “serious offence” in s 300 of the Crimes Act.
Refshauge J adopted the R v Smith approach in R v Aleer, which also involved offences of arson. At [80] in R v Aleer, his Honour held that those arsons were serious offences as they involved:
a very direct risk to persons who were in the house and who may have been injured if the flames had in fact reached the eaves, or the vehicle had exploded more intensely than it did.
The approach of Refshauge J in R v Smith has also been followed by Penfold J in R v Cross [2017] ACTSC 91; 319 FLR 288 (R v Cross), Elkaim J in R v Andison and R v Singsathitsuk, and Mossop J in R v Jackson [2021] ACTSC 120; 360 FLR 1 (R v Jackson).
R v Cross involved an accused setting fire to his vehicle when his car was parked in a large, grassed area overlooking Lake Burley Griffin. 250 to 300 people were in the area as it was New Years Eve and there was a fireworks display at the location. Police officers attempted to extinguish the fire without success. Shortly thereafter, ACT Fire and Rescue attended and the fire was extinguished. Penfold J found that the arson was not a serious offence at [47]-[55] having regard to the unchallenged evidence that the accused did not intend to harm anyone and that the 250 to 300 people present were not restricted in leaving the area, therefore there was no immediate or likely risk to those persons.
In R v Singsathitsuk at [19] Elkaim J found that the circumstances of the arson in that matter did not amount to a serious offence. That matter involved the accused setting fire to the bathroom at his residence and to a bin containing leaves and an electrical appliance.
The accused in R v Andison set fire to pillows in his bedroom in his residence. The accused was living in ACT Housing property. The prosecution in R v Andison submitted that the offence was serious because of the extent of the damage caused and the potential harm that could have been caused to good Samaritans and members of ACT Fire and Rescue. Elkaim J accepted at [18] that arson can be a serious act, but the circumstances of that arson were not serious as no one was harmed nor was there a suggestion that a person was susceptible to injury.
R v Jackson involved a fire being started in a duplex residence. The garages to the two residences were separated by a common wall. There was at least one person presenting in the adjoining residence and there was a risk that the fire might spread to the adjoining residence. At [151] Mossop J found that the possible risk was not sufficient for the arson to be characterised as involving violence.
In the present matter, the fire was in an apartment building. It is clear from the Agreed Statement of Facts that other people in the building were evacuated, that Tactical Response police officers attended to force the door open to restrain the accused, and that ACT Fire and Rescue were able to extinguish the fire. The Agreed Statement of Facts does not indicate that anyone was at serious risk from the fire.
I agree with the alternate submission of both counsel that determination of whether Count 1 is a “serious offence” is somewhat of an academic exercise in circumstances where it is uncontroversial that Count 2 is a “serious offence”. Therefore, s 324 of the Crimes Act dictates the disposition of this matter.
As to what subsection of s 324(2) was the appropriate course, counsel for the prosecution submitted that the Court could proceed under either (a) or (b) noting that the accused was already remanded in custody on unrelated charges. Counsel for the accused submitted that s 324(2)(b) was appropriate as the accused is under a PTO, he is in custody, and there was no application for bail.
I consider that s 324(2)(b) is the appropriate subsection to proceed under having regard to the criteria for detention in s 308 of the Crimes Act. I note in particular s 308(d) which underlines “the principle that a person should not be detained in a correctional centre unless no other reasonable option is available”. Here the accused remains remanded in custody at the AMC, in any event, for unrelated matters. Having taken into account the criteria for detention in s 308, it is more appropriate that I make the order under s 324(2)(b) of the Crimes Act, particularly in light of the fact that the accused is already in custody and is likely to remain so.
Finally, I also underline the observation of Refshauge J in R v Smith at [45]:
It is a pity that the legislature has not seen fit to provide a definition of “an offence involving actual or threatened violence”. The term is not a term of art…
In R v Jackson at [146] Mossop J stated that the above remark of Refshauge J was made 11 years ago and was a remark that he concurred with. I too concur. Mossop J went on to state at [148]:
…given that arson is an offence not uncommonly committed by persons who are mentally impaired, it is a matter of some significance as to whether or not that offence or act giving rise to the commission of that offence is to be categorised for the purposes of Part 13 of the Crimes Act as a “serious offence”.
In light of the foregoing, I recommend that this judgment be provided to the Attorney-General for the ACT to enable consideration of whether the definition of a “serious offence” in s 300 of the Crimes Act requires further clarification. The areas identified as requiring clarification are whether the phrase “an offence involving actual or threatened violence” should be defined and whether arson should fall within this definition, noting the comments made by Mossop J in R v Jackson concerning the nexus between the offence of arson and verdicts of not guilty by way of mental impairment.
Orders
I make the following orders:
(a) Pursuant to s 321(2) of the Crimes Act, special verdicts of not guilty because of mental impairment are entered for Count 1: Arson (CC2021/5164) and Count 2: Act endangering life, namely using an offensive weapon in circumstances likely to endanger human life with the intention of preventing his lawful detention (SCCAN2022/3) as (a) the Court considers the verdicts are appropriate and (b) the prosecution agrees to the entering of the verdicts.
(b) Pursuant to s 324(2)(b) of the Crimes Act, the accused is to submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015 (ACT).
| I certify that the preceding ninety-four [94] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 10 May 2022 |
10
4