R v McIver; R v Williams - [2021] ACTSC 227

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McIver; R v Williams
Citation:	[2021] ACTSC 227
Hearing Date:	8, 9, 10 June 2021; 8 September 2021
DecisionDate:	9 September 2021
Before:	Elkaim J
Decision:	See [104]
Catchwords:	CRIMINAL LAW – JUDGE ALONE TRIAL – hearing split between two accused – whether knowingly concerned
Legislation Cited:	Criminal Code 2002 (ACT) s 45 Mental Health Act 2015 (ACT) s 83
Cases Cited:	Ashbury v Reid [1961] WAR 49 R v Kelly [1975] 24 FLR 441 Tannous v The Queen 31 A Crim R 301
Parties:	The Queen ( Crown) Anthony Daniel McIver ( Accused) Julieann Frances Williams (Accused)
Representation:	Counsel E Wren ( Crown) J De Bruin ( Accused) J Tyler-Stott (Accused)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Accused) Ken Kush & Associates (Accused)
File Numbers:	SCC 279 of 2020; SCC 280 of 2020

ELKAIM J:

On 23 February 2021 Ms Williams filed an election for trial by judge alone. Mr McIver did the same on 1 March 2021.

At the start of the trial the accused, Julieann Frances Williams was arraigned on the following charges in an indictment dated 22 January 2021:

(a) Aggravated burglary.

(b) Assault occasioning actual bodily harm.

The co-accused, Anthony Daniel McIver, was arraigned on the same indictment, but with the distinction that he was charged with being knowingly concerned in the aggravated burglary and the assault occasioning actual bodily harm, pursuant to s 45 of the Criminal Code 2002 (ACT).

Both accused pleaded ‘not guilty’ to the charges they respectively faced.

The progress of the matter took an abrupt turn at the commencement of the second day of the hearing. Ms Williams, who was on bail, did not initially appear in court. Her whereabouts were unknown. I adjourned the matter until 12:00pm to enable enquiries to be made.

When the Court resumed at 12:00pm Ms Williams was present. She appeared unwell. Medical material was handed up on her behalf (MFI 1).

The medical documentation included a referral from the Winnunga Nimmityjah Aboriginal Health and Community Services to The Canberra Hospital requesting a medical assessment, including a psychiatric assessment. The referral listed a number of conditions that were, currently or in the past, being suffered by Ms Williams. Of particular concern was her consumption of a significant amount of Clonazepam over the last week.

Also provided was a “Statement of Action Taken” pursuant to s 83 of the Mental Health Act 2015 (ACT) directing Ms Williams to be taken to a mental health facility, with or without her consent. The reasons for the action included an “overdose” of Clonazepam. It was noted that she was a risk to both herself and the public because of her attempts to drive a motor vehicle. Other reasons included her being ataxic (uncoordinated), dysarthric (having slurred speech) and delirious (incoherent). Her presentation in court, and the few words she spoke to me, were consistent with the above observations.

Accordingly I adjourned…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] ACTSC 227
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the Queen brought charges against Anthony Daniel McIver and Julieann Frances Williams for aggravated burglary and assault occasioning actual bodily harm. The Crown alleged that the accused were part of a group that went to the complainant's house with the intent to assault her. Ms Williams pleaded not guilty, while Mr McIver admitted his presence at the scene but denied any involvement in the assault. The trial faced complications when Ms Williams fell ill, leading to her case being adjourned. The court had to decide whether to proceed with Mr McIver's case separately or adjourn it, considering the implications for both defendants. Ultimately, the court decided to continue with Mr McIver's case while awaiting updates on Ms Williams' health.

The central issue for the court was whether Mr McIver was knowingly concerned in the commission of the offences. The Crown argued that Mr McIver's actions, such as following the women up the driveway, standing at the doorway, and his delayed intervention, demonstrated his knowing participation. However, the court found that these actions, while possibly indicative of involvement, were not conclusive proof of Mr McIver's knowing concern. The court held that "mere knowledge" of the offence was not sufficient for conviction and that the Crown had to prove Mr McIver's guilt beyond reasonable doubt. Given the speculative nature of the evidence against Mr McIver, the court acquitted him of all charges.

The court certified that the reasons for judgment accurately reflected the court's decision and findings.

Orders