R v Morgan

[2011] SASCFC 94

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MORGAN

[2011] SASCFC 94

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Peek)

19 August 2011

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC

Appeal against a finding that the objective elements of endangering life under s 29(1) of the Criminal Law Consolidation Act 1935 (SA) were established - the trial Judge found that the appellant was mentally incompetent to commit the offence of endangering life but nevertheless found the objective elements established - the appellant sought to tender fresh expert evidence to establish that there was no danger at all to the life of any person - whether it was in the interests of justice to receive the fresh evidence.

Held (Doyle CJ with David and Peek JJ concurring):  it was in the interests of justice to receive the fresh evidence - by consent, the particulars were amended to identify an act that could have created a danger to life - appeal allowed to substitute a finding that the objective elements of the offence of attempt to endanger life were established - the appellant was declared liable to a supervision order, committed to detention with a limiting term of three years ten months.

Appeal allowed.

Criminal Law Consolidation Act 1935 (SA) s 29(1), s 269BA, s 269FA(5)(b), s 269FB(2), s 269FB(3), s 269O(1), s 269O(1)(b), s 269O(2), s 269Y(3), s 269Y(4), s 269Y(5)(a), s 269Y(5)(c), referred to.

R v MORGAN
[2011] SASCFC 94

Court of Criminal Appeal:  Doyle CJ, David and Peek JJ

1. DOYLE CJ (ex tempore): The appellant was charged on Information with the offence of endangering life, contrary to s 29(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The particulars were that he poured petrol onto the ground at a petrol station and ignited the petrol, knowing that this act was likely to endanger the life of persons nearby, intending to endanger their life or being recklessly indifferent as to whether their life was in danger.

2. He elected for trial by judge alone in the District Court.

3. On 20 December 2010 a District Court Judge made a finding under s 269FA(5)(b) that Mr Morgan was mentally incompetent to commit the offence charged.

4. The Judge then made a finding under s 269FB(2) that the objective elements of the offence were established. The making of that finding was not opposed by counsel for Mr Morgan.

5. Accordingly, the Judge then made an order under s 269FB(3) that Mr Morgan was liable to supervision under Part 8A of the CLCA.

6. Mr Morgan has appealed against the finding that the objective elements were established. The appeal is available to him under s 269Y(3) of the CLCA, having regard to the definition of “key decision” in s 269Y(4) of the CLCA.

7. In support of the appeal, counsel for Mr Morgan tendered an expert report by Mr Marshall, obtained after the relevant findings were made.

8. That report, if accepted, establishes that in the circumstances outlined in the particulars, there was no danger at all to the life of any person.  What Mr Morgan did, or was said to have done, could not have led to an explosion or fire endangering the life of any person.

9. Counsel for the Director of Public Prosecutions (DPP) does not oppose the Court receiving the report.  Nor does counsel for the DPP resist the conclusion supported by that report.

10. The explanation for the failure to put this evidence before the Court is that everyone assumed that what Mr Morgan did created a risk of an explosion or significant fire, thus endangering life.  Expert evidence was not obtained.  The facts of the offence were assumed.

11. In the interests of justice it is appropriate to receive the report as evidence in the appeal against the finding that the objective elements were established.

12. No other material was put before the Court on the appeal. It is appropriate, exercising the power conferred by s 269Y(5)(a), to allow the appeal and to set aside the finding that the objective elements of the offence were established. Counsel for the DPP does not oppose the making of that order.

13. Accordingly, it is appropriate to find Mr Morgan not guilty of the offence charged.

14. On the material before the trial Judge, it was open to the Judge to find established the objective elements of the offence of attempt to endanger life, the power to do so being conferred by s 269BA of the CLCA.

15. The Information has been amended to include particulars that identify conduct by Mr Morgan that would have endangered life, had he succeeded in what he attempted to do.  That removes the problem that the particulars, as they stood, did not identify an act that could have created a danger to life.

16. Accordingly, exercising the power conferred by s 269Y(5)(c), it is appropriate to record a finding that the objective elements of the offence of attempt to endanger life are established. Counsel for Mr Morgan does not oppose this finding being made.

17. Accordingly, in exercise of the power conferred by s 269Y(5)(c), it is appropriate to make that finding, and to declare Mr Morgan to be liable to supervision under Part 8A of the CLCA.

18. It is appropriate for the Court, acting under s 269O(1) of the CLCA, to make a supervision order committing Mr Morgan to detention.

19. The Court is required by s 2690(2) to fix a limiting term.  That must be a period appropriate if Mr Morgan had been convicted of the offence of attempt.  In arriving at the limiting term, the Court cannot take account of his mental impairment.

20. The maximum punishment for the offence of attempt is 10 years’ imprisonment.  This was a serious offence, or would have been, in that it was an offence which must have caused the other two people involved considerable alarm.  There is no doubt that Mr Morgan’s attempt was frustrated only because the employee had not activated the pump, and the only petrol that came out of the hose was a small amount of residual petrol.  On the other hand, Mr Morgan has had a troubled life, he is still only 27 years of age.  General deterrence is an important factor.

21. I consider that a limiting term of five years is appropriate.  Mr Morgan has been in custody since 22 June 2010, almost one year two months.  In light of that, I would reduce the limiting term to three years ten months.  Accordingly, I would make a supervision order committing Mr Morgan to detention for three years ten months.  I would make the following orders:

    1.on the appeal against the finding that the objective elements of the offence of endangering life were established, order that the report of Mr J Marshall dated 8 June 2011 be admitted;

    2.allow the appeal against the finding that the objective elements of the offence were established;

    3.set aside that finding, and substitute a finding that Mr Morgan is not guilty of the offence of endangering life;

    4.substitute a finding that the objective elements of the offence of attempting to endanger life were established;

    5.pursuant to s 269FB(3), declare that Mr Morgan is liable to supervision under Part 8A of the CLCA;

    6.pursuant to s 269O(1)(b), order that Mr Morgan be committed to detention under Part 8A of the CLCA;

    7.pursuant to s 269O(2) of the CLCA, fix a limiting term of three years ten months, to commence from today.

22. DAVID J (ex tempore):     I agree with the orders proposed by the Chief Justice and I also agree with his reasons.

23. PEEK J (ex tempore):       I agree with the Chief Justice and have nothing to add.