R v Walker - [2021] ACTSC 42

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Walker

Citation:

[2021] ACTSC 42

Hearing Date:

24 March 2021

Decision Date:

25 March 2021

Before:

Mossop J

Decision:

1.	On count one (SCCAN2020/46) the verdict of not guilty is to be entered.
2.	On count two (SCCAN2020/47) the special verdict that the accused is not guilty because of mental impairment is to be entered.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – attempted murder – – not guilty of attempted murder – intention to kill not established

beyond reasonable doubt – intentionally inflict grievous bodily harm – mental impairment – special verdict – not guilty of inflicting

grievous bodily harm by reason of mental impairment

Legislation Cited:

Crimes Act 1900 (ACT), ss 12(1), 19, 302, 324
Criminal Code 2002 (ACT), ss 27, 28, 44
Mental Health Act 2015 (ACT), ss 80, 85

Cases Cited:

R v Islam [2011] ACTSC 32
R v Mulcahy [2010] ACTSC 98
R v Sidaros (No 5) [2020] ACTSC 354
R v Yon Soo Choe [2005] ACTSC 83

Parties:

The Queen (Crown)
Russell Walker (Accused)

Representation:

Counsel

R Christensen (Crown)

J White SC (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)
ACT Legal Aid (Accused)

File Numbers:

SCC 41 of 2020

SCC 42 of 2020

MOSSOP J:

Introduction

1. The accused, Russell Walker, pleaded not guilty to the following charges:

(a) count one: attempted murder (SCCAN2020/46) contrary to s 12(1) of the Crimes Act 1900 (ACT) by virtue of s 44 of the Criminal Code 2002 (ACT).
(b) count two: in the alternative, intentionally inflicting grievous bodily harm (SCCAN2020/47) contrary to s 19 of the Crimes Act 1900 (ACT).

2. In relation to the charge of attempted murder, the plea was a plea of not guilty, or in the alternative, not guilty by reason of mental impairment. In relation to the charge of intentionally inflicting grievous bodily harm, the plea was of not guilty by reason of mental impairment.

Procedure

3. On 16 February 2021 the accused made an election for trial by judge alone.

4. The evidence at trial was documentary and was tendered by consent. It involved a Statement of Facts which were agreed and admitted by the accused as well as various statements, transcripts, photographs and reports. Those statements, transcripts, photographs and reports were tendered on the basis that they were not intended to contradict the Agreed Statement of Facts. The additional evidence did, however, permit submissions as to additional factual matters relevant to the issues in the trial.

5. The substantial issues at trial were whether or not:

(a) the Crown had established beyond reasonable doubt that the accused intended to murder the victim as opposed to intending to intentionally inflict grievous bodily harm upon him;
(b) the accused had established on the balance of probabilities that he was not criminally responsible because of the operation of s 28 of the Criminal Code.

6. I have given myself the directions as…

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.

Continue reading R v Walker

Details

AGLC: R v Walker [2021] ACTSC 42
Case: [2021] ACTSC 42
Decision Date

CaseChat Overview and Summary

The case of R v Walker was heard by Mossop J in the Supreme Court of the Australian Capital Territory. The accused, Russell Walker, pleaded not guilty to charges of attempted murder and intentionally inflicting grievous bodily harm, or in the alternative, not guilty by reason of mental impairment. The trial was conducted by a judge alone, and the evidence presented was documentary and admitted by the accused. The key issues were whether the Crown had established beyond reasonable doubt that the accused intended to murder the victim and whether the accused had established on the balance of probabilities that he was not criminally responsible due to mental impairment.

Regarding the attempted murder charge, the court found that the accused had carried out conduct more than merely preparatory, intended to engage in that conduct, and intended to cause death. However, the court was not satisfied beyond reasonable doubt that the accused intended to kill the victim as opposed to inflicting grievous bodily harm. The evidence did not exclude the reasonable possibility that the accused intended to inflict grievous bodily harm but not to kill the victim. Therefore, the verdict on count one was not guilty.

For the charge of intentionally inflicting grievous bodily harm, the court found that the accused was suffering from a mental impairment at the time of the offence, specifically schizophrenia. The mental impairment had the effect that the accused did not know that the conduct was wrong, and thus he was not criminally responsible for the offence. The appropriate verdict was the special verdict that the accused was not guilty because of mental impairment.

The final orders of the court were to enter a verdict of not guilty on count one and a special verdict on count two. The proceedings were adjourned to allow for the making of an order under s 324(2) of the Crimes Act and to hear submissions on the appropriate nominated term for the purposes of s 302 of the Crimes Act.

Orders