R v Williams (No 2)
[2022] ACTSC 181
•20 July 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Williams (No 2) |
Citation: | [2022] ACTSC 181 |
Hearing Dates: | 8-9 June, 8 September 2021; 14 April, 19-20 July 2022 |
DecisionDate: | 20 July 2022 |
Before: | Elkaim J |
Decision: | 1. Ms Williams is found not guilty because of mental impairment of the offences of aggravated burglary and assault occasioning actual bodily harm. 2. Ms Williams is ordered 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. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Judgment – judge alone trial – special verdict because of mental impairment |
Legislation Cited: | Crimes Act 1900 (ACT) ss 308, 323, 324 Criminal Code 2002 (ACT) ss 27, 28 |
Cases Cited: | R v McIver; R v Williams [2021] ACTSC 227 |
Parties: | The Queen (Crown) Julieann Frances Williams (Accused) |
Representation: | Counsel B Morrisroe (Crown) J Tyler-Stott and D McMahon (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ken Cush & Associates (Accused) | |
File Number: | SCC 279 of 2020 |
ELKAIM J:
This matter commenced as a trial of co-accused, being Ms Williams (the accused now before the Court) and Mr Anthony McIver. In a decision given on 9 September 2021 I acquitted Mr McIver (R v McIver; R v Williams [2021] ACTSC 227).
The above decision sets out the background to the matter and the reasons that Ms Williams came to be dealt with separately. The decision should be read together with this judgment. Initially Ms Williams’ defence was that she had not been involved in the assault that was at the core of the charges. She denied that she was the person seen in CCTV footage of the relevant scene. This created a somewhat odd scenario because Mr McIver accepted that he had been with Ms Williams on the day and that he is present in the footage. He denied however, that he had committed any crime while present.
In order to understand the shift in the position adopted by Ms Williams, I think it convenient to quote from the above decision:
19.On 1 July 2021 I was informed that the matter could proceed on 8 September 2021. Nevertheless the case took yet another turn. By an Application dated 7 September 2021 Ms Williams sought an adjournment with the ultimate purpose that a verdict of Not Guilty by reason of mental impairment be entered in her case. The application was supported by an affidavit of Ms Jorgensen-Hull affirmed on 7 September 2021. The affidavit annexes a report of Dr Harrison, a clinical psychiatrist, dated 2 September 2021. Ms Williams has been consulting Dr Harrison for some time.
20.In her report Dr Harrison says that at the time of the alleged offending Ms Williams was suffering a mental impairment. In particular she says that Ms Williams did not know the nature and quality of her conduct, she did not know her conduct was wrong and she “was not aware enough to control the event or be aware enough to think about or contemplate the wrongness of her behaviour”. In other words, if accepted, Dr Harrison’s opinion would go a long way to achieving the result sought by Ms Williams.
21.The Crown, having been very recently served with the application and the report, was not in a position to challenge Dr Harrison’s opinion. Accordingly Ms Williams case was adjourned.
22.However both the Crown and Mr McIver wished to proceed with Mr McIver’s case. I agreed that this course was appropriate. It is important to note that Ms Williams, in the history given to Dr Harrison accepted that she was present during the alleged offences. This of course is precisely the opposite to the stance she had previously adopted. Although not strictly admissible in Mr McIver’s case, Ms Williams history is consistent with his case of being present as well.
23.I did not make an order formally severing the two cases but did continue with Mr McIver’s case and adjourn Ms William’s case. In light of the history given to Dr Harrison I would not expect the case to continue on the basis that Ms Williams was not present when the offences occurred. Rather any continuing dispute is likely to be about whether or not she was suffering a mental impairment.
As anticipated Ms Williams’ trial continued as envisaged, but with this exception. The matter had been re-listed to continue on 14 April 2022. The first thing to occur on this date was a ‘Basha’ inquiry of Mr McIver. The Crown wished to ascertain whether he might be of assistance on the issue of Ms Williams’ mental condition on 3 September 2020, the date the alleged offences occurred.
Suffice to say Mr McIver was of no assistance and was not called by the Crown in its continuing case.
Unfortunately, following the evidence of Mr McIver, and during a short adjournment, Ms Williams took ill. But fortunately, Dr Harrison was present and able to minister to the ailing Ms Williams who left the Court for further treatment. In short, the matter could not continue and was adjourned until 29 April 2022 for mention, in order to ascertain Ms Williams’ condition and set a fresh hearing date.
On 29 April 2022 the matter was set down to continue on 19 July 2022.
When the matter resumed on 19 July 2022, in addition to the evidence called when Mr McIver was a co-accused, the Crown relied on some further documents. In addition the Crown relied upon the report of a forensic psychiatrist, Dr Le. Dr Le’s report, dated 29 June 2022, is a response to the report of Dr Harrison.
For purposes of the continuation of the trial, namely to resolve the issue of whether a defence was available under s 28 of the Criminal Code 2002 (ACT) (Criminal Code), no distinction is made between the two counts in the indictment. Ms Williams was either guilty of both, or not guilty of both because of mental impairment.
It is important to note here that consistent with my findings in Mr McIver’s case, Ms Williams’ involvement in the events on 3 September 2020 was no longer in issue. Put bluntly, she conceded all of the elements of the two offences with which she had been charged, namely burglary and assault occasioning actual bodily harm.
The defence case, as it had become, was entirely constituted by the report of Dr Harrison, a clinical psychiatrist. The evidence of Dr Harrison, through her report and her oral evidence, was relied upon by Ms Williams to establish that she was not criminally responsible for the offending as required by s 28. Under this section the onus was on her, on a balance of probabilities, to establish the defence.
Section 27 of the Criminal Code contains a definition of mental impairment. Dr Le and Dr Harrison agreed that at the time of the offending Ms Williams was suffering from a mental impairment. Their views differed on the application of s 28(1), in particular whether or not the mental impairment:
(1)…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.
Dr Harrison’s report contains the results of a psychiatric examination including a detailed account of Ms Williams condition before September 2020. There is an overwhelming history of abuse underlying a history of substance abuse.
I note here that Dr Harrison has been treating Ms Williams for over 20 years and is very familiar with her and her condition. Dr Harrison accepted a ‘bias’ in favour of the accused, but was adamant that in preparing her report and giving her oral evidence, she viewed her duty as being to the Court. I am satisfied that her views may be taken as deriving from an objective assessment of the relevant issues.
It is also notable that, for purposes of preparing her report, Dr Harrison needed to see Ms Williams on three separate occasions before she was able to obtain a coherent picture of the offending. Dr Le only had the benefit of a 40-minute telephone interview.
In her report, Dr Harrison gives a detailed history of the abuse before moving on to her opinion about whether Ms Williams “suffered a mental impairment at the time of the alleged offending”.
The doctor’s written opinion about the three options in s 28(1) was as follows:
A. Know the nature and quality of her conduct;
From her presentation today I don’t believe that Ms Williams, at the time of her offense, was fully ware of the nature and quality of her conduct. The way she presented today, whilst recounting the event, had an impulsive and dissociative quality about her, which is quite typical of the dissociation she was likely experiencing at the time of the event. Dissociation comprises a number of ways of being disconnected from a conscious awareness and temporality of events, in times of extreme distress, that affects self-state (identity), level of consciousness or awareness, memory and perception. Examples of a dissociative experience are Depersonalization and Derealisation (I have given her statements as examples of these in the body of notes). Dissociation is a common symptom of severe Borderline Personality Disorder (see below, DSM-5, Diagnostic Manual of Mental Disorders-5, American Psychiatric Press, 2013).
B. Know the conduct was wrong with a moderate degree of sense and composure; and
Julieann was aware, from this presentation, but after the event, that she had done wrong, but until discovering the police had taken her car the next day, it was a sense “I’ve done something …f/’d up”. The understanding of it was disconnected and was only in implicit (unconscious) memory, not known (explicit conscious memory) until after the event was “acted-out” of awareness. She certainly, from her presentation today, essentially reliving the event in telling the story, did NOT have a moderate degree of sense and composure. Her mental state showed her to be dissociated and shamed by the event, an indication of some recognition of the event, and responsibility for her role in the event. When asked about the index offense, she said with some resignation “Just as she said” (i.e. meaning the statement of facts by TS), but I asked her to tell me what she remembered: she described a number of examples of dissociated experience: “only pieces…it just happened …I snapped….I heard screams…feels like I’m not there, standing outside, looking….feeling empty”.
C. Whether she could control the conduct contemplate the wrongfulness of her actions with a moderation degree of sense and composure and the time of the alleged offences.
At the material time of the offense she was not aware enough to control the event or be aware enough to think about or contemplate the wrongness of her behaviour, and this was not associated with a moderate degree of sense and composure (see above). That she took some responsibility for her actions is contained in the phrase: “I just need to walk away when I get upset”.
The doctor then sets out her diagnosis of Ms Williams’ condition. She says that she was suffering from a borderline personality disorder and opioid dependence.
Dr Harrison was cross-examined. Perhaps the high point of the cross-examination was the apparent concession that she could not say it was more likely than not that Ms Williams knew the nature and quality of her conduct and she could not say it was more likely than not that Ms Williams did not know that the conduct was wrong. The latter concession was somewhat watered-down in re-examination when Dr Harrison said she did not think that Ms Williams knew what she was doing at the moment of the offending.
More importantly Dr Harrison was firm in her view that Ms Williams did not have control of her conduct. The three options in s 28(1) are in the alternative, so the establishment of any one of them, on a balance of probabilities, is sufficient to prove the defence.
The Crown was clearly as impressed as I was by Dr Harrison’s evidence because prior to the cross-examination of Dr Le the Crown informed the Court that it would not oppose a verdict of not guilty because of mental impairment.
Notwithstanding the Crown’s approach, it is still necessary for the Court to reach a finding that a special verdict is appropriate.
On the basis of Dr Le’s report, I would have preferred the evidence of Dr Harrison. I make the following comments arising from Dr Le’s opinion:
(a)It is significant that the ‘weakest’ part of Dr Le’s opinion arises in respect of whether or not Ms Williams could control her conduct. Dr Le examined the CCTV footage of the incident (Exhibit D). He wrote, at [535]:
There was no evidence from this footage that suggested that Ms Williams was lacking in her capacity to control her behaviour. Each of the acts that she was seen to have engaged in, from driving the vehicle to the house, exiting the vehicle, yelling at the alleged victim, approaching the alleged victim, making physical contact with the alleged victim, entering the alleged victim’s residence, leaving the residence, returning to the vehicle and then driving off, appeared to Oak her voluntarily. There was no evidence to suggest motor discoordination, illogical sequencing or confusion in relation to her behaviour at the time of the alleged offending that was consistent with a lack of voluntariness or lack of control.
(b)Dr Harrison had seen the CCTV footage before giving evidence, but viewed it again in the witness box. Her opinion was that the sort of conclusions made by Dr Le were simply impossible to reach having regard to the distance from which the footage was shot. For example it would be impossible to reach a conclusion about confusion by simply watching the accused in the CCTV.
(c)Further, said Dr Harrison, the footage was consistent with the borderline personality disorder suffered by Ms Williams to the extent that it showed her to be driven in her behaviour, yelling at people and hitting people. She said that Ms Williams could easily have been in a dissociative state during the entire episode.
(d)Dr Harrison had earlier said that Ms Williams was unable “to step back” and to say “this is not a great thing to do at this moment”. She continued:
She would’ve been so emotionally unwell and overwhelmed, if you like, that the borderline personality disorder would stop her being able to self-soothe and calm herself down enough - - - (Transcript page 16.15)
(e)Dr Le, in respect of control, also pointed out that Ms Williams’ colleagues did not try to deter her from assaulting the victim or going onto the property. He continued:
This suggested that the behaviour of Ms Williams was not unintended, unexpected, or out of character, and thus unlikely to have occurred in a state where she was lacking control of her actions.
(f)I found this assertion to be something of a quantum leap from the actions of the other two persons to whether or not Ms Williams had control of what she was doing. Absent, for example, the understanding of the other two persons about why the victim was being visited, the leap is simply untenable.
(g)In respect of knowing the nature or quality of her conduct, Dr Le referred to text messages that had been exchanged with the victim about two weeks before the incident and to the accused’s clinical notes, in particular on the day of the offending (Exhibit E).
(h)In relation to the text messages, Dr Harrison correctly observed that they did not display “linear thinking” and further that their content displayed a good example of a person suffering from a borderline personality disorder.
(i)As to the notes, Dr Harrison explained that they were generally aimed at establishing whether or not the accused was in a suitable state for the administering of certain medication. In addition it is to be noted that, on 2 September 2020, within the space of half an hour the accused gave absolutely contradictory answers concerning her use of opioids. Further, on this day, the notes say “[s]he then became irritated and walked out, saying she needs to see Dr Nadeem”. Then, on the next day (the day of the offending), the notes include a complaint “of being slightly anxious with hallucinations (seeing stars)”.
(j)Dr Le also pointed to “longitudinal evidence” to the effect that the accused’s criminal history suggested “a well-established pattern of Ms Williams using threats of violence to resolve conflict with others”. The reasoning continued that the offending was therefore not “out of character, irrespective of any exacerbation of borderline personality disorder”.
(k)Ms Williams’ criminal record is part of Exhibit F. The history of previous assaults and threats does not establish that on 3 September 2020, Ms Williams was not acting as a result of her mental impairment.
(l)Dr Le said that her actions were not explained by “any exacerbation of borderline personality disorder.” However when he gave his diagnosis of her mental state at the time of the offending he not only included a borderline personality disorder, but added an opioid use disorder, an anxiolytic disorder and a stimulant use disorder. As explained by Dr Harrison, the accused’s mental condition at the time of the offending was a conglomeration of her disorders. Dr Harrison gave this oral evidence:
Well, it could – it does – it does combine both the borderline personality disorder which, if triggered, can come into much more prominence, rather than less prominence, but the – where she would be in the matter of being intoxicated or withdrawing from – from heroin would be hard. The other thing is, at the time she was using a number of other oral preparations that have a longer lasting effect like Clonazepam is a very long-acting benzodiazepine. One dose takes five weeks to get out of the system, and so it – it wouldn't fluctuate as much as, say, heroin might. (Transcript page 12.1)
(m)Accordingly, her actions on 3 September 2020 could not necessarily be classified by reference to any other offending she had committed at some earlier time.
My preference for Dr Harrison’s opinion is sufficient to establish, on the balance of probabilities, that the defence under s 28 has been made out. I therefore find the accused not guilty by reason of mental impairment.
This finding brings into play Division 13.3 of the Crimes Act 1900 (ACT). The first step is to distinguish between the respective applicability of ss 323 and 324. This requires the answering of the question of whether or not the offence was “serious”.
A serious offence is relevantly defined in s 300 as “an offence involving actual or threatened violence and punishable by imprisonment for longer than 12 months.” The charges in this case were aggravated burglary and assault occasioning actual bodily harm. They qualify as being serious.
Section 324 dictates that:
324Supreme Court orders following special verdict of not guilty because of mental impairment—serious offence
…
(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.
Before making any order under s 324 it is necessary to consider s 308. Although Dr Harrison said Ms Williams was susceptible to triggers which might prompt a violent reaction, the overwhelming evidence is that returning her to custody would be a massively retrograde step.
Ms Williams is currently under the care of Dr Harrison and the Winnunga Nimmityjah Aboriginal Health Service. I have also noticed that she is had the continued support of members of the service including its Chief Executive, Ms Julie Tongs.
I therefore think that the health and safety of Ms Williams “is likely to be substantially impaired” if she is returned to custody. I think this factor significantly outweighs any danger to the community.
I make the following orders:
(i)Ms Williams is found not guilty because of mental impairment of the offences of aggravated burglary and assault occasioning actual bodily harm.
(ii)Ms Williams is ordered 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.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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