The Queen v Malcolm Dunn - [2011] ACTSC 84

THE QUEEN V MALCOLM DUNN
[2011] ACTSC 84 (12 May 2011)

CRIMINAL LAW – jurisdiction practice and procedure – accused unfit to plead or becoming unfit during trial – accused found unfit – special hearing – accused engaged in conduct required for charged offences.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming unfit during trial – election for trial by judge alone – need for court to indicate whether accused can elect for trial by judge alone – expression of opinion by guardian – need for proper method of expressing opinion.
CRIMINAL LAW – jurisdiction practice and procedure – accused unfit to plead or becoming unfit during trial – accused unfit to plead – special hearing – accused found to have engaged in conduct required for charged offences – disposition – whether other orders available – orders when multiple offences involved.

Evidence Act 1995 (Cth), ss 184, 190

Crimes Act 1900 (ACT), ss 27, 301, 303, 11, 315, 316, 317, 318, Div 13.2
Criminal Code 2002 (ACT), ss 308, 311, 318
Crimes (Sentencing) Act 2005 (ACT), ss 10, 13, 14, 16, 17, 19, 27

R v Ardler (2004) 144 A Crim R 552

EX TEMPORE JUDGMENT

No. SCC 176 of 2010
No. SCC 176A of 2010
No. SCC 257 of 2010
No. SCC 154 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 12 May 2011

IN THE SUPREME COURT OF THE     )          No. SCC 176 of 2010
  )                SCC 176A of 2010
AUSTRALIAN CAPITAL TERRITORY           )                SCC 257 of 2010

SCC 154 of 2011
THE QUEEN
V
MALCOLM DUNN

ORDER

Judge:  Refshauge J
Date:  12 May 2011
Place:  Canberra

THE COURT FINDS THAT:

Mr Dunn has engaged in the conduct required for count 1 on the indictment in proceedings SCC 176/10.

Mr Dunn has engaged in the conduct required for count 2 on the indictment in proceedings SCC 176/10.

On the sole count on the indictment in proceedings SCC 176A/10, Mr Dunn has engaged in the conduct required for that offence.

Mr Dunn has engaged in the conduct required for count 1 on the indictment in proceedings SCC 257/10.

Mr Dunn has engaged in the conduct required for count 2 on the indictment in proceedings SCC 257/10.

Mr Dunn has engaged in the conduct required for count 1 on the indictment in proceedings SCC 154/11.

Mr Dunn has engaged in the conduct required for count 2 on the indictment in proceedings SCC 154/11.

AND THE COURT ORDERS THAT:

Mr Dunn be detained in custody until the ACT Civil and Administrative Tribunal (ACAT) orders otherwise, but in any event, for not more than five years from 29 January 2010.

It be indicated that, were the proceedings normal criminal proceedings against a person fit to be tried and convicted of these offences, the sentences that would have been imposed would be:

(a) for each charge of burglary, a sentence of two years’ imprisonment;

(b) for each charge of theft, a sentence of twelve…

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: [2011] ACTSC 84
Decision Date

CaseChat Overview and Summary

Malcolm Dunn was charged with a series of offences, including burglary, theft, and driving a motor vehicle without the owner's consent. The Supreme Court of the Australian Capital Territory found Dunn to be unfit to plead due to his chronic paranoid schizophrenia. A special hearing was conducted to determine whether Dunn engaged in the conduct required for the charged offences. The court found Dunn guilty of all charges. The court was required to decide on the appropriate disposition for Dunn, considering his unfitness to plead and the nature of the offences. The court considered the seriousness of the offences and Dunn's criminal history, which included multiple dishonesty offences, burglary, and drug use. The court also took into account Dunn's mental health condition and the need for appropriate support and treatment.

The court's reasoning was based on the provisions of the Crimes Act 1900 (ACT) and the Evidence Act 1995 (Cth). The court found that Dunn was unfit to plead and that a special hearing was necessary to determine whether he engaged in the conduct required for the charged offences. The court applied the principles of law and findings of fact to make its determination, taking into consideration the evidence presented by the prosecution and the defence. The court also considered the appropriate sentence that would have been imposed if Dunn was fit to be tried and convicted of the offences.

The court ordered that Dunn be detained in custody until the ACT Civil and Administrative Tribunal (ACAT) orders otherwise, but in any event, for not more than five years from 29 January 2010. The court also indicated that, were the proceedings normal criminal proceedings against a person fit to be tried and convicted of these offences, the sentences that would have been imposed would be: two years' imprisonment for each charge of burglary, twelve months' imprisonment for each charge of theft, and twelve months' imprisonment for the charge of driving a motor vehicle without consent from the owner. The sentences were to be made partly cumulative and partly concurrent to lead to a total sentence of five years imprisonment from 29 January 2010 when Dunn was first taken into custody.

Orders