The Queen v Tracy Anne-Maree Roberts
[2004] ACTSC 46
THE QUEEN v TRACY ANNE-MAREE ROBERTS [2004] ACTSC 46 (15 June 2004)
CRIMINAL LAW – accused found unfit to plead – special hearing of charges – circumstantial case – satisfaction beyond reasonable doubt that the accused “committed the acts which constitute the offence charged”, Crimes Act 1900 (ACT), s 316(9)(c) or “engaged in the conduct required for the offence charged”, Crimes Amendment Act 2004 (ACT) s 5.
Crimes Act 1900 (ACT), s 315, s 316, s 337
Supreme Court Act 1933 (ACT), s 68C
Crimes Amendment Act 2004 (ACT)
Criminal Code (ACT), s 13
The Queen v Ardler [2004] ACTCA 4,(unreported, 30 March 2004, Higgins CJ, Gray and Whitlam JJ)
No. SCC 32 of 2001
Judge: Gray J
Supreme Court of the ACT
Date: 15 June 2004
IN THE SUPREME COURT OF THE )
) No. SCC 32 of 2001
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
against
TRACEY ANNE-MAREE ROBERTS
ORDER
Judge: Gray J
Date: 15 June 2004
Place: Canberra
THE COURT ORDERS THAT:
In light of these findings, the parties be heard further in this matter.
Tracey Anne-Maree Roberts was charged on indictment that on 30 December 2000 at Canberra in the Australian Capital Territory that she robbed Elia Faraj of $90.00 and at the time of doing so had with her an offensive weapon, namely a pair a scissors.
At a directions hearing on 24 May 2001, Crispin J was satisfied that there was a question as to the accused’s fitness to plead to the charge and he ordered that she submit to the jurisdiction of the Mental Health Tribunal to determine whether or not she was fit to plead.
Over the next 18 months, for reasons that are not material at this stage, further orders were made of a similar nature and on 24 April 2003 the Mental Health Tribunal determined that the accused was not fit to plead and was unlikely to become fit within 12 months.
That finding requires this court to deal with this matter pursuant to the provisions of Division 13 of the Crimes Act 1900 (ACT). Section 315 of that Act requires the court to conduct a special hearing for the purpose of the court being satisfied beyond reasonable doubt that the accused committed the acts that constitute the offence charged. The hearing is to be conducted as nearly as possible as if it were an ordinary criminal proceeding and the accused is to be taken to have pleaded not guilty in respect of the offence charged. The finding that the accused committed the acts which constitute the offence charged, does not result in a conviction but rather a “non-acquittal”. In that circumstance, the Act provides the mode with which such person is to be dealt. On the other hand, on a finding being made that the accused did not commit the acts which constitute the offence charged, the accused is to be found not guilty of the offence charged and is to be dealt with as if the accused had been found not guilty at an ordinary trial.
The Act makes provision for the trial to take place either before a jury or by Judge alone where an accused makes an election for that latter circumstance. That election must be made before the court first fixes a date for hearing. In this case, such an election was made on the accused’s behalf by a guardian appointed for that purpose and I proceeded with the special hearing on that basis.
The accused was asked to plead to the charge but was taken to have pleaded not guilty by reason of s 316(8) of the Crimes Act 1900 (ACT).
As this special hearing is to be conducted as nearly as possible as if it were an ordinary criminal proceeding, I consider that the provisions of s 68C of the Supreme Court Act 1933 (ACT) apply. That section enables me to make any finding that could have been made by a jury as to the guilt of an accused person. Although in these proceedings I do not make a finding of “guilty”, a finding of not guilty has the consequence of an acquittal. Accordingly, it is appropriate that my judgment in the matter is to include the principles of law that I have applied and the findings of fact upon which I rely. I consider that I also must take into account any warnings that might be required to be given to a jury had a jury tried the matter.
As in a criminal trial, the accused is entitled to the presumption of innocence. The prosecution bears the onus of proof and the standard of proof is proof beyond reasonable doubt.
The incident which gave rise to the charge in this matter commenced with Canberra Cabs receiving a booking in the name of “Roberts” to go to Wanniassa from the Lyneham Shops Chemist. The booking was assigned to Taxi 193 driven by Elia Faraj. The pick-up is recorded at 2.59 pm.
The taxi driver, Mr Faraj, gave evidence before me of the pick-up, described the person he had picked up as dark and “could be Aboriginal”, “short”, “a little bit fat”, with a “short and black hairstyle”. He said that she was wearing a blue dress without sleeves and had some bruises on her arm. She was not wearing shoes. He said that he took her to 4 Morrison Street, Kambah and when they arrived she said that she would go and bring him the money for the fare. He said that she entered the house and returned after a “short while”. He said that when she returned she made an excuse about her boyfriend coming to pay him. After a discussion, he said that “she point something like a knife and she started waving it in front of my face”. He said that she continued doing that and pulled the bag of money that was hanging on the steering wheel towards her. In cross-examination he said that he could not be 100% sure that the object that had been waved at him was a knife.
Subsequently, a bit after a month later, the police conducted a photo identification with Mr Faraj. That photo identification resulted in him identifying a photo of the accused but with a number of qualifications. He initially narrowed the choice down to two photographs, then picked the photograph of a person not the accused, and then picked the one which was. His ultimate identification was that the photograph that he had finally picked looked like the accused but that he was not sure 100% that it was her. He placed some significance on the look of the eyes in the photograph. He was still not 100% sure.
The value of an identification having regard to these circumstances is understandably undermined. It was put by Mr Edmonds, on behalf of the accused, that the evidence is so unreliable that I should place little weight upon it. He referred, in particular, to the relatively short length of time pointing particularly to the amount of notice that Mr Faraj might have had to see the accused and the momentary nature of the incident. He referred also to the uncertainty, generally, expressed by Mr Faraj when he was being asked to identify the accused from the photographs. He also placed emphasis on the fact that there was nothing particularly unique about the accused, although he conceded that the description, in general terms, described a person similar to the accused. Nevertheless, his submission was that some other person could have matched that description.
I appreciate the dangers of acting upon identification evidence generally and, in this case, having regard to those dangers which Mr Edmunds has identified, as evidencing how unreliable such evidence might be.
In this case, there appears to me to be such a strong circumstantial case that the evidence concerning the identification adds little to it. I am prepared to put to one side that one of the photos that Mr Faraj picked out was that of the accused and to only act on the fact that both photos depicted a person similar to the accused. What it may add relates to the circumstantial aspect of the prosecution case rather than being direct evidence of the accused’s involvement. As direct evidence, it may not establish anything. As circumstantial evidence, it demonstrates that a photograph of the accused seen by Mr Faraj was similar to the appearance of the person who he says was involved in the incident. Having regard to the warnings which I must give myself concerning the unreliability of direct identification evidence, I would not be prepared to put the evidence on any higher plane than this.
However, the circumstantial case against the accused is, to my mind, overwhelming. The prosecution called Ms Clark, the resident at 4 Morrison Street, Kambah. She has known the accused for some time. Her evidence was that on 30 December 2000, Tracey visited her residence and asked for a pair of scissors, which she gave her. About 20 minutes after the robbery took place, the police attended at her house and she told them that the only visitor that she had had was the accused. It is not challenged that the police attended her premises about 20 minutes after the incident. No evidence was given of any other person attending the premises. She also said that the accused was wearing a sleeveless frock.
A short time after the police had attended at the premises, the accused was observed walking towards the front door. In the statements tendered before me by consent, one of the police officers records observations of bruising of the upper arms, no shoes and a sleeveless dress. Two other police officers record the accused as wearing no shoes with a sleeveless dress. I have no occasion to doubt the reliability of Mr Faraj’s evidence of the incident itself or his observations at the time of the person who perpetrated it. Likewise, his evidence that the perpetrator entered the premises at 4 Morrison Street, Kambah, taken with the evidence of Ms Clark that the accused came to those premises and that she gave her a pair of scissors, is equally undesirable. There seems to me to be only one inference that can be drawn from these circumstances and that is that it was the accused who was the person who pointed something like a knife at Mr Faraj and took his money. I cannot see that I could arrive at any other conclusion that would be consistent with the accused not being the person involved in the incident.
The question that was fundamental to this special hearing was the question of whether it was the accused who committed the acts that constitute the offence charged. The acts, as deposed to by Mr Faraj, clearly established a robbery with an offensive weapon. Nothing was put to me to suggest otherwise. Accordingly, I am satisfied beyond reasonable doubt, that the accused committed the acts that constitute the offence charged.
Since this matter was first set for hearing and partly heard on 10 October 2003, the Crimes Amendment Act 2004 (ACT) was enacted which made some significant changes to the provisions in Division 13 of the Crimes Act 1900 (ACT) concerning unfitness to plead, mental illness and mental dysfunction. In the meantime, also, the Court of Appeal considered in The Queen v Ardler [2004] ACTCA 4, (unreported, 30 March 2004, Higgins CJ, Gray and Whitlam JJ) matters concerning what might be encompassed in the expression in the legislation “the acts that constitute the offence charged”. Section 337 of the Crimes Act 1900 (ACT) now specifically provides that the amendments occasioned by the Crimes Amendment Act 2004 (ACT) apply in relation to a hearing that takes place after the commencement of that Amendment Act regardless of when the person accused was found unfit to plead. The decision in Ardler does not effect a consideration of this matter, nor are there any circumstances raised which would suggest that any of the issues considered in that case are applicable to this case.
This is a hearing which commenced before the Crimes Amendment Act 2004 (ACT) was enacted, although it is being completed after it has application. The requirement that the person must have “committed the acts which constitute the offence charged” has been replaced with “engaged in the conduct required for the offence charged”. Both “conduct and engage in conduct” are expressions defined by reference to s 13 of the Criminal Code (ACT) –
conduct means an act, an omission to do an act or a state of affairs.
engage in conduct means –
(a) do an act; or
(b) omit to do an act.
Insofar as it is material, I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged.
I shall further hear the parties in light of these findings.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate
Date: 15 June 2004
Counsel for the Prosecution: Mr D Sahu Khan
Solicitor for the plaintiff: Director of Public Prosecutions (ACT)
Counsel for the defendant: Mr P Edmonds
Solicitor for the defendant: South Eastern Aboriginal Legal Service
Date of hearing: 2 June 2004
Date of judgment: 15 June 2004
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