The Queen v Trent Alan WILLIAMS (No 2)
[2011] ACTSC 77
•12 May 2011
THE QUEEN V TRENT ALAN WILLIAMS (NO 2)
[2011] ACTSC 77 (12 May 2011)
CRIMINAL LAW – special hearing – trial by judge alone – accused found to have engaged in the conduct required for the offence.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – orders to be made after special hearing.
Evidence Act 1995 (Cth), ss 184, 190
Crimes Act 1900 (ACT), ss 27, 316, 317, 318, Div 13.2
Criminal Code 2002 (ACT), ss 308, 311
Crimes (Sentencing) Act 2005 (ACT), ss 10, 13, 17
R v Ardler (2004) 144 A Crim R 552
R v Williams [2011] ACTSC 76
EX TEMPORE JUDGMENT
No. SCC 292 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 12 May 2011
IN THE SUPREME COURT OF THE )
) No. SCC 292 of 2010
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
V
TRENT ALAN WILLIAMS
ORDER
Judge: Refshauge J
Date: 12 May 2011
Place: Canberra
THE COURT FINDS THAT:
On the first count in the indictment, Trent Alan Williams engaged in the conduct required for the offence.
On the second count in the indictment, Trent Alan Williams engaged in the conduct required for the offence.
AND THE COURT ORDERS THAT:
The proceedings be adjourned to 9.30 am on 13 May 2011.
The Court Liaison Officer of Mental Health ACT be requested to attend to give evidence about Trent Alan Williams.
On 3 May 2011, I found the accused, Trent Alan Williams, unfit to plead and therefore I am required to hold a special hearing under s 316 of the Crimes Act 1900 (ACT) (the Crimes Act). I then indicated that, on the basis of that finding, I was also satisfied under s 316(2)(a)(i) of the Crimes Act, Mr Williams was capable of making an election for trial by a single judge without a jury and I received an election for him to be tried by a single judge without a jury.
The date for the special hearing was to be set on 9 May 2011. Before that time, the prosecution filed in court a brief of the evidence on which they proposed to rely. That material, being witness statements and photographs, was ultimately tendered at the special hearing and its admission into evidence was by consent.
I formed the view that under either ss 184 or 190 of the Evidence Act 1995 (Cth), Mr Williams understood the consequences of giving a consent to that course of proceeding. Under s 316(1) of the Crimes Act, a special hearing is to be conducted as nearly as possible as if it were an ordinary criminal hearing.
Of course all that has to be determined under s 317 of the Crimes Act is whether I am satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged. Applying this, I then approached the task in the following way.
Sitting as a judge alone I make any finding that could have been made by a jury as to whether Mr Williams engaged in the relevant conduct, and any such finding has the same effect as the verdict of a jury. I am required to include in my judgment principles of law that I apply and the findings of fact upon which I rely.
Where a warning would have been required to be given to a jury where the proceedings are a trial before a judge and jury, I am to take the warning into account when considering my verdict to give myself the general directions that would ordinarily be given to a jury before retiring to consider its verdict.
Mr Williams is entitled to have a fair trial according to law. As the judge of fact as well as the judge of law, it is my function to find the facts and to draw inferences from them, as well as to apply the law to those proven facts.
I must deliver my verdict according to the evidence. The burden of proving that Mr Williams engaged in the relevant conduct lies wholly on the prosecution and no burden at all lies upon him. If Mr Williams makes or points to an explanation which is consistent with innocence, he does not have to prove it, it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.
Mr Williams is presumed not to have engaged in the relevant conduct until at the conclusion of the hearing the evidence establishes that fact. Both the onus and the standard of proof lie upon the prosecution, and the prosecution must prove each and every element of the relevant conduct, whether Mr Williams engaged in it, beyond reasonable doubt.
Where in this judgment I make a finding of a particular fact or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt. It is for the prosecution to prove each and every element of the charge, proved beyond reasonable doubt, before a finding that Mr Williams engaged in the relevant conduct can be made.
If I am satisfied that there may be an explanation consistent with Mr Williams not having engaged in the relevant conduct in respect of either charge in the indictment or I am unsure where the truth lies, then in those circumstances I must find that Mr Williams is not guilty of the offence charged to the level of satisfaction required by the law, and must acquit him in respect of that charge.
The charges
Mr Williams was charged with one count of burglary, an offence under s 311 of the Criminal Code 2002 (ACT) (the Criminal Code) and one count of theft, an offence under s 308 of the Criminal Code. As noted above (at [4]), all that has to be proved is the conduct required for the offences charged. Though not directly relevant because the legislation was there worded slightly differently, I have regard in approaching such a finding, as to what the Court of Appeal said in R v Ardler (2004) 144 A Crim R 552 (at 567; [90]).
The elements of the offence of burglary are that the person:
(a) enters or remains in a building;
(b) as a trespasser;
(c) with intent to commit theft of any property in the building.
This is the conduct required for the offence.
The elements of the offence of theft are that the person must:
(a) dishonestly;
(b) appropriate property;
(c) belonging to another;
(d) with the intention of permanently depriving the other person of the property.
It seems to me that (b), (c) and (d) are the conduct required for the offence.
The Evidence
I have perused carefully the witness statements tendered by the prosecution. On the basis of those statements, I can make the following findings beyond reasonable doubt.
At about 4.00 am on 7 September 2009, the owner of a townhouse in Lyneham awoke to hear what turned out to be an intruder in his house. He disturbed the intruder whom he chased through the kitchen and out into the backyard. The intruder jumped the fence and the owner did not follow but contacted his home security company who called the police.
The owner noted that the following items were missing:
1 x white and silver 30Gb I-pod holding approximately 1800 songs;
1 x black and silver Toshiba laptop computer and brown leather carry bag;
1 x silver Canon camera in a green carry bag;
1 x brown leather wallet containing a small amount of cash and cards.
Police attended and the owner informed them of the intrusion and the missing items. They contacted police communications and provided details of the description of the intruder that the owner had provided.
At about 4.40 am, on that morning, police driving along DeBurgh Street, Lyneham, noticed a male who matched the description that the owner had provided. He was known to the police officers as the accused, Mr Williams. They stopped him and had a conversation with him. He indicated that he had an I-pod with him.
Police, forming the view that Mr Williams may have been involved in the burglary, searched him and located the I-pod. Mr Williams said it was his. He gave to police several different stories about how he obtained it.
The police, who had gone to the townhouse, then attended and arrested Mr Williams. He was taken to the City Watchhouse.
The police then went to Mr Williams’ residence and, with the permission of another occupier, searched it and located a bag, seized as the possible proceeds of a burglary.
The owner of the Lyneham unit later attended the police station with a charger for the I-pod, the battery of which had been discovered to be flat. When charged, the I-pod was operated and the owner identified the contents as those he had placed on it.
Other items seized from Mr Williams were identified by the owner, photographed and returned to him.
On the basis of this material, I am satisfied, beyond reasonable doubt, that Mr Williams engaged in the conduct required for the offences of burglary and theft charged in the indictment.
Disposition
Having made the findings I have, I am required to deal with Mr Williams under s 318 of the Crimes Act. That section applies to what are described as “non-serious offences”. Despite the fact that burglary attracts a maximum penalty of 1400 penalty units, a fine of $154,000 or fourteen years’ imprisonment or both, and theft a maximum penalty of 1,000 penalty units, a fine of $110,000 or imprisonment for ten years or both, they are, in the terms of Div 13.2 of the Crimes Act, non-serious offences.
A serious offence is one that involves “actual threatened violence and is punishable by imprisonment for longer than twelve months” or an offence against s 27(3) or (4) of the Crimes Act; none of the offences with which Mr Williams is charged fall into either category.
As a result, I must act under s 318(2) of the Crimes Act, which provides:
(2)If this section applies, the Supreme Court may make the orders that it considers appropriate, including the following:
(a)that the accused be detained in custody until the ACAT orders otherwise;
(b)that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order.
It appears that I can make a range of orders, but it is entirely unclear what kind of orders other than those specified in that subsection are available. Certainly, orders under the Crimes (Sentencing) Act 2005 (ACT), are unavailable, for those orders apply only where a person is convicted or found guilty of an offence; see for example ss 10(1), 13(1) or 17(1) of that Act. Mr Williams has not been convicted or found guilty of an offence.
Subjective circumstances
Mr Williams was born in Cooma and has no siblings. His mother and father separated when he was six and custody of him was shared. His mother was a sole parent, but his father has re-partnered several times.
He came to Canberra about two years ago as a single man and has never married or been in a de facto relationship. He has no children. Before coming to Canberra he travelled around Australia for about five years. He was educated at boarding school from Year 7, including at an agricultural college. He left school because of lack of motivation, though he is literate and numerate.
He has been a small plant operator and holds certificates to operate a front end loader, an excavator, a backhoe, a bobcat and a forklift. He was, however, last employed about three years ago. Earlier he had work experience with a cabinet maker before moving into small plant machine operating.
As I noted in the reasons for finding him unfit to plead (see R v Williams [2011] ACTSC 76), Mr Williams has been diagnosed with schizophrenia about three years ago, though he did have a psychotic episode in 2000. He was admitted to hospital. He is currently on medication for his schizophrenia including a mood stabiliser and an anti-psychotic.
Mr Williams has a criminal history, including having been sentenced to periods of imprisonment on, it appears, at least three occasions. Ordinarily, offences such as those committed by Mr Williams would attract a prison sentence, particularly with his criminal record.
I have, however, been advised by the Australian Capital Territory Administrative Tribunal (ACAT) that today they made a Psychiatric Treatment Order for Mr Williams, requiring him to undergo psychiatric treatment and undertake a counselling, training, therapeutic or rehabilitation program as directed by the Chief Psychologist.
In the circumstances, however, I have no information about what is proposed by the Chief Psychologist, and it seems to me that it is too early to make a final determination as to whether I should detain him in custody or release him and direct that he submit himself to ACAT.
Accordingly, I propose to adjourn the matter to 9.30 am tomorrow morning and request that the Mental Health Liaison Officer be present to advise me what is proposed in relation to Mr Williams and what is already in place. I can then, if necessary and the relevant information is not available to me at that time, adjourn the matter further to next Wednesday at 9.30 am to determine finally what ultimate orders I should make.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 12 May 2011
Counsel for the Crown: Mr T Hickey
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr K Archer
Solicitor for the defendant: Legal Aid Office (ACT)
Date of hearing: 12 May 2011
Date of judgment: 12 May 2011
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