R v Clements [2006] ACTSC 44 (15 May 2006)

Last Updated: 22 May 2006

R v CURTIS JAMES CLEMENTS [2006]

ACTSC 44 (15 May 2006)

CRIMINAL LAW - accused found unfit to plead and unlikely to become fit to plead within 12 months - special hearing - question of whether accused engaged in conduct required by offence - general principles.

Crimes Act 1900 (ACT), ss 23V, 311, 315, 316, 316(2), 316(8), 317, 319(2)

Guardianship and Management of Property Act 1991 (ACT)

Supreme Court Act 1933 (ACT), s 68C

Evidence Act 1995 (Cth), s 144

R v Ardler [2004] ACTCA 4 (30 March 2004)

No SCC 140 of 2004

Judge: Crispin J

Supreme Court of the ACT

Date: 15 May 2006

IN THE SUPREME COURT OF THE )

) No. SCC 140 of 2004

AUSTRALIAN CAPITAL TERRITORY )

R

v

CURTIS JAMES CLEMENTS

ORDER

Judge: Crispin J

Date: 15 May 2006

Place: Canberra

THE COURT FINDS THAT:

1. The accused is not guilty of the offence charged, namely that on 22 June 2003 he robbed Mr Stewart Thomas Shannon of approximately $335.00 and at the time of doing so had in his possession an offensive weapon, namely a syringe.1. This is a special hearing conducted pursuant to s 315 of the Crimes Act 1900 ("the Act") in relation to an indictment alleging that on 22 June 2003 the accused robbed Mr Stewart Thomas Shannon of approximately $335.00, and at the time of doing so had in his possession an offensive weapon, namely a syringe.

2. On 10 August 2005, I found that the accused was not fit to plead to the charge and was unlikely to become fit to plead within twelve months.

3. This was a significant finding. Section 311 of the Act provides that a person is unfit to plead only if the person's mental processes are disordered or impaired to the extent that the person cannot --

(a) understand the nature of the charge; or

(b) enter a plea to the charge and exercise the right to challenge jurors or the jury; or

(c) understand that the proceedings are an inquiry as to whether the person committed the offence; or

(d) follow the course of the proceedings; or

(e) understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f) give instructions to the person's lawyer.

4. An accused found unfit to plead may not be exposed to conviction or punishment for the alleged offence but, when there has been a finding that he or she is unlikely to become fit to plead within twelve months, a special hearing may be conducted in relation to the indictment. Section 317 of the Act provides that if at such a hearing the court is not satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence), then the accused must be found not guilty and dealt with as if found not guilty at an ordinary trial. On the other hand, a finding that the accused has engaged in such conduct does not result in a finding of guilt. A finding to that effect is referred to in the headings to the relevant sections of the Act, though not in the actual statutory provisions, as a "non-acquittal".

5. Until comparatively recently the test required by s 317 was whether the Crown had proven that the accused "committed the acts which constitute the offence charged," and in R v Ardler [2004] ACTCA 4 (30 March 2004) the Court of Appeal considered the effect of the unamended section, holding that:

When a Special Hearing is embarked upon under Div 13.2 of the Crimes Act 1900, the prosecution is required to prove beyond reasonable doubt the physical acts of the offence charged which would constitute an offence if done intentionally and voluntarily and with any particular intent or knowledge specified as an element of the offence but is not required to negative lack of mental capacity to act intentionally or voluntarily or to have the specific knowledge or intention specified as an element of the offence unless there is objective evidence which raises such an issue including mistake, accident, lack of any specific intent or knowledge of the particularity necessary to constitute the offence that is an element of the offence or self-defence in which case the prosecution must negative that issue beyond reasonable doubt.

6. Whilst the current provision employs different terminology, the amendment was apparently intended to clarify rather than change the effect of the section and neither counsel suggested that the new formulation of "engaged in the conduct required for the offence charged" would make the statement of principle in R v Ardler no longer appropriate.

7. A finding of non-acquittal does not expose the accused to punishment for the offence in question but, if it is a serious offence, such a finding does invoke the provisions of subs 319(2) of the Act. This section requires the court to order that the accused be detained in custody until the Mental Health Tribunal orders otherwise unless, "in consideration of the criteria for detention in s 308" it is satisfied that it is more appropriate to order that the accused submit himself or herself to the jurisdiction of the Tribunal to enable it to make a mental health order. In essence, the alternative to acquittal is a finding that results in neither conviction nor punishment but invokes a statutory regime intended to ensure the treatment and care of the accused and the protection of the community.

8. The manner in which a special hearing is to be conducted is governed by s 316 of the Act which provides, inter alia, that, subject to the other provisions of that section, the court shall conduct the hearing as nearly as possible as if it were an ordinary criminal proceeding. The section also provides that, unless the court orders otherwise, the accused is to have legal representation at the hearing. The determination of unfitness to plead is not to be taken as an impediment to such representation and the accused is to be taken to have pleaded not guilty in respect of each offence charged.

9. Subsection 316(2) provides that a special hearing shall be a trial by jury unless:

* the accused makes an election for trial by judge alone before the court first fixes a date for the hearing and the court is satisfied that he or she was capable of making such an election; or

* if the court is satisfied that the accused is incapable of making such an election, any guardian notifies the court that, in his or her opinion, such a trial would be in the best interests of the accused; or

* a guardian appointed by the Guardianship Tribunal under the Guardianship and Management of Property Act 1991 (ACT) (the "Guardianship Act") with power to make an election for trial by judge alone so notifies the court that, in his or her opinion, such a trial would be in the best interests of the accused.

10. In the present case, a guardian appointed under the Guardianship Act with the requisite power made an election for the accused to be tried by judge alone.

11. In view of the requirement that the trial be conducted as nearly as possible as if it were an ordinary criminal proceeding, I am bound to have regard to the requirements of s 68C of the Supreme Court Act 1933 (ACT). That section is in the following terms:

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a law of the Territory would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

12. In ordinary criminal trials, whether by judge and jury or by judge alone, the accused is entitled to the presumption of innocence, the Crown bears the burden of proving each of the essential elements of each charge and the standard of proof is proof beyond reasonable doubt. The verdict must be determined solely by reference to evidence properly admitted at the trial or matters of common knowledge which may be taken into account by virtue of s 144 of the Evidence Act 1995 (Cth).

13. In respect of the charge of armed robbery, the prosecution must prove the following elements: that the accused unlawfully took money from the person of Mr Shannon or from his presence or under his immediate personal care and protection; that this was done against his will either by force or by putting him in fear; that it was done with the intention of permanently depriving Mr Shannon of money; and that at the time of so doing, the accused had an offensive weapon, namely a syringe.

14. The accused was not asked to plead to the charges but was taken to have pleaded not guilty by reason of s 316(8) of the Crimes Act.

15. The accused did not give evidence. No adverse inference should, of course, be drawn against him by reason of his failure to do so.

16. The evidence relied upon by the Crown was relatively brief. Mr Shannon, who was the manager of the McDonald's store in Dickson in the ACT ("the store"), said that a male person whom he had earlier seen in the car park entered the store at about 8.20 pm on Sunday 22 June 2003. He stood in the main service area of the store and lined up at one of the registers. Mr Shannon went to an available register and asked him. "What can I get you, mate?" The man replied, "All the money in the till". Mr Shannon saw that the man had a capped syringe in his hand containing what appeared to be blood and saw him take off the cap. Mr Shannon thereupon complied with the demand by opening the register and handing the man a number of notes of various denominations. He said that the amount taken was about $300.00. It was not disputed that this evidence was true or that the acts in question did not constitute armed robbery. The only issue was whether the evidence proved beyond reasonable doubt that the offender was the accused.

17. Mr Shannon described the offender in the following terms:

Long shoulder length hair, dark hair, Caucasian in appearance, thin build, distinct cheek bones, facial hair, goatee and moustache, between 175 and 180 centimetres in height, nervous and quiet talking with Australian accent. He was wearing dark pants, blue jacket unzipped and a white hat.

18. There was evidence that the accused and another person, Mr Dunn, were seen by police at about 8.50 pm near the corner of Guthrie Street and Hope Street, Dickson. Constable Brown said that Mr Dunn was about 175 centimetres tall, of slight build with long hair and a goatee beard and was wearing jeans and a blue shirt. The accused was about 170 centimetres tall, of slight build, with long dark hair and a goatee beard and was wearing a light baseball cap, dark blue shirt with an orange stripe under the arm and blue jeans. Photographs of the two men tendered in evidence reveal that each has a considerable resemblance to the other. The men were later asked to turn out their pockets. Mr Dunn was found to have $85.00 in cash and the accused was found to have $250.00.

19. Constable Hague attempted to give evidence of a conversation with the accused but Mr Theakston, who appeared on his behalf, objected on the ground that the constable had failed to comply with the requirements of s 23V of the Crimes Act 1914 (Cth) and I was obliged to rule that it was inadmissible.

20. Constable Ryder gave evidence of having held some of the accused's clothing whilst it was photographed by Constable Laverty and the photographs were tendered in evidence. The clothing consisted of blue and white shoes, black pants, a blue shirt with orange down the sides and white under the arms and an off-white baseball cap. Underneath these items of clothing the accused had been wearing a dark blue shirt, a light blue shirt and a pair of white shorts. Whilst this manner of dress was unusual, it was a winter night in Canberra and it would, in any event, be dangerous to draw adverse inferences against an accused, especially one subsequently found unfit to plead, by reason of apparent idiosyncrasies of dress.

21. A search of the car park adjacent to the store revealed a syringe but Constable Madders, who was the officer in chare of the investigation, said that he understood that no fingerprints had been obtained from it. He confirmed that Mr Shannon had not been asked to attempt to identify the accused from a line up or photo board and that no attempt had been made to match his DNA to the blood in the syringe.

22. Accordingly, the case against the accused was largely dependent upon images from a security camera in the store, together with inferences sought to be drawn from the description of the clothes worn by the accused, his presence in the same suburb shortly after the robbery and the fact that he and Mr Dunn together had slightly more money than the sum allegedly stolen.

23. I found this quite inadequate. Mr Shannon did not suggest that he had been robbed by two men and the security video revealed only one. The videotape of the incident was quite indistinct and it was impossible to discern whether the accused was the offender. The description given by Mr Shannon was generally consistent with Mr Dunn as well as the accused and may, perhaps, have been applicable to any number of other young men spending their evening in Dickson that evening. The presence of the accused and Mr Dunn in Dickson about half an hour after the robbery was not, of itself, significant, especially since there was no evidence as to where either of them lived. The most substantial piece of evidence lay in the fact that the accused was found wearing a shirt with an orange stripe. Whilst that aspect of the offender's clothing was not mentioned in the description given by Mr Shannon, a similar stripe is evident in the videotape. However, it is impossible to determine whether it was the same jacket and there was no evidence as to how unusual jackets of that kind were at the relevant time.

24. It is regrettable that evidence of the conversation with the accused had to be excluded by reason of non-compliance with s 23V of the Crimes Act, that Mr Shannon was not asked to make any attempt to identify him as the offender, and that DNA testing was not carried out on the syringe to either implicate or exculpate him. However, on the available evidence, I am unable to be satisfied to the requisite standard that he was the person who committed the armed robbery.

25. Accordingly, he must be acquitted.

I certify that the preceding paragraphs numbered twenty-five (25) are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 15 May 2006

Counsel for the accused: Mr G Theakston

Solicitor for the accused: Legal Aid Office (ACT)

Counsel for the Crown: Mr J Lawton

Solicitor for the Crown: ACT Director of Public Prosecutions

Date of hearing: 9 May 2006

Date of judgment: 15 May 2006