R v Johnston [2006] ACTSC 71 (21 July 2006)

Last Updated: 12 February 2007

THE QUEEN v ROBERT CHARLES JOHNSTON [2006] ACTSC 71 (21 July 2006)

 

 

 

CRIMINAL LAW - trial by judge alone - charge of causing damage to a building by fire and intending to cause damage to that building - evidence of possible suicide attempt - whether accused intended to cause damage - whether defence of consent can apply to arson of own property - whether accused in a state of dissociation amounting to mental impairment

 

Criminal Code 2002 (ACT), s 28, s 58(3) s 404, s 409

Supreme Court Act 1993 (ACT), s 68B, 68C

 

R v Collins [2004] ACTSC 48

R v Tran [2003] ACTSC 53

 

 

 

 

 

 

No SCC 95 of 2005

 

 

 

 

Judge: Marshall J

Supreme Court of the ACT

Date: 21 July 2006

IN THE SUPREME COURT OF THE ) No. SCC 95 of 2005

)

AUSTRALIAN CAPITAL TERRITORY )

 

 

 

THE QUEEN

 

v

 

ROBERT CHARLES JOHNSTON

 

 

ORDER

 

Judge: Marshall J

Date: 21 July 2006

Place: Canberra

 

THE COURT FINDS:

 

on the charge that on 19 February 2005 at Canberra in the Australian Capital Territory Robert Charles Johnston caused damage to a building, namely a residential dwelling located at 7 Companion Crescent, Flynn, by fire and intended to cause damage to that building, the accused is guilty.

 

IN THE SUPREME COURT OF THE )

) No SCC 95 of 2005

AUSTRALIAN CAPITAL TERRITORY )

 

 

THE QUEEN

v

 

ROBERT CHARLES JOHNSTON

 

 

REASONS FOR JUDGMENT

 

Judge: Marshall J

Date: 21 July 2006

Place: Canberra

 

 

 

1. On 19 February 2005, at about midday, the house at 7 Companion Crescent, Flynn, caught fire. The fire caused damage to the house. The owner of the property is Mr Robert Johnston, the accused. He is charged under s 404 of the Criminal Code 2002 (ACT) with causing damage to a building by fire and intending to cause damage to that building.

2. On 26 June 2006, the accused pleaded not guilty to that charge. Previously, on 22 March 2006 he had elected to be tried by judge alone, as permitted by s 68B of the Supreme Court Act 1933 (ACT). Section 68C of that Act provides the procedures to be followed in a trial by a judge alone. The judge is able to make any finding that could have been made by a jury as to the guilt of an accused person and any such finding has the same effect as a verdict of a jury. Additionally, the judgment in a judge alone trial must include the principles of law applied by the judge and the findings of fact on which the judge relied. A brief statement of the relevant legal principles applied and the factual findings made will not suffice; see R v Collins [2004] ACTSC 48 per Weinberg J at [2] to [6].

3. In accordance with Collins and the judgment of Gray J in R v Tran [2003] ACTSC 53 at [4], as would a jury, I am directed to focus wholeheartedly on the following matters:

* the accused is entitled to a fair trial according to the law;

* the relevant facts must be found and inferences drawn from them and the law applied to those facts;

* the verdict must be delivered according to the evidence;

* the burden of proving the charge lies entirely on the prosecution and not on the accused;

* it is not for the accused to prove innocence; and

* the accused is presumed to be innocent until, at the end of the hearing, the evidence establishes guilt as to each and every element of the offence, beyond reasonable doubt.

4. I apply the principles referred to in the preceding paragraph to this proceeding and as Gray J said in Tran at [4]:

"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."

5. I further adopt and apply what Gray J said at [5] in Tran (as Weinberg J did in Collins at [6]) where his Honour said:

"It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit."

6. Section 404 of the Criminal Code is headed "Arson".

Section 404(1) provides:

"A person commits an offence if the person -

(a) causes damage to a building or vehicle by fire or explosive; and

(b) intends to cause, or is reckless about causing, damage to that or any other building or vehicle.

Maximum penalty: 1,500 penalty units, imprisonment for 15 years or both."

7. Section 404(4) defines "building" as including any part of a building or any structure that is used, designed or adapted for residential purposes.

8. It is not enough that a person causes damage to a building by fire. That person must also intend to cause that damage or be reckless about causing damage. Here the accused is charged with intending to cause damage and not with being reckless.

9. Counsel for the accused contends that I cannot be satisfied that the accused intended to cause damage to his house. He also contends that the defence of "consent", contained in s 409 of the Criminal Code, is applicable. Counsel also relies on the provisions of s 28 of the Criminal Code, in support of a submission that the accused was not criminally responsible for the offence on account of his suffering from a mental impairment that had the effect that:

* he did not know the nature and quality of the relevant conduct;

* he did not know the conduct was wrong; and/or

* he could not control the conduct.

10. I shall deal with the submissions outlined in the preceding paragraph later in these reasons for judgment.

THE PROSECUTION'S CASE

11. The accused, now aged almost 63 years, is charged with intentionally causing damage to his house by fire. The prosecution alleges that, about midday on 19 February 2005, the accused set fire to his house by spreading petrol through part of it and lighting the petrol. Its case is circumstantial in that there is no direct evidence that anyone saw the accused light the fire. The prosecution relies on observations of neighbours of the accused and passers-by who saw the accused standing outside his house as the fire began to take hold of the premises and then saw the accused walk away slowly.

12. The prosecution also relies on the evidence of a fire fighter who found a "jerry-can" in the house, which contained petrol and was 80% full. It also relies on the evidence of investigating police who found patterns on the floor of the house consistent with the use of an accelerant, later analysed as petrol.

13. The prosecution further relies on an analysis of the clothing worn by the accused on 19 February 2005 which revealed the trace of petrol fumes.

14. The prosecution contends that the accused intended to cause damage to the premises. It submits that although the accused may have intended to commit suicide by remaining in the house after setting it alight, he nonetheless intended to damage the building as well.

15. To meet the foreshadowed defence of mental impairment, counsel for the prosecution refers to the written statement of Dr Morice from The Canberra Hospital dated 20 February 2005. In that statement Dr Morice referred to his interview, that day, with the accused and said:

"He claimed not to remember what may or may not have happened at his house while he was there on 19 February, however there seemed to be no other obvious memory deficits present. He remembered the phone number of a friend who he asked me to phone.

He told me he had been depressed and anxious since his wife left him. He told me he had had some thoughts of suicide, but he denied this to Dr David Lang yesterday evening. His affect was anxious, but not depressed. There was no psychomotor retardation. He volunteered very occasional auditory hallucinations, and on direct questioning he said he experienced occasional visual hallucinations. I did not form the opinion that Mr Johnston is currently suffering from Major Depression, nor from a psychosis. His speech was of normal rate and volume, and there was no formal thought disorder. I did not detect any delusional thinking.

In my opinion, Mr Johnston possibly has dependent personality traits and limited coping skills. I consider that he is mentally capable of being interviewed by Police, and to attend any Court hearings."

16. The prosecution also relies on evidence given by a neighbour of the accused that the accused told him that he intended to burn down his house. This conversation occurred in or about late January 2005. The prosecution refers, in this regard, to an entry in the diary of the accused for 27 January 2005, which reads: "1. Petrol SUICIDE".

THE DEFENCE CASE

17. Counsel for the accused reminds me that the prosecution has to prove that his client intended to cause damage to his house. He submits that there is no evidence of any such intention. He also submits that s 409 of the Criminal Code is applicable, as the accused, if he did burn down the house, had consented to allowing himself to do so.

18. Counsel for the accused further submits that, on 19 February 2005, his client was in a state of "dissociation" such that s 28 of the Criminal Code applies and there is no relevant criminal responsibility for the charged offence, by reason of the requisite mental impairment referred to in s 28(1)(a) or (b) or (c).

19. Counsel for the accused led no evidence. He relies on the evidence led by the prosecution and says that the offence is not made out on that evidence.

FINDINGS

20. Before the accused can be convicted of "Arson" as described by s 404 of the Criminal Code, the prosecution must prove two things. First, it must prove that the accused caused damage to his house by setting it on fire. Second, it must prove that the accused intended to cause damage to his house. Recklessness is not alleged.

21. Counsel for the prosecution concedes, and I agree, that the case against the accused is circumstantial. However, I accept his submission that the elements of the charge have been established.

22. Adopting with necessary modification what Weinberg J said in Collins at [42]:

"Circumstantial evidence is evidence of a basic fact or facts from which the Court is asked to infer a further fact or facts. Each of the facts upon which I have relied in coming to the conclusion that the accused deliberately [caused damage to his house by fire] was proved beyond reasonable doubt. The inference that I have drawn is the only rational hypothesis that can be drawn."

23. I am satisfied that about midday on 19 February 2005, the accused doused petrol along his hallway and through several rooms on the western end of his house at 7 Companion Crescent, Flynn. I am also satisfied that the accused lit the petrol, which he used as an accelerant to burn the house, and intended to do so. I am satisfied, in addition, that the accused would have known that setting fire to his house would have caused damage to his house, but that nonetheless he intended to cause such damage.

24. In coming to the state of satisfaction referred to in the preceding paragraph beyond reasonable doubt, I have had regard to the matters of fact referred to in the ensuing paragraphs.

25. Mr Douglas Collins, who lived diagonally opposite the accused, and who knew the accused by sight, saw him leaving the house while the fire was in progress and walk away from the house. Mr Collins observed the clothing worn by the accused, which observation was consistent with a description of the clothing taken from the accused by police later that day, and still later analysed by a forensic chemist to contain traces of petrol. Mr Collins observed the accused walk past the border of 7 Companion Crescent, then past 9 Companion Crescent and then turn left into Vickers Crescent. Mr Collins said the accused walked away slowly and deliberately, ignoring the fire which had become very extensive, such that a very large plume of smoke was present which could be seen from nearby main streets from which traffic was converging onto Companion Crescent. I accept the evidence of Mr Collins set out above.

26. Ms Jacqueline Masterman was passing by Companion Crescent in her vehicle at about 12.15 pm on 19 February 2005 when she observed flames coming from a window of the house at No 7. She observed a person wearing clothing consistent with that worn by the accused on that day. I am satisfied that the person was the accused. She observed the accused stand near the right hand side window facing the flames. Shortly thereafter, she observed the accused walking up the street away from the house. She observed him walking slowly and then around the corner into Vickers Crescent.

27. Ms Masterman moved her car to allow access for firefighters and decided to drive her car up Vickers Crescent to see where the accused was going. She approached him and stopped her vehicle. She told him that he should not be going anywhere. He replied, "What?". Ms Masterman said, "You were the first one there. The police will want to speak to you." The accused replied, "Okay. I'm just going to get a drink." I accept the evidence of Ms Masterman set out above.

28. Mr John Musgrove lives, with his wife, Mrs Geraldine Musgrove, at 8 Companion Crescent, directly across the road from the home of the accused. On observing smoke coming from across the road, Mr Musgrove noticed the accused standing outside his burning home, looking at the house. He then observed the accused walk slowly away from the house and turn left in Vickers Crescent. Mrs Musgrove also observed the accused standing outside 7 Companion Crescent and saw him watching the fire. She observed him to be wearing clothing consistent with the clothing taken from him by the police, later that day. Mrs Musgrove also observed the accused turn away from his burning house and walk slowly up the street and turn the corner. Mrs Musgrove knew the accused but had not spoken to him for a while before the day of the fire. I accept the evidence of Mr and Mrs Musgrove.

29. Mr McCreedy lives at 30 Vickers Crescent, Flynn. At about lunchtime, the accused came to Mr McCreedy's home. He strolled very slowly up Mr McCreedy's driveway. Mr McCreedy did not know him. He asked Mr McCreedy for a glass of water. Mr McCreedy gave him a glass of water. Mr McCreedy then asked him if he was okay and he said that he would be fine. The accused then walked away. About half an hour later, Mr McCreedy observed the accused in a property next door to that of Mr McCreedy. He asked the accused if he could help him and said, "[c]ome over to my place". The accused sat on a chair in Mr McCreedy's garage. He asked the accused his name and after a while he said, "Yes, my name's Bob". It took a little more time to get his last name which he gave as "Johnston". The accused told Mr McCreedy that he could not remember where he lived but that it was "somewhere around here". Mr McCreedy told him that he needed to get some help for him and the accused said, "Yes, I think you'd probably better ring the police". Mr McCreedy's wife telephoned the police. The accused said that he had taken some drugs given to him by doctors who had given him too many drugs. He told the McCreedys that he had to "flee my house" because "it's on fire". Mr McCreedy considered that the accused didn't know what he was doing, where he was or where he was going. Mr McCreedy stayed with the accused until the police arrived some ten to twenty minutes after they were called. I accept the evidence of Mr McCreedy, but treat his opinion of the state of mind of the accused as an untrained one and not carrying weight that one would attach to an expert medical opinion on the same issue.

30. Mr Wilmott lives at 5 Companion Crescent, next door to the house of the accused. Mr Wilmott has known the accused since June 2002 and, as at February 2005, had quite a good relationship with him. Mid to late morning on 19 February 2005, the accused came to Mr Wilmott's house and talked with him for about an hour. Mr Wilmott was aware that the accused had been an inpatient at Calvary Hospital and had come home from the hospital on the morning of 19 February 2005. He said that he knew the accused was "on leave" from the hospital and that he was aware the accused was coming home and that Mr Wilmott intended to do some washing for him and "catch up on how he was going". Mr Wilmott was aware, on 19 February 2005, that the accused and his wife had separated before Christmas 2004 and that his wife was no longer living with him. Mr Wilmott referred to the accused telling him that the son of the accused had been to Canberra at some time during those weeks and that they had argued. Mr Wilmott said that the accused had not been well since Christmas 2004 and had called an ambulance a few times and taken himself to hospital. He said that, on 19 February 2005, the accused was more agitated than normal. He described the accused as distressed and confused but capable of holding a conversation. The accused spoke in a normal manner but turned away often in the conversation. Mr Wilmott did some washing for the accused after he left Mr Wilmott's house. He gave evidence that:

"...about an hour or so after he left I was just aware of a lot of smoke in the backyard and there was some noise and a couple of guys running up the side of the house and that's when I went out the back and became aware that Bob's house was on fire...."

31. Earlier, in late January 2005, Mr Wilmott asked the accused whether he might want to harm himself and the accused said that he "would burn his house down", which Mr Wilmott took to mean "that he would commit suicide". This conversation occurred about three weeks before the fire. I accept the evidence of Mr Wilmott.

32. Mr David Gilbert is a fire fighter. At about 12.15 pm on 19 February 2005 he was called to a fire at 7 Companion Crescent, Flynn. On arrival at the scene of the fire he observed the majority of the flames and smoke coming from the western end of the house. After entering the house he crawled over an object on the ground. He described it as "like a jerry can .... that's used for an outboard motor - like a small dinghy and with a... hand pump...attached to it as well." The container was heavy and about 80 to 100 millimetres from being full. Mr Gilbert removed the container from the house and gave it to another fire fighter who carried it away from the house. I accept the evidence of Mr Gilbert.

33. Constable Troy Roberts is a police officer. At about 12.25 pm on 19 February 2005 Police Communications directed him to attend a house fire at 7 Companion Crescent, Flynn. Constable Roberts, together with a fellow officer, performed traffic control and guard functions before conducting a patrol of the area to search for a possible suspect at about 1.35 pm. At about 1.52 pm he received a radio transmission to attend at 30 Vickers Crescent, Flynn. There he had a conversation with the accused. The accused was confused and not very coherent in that conversation but identified himself as "Robert Johnston". Constable Roberts had difficulty obtaining other personal details such as the date of birth and address of the accused. Constable Roberts could not smell any intoxicating liquor on the breath of the accused. He placed the accused under arrest on suspicion of lighting the fire. He escorted him slowly, holding him up as they approached the patrol car, as the accused was unsteady on his feet. I accept the above evidence of Constable Roberts.

34. Ms Sarah Benson is a forensic chemist with the Australian Federal Police. Her daily duties include the search for and collection of trace material from submitted items and the subsequent chemical analysis and interpretation of results. On 21 February 2005 she received some items related to the fire at 7 Companion Crescent. Those items included upper and lower clothing from the accused, a liquid sample from a plastic fuel container and carpet samples from the lounge room and master bedroom. Ms Benson identified the liquid sample as petrol. She also detected petrol in the carpet sample from the lounge room. The lower clothing also contained evaporated petrol. I accept the above evidence of Ms Benson.

35. Mr Samuel Norman is a crime scene investigator with the Australian Federal Police. On 19 February 2005 he conducted an examination of the premises at 7 Companion Crescent, Flynn after the extinguishment of the fire. He conducted a preliminary examination at 3.40 pm. At that time he found a red plastic fuel container in a paved area near the driveway at the front of the house. The container was about 80% full of liquid and the top of it was slightly charred. Mr Norman moved the container to the rear of the car port to protect it. He left the premises at about 6.40 pm and returned at 8.00 am the next morning. Mr Norman then conducted an examination of the house, partly in the company of other AFP officers who attended later in the morning. Mr Norman observed that the fire damage was concentrated primarily on the western end of the house in two bedrooms, with other areas being affected by smoke and heat damage to a lesser extent as the distance from those bedrooms increased. He concluded that the fire was the result of a deliberate act and had been accelerated by the use of a liquid accelerant. The fuel trail was located throughout the hallway, through the kitchen and living areas and towards the bedrooms. The fire did not ignite further because the particular carpet in the house did not burn easily. Mr Norman smelt petrol in the lounge area and in the master bedroom. He satisfied himself that the fire did not occur as a result of an electrical malfunction by observing that electrical appliances in the kitchen were plugged in but switched off at the source. Mr Norman further observed that there had been no forced entry to the house. I accept the above evidence of Mr Norman.

36. Mr David Grace is an enrolled nurse in the public psychiatric unit (Ward 2N) at Calvary Hospital. He cared for the accused in February 2005. The accused was a voluntary inpatient in Ward 2N. On 18 February 2005, Mr Grove noted the accused exhibited symptoms of anxiety, low mood and of having experienced a panic attack. The accused also complained, that day, about chest pain, pain in the penis area and of an inability to digest food. The accused was given Anginine for his chest pain and Diazepam to relax him. He stayed overnight in the ward. The next day, 19 February 2005, the accused, according to Mr Grace, appeared happy to be going on day leave, raised no complaints and showed no signs of anxiety. Before the accused left the ward that morning he was given some saline drops to clear his eyes and some Lexapro, which is an anti-depressant medication. This occurred between 6.00 am and 8.00 am on 19 February 2005. Mr Grace is not aware of any other medication being given to the accused that morning. Mr Grace signed a leave form at 9.20 am on 19 February which permitted the accused to leave the hospital on day leave until 6 pm that evening. Mr Grace said that the dosage of Lexapro given to the accused that morning was the normal dose of 10 milligrams. Under cross-examination, Mr Grace said that, on the ward, the accused was subject to hourly checks (referred to as level 3 observations) based on the possibility of self harm or harm to others. Mr Grace gave evidence that he had no concern that the accused would harm himself. Later evidence from medical staff revealed that level 3 is a default level which all inpatients are placed on as a minimum level of observation. Mr Grace gave evidence that it is not unusual for people on level 3 observations to be given day leave and that the decision to grant the leave came from medical staff. I accept the above evidence of Mr Grace.

37. Constable Collin Sims is a constable with the Australian Federal Police based at the crime response team at Civic. At 1.45 pm on 19 February 2005, he attended at a house fire at 7 Companion Crescent, Flynn. He entered the house. Whilst there, he noticed some documents belonging to the accused, including some diaries. After becoming aware of the arrest of the accused, Constable Sims requested that the clothing of the accused be seized at the watch house for later forensic examination. He gave evidence that the accused was conveyed to The Canberra Hospital and seen by Dr Morice at the psychiatric services unit. After obtaining a search warrant, Constable Sims returned to the house of the accused the next day and seized some documents, including the diaries, a rates notice and handwritten notes. The rates notice showed the property was solely in the name of the accused. I accept the above evidence of Constable Sims.

38. Dr Lev Fridgant is a senior specialist psychiatrist engaged at Calvary Hospital. He gave evidence that the accused was under his care in February 2005 and on another occasion some three years before that. Dr Fridgant gave evidence that the accused presented to casualty in February 2005 and was treated for symptoms of depression and anxiety. He was diagnosed as suffering from depression with associated significant symptoms of anxiety. Dr Fridgant referred to the level 3 observations rating previously raised by Mr Grace. He said that it was "a default level of observation" and that "(e)very voluntary patient was classified as 3 unless there was a reason to increase the level of observations required." Dr Fridgant gave evidence about the medication given to the accused in February 2005. This may be summarised as follows:

* Temazepam - a very mild sedative of short duration - not administered after 14 February 2005;

* Diazepam - similar to Temazepam, modest dose of 5 to 20 milligrams prescribed - not administered after 14 February 2005;

* Stilnox - sleeping medication, dispensed from 14 February until 18 February 2005 at 20 milligrams (a regular dose). It has "an approximate duration of action of about 4 hours";

* Lexapro - an anti-depressant dispensed daily from 15 February to the morning of 19 February 2005 at about 8.00 am. The last dose was the minimum effective dose of 10 milligrams. Its intended effect is to reduce anxiety levels over a significant period of time. According to Dr Fridgant, "(t)here is a delay between the administration and the onset of desired effect of approximately 10 days...". The most likely side-effect in the short term is nausea. Lexapro does not, so far as Dr Fridgant is aware, affect a person's ability to act rationally;

* Quetiapine - sedative medication used to treat agitation - very small doses were given on 14 and 15 February and not thereafter; and

* other inconsequential medication was also given such as Maxolon (for nausea), coloxil (for bowel function), Panadol (for headaches) and saline (for eye dryness).

39. Immediately before going on day leave, the accused was dispensed with two medications. They were saline, described by Dr Fridgant as "quite innocuous" and Lexipro (10 milligrams) dispensed at 8.00 am. Lexipro is taken orally and is able to be dispensed by general practitioners. Dr Fridgant was not aware of the accused being given any medications to take away with him on 19 February 2005.

40. Dr Fridgant gave evidence of the primary reason for the voluntary admission of the accused on 10 February 2005 as being "suicidal ideation". Dr Fridgant said that the problems of the accused stem from him:

"...becoming depressed and distressed, anxious and agitated in the context of interpersonal conflict or an abandonment by a significant person in his life."

Dr Fridgant said that the physical symptoms reported by the accused were evidence of psychological distress, being converted and presenting in that way. This occurrence was described as "somatization." I accept the evidence of Dr Fridgant.

41. Dr Daniel Bonner is a senior psychiatry registrar at The Canberra Hospital. In February 2005 he worked as a psychiatry registrar at Calvary Hospital. In that capacity he cared for the accused. Dr Bonner gave evidence that the decision to allow the accused day leave on 19 February 2005 was a joint one made by himself and Dr Fridgant. Dr Bonner said that he approved the leave because he considered the accused to have improved since admission, was not at acute risk of harm to himself or others and planned to do some constructive things such as pay bills and do some chores. Dr Bonner referred to a discussion he had with the accused on 14 February 2005, in which the accused said that he would blow up his house with him in it. Dr Bonner considered this to be an "obsessional thought" and not an expression of actual intent. Dr Bonner gave materially identical evidence to that of Dr Fridgant about the medication dispensed to the accused. Dr Bonner said that the accused was not given any medication to take away with him on 19 February 2005. Dr Bonner also said that his final diagnosis of the accused was major depression, with dependant traits. Dr Bonner found the accused to be coherent when he spoke to him and said that the accused had no difficulty understanding his questions. Dr Bonner considered it possible that the accused was in a state of dissociation, which he described as "where anxiety becomes so extreme that you start to lose touch with what's going on around you and seem to be...in a distracted state." Under cross-examination, Dr Bonner expanded on the concept of "dissociation" and said:

"I don't believe that it has the power to overtake someone's volition or ability to conduct purposeful motions, although some of my esteemed colleagues might differ in that opinion."

Dr Bonner noted that clinic trials are lacking in the area of dissociation. I accept the above evidence of Dr Bonner.

42. Having regard to the above evidence, I am satisfied that the accused caused damage to his house by setting it on fire. I am also satisfied that he intended to set it on fire and cause damage to it. I am not satisfied that the accused was in a state of dissociation when he lit the fire. In this regard I am particularly assisted by the evidence of Mr Wilmott. Mr Wilmott was the last person to spend any significant time with the accused before the fire. Although Mr Wilmott found the accused to be agitated and distressed, the accused was still capable of holding a conversation with Mr Wilmott and of speaking to him in a normal manner. Mr McCreedy and Constable Roberts gave evidence of the confused and unsteady state of the accused, however this evidence is of less assistance given that it relates to a time after the incident and most likely arose from the trauma of the incident itself.

43. It is entirely possible that the accused intended to take his own life in the fire but could not go through with that action. However, I am satisfied that, when the accused spread petrol down his hallway and into the lounge room and to the two bedrooms on the western side, he knew what he was doing. I am not satisfied that the accused was suffering from a mental impairment which had the effect that he didn't know the nature or quality of his conduct in lighting the fire, or that the conduct was wrong or that he could not control the conduct. There is no evidence that the accused had taken particular drugs which would have induced such a state of mental impairment. I am satisfied that the accused could reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, was wrong.

44. Consequently I am satisfied that any defence based on s 28 of the Criminal Code is not made out.

45. I also reject the defence raised by counsel for the accused based on s 409 of the Criminal Code. Section 409 provides, so far as is material, that a person is not criminally responsible for an offence, if, when the conduct required for the offence was carried out, the person had consent to damage the property from the person entitled to give consent.

46. Counsel for the accused submits that the accused had his own consent to burn down his own house. Section 58(3) of the Criminal Code places an evidential burden on the accused in respect of this defence. Although unassisted on this point by counsel, I consider that the critical issue is whether there is, in any event, an entitlement to give consent to burn down one's house. Given the obvious public interest considerations stemming from the natural damage that could flow to firefighters, neighbours and other properties from such action, described in the section as "arson", I do not consider that s 409 contemplates a situation where a person gives consent to anyone to damage property by fire. I am fortified in this view by the explanatory memorandum which accompanied the bill which led to the enactment of the Criminal Code. The memorandum at page 39 in Division 4.2.1 contained the following in respect of what became s 404:

"An important distinguishing feature of the arson offence is that it is not limited to causing damage to the property `belonging to someone else'. It can also apply to owners who damage or destroy their own buildings or vehicles by fire or explosives."

CONCLUSION

47. I am satisfied beyond reasonable doubt that the accused is guilty of the crime of intentionally causing damage to a building by fire. He set his own house on fire in an intentional, dangerous and unlawful act. He was not suffering from mental impairment such that he did not know the nature of what he was doing, that it was wrongful conduct or that he was unable to control the conduct. There was no lawful excuse for his act. Even if his actions were undertaken in the course of attempting a suicide, the actions of the accused were nonetheless unlawful and intentional. I direct that he be convicted as charged.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Marshall.

 

 

 

Associate:

Date: 21 July 2006

 

Counsel for the Crown: Mr Lundy

 

Solicitor for the Crown: ACT Director of Public Prosecutions

 

Counsel for the Accused: Mr Sabharwal

 

Solicitor for the Accused: S & T Lawyers

 

Dates of hearing: 26, 27 and 28 June 2006

 

Date of judgment: 21 July 2006