R v PJ [2007] ACTSC 73 (23 August 2007)

Last Updated: 30 September 2008

R v PJ [2007] ACTSC 73 (23 August 2007)

CRIMINAL LAW – Attempted murder – plea not guilty by reason of mental impairment – special verdict entered with Crown consent – trial by judge alone.

Crimes Act 1900, ss 308, 321, 324
Criminal Code 2002, s 28

M’Naghten’s Case [1843] UKHL J16, 8 ER 718

EX TEMPORE JUDGMENT

No. SCC 136 of 2007

Judge: Connolly J
Supreme Court of the ACT
Date: 23 August 2007

IN THE SUPREME COURT OF THE )
) No. SCC 136 of 2007
AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

PJ

ORDER

Judge: Connolly J
Date: 23 August 2007
Place: Canberra

THE COURT ORDERS THAT:

1. The special verdict of not guilty by reason of mental impairment be entered pursuant to s 321 of the Crimes Act 1900.
2. The accused submit himself to the jurisdiction of the Mental Health Tribunal.
3. The accused’s name and address not be published.
   

1. In the matter then of the Queen v PJ, the accused, through his counsel, entered a plea of not guilty by reason of mental impairment to the charge that he did on 1 January 2007 attempt to murder Mr Ben Tindell. I have been provided with the papers in advance in this matter, and it seems to me that, while there was clear and compelling evidence in relation to a very serious mental health state at the time of the incident, the on-going care and treatment reports indicated that the accused appeared to be fit to plead to this matter. I asked his counsel and counsel for the Crown, and they were both of that view. In evidence this morning, his current treating psychiatrist, Dr Tracy, has confirmed that the accused is fit to plead. He has elected to be tried by judge alone.
2. Mental impairment, for the purposes of this Act, is defined in s 28 of the Criminal Code, which provides, essentially in accordance and consistently with the longstanding Common Law principle derived from M’Naghten’s Case [1843] UKHL J16, 8 ER 718, that:

A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that-

1. the person did not know the nature and quality of the conduct; or
2. the person did not know that the conduct was wrong; or

100. the person could not control the conduct.

3. The report from Dr George, which was before me, clearly is of the view that at the time of this incident the accused did not know the nature of the conduct and he did not know the conduct was wrong.
4. The Crimes Act provides that where a plea of not guilty by reason of mental impairment has been entered, there are two courses that can be adopted. One is a special hearing, if that is a contested matter. However, if the prosecution agrees to the entering of a verdict and the Court considers the verdict is appropriate, the verdict should be entered immediately. Indeed, the Act of Parliament provides that the Supreme Court must enter a special verdict where the prosecution agrees to it and where it appears to the Court that it is appropriate.
5. The prosecution, in this case, has agreed to the entering of the verdict, quite properly, in my view. Having read the papers, I am satisfied that the verdict is appropriate and I therefore direct that a special verdict, that the accused is not guilty of the offence because of mental impairment, be entered.
6. The Act then provides for disposition following a special verdict of not guilty by reason of mental impairment for a serious offence in s 324. It essentially provides that a person ought to be detained in custody until the Mental Health Tribunal orders otherwise, unless the Court is satisfied that it is more appropriate to order that the accused submit to the jurisdiction of the tribunal, to enable the tribunal to make a mental health order.
7. This was very serious conduct and the charge reflects that. It is a charge of attempted murder. It is apparent from the statement of facts that around New Year of 2007 the accused had been socialising with the victim whom he had known for quite some time. They had been relaxing and interacting with no apparent difficulties, until the afternoon of 1 January 2007. The victim observed some strange behaviour from the accused. The accused then assaulted the victim in quite a serious manner, by taking a piece of cord and putting it around the victim’s neck, attempting to strangle him.
8. The accused and the victim had been friends for some years. The victim is probably a young man of some strength as he was able to resist a series of assaults, eventually getting the cord from his neck and effectively pushing the accused away. The accused was continuing to attack him with, it would seem, with some vigour. He eventually got out of the house in Ainslie, went to a neighbour’s house and called the police.
9. It is very fortunate that the victim suffered, it seems, only minor residual injuries. It is obviously the case that if he had not been able to physically resist, he could indeed have been killed. Or if the victim had been a less strong man or if the victim had been a young woman there could have been a far more tragic outcome.
10. It is apparent, from the statement of facts, that upon police attendance the accused was taken straight to the City Police Station. His father was brought in, an ordinary Record of Interview was commenced, but police immediately recognised that there was a mental health problem and the accused was taken to the Canberra Hospital for treatment.
11. The way in which the Canberra community is able to deal with the interaction between criminal or mental health is often subject to criticism from the bench in this Court and from the Magistrate’s Court. I think it is fair to make the observation that in this case a very serious matter has been handled in really quite an exemplary manner.
12. It is clear that on the day of this very serious offence of attempted murder, the accused was in a very poor state of health. He was clearly a substantial danger to himself and to the community.
13. The mental illness was recognised immediately by attending police. He was quickly taken to the hospital. He was detained at the Remand Centre for a period which was inevitable given the high level of danger that he presented to the community in the early stages. But an active programme of intervention by the Forensic Detainee Mental Health Service, an arm of ACT Health that works with the Remand Centre, was started, and the consequence of that was that his health has improved.
14. He remained at the Remand Centre while that program was put in place, under the active care of the Forensic Detainee Mental Health Service until 11 July. Armed with an updated report from Dr Bonner, the then treating psychiatrist and staff specialist with the Forensic Services Mental Health team, recommended that he was able to be bailed to Hennessy House, where he is now residing, subject to a compulsory treatment order from the Mental Health Tribunal.
15. It is encouraging to note from the additional written report, bringing me up to date, and Dr Tracy’s evidence that he is doing well on that medication regime. He is gaining insight into his condition, and there is active consideration being given to alternative treatment regimes. Dr Tracy is confident that over time, the currently quite stringent restrictions on his freedom of movement will gradually be relaxed and he will, in time, be able to reintegrate into the community.
16. There have been many sad stories of the way mental health services have not been delivered to people who come to grief with criminal law. However, this seems to be a case where the community can be reassured that in a case of a very serious matter there was swift intervention by, first the hospital and then Forensic Mental Health Services, and we are in a much safer situation than we were.
17. In the material before me, there have been a number of references from the accused’s family and friends. It is clear that this is a very tragic situation. The accused was an upstanding, high-achieving young man who had done some tertiary studies and was going on and looking at an apprenticeship, which is a really good thing to do. This condition has led to this situation, which could potentially have been an even more tragic situation. It is encouraging that under the treatment regime he will gradually return to the community, and it would be hoped that he might be able to resume his apprenticeship and training.
18. Although the accused will no doubt have to work closely with health professionals for many years, possibly for a lifetime, mental health treatment options now are so much better than they were, and community acceptance of mental health, I think, is getting better, through the work of people like Beyond Blue and other foundations that tell us all how common and widespread mental health difficulties are in the community. But the hope would be that the accused would be able to return to health and re-integrate in the community.
19. I am entirely satisfied that the criteria under s 308 are made out such that I ought not require him to be detained in custody, but rather he should stay where he is at Hennessy House. While there is the principle that a person should not be detained in a correctional centre unless no other reasonable option is available, the key criteria really must be community safety. And this was, I re-emphasise, a serious matter, an attempted murder charge, where a life could have been lost.
20. Community safety must loom large, but I am entirely satisfied from the material before me that the appropriate care and attention that has been provided to the accused since January is such that there is no longer that danger. He is better off at Hennessy House and the community is better off with him at Hennessy House undergoing the on-going treatment. I therefore make the order that he not be further detained in custody, not be returned to custody, but rather he stay where he is and he submit himself to the jurisdiction of the Mental Health Tribunal.
21. As Dr Tracy said in evidence, and as I was reminded by counsel, there is presently a compulsory treatment order in place, which requires him to stay at Hennessy House and comply with the directions of the professional staff there. That will remain for some months. It will be actively reviewed. It must be reviewed every six months, but I suspect that it will be reviewed more frequently than that as his health professionals notice improvement or changes and recommend alternative regimes.
22. Formally then, the special verdict is entered, and the order is that the accused submit himself to the jurisdiction of the Mental Health Tribunal.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 23 August 2007

Counsel for the Prosecution: Mr J Lawton
Solicitor for the Prosecution: ACT Director of Public Prosecutions
Counsel for the Defence: Mr J Pappas
Solicitor for the Defence: Williams Love & Nicol
Date of hearing: 23 August 2007
Date of judgment: 23 August 2007