R v Leong [2009] ACTSC 173 (17 December 2009)

Last Updated: 3 February 2010

R v EDMUND THOMAS LEONG [2009] ACTSC 173 (17 December 2009)

CRIMINAL LAW – offence of act of indecency on a child under the age of 10 years –special verdict of not guilty by reason of mental impairment entered – consequences of special verdict depend on whether offence is a “serious offence” – whether definition of “serious offence” applies to the offence as described in legislation or to the conduct that constituted the particular offence.

Crimes Act 1900 (ACT), ss 321, 324, 323, 300, 61, 308

Criminal Code 2002 (ACT), ss 27, 28, 56, 57, 58, 59, 60

Explanatory Memorandum for the Crimes (Amendment) Act 1994 (ACT)

EX TEMPORE JUDGMENT

No. SCC 404 of 2008

Judge: Penfold J

Supreme Court of the ACT

Date: 17 December 2009

IN THE SUPREME COURT OF THE )

) No. SCC 404 of 2008

AUSTRALIAN CAPITAL TERRITORY )

R

v

EDMUND THOMAS LEONG

ORDER

Judge: Penfold J

Date: 17 December 2009

Place: Canberra

THE COURT ENTERS A SPECIAL VERDICT THAT Edmund Thomas Leong is not guilty by reason of mental impairment of the offence of act of indecency on a child under the age of 10 years.

THE COURT ORDERS THAT:

1. ACAT be asked to provide a recommendation in relation to Mr Leong for the purposes of s 308(e) of the Crimes Act 1900 (ACT).

2. Mr Leong’s bail is continued on the same terms and conditions.

Background

1. Edmund Thomas Leong has been charged with an offence on 14 June 2008, specifically the offence of committing an act of indecency on a girl who was then under the age of 10 years.

2. Mr Leong initially pleaded guilty to this charge and a sentencing date in 2009 was listed. After that, questions arose about Mr Leong’s fitness to plead, and in December 2008 Dr Steven Allnutt provided a report to Mr Leong’s lawyers which said that Mr Leong was fit to plead but which also raised the possibility of a verdict of not guilty by reason of mental impairment. No formal finding of Mr Leong’s fitness to plead was made before he was arraigned on 31 March 2009 at which point he entered a plea of not guilty by reason of mental impairment. Before that he had elected for trial by judge alone.

The trial

3. In a judge-alone trial the judge must give herself certain directions equivalent to those that would be given to a jury. I do not propose to read those directions out today but note that they relate to the presumption of innocence, the burden of proof generally and the way evidence should be dealt with, and that I shall attach a copy of the directions to these reasons when they are published. I shall also attach a note specifically relating to burdens of proof in relation to mental impairment and the processes for a trial in which an accused person has pleaded not guilty by reason of mental impairment.

4. Mr Leong’s trial began on 3 November 2009. Dr Steven Allnutt gave evidence by telephone from Sydney and on the basis of his evidence I found that Mr Leong remained fit to plea. The trial then proceeded on the basis of his plea of not guilty by reason of mental impairment.

5. An agreed statement of facts was tendered. In summary, on 14 June 2008 the complainant, then seven years old, was playing with friends near Mr Leong’s flat in Red Hill when Mr Leong invited her into his flat. She went inside and Mr Leong shut the door. Mr Leong pulled down the complainant’s jeans and underpants and his own pants and underpants. The complainant, when asked, refused to touch his genitals but he caused his genitals to touch the complainant’s pubic area. He also rubbed his penis against her stomach. The complainant left the flat taking with her a toy animal, a pair of men’s shoes and a small clock, all given to her by Mr Leong.

6. On the basis of those agreed facts I am satisfied beyond reasonable doubt that Mr Leong engaged in conduct that would have constituted the offence charged.

7. As to whether a verdict of not guilty by reason of mental impairment is appropriate, I note the opinions of Dr Allnutt as follows:

(a) Dr Allnutt says that Mr Leong is suffering from mental impairment, being chronic psychotic disorder, probably schizophrenia which has gone undiagnosed for many years. He says that when the offence occurred, Mr Leong “was likely experiencing active symptoms of psychosis in the form of auditory hallucinations, referential ideas and probable thought processing difficulties”. He noted that Mr Leong may also suffer from paedophilia, but that this alone would not amount to a mental impairment.

(b) Dr Allnutt says that Mr Leong did appear to know the nature and quality of his act in that he knew that he was touching the victim in a sexual manner.

(c) Dr Allnutt says that Mr Leong probably had some capacity to know that his actions in relation to the victim were wrong, but he had concerns about Mr Leong’s capacity to reason about the wrongfulness with a moderate degree of sense and composure, because of the thought-processing difficulties that were evident in his interview with police shortly after the offence and that were likely to have affected him at the time of the offence.

(d) Dr Allnutt also had concerns about Mr Leong’s capacity to control himself at the relevant time. Mr Leong reported an “uncontrollable urge”. Dr Allnutt said that this is a common complaint by sex offenders, and is not necessarily associated with mental impairment, but he also considered that a person with chronic untreated psychotic symptoms would be less capable than a person without mental illness of controlling his deviant sexual urges. To this extent the uncontrollable nature of his deviant sexual urge would be attributable to his mental impairment.

8. I am satisfied on the balance of probabilities that at the time he committed the act of indecency Mr Leong was suffering from mental impairment, being a chronic psychotic disorder, probably schizophrenia, that meant at least that he did not know that his conduct in dealing with the victim was wrong “in the sense that ordinary reasonable persons understand right and wrong”. Mr Leong’s “uncontrollable urge”, as explained by Dr Allnutt, might also satisfy the test that he was unable to control himself as a result of his mental impairment, but I do not need to make a finding on that question.

9. The finding that Mr Leong did not know that his conduct was wrong is sufficient to satisfy me that a special verdict of not guilty because of mental impairment is an appropriate verdict for the purpose of s 321(2)(a) of the Crimes Act 1900 (ACT).

10. Counsel for the prosecution agreed to the entering of the special verdict.

The verdict

11. Accordingly I now enter a special verdict that Mr Leong is not guilty by reason of mental impairment of the offence of act of indecency on a child under the age of 10 years.

Consequences of verdict

12. The consequences of such a finding depend on the nature of Mr Leong’s offence. Section 324 of the Crimes Act applies where a special verdict has been entered in relation to a serious offence and s 323 applies in relation to non-serious offences.

Was the offence a “serious offence”?

13. To determine whether this offence is serious or non-serious I turn to the definition of “serious offence” in s 300 of the Crimes Act. A serious offence is, relevantly:

an offence involving actual or threatened violence and punishable by imprisonment for longer than 12 months.

14. The offence in this case is punishable by imprisonment for up to 12 years (s 61(1) Crimes Act).

15. It is not clear whether this definition applies to an offence as described in legislation or to the particular offence that has been committed. That is, do I need to decide whether the offence of committing an act of indecency on a child under the age of 10 years is an offence involving actual or threatened violence or only whether Mr Leong’s conduct that constituted that offence involved actual or threatened violence? There is no help to be found in the Explanatory Memorandum for the Crimes (Amendment) Act 1994 (ACT) which inserted the original definition of “serious offence”. The Explanatory Memorandum simply says:

There is a definition of “serious offence” as an indictable offence involving actual or threatened violence.

16. Fortunately I do not need to decide this question, because the answer is the same in each case:

(a) The offence as defined in the statute book does not require actual or threatened violence.

(b) The agreed statement of facts in this case refers to Mr Leong, “pulling the complainant onto the bed”; this is the only hint of force being applied to the victim, and I note that the DPP conceded that this does not amount to “actual or threatened violence”.

17. Accordingly I conclude that whichever interpretation of the definition is adopted, this special verdict relates to an offence other than a serious offence.

Options for dealing with offence other than serious offence

18. Under s 323 of the Crimes Act my options are:

(a) to make an order requiring Mr Leong to submit to the jurisdiction of the ACT Civil and Administrative Tribunal (ACAT) to enable ACAT to make recommendations as to how he should be dealt with (s 323(1)(a)); or

(b) to make any other orders that I consider appropriate (s 323(1)(b)).

19. The “other orders” that may be made under s 323(1)(b) include an order that Mr Leong be detained in custody until ACAT otherwise orders (which I shall refer to as a “detention order”), and an order that he submit to the jurisdiction of ACAT to enable it to make a mental health order.

20. Ordering Mr Leong to submit to the jurisdiction of ACAT to enable it to make recommendations about how he should be dealt with, or to make a mental health order, might mean that there is a gap in Mr Leong’s supervision and support from the time when such an order is made until such time as ACAT can make adequate provision for Mr Leong’s supervision and support. This might not be in the interests of the community or indeed in the interests of Mr Leong, who I understand currently needs a high level of supervision and support.

21. Before making a detention order I need to consider the criteria set out in s 308 of the Crimes Act. Dr George, of Forensic Services, Mental Health ACT, has provided a psychiatric assessment which includes some advice about some of the criteria, but for obvious reasons does not address s 308(e) of the Crimes Act, which refers to any recommendation made by ACAT about how the accused should be dealt with.

22. Before deciding whether a detention order is appropriate or whether another order will be more effective to protect both the community and Mr Leong, I propose to seek a recommendation from ACAT for the purposes of s 308(e).

Orders

23. Accordingly, at this stage I order that ACAT be asked to provide a recommendation in relation to Mr Leong for the purposes of s 308(e) of the Crimes Act. In the meantime Mr Leong’s bail is continued on the same terms and conditions.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 21 January 2010

Counsel for the Crown: Mr A Doig

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the defendant: Mr R Livingston

Solicitor for the defendant: Legal Aid Office (ACT)

Date of hearing: 3 November, 10, 17 December 2009

Date of judgment: 17 December 2009

Attachment

Part 1—General directions for judge-alone trial

1. The general directions that I gave myself for the purposes of Mr Leong’s trial are set out below.
2. The prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt. To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt.
3. It is not enough for the prosecution to persuade me that the accused is probably guilty or even that he is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the prosecution does not have to do so.
4. If the accused offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.
5. In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness’s evidence. I may, if I think fit, accept part and reject part of the same witness’s evidence.

Part 2—What needs to be proved, and by whom, in relation to mental impairment

Relevant legislation

6. Sections 27, 28, 56, 57, 58, 59 and 60 of the Criminal Code 2002 (ACT) provide as follows about mental impairment and criminal responsibility, including how mental impairment must be proved.

7. The prosecution has the legal burden of proving (beyond reasonable doubt) every element of an offence relevant to guilt, and of disproving (also beyond reasonable doubt) any matter in respect of which the defendant has discharged an evidential burden of proof (ss 56 and 57(1)).

8. A person is not criminally responsible for an offence if, at the time of the offence, a mental impairment meant that the person:

(a) did not know the nature and quality of his or her conduct (s 28(1)(a));

(b) did not know that the conduct was wrong (defined as being unable to “reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person”, was wrong; see ss 28(1)(b) and 28(2)); or

(c) could not control the conduct (s 28(1)(c)).

9. There is a presumption against a person having suffered from a mental impairment at the time of the conduct required for the offence (s 28(4)).

10. This presumption can be displaced if it is proved on the balance of probabilities that the person was suffering from a mental impairment (s 28(5)).

11. An accused person wishing to deny criminal responsibility by establishing that he or she was suffering from a mental impairment has an evidential burden of proving mental impairment; that is, unless the prosecution has already presented sufficient evidence to that effect (s 58(5)), the accused must present or point to evidence suggesting a reasonable possibility of the necessary mental impairment (s 58(2)). “Mental impairment” for these purposes is defined in s 27 as including, relevantly, mental illness, which is defined as “an underlying pathological infirmity of the mind”.

12. Under s 321 of the Crimes Act, where an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court, the court:

... must enter a special verdict that the person is not guilty of the offence because of mental impairment if—

(a) the court considers the verdict appropriate; and

(b) the prosecution agrees to the entering of the verdict.

The steps in Mr Leong’s trial

13. Thus the necessary steps in the trial of Edmund Leong are as follows. First, the prosecution must prove Mr Leong’s conduct, being the act of indecency but not including any mental element of the offence, beyond reasonable doubt. If this is not done, then Mr Leong is entitled to an ordinary verdict of not guilty. If it is done, the question then becomes Mr Leong’s responsibility for that conduct. Unless the prosecution has already done so, the defence may then point to evidence suggesting a reasonable possibility that Mr Leong was suffering from a mental impairment such that he cannot be held criminally responsible for his conduct. If:

(a) evidence suggesting a reasonable possibility of a mental impairment is identified; and

(b) the court is satisfied on the balance of probabilities that Mr Leong was suffering from such a mental impairment; and

(c) the court considers appropriate a verdict of not guilty because of mental impairment; and

(d) the prosecution agrees to the entering of that verdict;

then the court must enter a special verdict that Mr Leong is not guilty because of mental impairment.