R v Aleer [2016] ACTSC 75

1. Aleer Aguer Aleer is not guilty of arson committed on 19 December 2014 by reason of mental impairment.

2. Aleer Aguer Aleer is not guilty of arson committed on 19 November 2014 by reason of mental impairment.

3. Aleer Aguer Aleer is not guilty of assaulting Ruben Aleer Aguer occasioning actual bodily harm by reason of mental impairment.

4. Aleer Aguer Aleer submit to the jurisdiction of the ACT Civil and Administrative Tribunal to allow it to make a mental health order or a forensic mental health order.

5. Aleer Aguer Aleer is not guilty of assaulting of Ruben Aleer Aguer on 19 December 2014 on the grounds of mental impairment.

6. Aleer Aguer Aleer is not guilty of assaulting of Gak Aleer on 19 December 2014 on the grounds of mental impairment.

7. Aleer Aguer Aleer is not guilty of damaging property, namely, a window at premises in Gilmore on 19 December 2014 by reason of mental impairment.

8. Aleer Aguer Aleer submit to the jurisdiction of the ACT Civil and Administrative Tribunal to allow it to make a mental health order or a forensic mental health order in relation to each of those offences.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Trial - trial by judge alone - arson - assault occasioning actual bodily harm - damaging property - 'serious offence' - transferred offences

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Mental impairment - special verdict - not guilty by reason of mental impairment - no power under Crimes Act 1900 (ACT) to require offender to submit to jurisdiction of ACAT for making of recommendation - offender to submit to jurisdiction of ACAT for making of mental health order or a forensic mental health order

Crimes Act 1900 (ACT), ss 24, 26, 27(3), 27(4), 116(3), 300(1), 308, 321, 323, 324, 325, 329, Pt 13,

Criminal Procedure Act 1986 (NSW), s 133

Evidence Act 2011 (ACT), ss 184, 190

Magistrates Court Act 1930 (ACT), s 90B

Supreme Court Act 1933 (ACT), ss 68B, 68C, 68E, 68E(3), 68F, Pt 8

Fleming v The Queen (1998) 197 CLR 250

R v Aranyi [2013] ACTSC 169

R v Ardler [2004] ACTCA 4; (2004) 144 A Crim R 552

R v Barker [2014] ACTSC 374

R v DM [2010] ACTSC 137

R v Fisher (No 2) [2011] ACTSC 100

R v Hueston [1995] TASSC 110; (1995) 5 Tas R 210

R v Massey [2000] ACTSC 107

R v McGuckin [2014] ACTSC 242

R v Smith [2012] ACTSC 146; (2012) 269 FLR 233

Legal Aid ACT (Defendant)

1. On 19 December 2014, Aleer Aguer Aleer, the accused, went to Gungahlin Police Station to seek the arrest of his brotherinlaw Ruben Aleer Aguer because, he alleged, he had "stolen his heart and kidney".

2. He then left the police station and went to the home of his sister at 52 Rollston Street, Amaroo, ACT, where he lit a fire in the engine of a car parked on the premises and, when Ruben Aleer confronted him, he attacked and injured him, smashed windows in the house, punched his sister, Gak Aleer, and damaged a communications panel box by fire.

3. Police attended and Mr Aleer was arrested. He was charged with two counts of arson, one count of assault occasioning actual bodily harm, two counts of common assault, and one count of damaging property.

4. He was committed for trial on 3 March 2015 on the counts of arson and assault occasioning actual bodily harm. His trial was set to be heard on 4 April 2016.

5. The other offences were transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT), to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT).

6. Mr Aleer elected under s 68B of the Supreme Court Act for trial by judge alone.

7. When arraigned, he pleaded not guilty due to mental impairment and the Crown agreed to the entry of a special verdict under s 28 of the Criminal Code 2002 (ACT).

8. Arson is an offence contrary to s 404(1) of the Criminal Code and attracts a maximum penalty of 1500 penalty units (that is, at the time, a fine of $225,000) and imprisonment for 15 years.

9. Assault occasioning actually bodily harm is an offence against s 24 of the Crimes Act 1900 (ACT), which provides for a maximum penalty of five years imprisonment.

10. Common assault is an offence prohibited by s 26 of the Crimes Act, which attracts a maximum penalty of two years imprisonment.

11. Damaging property is an offence against s 116(3) of the Crimes Act for which the maximum penalty is 50 penalty units (that is, at the time, a fine of $7500) and imprisonment for two years.

12. Section 321 of the Crimes Act provides for the entry of a special verdict in circumstances such as these. It provides:

(1) This section applies if an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court.

(2) The Supreme 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.

13. As I pointed out in R v Smith [2012] ACTSC 146; (2012) 269 FLR 233 at 235; [6], this is a provision unique to the Australian Capital Territory. After consideration of the section and relevant authorities, I determined that the appropriate procedure was as follows:

(1) The accused should be arraigned in the usual way.

(2) If he pleads not guilty by reason of mental impairment, the Crown should be asked if it agrees to the entry of a special verdict. Such agreement need not be in writing.

(3) If not, the trial proceeds in the usual way (as in, for example, R v McGuckin [2014] ACTSC 242).

(4) If so, then the court must consider whether a verdict is appropriate.

(5) The Crown must prove its case, beyond reasonable doubt, that the accused has committed the physical acts of the offence charged which would constitute the offence if done intentionally and voluntarily and with any particular fault element, such as intent or knowledge, specified as an element of the offence, but is not required to negative any such fault element, other than where objective evidence raises such an issue, such as mistake, accident, lack of specific intent, or knowledge of the particularity necessary to constitute the offence that is an element of the offence in itself, or selfdefence, in which case the Crown must negative that issue beyond reasonable doubt: R v Ardler [2004] ACTCA 4; (2004) 144 A Crim R 552 at 567; [90].

(6) Such evidence may be adduced in statements tendered and admitted into evidence if consent is given to such a procedure under ss 184 or 190 of the Evidence Act 2011 (ACT).

(7) The Court must be provided with such expert evidence as would satisfy it that the accused is mentally impaired, sufficient to meet the criteria set out in s 28 of the Criminal Code, which may also be achieved by the tender of reports from appropriately qualified medical experts. This does not need to be proved beyond reasonable doubt. The court, however, needs to be satisfied that the mental impairment has been made out to a standard sufficient to justify the potential significant interference with the freedom and liberty of the accused.

(8) Once these matters are satisfied, it would appear that this would meet the criteria that the entry of a special verdict was appropriate.

14. See R v Smith at 235-7; [8]-[23]. This procedure has since been followed in R v Aranyi [2013] ACTSC 169 and R v Barker [2014] ACTSC 374.

15. I then suggested how the procedure may apply where the hearing is not one before a judge alone, and what role the jury might play. That issue has not arisen, so far as I am aware, and my thoughts in R v Smith were without the benefit of submissions by counsel as these were not required in that case. My suggestions are not, therefore, to be considered other than provisional.

16. I applied the above procedure in this case and will apply these principles.

17. Statements were tendered and admitted into evidence from lay witnesses as follows;

3. Vanessa Loney, the immediate neighbour of Gak Aleer.

4. Timothy Stroud, a neighbour who was asked by Ruben Aleer to call police.

18. Transcripts were also tendered and admitted of interviews by police with Ruben Aleer and three of the children of Gak Aleer.

19. Statements and reports were tendered and admitted from a forensic chemist and two crime scene investigators.

20. Also tendered and admitted were statements from a Station Officer of ACT Fire and Rescue and from 13 police officers who attended the Gilmore premises or otherwise were involved in investigating the incident, as well as from an unsworn member of ACT Police attesting to continuity of records of various calls to ACT Police Communications. A transcript of the latter calls was also tendered and admitted.

21. Although the legislation is not entirely clear, it appears to me that the hearing is a trial. In this case, it is a trial by judge alone.

22. Under s 68C of the Supreme Court Act a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused, and such a finding has, for all purposes, the same effect as the verdict of a jury.

23. A judgment of the court in such a case must include the principles of law that I, the judge, apply and the findings of fact on which I rely, though, on appeal from a trial conducted under procedure regulated by s 133 of the Criminal Procedure Act 1986 (NSW) (a similar provision to s 68C of the Supreme Court Act), the High Court in Fleming v The Queen (1998) 197 CLR 250 at 263; [28], stated that it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and ultimately the verdict that is reached. In R v Massey [2000] ACTSC 107, Einfeld J held that the obligations stated by the High Court in that decision set out the obligations of a judge conducting a trial by judge alone under s 68C of the Supreme Court Act.

24. That section also requires me, as the trial judge, when considering my verdict, to take into account any warning, direction or comment that any Territory law requires to be given or made to a jury in such proceedings.

25. There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137.

26. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them, as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence, and view it clinically and dispassionately and not let emotion enter into the decisionmaking process. Both the Crown and Mr Aleer are entitled to my verdict free of partiality or prejudice, favour or illwill. I must then deliver my verdict according to the evidence.

27. The Crown bears the onus of proving, at all times, the commission by Mr Aleer of the physical acts that constitute the offences. Mr Aleer does not have to prove he did not commit those acts. If Mr Aleer does adduce any evidence which is consistent with his innocence, he does not have to prove it. It is for the Crown to disprove it, or to show that it is irrelevant, otherwise the Crown will not have proved its case.

28. The standard of proof of the Crown case is proof beyond reasonable doubt, and Mr Aleer cannot be found to have committed the physical acts that constitute the offences unless the evidence which I accept satisfies me beyond reasonable doubt that he has done so.

29. Mr Aleer is presumed, by law, to be innocent of each offence with which he has been charged unless and until the evidence I accept satisfies me that each and every physical element of the relevant charges has been proved beyond reasonable doubt.

30. Mr Aleer then loses the presumption of innocence and I must find that he committed the physical acts that constitute the offences.

31. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the physical elements of any offence charged, then he remains presumed innocent and I must find a verdict of not guilty simpliciter.

32. If I am satisfied that there may be an explanation consistent with the innocence of Mr Aleer of any charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find Mr Aleer not guilty simpliciter.

33. I must determine whether each of the witnesses is a reliable witness, that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness's evidence and reject part of that evidence, or accept or reject it all.

34. I must determine the facts in accordance with the evidence considered logically and rationally without acting capriciously or irrationally, but I may use my commonsense, experience and wisdom in assessing the evidence.

35. As all the evidence was admitted by consent and there was no other evidence, nor any crossexamination of any witness, I do not need to describe the evidence of each witness in detail as a result. This evidence, however, enables me to make the following findings.

36. Mr Aleer, who lives in Griffith, ACT, is the brother of Gak Aleer, and brotherinlaw of Ruben Aleer. Gak Aleer lives with her husband, John Aleer, her seven children aged from two years old to 14 years old, and her husband's brother, Ruben Aleer, at 52 Rollston Street, Amaroo, ACT. They are all members of the Sudanese Dinka community in Canberra.

37. Mr Aleer formerly lived with them but, due to issues of alcohol misuse and anger, and also because of their growing family, he moved out in about July 2014.

38. At about 9.30 am on Friday, 19 December 2014, Mr Aleer attended at Gungahlin Police Station and had a conversation with Constable Andrew Nesbit in which he asked that police arrest Ruben Aleer because, he said, he had stolen his heart and kidney.

39. He produced a document on the letterhead of the Canberra Hospital showing that he had attended the hospital on 14 December 2014 complaining of chest and abdominal pains, but that no issues were identified and he was discharged. He lifted his singlet to Constable Nesbit saying, "Look at the scar where my heart was taken", but Constable Nesbit could see no scarring.

40. When asked to describe the circumstances of the theft, Mr Aleer became agitated and left the police station.

41. He then went to the Gilmore house where earlier Ruben Aleer had got up to go to work, and Gak Aleer had awoken to make breakfast. One of her sons heard Mr Aleer banging on the cars, referring to the cars of John and Gak Aleer and Ruben Aleer parked in the front of the premises. He had opened the bonnet of one of the cars and had set fire to the engine cavity using newspaper, doused in accelerant, and lit with a cigarette lighter. He appeared to have poured accelerant into the engine cavity.

42. Ruben Aleer opened the front door, Mr Aleer was standing there and said, "I need my heart."

43. Mr Aleer then opened the security screen door and approached Ruben Aleer holding a knife, causing Ruben Aleer to fear for his safety.

44. Mr Aleer then proceeded to punch Ruben Aleer in the face two or three times, and the knife fell to the ground. Ruben Aleer felt pain and also fell to the ground. The punches caused swelling and bruising around his eye socket.

45. Gak Aleer went to help Ruben Aleer and tried to get the backpack that he was wearing off him. As she did so, Mr Aleer punched her in the back. That was probably a punch intended for Ruben Aleer.

46. Gak Aleer decided to go inside because of Mr Aleer's violence. As she did so, he kicked her on her lower back. He said, "I will kill someone, and then kill myself."

47. Ruben Aleer managed to get up and Gak Aleer told him to run to a neighbour's house and get them to call the police. He then ran down the street, leaving his backpack behind. Gak Aleer went back inside and took all her children into the backyard before returning to see what Mr Aleer was doing.

48. In the meantime, Mr Aleer picked up Ruben Aleer's backpack and took documents out of it and set fire to them before placing them in the front passenger compartment of the burning car, which caused the inside of the car to catch alight.

49. The fire was quite intense and caused a number of small explosions, apparently spreading to the other car which caused it fire damage also. The flames reached nearly to the eaves of the Gilmore residence and it became clear that it was in danger of also being set on fire.

50. Mr Aleer then picked up a piece of wood with which he smashed the front window of the premises. The piece of wood was one used by Ruben Aleer for his Dinka dancing. Gak Aleer, who had returned outside, picked up the piece of wood and said, "If you come inside to hurt my children, I will hit you with this." Mr Aleer replied, "Then I will go to the meter box of the house and bomb the house."

51. Mr Aleer then walked around to the side of the Gilmore residence where the electricity meter, the national broadband network panel box and the gas main were attached to the house. He had some rolled up paper which he lit and attempted to ignite the panel box. Fire damaged one side, but the box itself did not ignite.

52. In the meantime, Ruben Aleer had run down the street and flagged down a passing motorist whom he asked to call the police.

53. Gak Aleer had already rung the police but, as they had not arrived, she called again, asking them to hurry their arrival. In all, she called them four times.

54. Police arrived and tried, unsuccessfully, to extinguish the fire to the car with their handheld fire extinguishers. They arrested Mr Aleer and took him to the police station. Police evacuated the nearby neighbours.

55. In the meantime, members of the ACT Fire Service arrived and were able to extinguish the fire. Although the other car was fire damaged, it was from, it appears, radiant heat.

56. At the police station, Mr Aleer complained of pain. He kept saying that his sister and brother in law had taken his heart and his kidneys. He was attended to by ACT ambulance officers who could not identify any physical cause for his complaints.

57. Mr Aleer was charged with various offences and appeared in the Magistrates Court on 20 December 2014. Under s 309 of the Crimes Act, the court ordered that he be taken by police to the Adult Mental Health Unit of the Canberra Hospital for a decision to be made as to whether he needed immediate treatment or care because of mental impairment.

58. Each of the charges is constituted by elements which the Crown must provide beyond reasonable doubt.

59. In the case of the offence of arson there are two counts: one relating to the motor vehicle, and one relating to the Gilmore residence. The elements are generally the same for each offence. They are:

(a) Mr Aleer engaged in conduct, namely doing acts which involved the lighting of pieces of paper which he applied in one case to the car and, in the other case, to the building at the panel box;

(c) Mr Aleer's conduct caused damage to, in one case the car and, in the other case, to the building through the panel box;

(d) Mr Aleer intended to cause or was reckless about causing the damage.

The physical elements are (a) and (c). The fault elements are (b) and (d).

60. The other offence was assault occasioning actual bodily harm. The elements of this offence are

(b) Mr Aleer intended to apply the force, or was reckless about whether force was applied;

(c) the force was applied without Ruben Aleer's consent;

(e) Ruben Aleer suffered actual bodily harm, namely swelling and bruising on his face;

(f) Mr Aleer's application of force caused the actual bodily harm.

61. In this case, the physical elements are (a), (c), (d), (e) and (f). The fault element is (b).

62. If Mr Aleer was, at the time of the commission of the offences, suffering from mental impairment as provided for in s 28 of the Criminal Code and, if I find that the physical elements of each offence have been made out, I must enter a special verdict.

63. Section 28 of the Criminal Code provides as follows:

(1) 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 -

(a) the person did not know the nature and quality of the conduct; or

(b) the person did not know that the conduct was wrong; or

(c) the person could not control the conduct.

(2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.

(3) The question whether a person was suffering from a mental impairment is a question of fact.

(4) A person is presumed not to have been suffering from a mental impairment.

(5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.

(6) The prosecution may rely on this section only if the court gives leave.

(7) If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must -

(a) for an offence dealt with before the Supreme Court - return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or

(b) for any other offence - find the person not guilty of the offence because of mental impairment.

64. The evidence of mental impairment in this case consists of three medical reports from:

(a) Dr Niloofar Salesian who conducted the assessment for the Magistrates Court under s 309 of the Crimes Act and who recounted the examination of Mr Aleer by Dr Teresa Foce, at the Canberra Hospital the day after he appeared in the Magistrates Court;

(b) Dr John Kasinathan who provided a Forensic Mental Health Report requested by a magistrate;

(c) Dr Stephen Allnutt who examined Mr Aleer on behalf of his lawyers,

65. Dr Salesian diagnosed Mr Aleer has having suffered an acute psychotic episode and prescribed him medication. He had been prescribed anti-psychotic medication. He was treated under a Psychiatric Treatment Order. He was said to be at risk of harming himself and others, especially Gak Aleer and Ruben Aleer.

66. Dr Kasinathan reviewed Mr Aleer's medical history and conducted an examination of him on 18 February 2015 at the Alexander Maconochie Centre (AMC). He noted that Mr Aleer had no prior history of psychiatric involvement before December 2014 and there was no family history of mental illness or suicide.

67. Dr Kasinathan set out Mr Aleer's description of the offences, his personal history, and the results of a mental state examination.

68. He considered that Mr Aleer had a mental illness which he diagnosed as schizophrenia. He diagnosed other mental disorders that are not presently relevant. He also expressed the opinion that there was a definite connection between the conduct of Mr Aleer on 19 December 2014 and his mental illness, which impaired his mental capacity at the time he engaged in the conduct.

69. Dr Allnutt set out a detailed account of Mr Aleer's description of the offences. He noted that, despite his medication, he was, at the time of the examination, still experiencing psychotic symptoms.

70. Dr Allnutt set out a detailed personal history and the result of his review of the clinical notes from the Canberra Hospital and the reports of Dr Salesian and Dr Kasinathan. He also conducted and reported the results of, a mental state examination. He expressed the following opinion:

As a consequence of incorporating the victims into a delusional system, your client would have been compromised in his capacity to reason about the wrongfulness of his actions at the material time the alleged offending occurred. I noted that on admission to hospital he did say he knew what he had done was wrong, however, in my view, despite this, I do not think that he would have been capable of reasoning about the wrongfulness of the matter with a moderate degree of sense of composure due to his delusional beliefs about the victims and, on this basis, I believe that he would have a 'defence of mental impairment' available to him.

71. Having carefully read and considered these reports, I am satisfied that it was open to a judge or a jury to have found, on the balance of probabilities, that Mr Aleer would be able to sustain a defence of mental impairment.

72. On the basis of the findings I have made from the evidence adduced in this case, I am satisfied that the Crown has proved beyond reasonable doubt that Mr Aleer committed the physical acts which constituted the three counts in the indictment.

73. I am also satisfied that Mr Aleer can avail himself of a defence of mental impairment.

74. Accordingly, I am satisfied that it is appropriate that a special verdict be entered to each count of arson and the count of assault occasioning actual bodily harm.

75. The options available to me depend, to some extent, on whether the offences of which I have found Mr Aleer not guilty by reason of mental impairment are what are defined, for the purposes of Pt 13 of the Crimes Act, as "serious offences". Section 300(1) of that Act defines a 'serious offence' as:

1. an offence involving actual or threatened violence and punishable by imprisonment for longer than 12 months; or
2. an offence against [Crimes Act] s 27 (3) or (4).

76. Section 27(3) of the Crimes Act makes it an offence to inflict a range of violence on another person, none of which is relevant here and s 27(4) is an aggravated form of that offence.

77. Section 27(3) of the Crimes Act does, however, refer to a number of offences where the action is not directed towards a particular individual, but is in circumstances where the offence would lead to a risk of grievous bodily harm or death in relation to an individual. To that extent it may extend, or it may have an effect on, the meaning of violence in the definition of 'serious offence' in s 300(1)(a), so as not to encompass within that definition occasions where violence is not directed at an individual.

78. There can be no doubt that assault occasioning actual bodily harm is a serious offence within that definition. I must, however, deal with each offence.

79. In R v Smith at 241-4; [45]-[61], I dealt with that issue. In that case, I found that the offence there committed, though arson, was not one "involving actual threatened violence" because there was no persons actually threatened, the fire was easily extinguished and there was no "substantial risk of direct injury" resulting from the fire to other persons, as required in the interpretation of a similar provision by Wright J in R v Hueston [1995] TASSC 110; (1995) 5 Tas R 210 at 215.

80. In this case, on the other hand, there was a very direct risk to persons who were in the house and who may have been injured if the flames had in fact reached the eaves, or the vehicle had exploded more intensely than it did.

81. In my view, all three of the counts in the indictment were, for these proceedings, serious offences. As a result, I must proceed in accordance with s 324 of the Crimes Act which provides:

(1) This section applies if an accused is charged with a serious offence and a special verdict of not guilty because of mental impairment is returned or entered by the Supreme Court.

(2) The Supreme Court must -

(a) order that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or

(b) if, taking into account the criteria for detention in section 308, it is more appropriate - order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015.

82. The option of not detaining Mr Aleer in custody depends on considering the criteria set out in s 308 of the Crimes Act. Those criteria are as follows:

(a) the nature and extent of the accused's mental impairment, including the effect it is likely to have on the person's behaviour in the future;

(b) whether or not, if released -

(i) the accused's health and safety is likely to be substantially impaired; or

(ii) the accused is likely to be a danger to the community;

(c) the nature and circumstances of the offence with which the accused is charged;

(d) the principle that a person should not be detained in a correctional centre unless no other reasonable option is available;

(e) any recommendation made by the ACAT about how the accused should be dealt with.

83. I can determine a number of these matters from the material I have, but I have no recommendation from the ACT Civil and Administrative Tribunal (the ACAT).

84. Unlike s 323 of the Crimes Act, which deals with offences that are not serious offences, where a person has been found not guilty of such offences by reason of mental impairment and which provides for a power to seek a recommendation from the ACAT, there is no specific power for me to require Mr Aleer to submit to the jurisdiction of the ACAT to enable it to make recommendations where the offences are serious offences. Given that express power in s 323 and its absence in s 324, where it further does not directly refer to such recommendation but only by reference to s 308, where it refers to, "any recommendation made by the ACAT", I am not satisfied that I have such a power. It is yet another lacuna in the scheme of these provisions that produces real difficulties in working the matters of practical matter. See, for example, R v Fisher (No 2) [2011] ACTSC 100 at [68].

85. As to criterion (a), I note that the most recent mental health report is that of Dr Allnutt. His report of the mental state examination was relatively positive, though Mr Aleer was in custody in the AMC at the time. Dr Allnutt said:

Your client presented as cooperative and reasonably well groomed. His speech was clear and coherent and he maintained good eye contact. He engaged with me, but could not recall some details related to the alleged offending. He did not manifest behaviours consistent with either side effect to psychiatric medication or neurological illness. His affect was restricted and he endorsed some depressive and anxiety symptoms, but there was no suicidal ideation plan or intent. Cognitively he was generally intact, but his capacity for insight and judgment, in my view, remain somewhat questionable.

86. Dr Allnutt's brief was obviously not to deal with Mr Aleer's future treatment or dangerousness to himself or others. Indeed, he specifically stated that it was directed to "an opinion in regard to whether or not he has a defence of mental illness available to him".

87. Although some four months earlier, Dr Kasinathan did refer to the treatment and management of Mr Aleer in the mental health system. He said:

With regards to the ongoing management of Mr Aleer, given his schizophrenia, he would benefit from continued engagement with the relevant mental health service mandated under a psychiatric treatment order (as currently in place). The community mental health team can provide this in the community. If he remains in custody, the Forensic Mental Health Service will continue treatment. If he relapses into substance abuse he would benefit from drug and alcohol counselling to reduce the exacerbating influences of amphetamine and cannabis use upon his psychotic illness. The above recommendations may be enacted in the community or in custody, depending on the Honourable Court's disposition.

88. There was no suggestion in either case that, with proper treatment, though probably under a psychiatric treatment order, Mr Aleer cannot be managed effectively in the community. Mr Aleer is currently subject to a psychiatric treatment order made on 16 January 2016.

89. As to criterion (b), there is no evidence to suggest that, if released to the community, Mr Aleer's health and safety is likely to be substantially impaired or that he is at present likely to be a danger to the community.

90. As to criterion (c), I have described the offences earlier in these reasons. They were serious offences which were violent and caused, in the case of the arson of the vehicle, significant damage. The vehicle, which was completely destroyed, had been purchased for $53,000. The other vehicle, also destroyed, was purchased for the same sum. The arson of the first vehicle had the capacity to put other persons at risk of injury because of the danger of the flames catching the house on fire. The assault occasioning actual bodily harm was not a particularly serious version of that offence.

91. Nevertheless, it is clear that the offences were entirely caused by the psychotic delusions from which Mr Aleer was suffering. That he had no prior involvement with the mental health system may have meant that the need for earlier intervention, which may have prevented the offences, was not recognised. He is now involved in the mental health system.

92. As to criterion (d), I note that Mr Aleer was in custody from 19 December 2014 to 28 January 2016, when he was granted bail. So far as I can determine, he has not breached his bail. One of his bail conditions was to undertake the Step Up Step Down program conducted by a partnership between the Mental Illness Fellowship Victoria and Mental Health ACT. He has progressed through the program and, recently, was permitted to live outside the program residence to assist with transition to his planned exit from the program and reintegration into the community. He does not appear to have breached his bail since it was granted.

93. I have already dealt with criterion (e). I do not consider that I can require Mr Aleer to submit to the jurisdiction of the ACAT for the purposes of seeking a recommendation.

94. Considering all these matters, I am satisfied that I may order that Mr Aleer submit to the jurisdiction of the ACAT to allow it to make a mental health order or a forensic mental health order.

95. I have referred to the other offences transferred to this court to be dealt with under Pt 8 of the Supreme Court Act.

96. The relevant sections are ss 68E and 68F of the Supreme Court Act, which are as follows:

68E Procedure

(1) The court shall deal with a back-up or related offence under this part -

(a) without a jury; and

(b) on the basis only -

(i) of evidence given during the trial of the accused person for any indictable offence in the same proceedings; and

(ii) of any additional evidence given under this section.

(2) The prosecutor or the accused person may, with the leave of the court, call additional evidence in relation to the back-up or related offence.

(3) In sentencing or otherwise dealing with a person for a back-up or related offence, the court has the same functions as the Magistrates Court.

68F Remission of back-up and related offences to Magistrates Court

The court may, at any time, remit a back-up or related offence being dealt with under this part to the Magistrates Court.

97. Assuming, as I do, that the hearing of the substantive offences was a trial, notwithstanding that it was truncated because of the procedure under s 321 of the Crimes Act, this provides no difficulty in applying these sections. Were it to be held that the proceedings were not a trial, that would require remission of the charges under s 68F of the Supreme Court Act. That would, to some extent, defeat of this reform introduced by Pt 8 of the Supreme Court Act.

98. The transferred offences were all offences said to have been committed in the course of the incident at the Gilmore premises on 19 December 2014. There is, therefore, strong reason to deal with them all together, as this procedure contemplates and is intended to effect.

99. The offences are the common assault on Ruben Aleer, where Mr Aleer approached him with a knife; the assault on Gak Aleer, when Mr Aleer kicked her in the lower back; and the damage to property caused by the breaking of the window of the Gilmore premises.

100. As noted in s 68E(3) of the Supreme Court Act, when the Supreme Court deals with such transferred offences it acts as if it were the Magistrates Court itself and has the functions of that Court.

101. The Crimes Act makes provision for the Magistrates Court Act to find an offender not guilty of offences by reason of mental impairment.

102. In this case, the evidence for these offences is within the findings I have already made above (at [35]-[57]). The elements of the offences are as follows.

For the common assault involving Ruben Aleer, the elements are:

(a) Mr Aleer committed an act, namely, approaching Ruben Aleer aggressively with a knife;

(b) the act caused Ruben Aleer to fear that force was about to be inflicted;

(c) the act was committed intentionally or recklessly;

(d) the act was committed without Ruben Aleer's consent;

103. Elements (a), (b), (d) and (e) are physical elements. Element (c) is a fault element.

104. For the common assault on Gak Aleer, the elements are:

(b) Mr Aleer intended to apply the force and was reckless about whether it was applied;

(c) the application of force was without Gak Aleer's consent;

105. The physical elements are (a), (c) and (d); the fault element is (b).

106. The elements of the offence of damaging property contrary to s 116(3) of the Crimes Act are:

(b) the act destroyed or damaged property otherwise than by fire or explosives;

(d) Mr Aleer intended to or was reckless about destroying or damaging the property;

(e) the damage to the property did not exceed $5000.

The physical elements are (a), (b), (c) and (e); the fault element is (b).

107. From the findings I made from the evidence above (at [35]-[57]), I am satisfied that the physical elements of these offences have been proved from those findings, save for the value of the damaged window. It was, however, admitted both by the agreed tender of what was said to be an Agreed Statement of Facts and a formal admission made by Mr Aleer's counsel, that the value of the damage did not exceed $5000, and that justifies the finding that all these elements have been proved.

108. I am satisfied from the findings I made (at [35]-[57]) that, at the time the physical acts for all the offences were committed by Mr Aleer, he was mentally impaired as defined in s 28 of the Criminal Code.

109. Accordingly, I find that on these three offences that Mr Aleer is not guilty on the grounds of mental impairment.

110. The definition of a "serious offence" for the purposes of findings in the Magistrates Court is set out in s 325 of the Crimes Act and is relevantly identical to that for the Supreme Court.

111. Thus, the offences of common assault are serious offences. I am satisfied, also, that, in the circumstances where Mr Aleer was aware from his prior residence in the Gilmore property, that persons would be inside the house and that therefore there would be a risk of injury to persons and that the damage to property was also a serious offence.

112. In that case, s 329 of the Crimes Act sets out the options for disposition in relevantly identical terms to s 324 of the Act. It is in the following terms:

(1) This section applies if an accused is charged and the Magistrates Court makes a finding of not guilty because of mental impairment.

(2) The Magistrates Court must -

(a) order that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or

(b) if, taking into account the criteria for detention in section 308, it is more appropriate - order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015.

113. For the reasons set out above, when considering the offences contained in the indictment, I consider that the same disposition should be made for the transferred offences, namely, that I should order that Mr Aleer submit to the jurisdiction of the ACAT to allow it to make a mental health order or a forensic mental health order.

(1) That Aleer Aguer Aleer is not guilty of arson committed on 19 December 2014 by reason of mental impairment.

(2) That Aleer Aguer Aleer is not guilty of arson committed on 19 November 2014 by reason of mental impairment.

(3) That Aleer Aguer Aleer is not guilty of assault of Ruben Aleer Aguer occasioning actual bodily harm by reason of mental impairment.

(4) I order that Aleer Aguer Aleer submit to the jurisdiction of the ACT Civil and Administrative Tribunal to allow it to make a mental health order or a forensic mental health order.

(5) Aleer Aguer Aleer is not guilty of the assault of Ruben Aleer Aguer on 19 December 2014 on the grounds of mental impairment.

(6) Aleer Aguer Aleer is not guilty of the assault of Gak Aleer on 19 December 2014 on the grounds of mental impairment.

(7) Aleer Aguer Aleer is not guilty of damaging property, namely, a window at premises in Gilmore on 19 December 2014 by reason of mental impairment.

(8) I order that Aleer Aguer Aleer submit to the jurisdiction of the ACT Civil and Administrative Tribunal to allow it to make a mental health order or a forensic mental health order in relation to each of those offences.

I certify that the preceding one hundred and fourteen [114] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.