R v Ardler [2003] ACTSC 24

CRIMINAL LAW - special hearing by judge alone - whether acts constituting offence proven beyond reasonable doubt.

Crimes Act 1900 (ACT), ss 12, 50, 301-303, 308, 310, 315, 316, 317, 319, 320, 324, subss 316(2), (8), 317(4), 319 (2)

Mental Health (Treatment and Care) Act 1994 (ACT), s 11, subs 68(3)

Guardianship and Management of Property Act 1991 (ACT)

Supreme Court Act 1933 (ACT), s 20, 68C

Evidence Act 1995 (Cth), s 144

Criminal Law Consolidation Act 1935 (SA), s 269M B

Crimes Amendment Bill 1994 (ACT), ss 428K, 428J, 428M B

R v Morris [2002] ACTSC 12; (2002) 128 A Crim R 110

R v Bailiff [2000] ACTSC 79 (unreported, 16 August 2002)

R v T [1999] SASC 429; (1999) 75 SASR 235

R v Miller [1982] UKHL 6; [1983] 2 AC 161

DPP v Morgan [1975] UKHL 3; [1976] AC 182

R v Kimber (1983) 1 WLR 1118

R v Satnam S [1983] EWCA Crim 5; (1983) 78 Cr App R 149

R v Brown (1975) 10 SASR 139

R v Kitchener (1993) 29 NSWLR 696

R v Tolmie (1995) 37 NSWLR 660

Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217

R v Kurtic (1996) 85 A Crim R 57

Simon Bronitt "The Direction of Rape Law in Australia: Toward a Positive Consent Standard" (1994) 18 Crim Law J 249

1. the accused is not guilty of the offence charged, namely that on 6 May 2002 he engaged in sexual intercourse with the complainant without her consent, knowing or being reckless as to whether she consented to the sexual intercourse.

1. the accused submit himself to the jurisdiction of the Mental Health Tribunal to enable the Tribunal to determine whether orders should be made in respect of his treatment, care, control, rehabilitation and protection.1. The trial of this matter commenced yesterday, when an indictment was presented alleging that on 6 May 2002 the accused engaged in sexual intercourse with the complainant without her consent, knowing or being reckless as to whether she consented to the sexual intercourse.

2. Later on the day of the alleged offence, the accused appeared before Magistrate Somes who made an order pursuant to s 310 of the Crimes Act 1900 (ACT) requiring him to submit to the jurisdiction of the Mental Health Tribunal ("the Tribunal") to enable the Tribunal to determine whether or not he was fit to plead to the charges upon which he had been committed for trial. The concept of fitness to plead has been effectively codified in this Territory by subs 68(3) of the Mental Health (Treatment and Care) Act 1994 (the "Mental Health Act") which is in the following terms:

(3) The tribunal shall make a determination that a person is unfit to plead to a charge if satisfied that the person's mental processes are disordered or impaired to the extent that the person is unable -

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

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

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

(f) to give instructions to his or her legal representative.

3. On 27 June 2002, the Tribunal provided a report stating that it had determined that it was unlikely that the accused would become fit to plead within 12 months. Hence, the Court was required to conduct a special hearing pursuant to s 315 of the Crimes Act.

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

5. Whilst the relevant provisions of the Crimes Act suggest that a special hearing is a "trial", it is not a trial in the usual sense of a proceeding in which the accused is liable to be convicted and punished for an offence if guilt is proven beyond reasonable doubt. In a hearing of this nature the accused must be found not guilty if the Court is not satisfied beyond reasonable doubt that the accused "committed the acts which constitute the offence charged". However, he or she may not be convicted even if the Court is satisfied beyond reasonable doubt that the accused committed those acts. See ss 317 and 319 of the Crimes Act. Such a finding is referred to in the headings to the relevant sections of the Crimes Act, though not in the actual statutory provisions, as a "non-acquittal". Findings of that nature do not expose the accused to punishment for the offences in question but do invoke the provisions of subs 319(2), which require the Court to order that the accused be detained in custody until the Mental Health Tribunal orders otherwise unless, "in consideration of the criteria for detention in s 308" it is satisfied that it is more appropriate to order that the accused submit himself or herself to the jurisdiction of the Tribunal to enable it to make a mental health order pursuant to the Mental Health Act. In essence, the alternative to acquittal is a finding that results in neither conviction nor punishment, but invokes a statutory regime intended to ensure the treatment and care of the accused and the protection of the community.

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

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

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

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

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

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

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

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

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

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

11. In special hearings of this nature the test posited by s 317 of the Crimes Act is whether the Court is satisfied beyond reasonable doubt that the accused "committed the acts which constitute the offence charged". In R v Morris [2002] ACTSC 12; (2002) 128 A Crim R 110, I held that this provision requires the Crown to prove all of the essential elements of the offence, though defences such as mental impairment or diminished responsibility could not be raised. I adhered to that view in R v Bailiff [2000] ACTSC 79 (unreported, 16 August 2002). In the present case, the Crown contended that the view was, nonetheless, incorrect and that the provisions of s 317 did not require the Crown to prove the so-called "mental elements" of an offence. I have carefully considered the Crown's written and oral submissions on this issue, but remain of the view which I expressed in Morris. Having regard to the nature of the charge and my concern as to the form of the relevant provisions it may be appropriate for me to restate my reasons for this view.

12. Section 317 of the Crimes Act is in the following terms:

(1) At a special hearing that is a trial by jury, the jury shall, if satisfied beyond reasonable doubt that the accused committed the acts that constitute the offence charged, advised the court accordingly.

(2) If the jury is not satisfied in accordance with subsection (1) -

(a) the jury shall return a verdict of not guilty in respect of the offence charged; and

(b) the accused shall be dealt with as though the jury had returned that verdict at an ordinary trial.

(3) If, at a special hearing by a single judge without a jury, the judge is not satisfied beyond reasonable doubt that the accused committed the acts that constitute the offence charged -

(a) the judge shall find the accused not guilty of the offence charged; and

(b) the accused shall be dealt with as if the accused had been found not guilty at an ordinary trial.

(4) An advice under subsection (1) -

(a) does not constitute a basis in law for the recording of any conviction for the offence charged; and

(b) constitutes a bar to further prosecution of the accused for any offence in respect of the acts which were alleged to constitute the offence charged.

13. It may be noted that the decisive question is whether the jury or, in the case of the special hearing by a judge without a jury, the judge is satisfied beyond reasonable doubt that the accused committed "the acts which constitute the offence charged". The meaning of this phrase is not clear. An offence is constituted by a number of elements, one or more of which usually consist of things done by the offender, which may be referred to as objective elements, and one or more of which consist of knowledge, intention or some other state of mind, which may be referred to as subjective or mental elements. Hence, an act which causes a person's death will constitute an offence of murder only if it was carried out with the intention of causing the person's death or with reckless indifference to the probability of causing death: see s 12 of the Crimes Act. It may be difficult to construe mental elements as "acts". Yet in the absence of such elements, the "acts" alleged by the Crown would be incapable of constituting the offence charged or, perhaps, any offence at all. What then does the section require? Does it require the Crown to prove beyond reasonable doubt each element of the relevant offence or only objective elements?

14. Neither answer seems wholly satisfactory. The former would require the Crown to prove the necessary subjective elements even though s 317 and the other sections dealing with the prosecution of people found unfit to plead are obviously directed to ensuring public protection from dangerous acts committed by people suffering from some substantial mental impairment, and the effectiveness of those provisions might be seriously eroded by such a requirement. On the other hand, it is difficult to see how a jury could be satisfied that acts could constitute offences without proof of the subjective elements and even more difficult to imagine that the legislature could have intended to exclude any issues as to the knowledge or intention of the accused from consideration at a special hearing. In that event, a jury would be obliged to treat any act leading to the death of another person as murder even if the accused had lacked any homicidal intent, the relevant act had occurred accidentally and she or he had not even known of the danger.

15. It is true that a "non acquittal" does not constitute a conviction or expose the accused to sentencing but the consequences may nonetheless be significant. Section 319 creates a prima facie requirement for immediate detention and this is obviously predicated upon the assumption that the accused has previously acted in a manner that would have constituted an offence even if the finding of unfitness to plead had prevented a normal trial. Furthermore, the court may relieve the accused of that requirement only if, "in consideration of the criteria for detention in section 308", it is more appropriate to order submission to the jurisdiction of the Mental Health Tribunal. Section 308 requires the court to consider, inter alia, "the nature and circumstances of the offence with which the accused is charged". Hence, it seems to be contemplated that even this discretion must be exercised on the assumption that once a finding of non acquittal has been made the accused should be treated as if he or she had committed the offence. Furthermore, ss 301 to 303 inclusive make it clear that a person may be detained for a period as long as any term of imprisonment that would have been imposed if "the person had been found guilty of that offence". That would obviously be both unfair and unreasonable if the accused had committed the relevant acts innocently. For example, it would be absurd to treat a postal worker who unwittingly delivered a letter bomb as a murderer merely because he or she was subsequently found unfit to plead.

16. Nonetheless, the latter position would appear to reflect the law in South Australia. In that State, however, the relevant legislative provision, s 269M B of the Criminal Law Consolidation Act 1935 (SA), expressly provides that the Court need be satisfied only that the objective elements of the offence be established beyond reasonable doubt and the court must exclude from consideration any question of whether the defendant's conduct "is defensible". In R v T [1999] SASC 429; (1999) 75 SASR 235, the Full Court of the Supreme Court of South Australia ruled that this provision has the consequence of relieving the Crown of the need to prove the intention of the defendant. The decision was based upon the wording of the section, but the Full Court did say that "requiring the Court to make a finding about intent, on the assumption that T's mental faculties were not impaired, would be to require the Court to embark upon an almost impossible, and seemingly pointless inquiry". It may be noted that the requirement to act on the assumption that the defendant's mental facilities were not impaired applied only to defences and that a specific intent had been an element of the offence charged. The apparent confusion in the statement may, perhaps, be explained by reference to the nature of the issues raised in argument but, whatever the reason, it should not be seen as providing any endorsement of the legislative policy reflected in the South Australian statute, or as a basis for assuming that s 317 of the Territory enactment had been intended to reflect a similar policy. In any event, the legislative provision with which I am concerned is in quite different terms and the decision is obviously distinguishable.

17. Even recourse to the explanatory memorandum does not make the meaning of s 317 then (s 428K of the Crimes Amendment Bill 1994 (ACT), the "amending Bill") entirely certain. It does state that the sole question to be determined by the jury is "did the accused carry out the acts constituting the actus reus of the offence charged?" The term actus reus normally refers, collectively, to the objective elements, with the term mens rea being used to refer to the whole of the subjective elements. Hence, at face value, this statement would appear to make it clear that the section had been intended to require proof of only the objective elements of the offence. However, the use of the term actus reus has been criticised as potentially misleading.

18. In Haughton v Smith [1975] AC 476 at 491 Lord Hailsham said that:

[the term] derives, I believe, from a mistranslation of the Latin aphorism: "Actus non facit reum nisi mens sit rea." Properly translated, this means, "An act does not make a man guilty of a crime, unless his mind be also guilty." It is thus not the actus which is "reus," but the man and his mind respectively. Before the understanding of the Latin tongue has wholly died out of these islands, it is as well to record this as it has frequently led to confusion [emphasis in original].

19. In the subsequent case of R v Miller [1982] UKHL 6; [1983] 2 AC 161 at 174, Lord Diplock pointed out that the use of the term had long been criticised and was likely to mislead. His Lordship said:

This expression is derived from Coke's brocard . . . "et actus non facit reum, nisi mens sit rea," by converting, incorrectly, into an adjective the word "reus" which was there used correctly in the accusative case as a noun. As long ago as 1889 in Reg. v. Tolson (1889) 23 Q.B.D 168, 185-187, Stephen J. when dealing with a statutory offence ... condemned the phrase as likely to mislead, though his criticism in that case was primarily directed to the use of the expression "mens rea". In the instant case . . . it is the use of the expression "actus reus" that is liable to mislead . . .

My Lords, it would I think be conducive to clarity of analysis of the ingredients of a crime that is created by statute, as are the great majority of offences today, if we were to avoid bad Latin and instead to think and speak . . . about the conduct of the accused and his state of mind at the time of that conduct, instead of speaking of actus reus and mens rea.

20. It is true, of course, that a court should not decline to take into account extrinsic evidence of legislative intent merely because of quibbles about the etymology of words used in its expression. Despite these suggestions that the term can sometimes be misleading, I would have been inclined to accept that the reference to actus reus in the explanatory memorandum was intended to refer, collectively, to the objective elements of the offence had it not been for other apparently contradictory statements.

21. However, in dealing with s 316 (s 428J in the amending Bill) the explanatory memorandum states that the explanation to the jury should include a direction that "the accused should be acquitted unless the offence is proved beyond reasonable doubt". An "offence" can obviously be proven only by establishing all elements, both objective and subjective. Hence, at face value, this statement is incompatible with the statement referred to earlier and it is difficult to know how the two might be sensibly reconciled.

22. It seems unlikely that the legislature believed that offences consisted only of physical acts or that it intended to create situations of obvious injustice by denying an accused the right to an acquittal when not guilty of the offence charged. For example, it is difficult to accept that the legislature would have intended to prevent a person from being acquitted of intentionally causing grievous bodily harm when the injuries had obviously been caused accidentally. Other passages in the explanatory memorandum make it clear that the section was intended to at least ameliorate the "great disadvantage" that the accused might suffer if a full trial proceeded and to protect his or her rights. Those objectives are plainly incompatible with the introduction of a scheme that might operate so unfairly.

23. It would also be difficult to envisage any way in which offences such as conspiracy could be accommodated within such formulation that excluded any elements based on states of mind. The essence of conspiracy is, of course, merely an agreement to effect a criminal purpose that may be a tacit agreement. Whilst the formation of such an agreement may be deduced from overt acts of the accused, such acts are not elements of the offence. Hence, if the operation of the section were restricted to objective acts, as the Crown contends, it could presumably have no application to such cases unless the concurrence of assent could be regarded as the actus reus of an offence. It seems unlikely that the legislature intended any latter day Guy Fawkes or other participant in a serious criminal conspiracy to remain beyond the scope of the section, or that the outcome of proceedings should depend upon esoteric arguments about which Latin phrases should apply to states of mind.

24. The difficulty experienced in seeking to deduce the intention of the legislature from the explanatory memorandum is compounded by apparent confusion in the language employed. For example, after referring to the disadvantage that would be suffered by an accused at a full trial, the memorandum states: "[t]herefore the following scheme has been adopted because it protects the rights of the person who is unfit to plead, gives the Court flexibility in deciding what options apart from prison are available in respect of disposition, and places the accused in the position of being involved in a lengthy and complex trial" (sic). It is difficult to understand how the last of these objectives could be reconciled with the first or why it might have been seen as an appropriate objective. There may have been a typographical error and the sentence may have been intended to reflect some hope that the scheme would avoid involving the accused in a lengthy and complex trial. However, it is by no means clear how even that could have been seen as a likely consequence of provisions requiring hearings which were to proceed as trials but with added complications due to the mental impairment of the accused, the need for special directions and the artificiality of excluding subjective elements from consideration. In any event, the meaning of this passage, which is between the apparently contradictory statements referred to earlier, is not entirely clear.

25. It should also be noted that the explanatory memorandum stated that s 319 (s 428M in the amending Bill) had provided only narrow options for disposition "because the Court is dealing with a person who has committed a serious offence". Hence, the reference to the need to be satisfied only of the actus reus is both preceded and followed by statements suggesting that the commission of the actual offence must be proven and must be considered in the context of statutory provisions which seem to be predicated upon that assumption.

26. Considered as a whole, the meaning of the relevant portions of the explanatory memorandum does not seem to emerge with substantially greater clarity than the meaning of the section itself. One possible explanation for that apparent contradiction is that the reference to the acts constituting the actus reus was intended to exclude not essential elements of the offence, such as knowledge or intention, but the need for the jury to consider any defences based on the mental impairment of the accused. Such a construction would be consistent with the overall objectives stated in the explanatory memorandum and, perhaps, with either some clumsiness of expression, as is evident in the preceding passage, or even with the term being used as a shorthand means of referring to the aphorism Actus non facit reum nisi mens sit rea.

27. It would also be consistent with the terms of the Bill which it purported to explain. The section clearly does not require the Court to consider any defence of mental impairment as provided by s 320 of the Crimes Act. The fact that such a defence does not fall within the ambit of the issues specified in s 317 should cause no injustice because a "non-acquittal" after a special hearing does not constitute a conviction (see subs 317(4)) and the consequences of such a finding are the same as those that ensue following an acquittal on the ground of mental impairment (see, for example, ss 319 and 324). However, provisions expanding the nature of this defence and those governing the consequences of an acquittal on that ground were contained in the same Bill and would presumably have been in contemplation when the explanatory memorandum was drafted.

28. Whatever the terms of the memorandum, it is clear from the statute that the acts must be such as to constitute the offence charged and that a person who is not acquitted must be treated as if he or she had committed the offence, though the consequences will be non-punitive in character.

29. In all of the circumstances I remain of the view that, notwithstanding the statement in the explanatory memorandum suggesting that only the actus reus need be proved, it is incumbent upon the Crown to prove all of the essential elements of an offence at a special hearing, but that defences of mental impairment or diminished responsibility may not be raised.

30. The offence with which the accused stands charged has three elements. First, the accused must have engaged in sexual intercourse with the complainant; second, he must have done so without her consent; and, third at the time he did so he must have either known that she did not consent or have been reckless as to whether she was consenting.

31. In the context of the first of these elements, the term "sexual intercourse" has been given an expanded meaning by s 50 of the Crimes Act. That section provides that in the relevant part of the Act the term means:

(a) the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or

(b) the penetration, to any extent, of the vagina or anus of a person by an object, being penetration carried out by another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or

(c) the introduction of any part of the penis of a person into the mouth of another person; or

(d) cunnilingus; or

(e) the continuation of sexual intercourse as defined in paragraph (a), (b), (c) or (d).

32. In the context of the second element of the offence the concept of consent means a free and voluntary consent.

33. In the context of the third of these elements, the concept of recklessness requires advertence to the possibility that the complainant was not consenting or at least an intention to commit the relevant sexual act without regard for whether the complainant was consenting or not. See DPP v Morgan [1975] UKHL 3; [1976] AC 182 per Lord Cross of Chelsea at 203, Per Lord Hailsham of St Marlybone at 209 and 215, and Lord Edmund-Davies at 225. The proposition that indifference to the issue of consent may amount to recklessness has since been recognised in other English cases (see, for example, R v Kimber (1983) 1 WLR 1118 per Lawton J at 1121, cited with approval in R v Satnam S [1983] EWCA Crim 5; (1983) 78 Cr App R 149 at 154) and the same approach has been adopted in Australia (see for example, R v Brown (1975) 10 SASR 139 per Bray CJ at 147; R v Kitchener (1993) 29 NSWLR 696; and R v Tolmie (1995) 37 NSWLR 660). Whilst the adequacy of even this test has been questioned (see, for example, Simon Bronitt "The Direction of Rape Law in Australia: Toward a Positive Consent Standard" (1994) 18 Crim Law J 249 at 351), both Kirby P in Tolmie at 669 and Carruthers J in Kitchener at 700 have suggested that a serious question as to whether the possibility of an absence of consent might not have occurred to the accused could arise only in very rare cases. The issue does not arise in the present case because the Crown did not suggest that the accused had been reckless as to whether the complainant had been consenting to the sexual act in question.

34. The case for the Crown was based substantially upon the evidence of the complainant and no other witnesses were called to give evidence orally. A number of statements by Police officers who had taken part in the investigation were admitted into evidence, as were statements by a medical practitioner who examined the complainant shortly after the incident and by a forensic scientist who had carried out DNA testing on swabs taken from the complainant and compared the results with a sample of the accused's DNA. The supporting evidence effectively confirmed that the accused had engaged in sexual intercourse with the complainant, but was equally consistent with that having occurred consensually or non-consensually.

35. The accused did not give evidence. No adverse inference should, of course, be drawn against him by reason of his failure to do so. This was not a case as in Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217 in which apparently incriminating evidence may have been capable of an explanation by disclosure of additional facts known only to the accused. See also Azzopardi v The Queen (2001) 205 CLR 50. In any event, this principle could not, in my opinion, have any application to a special hearing of charges against an accused found unfit to plead.

36. Furthermore, there is in my opinion, a need for special caution in scrutinising the evidence adduced against an accused person who has been found unfit to plead and whose disordered or impaired mental processes may have effectively deprived him or her of the opportunity of giving evidence in his or her own defence.

37. Sadly, the complainant suffered from epilepsy and depression and also appeared to have some intellectual limitations. She gave evidence that she had known the accused since 1986. They saw each other at basketball matches each week. On the occasion in question, she permitted the accused to stay overnight in the spare bedroom in her flat because he had missed his bus after they had been watching football together.

38. She said that she woke at about 4.15 am and found the accused lying beside her in bed. She asked him why he was there and he told her that he just wanted her to give him a cuddle. She said "you're in my space" and told him to leave the room. However, he simply rolled over and either went to sleep or pretended to do so. She then went back to sleep.

39. She said that when she woke again sometime later he was touching and sucking her breasts. She told him not to do that but he did not stop. He began to touch her "down below" and agreed that, by that term she had been referring to her vagina. She said that he had been licking it. She told him to stop but he did not do so. He asked her if she liked it and she said "no". She said she pushed him away and told him not to do it but he put his penis into her vagina and subsequently ejaculated.

40. In cross-examination, she agreed that she and the accused had been "fairly good friends" but said that she had not been his girlfriend and that there had been no prior signs of affection between them. He had not previously stayed overnight. She rejected a suggestion that he may have initially touched her in an attempt to wake her, though she did tell a police officer that he had come in and "started shaking" her. She was cross-examined about various aspects of her account of the incident which, it was suggested, had been exaggerated. In particular, it was suggested that she had claimed in evidence to have lost count of the number of times she had said "No" to the accused, but that, when interviewed by the police, she had mentioned only one occasion upon which she had told him to stop. Similarly, it was suggested that whilst she had claimed in evidence that she had made a number of attempts to push him away, she had mentioned only one such effort to the police. Furthermore, there were other aspects of the account that she had apparently not mentioned to the police at all, such as allegations that he had held down her legs or that she had ordered him to leave the flat.

41. Despite these criticisms, I found the complainant to be a generally credible witness. There seemed to be some measure of confusion in her evidence but that was understandable. She was describing an incident that had occurred after she had been woken in the early hours of the morning and whilst her faculties were apparently impaired by the medication she had taken, which she said made her drowsy. She also said that the medication had an effect on her memory. I have no doubt that the accused had sexual intercourse with her and, despite the carefully considered submissions of Mr Edmund, who appeared for the accused, I accept her evidence that it occurred without her consent.

42. The real difficulty in the Crown case arises from the need to prove that the accused was either aware that the complainant was not consenting or was reckless as to the issue of consent. The Crown maintained that it was not required to prove such mental elements of an offence in proceedings of this nature and effectively based its case upon this contention. The Crown did not submit that I could be satisfied beyond reasonable doubt that the accused had either been aware that the complainant had not been consenting or reckless as to that issue. Nor could such a contention have been maintained.

43. Of course, if the accused been of normal intellect and psychological health, an inference that he must have been aware that the complainant was not consenting or, at least, that he had been indifferent to that issue would have been inescapable. However, he is not. The Tribunal determined that he was not fit to plead and that determination necessarily reflects a finding that his mental processes were disordered or impaired to such a substantial degree that he is incapable of understanding the nature of the charge or other fundamental matters relating to the conduct of the trial. The onus of proof rests upon the Crown and the standard of proof is a very high one. In essence, the Crown would have been obliged to argue that, in the light of the course of events recounted by the complainant, even a person of substantially impaired mental incapacity must have been able to deduce lack of consent. There was, simply no evidence that he had sufficient intellectual ability to provide a basis for such a leap of faith in his deductive capacity.

44. The inherent difficulties of such an exercise would have been compounded by the fact that the only eye witness was a person who also appeared to have some intellectual limitations, who had been describing events that occurred whilst drowsy from medication, who conceded not having a good memory of them and who, whether deliberately or otherwise, had changed her story in significant respects since first reporting the matter to the police. Hence, whilst I was able to be satisfied beyond reasonable doubt both as to the objective act of sexual intercourse and as to the complainant's state of mind, I was unable to reconstruct with any confidence precisely what was said and done at any particular time. The factual basis for any such inference would have been both flimsy and imprecise.

45. The complainant herself did not emphatically reject the suggestion that the accused may have been unaware of her lack of consent. When asked whether she thought it possible that he "could have had the wrong impression about whether you were agreeing to have sex with him or not?" she replied only "Can't remember". A further question asking more explicitly, whether she thought it was possible that the accused had believed she was consenting to sexual intercourse was objected to by the Crown and, since it sought an opinion as to another person's state of mind, I was obliged to reject it.

46. The resolution of any issue concerning the perceptions of a person suffering from significant mental impairment or psychiatric illness at the time of the alleged offence obviously involves substantial difficulty. In R v Kurtic (1996) 85 A Crim R 57, the New South Wales Court of Criminal Appeal was obliged to consider whether the Crown had excluded the possibility that an appellant who suffered from "a persecutory paranoid delusional set of beliefs" might have been acting in self defence. The Court affirmed that the test that must be applied in determining whether the Crown had proven that there had been no reasonable grounds for the requisite belief, whilst not wholly objective, must nevertheless be at least partly objective. Hunt CJ, at 64 again provided some explanation of this principle in the following passage:

Whatever the effect a characteristic personal to the accused may have upon his perception of some particular action as a threat which he faced or upon the reasonableness of his response to what he perceived to be a danger, there must, in my view, be a reasonable possibility that at least some action in fact took place which could have been mistaken as a threat or danger to the accused before any decision can be made concerning the possibility that his perceptions of that action were affected by that personal characteristic.

47. It may be that a similar approach should be taken in any case when it is necessary for the Crown to prove that a mentally impaired or psychologically ill person did not hold a particular belief or have a particular perception. However, the case is plainly distinguishable if only because, in a case such as the present, it is incumbent on the Crown to prove either awareness of a lack of consent or recklessness as to that issue and no question of reasonableness arises. In any event, having considered the evidence in the present case carefully, I am satisfied that a threshold test of the nature posited in Kurtic would have been satisfied.

48. Since the Crown has been unable to prove one of the elements of the offence to the requisite standard, the accused must be acquitted. However, this conclusion may ultimately have little bearing on the future treatment and care of the accused. As I mentioned earlier, the law would not have permitted either conviction or punishment for the offence no matter what findings had been made. Furthermore, the Crown indicated that the accused was not regarded as posing a danger to the community and it was not suggested that I should have ordered him to be detained in custody pending further assessment by the Mental Health Tribunal if I had accepted the Crown case. Furthermore, s 11 of the Mental Health (Treatment and Care) Act 1994 authorises the Tribunal to make an order in respect of "the treatment, care, control, rehabilitation and protection" of people found unfit to plead, irrespective of any order I might have made. In my opinion, the general power provided by s 20 of the Supreme Court Act 1933 is sufficiently wide to permit me to refer the accused to the Tribunal to enable it to determine whether and in what manner this power should be exercised and, in a case such as the present, where neither the evidence nor the technical arguments about statutory construction have offered any real guidance as to the extent to which his past conduct may suggest a need for treatment, care, control or rehabilitation, it is appropriate to do so.

49. Before leaving the matter, however, I think it is appropriate to suggest that further consideration be given to the nature of the legislative provisions governing hearings of this kind. As mentioned earlier, both the provisions themselves and the explanatory memorandum seem to betray some measure of confusion and neither of the alternative means of construing the provisions is wholly satisfactory. A construction such as that which I have adopted may mean that potentially dangerous people are excluded from the scope of the statutory scheme because some mental element cannot be established, but their behaviour, nonetheless, suggests that they pose a continuing danger to the community. Fortunately, in the present case, as I have mentioned, the Crown indicated that the accused was not regarded as posing such a danger. On the other hand, the alternative construction for which the Crown contended could conceivably require courts to treat people as if they had committed serious crimes when they had merely been involved in an accident and intended no harm and to otherwise treat innocent behaviour as if it indicated that a person posed a grave risk to public safety if allowed to remain free. Furthermore, neither construction really provides an adequate means of dealing with potentially dangerous situations which have not yet ripened into serious offences. For example, a person who responds to a paranoid delusion about the perceived evils of a particular group by planning to assassinate their leader does not commit an offence merely by forming a criminal intention. Yet there is no logical reason for refraining from intervening until he has been able to buy weapons or explosives and is able to commit a serious offence.

50. The existing provisions are plainly not intended to provide for people to be punished for past misconduct but, rather, to ensure that the community may be protected from future violence or other potentially dangerous behaviour. In this context, it seems pointless to attempt to invoke the criminal justice system and require hearings in which a prosecutor will be unable to even seek a conviction but will have to prove some or all of the elements that constitute a criminal offence, so that findings may be made justifying referral of the accused to the Mental Health Tribunal to exercise a jurisdiction substantially open to it anyway. It is true that the court is empowered to order the immediate detention of an accused person in custody, but it is not bound to exercise that power if, in consideration of the criteria for detention in section 308 of the Crimes Act, it is satisfied that it is more appropriate to order that the accused submit to the jurisdiction of the Tribunal. In determining whether to exercise that power, the court will, of course be influenced primarily by whether the accused seems likely to be a danger to the community if released. However, that is a judgement that would be better made by the Tribunal which has special expertise in dealing with mentally dysfunctional people. More fundamentally, a hearing concerned with whether evidence of events that occurred months or even years earlier would have been sufficient to fall within conceptual pidgeon-holes of the criminal law may offer no real guidance as to this crucial issue. It also seems incongruous to apply the criminal standard of proof beyond reasonable doubt when conviction and punishment are not possible and there would clearly be ground for intervention to protect the community when there was merely a probability that a mentally unstable person might attempt to blow up a building or commit some other act involving substantial public danger.

51. For these reasons, I would suggest that the present blend of criminal and mental health approaches is inappropriate and that consideration should be given to replacing the present sections with provisions authorising the Mental Health Tribunal to make orders of the kind contemplated in s 319 whenever the statements and/or conduct of a person found unfit to plead suggests that he or she poses a substantial danger to members of the community if left at liberty without either supervision or treatment.

52. I acknowledge that the issues raised in dealing with mentally dysfunctional people may be profoundly difficult and do not propose that suggestions of that kind could be adopted without due deliberation and wide consultation. However, the adequacy of the present system does seem to require further examination.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the prosecution: ACT Director of Public Prosecutions

Solicitor for the accused: Aboriginal Legal Service