R v Bailiff [2002] ACTSC 79

THE QUEEN v ALEXANDER MARCEL ANDRE SEBASTIAN BAILIFF [2002] ACTSC 79 (16 August 2002)

CRIMINAL LAW - accused found unfit to plead - special hearing of charges - nature of hearing - issue whether the Court is satisfied beyond reasonable doubt that the accused "committed the acts which constitute the offence charged" - inferences not to be drawn against accused due to failure to give evidence - need for special caution in scrutinising the evidence.

CRIMINAL LAW - accused found unfit to plead - particular difficulties when accused suffering from significant mental impairment or psychiatric illness at the time of the alleged offence - belief of accused that it was necessary to act as he did in self-defence - requirement of reasonable grounds for belief - test of reasonableness partly objective - reasonableness judged by reference to circumstances as accused perceived them to be but must be possibility that some action actually occurred which could have been mistaken as a threat or danger to the accused.

CRIMINAL LAW - special hearing by judge alone - whether acts constituting offences of assault and assault occasioning actual bodily harm proven beyond reasonable doubt.

Crimes Act 1900, ss 310, 314, 315, 316, 317, subs 319(2)

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

Guardianship and Management of Property Act 1991

Supreme Court Act 1933, s 68C

Evidence Act 1995 (Cth), s 144

R v Morris [2002] ACTSC 12 (unreported, Crispin J, 15 March 2002)

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

R v Knight (1988) 35 A Crim R 314

R v Williams (1990) 50 A Crim R 213

Coulter v The Queen (1988) 164 CLR 350

R v Miller (1954) 2 QB 282

R v Chan-Fook [1993] EWCA Crim 1; [1994] 2 All ER 552

Zecevic v DPP (1987) 162 CLR 642

R v B (1992) 35 FCR 259

Viro v R [1978] HCA 9; (1978) 141 CLR 88

R v Hawes (1994) 35 NSWLR 294

Kurtic (1996) 85 A Crim R 57

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588

No. SCC 98 of 2000, SCC 173 of 2000, SCC 27 of 2001, SCC 37 of 2002

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 173 of 2000

1. the accused is not guilty of assaulting Ross Wentworth Stephens at Canberra in the Australian Capital Territory on 11 January 2000;

2. the accused is not guilty of assaulting Douglas Scott Brown at Canberra in the said Territory on 11 January 2000;

3. the accused is not guilty of assaulting Susan Joan McGee at Canberra in the said Territory on 11 January 2000 and thereby occasioning to her actual bodily harm;

4. the accused committed the acts which constitute the offence of assaulting Daniel Gold at Canberra in the said Territory on 10 August 2000;

5. the accused committed the acts which constitute the offence of assaulting Anthony Kidney at Canberra in the said Territory on 26 April 2000; and

6. the accused committed the acts which constitute the offence of assaulting John Alex Beaton at Canberra in the said Territory on 31 July 2001 and thereby occasioned to him actual bodily harm.

1. The accused was arraigned before me on four indictments alleging the commission of the following offences:

* assaulting Ross Wentworth Stephens on 11 January 2000;

* assaulting Douglas Scott Brown on 11 January 2000;

* assaulting Susan Joan McGee on 10 February 2000 and thereby occasioning to her actual bodily harm;

* assaulting John Alex Beaton on 31 July 2001 and thereby occasioning to him actual bodily harm.

2. The first three counts were contained in an indictment dated 7 January 2002 in proceedings numbered SCC 98 of 2000, whilst the fourth, fifth and sixth counts were contained in separate indictments dated 8 January 2002, 8 January 2002 and 13 May 2002 and numbered SCC 173 of 2000, SCC 27 of 2001, and SCC 37 of 2002 respectively.

3. The proceedings in which the accused was arraigned are not a trial but a special hearing conducted pursuant to s 315 of the Crimes Act 1900 (the "Crimes Act").

4. On 27 February 2001 an order was made pursuant to s 310 of the Crimes Act requiring the accused to submit to the jurisdiction of the Mental Health 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.

5. There was some delay in the Tribunal's assessment of the accused and it was unable to provide a report until 26 July 2001. That report indicated that the Tribunal had found him unfit to plead but that it had been unable to determine whether he was likely to become fit to plead within the next 12 months.

6. The matter came before me on 30 August 2001 when I pointed out that the Tribunal's inability to express an opinion on this issue left the Court in a quandary. The accused had been charged with serious offences and the procedure which the Court was obliged to adopt was accordingly governed by either s 314 or s 315 of the Crimes Act. Section 314 applies when the Tribunal notifies the Court that it has determined that the accused is unfit to plead to the charge but is likely to become fit within 12 months of the determination. In that event, the Court is required to adjourn proceedings. Section 315 applies when the Tribunal has notified the Court of a determination that the accused is unfit to plead to a charge and is unlikely to become fit within 12 months of the determination or where a period of 12 months has already elapsed since an initial determination of unfitness and the accused remains unfit to plead. In that event the Court is obliged to conduct a special hearing in relation to the accused. Neither provision appeared to have any application when the Tribunal had reported only that it had been unable to determine whether the accused was likely to become fit to plead within the 12 month period specified. Accordingly, I made a further order under s 310 requiring the accused to submit to the jurisdiction of the Tribunal to enable it to determine the issue of his fitness to plead.

7. On 31 August 2001 the Tribunal provided a further 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.

8. 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 s 317 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.

9. 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.

10. 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 (the "Guardianship Act") with power to make an election for trial by judge alone proceeds to do so.

11. 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.

12. 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.

13. 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).

14. In special hearings of this nature the test posited by s 317 is whether the Court is satisfied beyond reasonable doubt that the accused "committed the acts which constitute the offence charged". However, in R v Morris [2002] ACTSC 12 (unreported, Crispin J, 15 March 2002) I held that this provision requires the Crown to prove all of the essential elements of the offence, though defences of mental impairment or diminished responsibility could not be raised. For the reasons then given, I remain of that view.

15. 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.

16. At the commencement of the hearing, Mr Everson on behalf of the accused sought to notionally "sever" the counts on the various indictments so that evidence as to any one of the alleged offences would not be available to assist the Crown case on any other. He made it clear that he was not seeking to have any of the charges heard separately and, in fact, supported the proposition that they should be tried together. It ultimately proved unnecessary to rule on this issue because the Crown indicated that it would not be contending that any of the evidence could be used in that manner and in view of that indication Mr Everson did not press the matter.

17. 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.

18. Furthermore, I think there is 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. The need for such care is particularly obvious in the present case. Mr Everson informed me that the accused wished to give evidence but would not be permitted to do so because his guardian had accepted Mr Everson's advice that such a course would not be in his best interests. I have no doubt that this advice was conscientiously given and that it was based upon a proper assessment of the likely ability of the accused to give effective evidence in his own defence and the risks that might be involved in him attempting to do so. Equally, I have no reason to doubt that it was appropriate for his guardian to accept that advice. Nonetheless, in assessing the strength of the Crown case, I think it is necessary to be alert to any risk that the position of the accused may have been prejudiced by his inability to give potentially exculpatory evidence.

19. In the present case a letter from the accused was tendered without objection but it did not purport to address any of the issues raised in relation to the offences charged.

20. All of the offences charged involve allegations of assault and two involved an additional allegation that the assault occasioned actual bodily harm.

21. An offence of assault is constituted by any act committed intentionally, or possibly recklessly, which causes another person to apprehend immediate and unlawful violence. If force is actually applied, either unlawfully or without the consent of the recipient, then a battery is committed. In the absence of any such application of force, there must be some threatening act sufficient to raise in the mind of the person threatened a fear or apprehension of immediate violence. See, for example, R v Knight (1988) 35 A Crim R 314. Hence, to return to the language employed in s 317 of the Crimes Act, facts will constitute an offence of assault only if they encompass these elements.

22. To establish an offence of assault occasioning actual bodily harm the Crown must prove that the accused assaulted the alleged victim and that as a consequence of the assault the victim sustained actual bodily harm. It is not necessary to show that the accused intended to injure the victim. See R v Williams (1990) 50 A Crim R 213; Coulter v The Queen (1988) 164 CLR 350. Hence, facts will constitute an offence of assault occasioning actual bodily harm only if they involve the elements of an offence of assault and extend to these further elements.

23. The term "actual bodily harm" means no more than some bodily injury. The injury need be neither permanent nor serious. A small bruise, abrasion or scratch is sufficient and it has been held that even an "hysterical or nervous condition" may fall within the description. See R v Miller (1954) 2 QB 282; R v Chan-Fook [1993] EWCA Crim 1; [1994] 2 All ER 552.

24. As I have mentioned, the question of whether the accused "committed the acts constituting the offence charged" does not involve any consideration of defences of mental impairment or diminished responsibility. The Court is, however, obliged to consider any issue of self-defence that may arise in relation to any such charge.

25. Although commonly referred to as a defence, the true position is that once the evidence discloses a possibility that the relevant act was done in self-defence, a burden falls upon the Crown to prove the contrary. See Zecevic v DPP (1987) 162 CLR 642 at 657. In R v B (1992) 35 FCR 259 the Full Court of the Federal Court of Australia held that a case may not be withdrawn from a jury on the basis that the Crown case has not negated self-defence. However, that decision appears to have been based substantially upon the principle that any question of whether a prima facie case has been established must be determined only by reference to evidence favouring the Crown. Hence, for this purpose, any evidence of self-defence must be disregarded. The decision was also consistent with observations in Zecevic that issues of self-defence are matters for a jury to determine. It does not mean that the Crown is relieved of the burden of proof and does not provide any basis for suggesting that the "acts constituting" an offence of assault could be established without reference to the issue. The application of force will constitute an assault only if it is unlawful. Hence, neither a surgeon who carries out an operation with the informed consent of his or her patient, nor a police officer who uses a measure of force reasonably necessary to effect the arrest of an offender can be said to be guilty of an assault. Similarly, acts properly performed in self-defence cannot be regarded as an assault because such acts are not unlawful.

26. If self-defence is raised, the Crown bears the burden of proving that at the relevant time either the accused did not believe that his or her actions were necessary in order to defend himself or herself, or that there were no reasonable grounds for such a belief. See Zecevic v DPP at 661. The standard of proof is again proof beyond reasonable doubt.

27. The first of these propositions obviously involves a purely subjective test: has the Crown established that the accused did not have such a belief. However, even the latter proposition does not involve a wholly objective test. See Viro v R [1978] HCA 9; (1978) 141 CLR 88 at 146-147; Zecevic v DPP at 656-657. The Crown cannot prove that there were no reasonable grounds for such a belief merely by demonstrating that a person whose mental processes were not disordered or impaired would not have formed such a belief. In R v Hawes (1994) 35 NSWLR 294 Hunt CJ at CL explained, at 305, that it is "the belief of the accused, based upon the circumstances as the accused perceived them to be, which has to be reasonable, and not that of the hypothetical reasonable person in the position of the accused".

28. The resolution of any issue of self-defence involves particular difficulties where an accused was suffering from significant mental impairment or psychiatric illness at the time of the alleged offence. The New South Wales Court of Criminal Appeal considered this problem in Kurtic (1996) 85 A Crim R 57, a case in which there had been evidence that the appellant suffered from "a persecutory paranoid delusional set of beliefs". 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 CL again provided some explanation of this principle in the following passage, at 64:

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.

29. In the present case, the Crown argued that it would be inappropriate to act on any assumption that the accused may have believed that there was a need to protect himself from some perceived assault or threatened assault in the absence of any evidence of such a belief or of facts and circumstances from which a reasonable person in his position might have formed such a belief. It is true that there is no evidence as to the precise nature of the mental disability from which the accused suffers, the time at which it emerged, or the extent, if any, to which it may have distorted or influenced his perceptions of some or all of the events in question.

30. However, as I have mentioned, an accused person does not bear the burden of proving that he or she acted in self-defence. If the issue has been properly raised, the Crown bears the burden of proving beyond reasonable doubt that the actions of the accused were not carried out in self-defence. In considering whether the Crown has discharged that burden of proof, the Court must obviously consider all of the evidence of facts and circumstances that might be relevant to that issue. The present proceedings are predicated upon a determination by the Mental Health Tribunal that the accused is unfit to plead to the charges and is unlikely to become fit to plead within 12 months. Furthermore, there has been evidence of him behaving in an apparently irrational manner immediately prior to some of the incidents in question. Accordingly, it would be inappropriate to approach this issue on the assumption that inferences might safely be drawn against him by considering the circumstances of the relevant incidents without any regard for the possibility that his perceptions may have been influenced by disordered or impaired mental processes.

31. The Crown made no attempt to lead any evidence in support of this charge and the accused must obviously be found not guilty of the offence.

32. On 11 January 2000 at about 10.00 am, Mr Brown, who was a security officer at the Australian National University, received a call on his radio, as a consequence of which he went to the office of the Pro-Vice Chancellor, Professor Burgess. He found Professor Burgess behind his desk and the accused standing in the room holding a cup and saucer. Mr Brown asked him to leave and the accused responded, "I haven't finished my coffee yet". Mr Brown said that he wanted the accused to leave. The accused then left the office, walked to the staircase and proceeded to walk up the stairs from the second to the third floor. Mr Brown told him not to go up there and, when the accused continued, began to follow him. The accused broke into a run and entered the office of the Vice Chancellor's secretary on the third floor. The secretary, Ms Lindsay, asked him to leave. Mr Brown then entered the office and approached the accused who had his back to him and said, "I want you to leave now". The accused apparently took no notice. Mr Brown then put his left hand on the right arm of the accused and said, "I want you out now". When asked what occurred next, Mr Brown said that he was not sure how it happened but that he "got coffee in [his] face and down the front of [his clothes], then [he] heard a cup and saucer drop and then [the accused] turned around and slammed [him] up against the wall" by pushing him in the chest with his open hands. Mr Brown said that he "fell back against the wall and then felt pain in [his] groin".

33. In cross-examination Mr Brown agreed that upon taking hold of the accused's right upper arm he had said "I'm going to have to take you out, put the coffee down". He conceded that on other occasions he had heard the expression "take you out" used in a manner involving sinister connotations but said that he had meant only to convey his intention of taking the accused out of the building. He also conceded that he had been standing between the accused and the only exit available, so that the accused would have had to turn back towards him in order to leave.

34. When it was put to Mr Brown that the accused had been acting in self-defence, he did not wholly dismiss the suggestion. He said "well if he was acting in self-defence he was - he took it - he was exaggerated [sic], he took it too far because it wasn't necessary for him to go as far as he did if he was using a self-defence".

35. Mr Brown's evidence was corroborated to some extent by that of a fellow security officer, Mr Gumm. He said that he had waited outside Professor Burgess' office whilst Mr Brown went inside. When the accused emerged from the office with his cup and saucer and turned to go upstairs, Mr Brown followed him but Mr Gumm went to the opposite end of the floor to use another set of stairs. He said that when he got to the top of the stairs he could hear loud voices and a noise like crockery being thrown and, as he approached the office, he then heard Mr Brown say "I've been assaulted". He followed the accused down the stairs. Later when Mr Brown came out of the building Mr Gumm observed that he was starting to stoop and deduced that he was in pain. In cross-examination he agreed that he had not noticed any coffee on Mr Brown's shirt or anything else unusual about his clothes.

36. Mr Brown's account of the incident was strongly supported by Ms Lindsay, who was then Manager of Executive Support at the Australian National University. She said that the accused came into the Vice Chancellor's office "quite fast" and that there was a cup and saucer in his hand with coffee spilling from it. Mr Brown was not far behind him. Ms Lindsay reached out to take the cup and saucer from the accused and Mr Brown "sort of touched" his right arm. The accused threw the cup and saucer over his right shoulder in Mr Brown's direction. Mr Brown ducked, the cup and saucer hit the wall and "coffee went everywhere". She then said that "sort of instantaneously [the accused] sort of turned around sort of to his right and basically brought up his left knee sort of into [Mr Brown's] sort of groin area and [Mr Brown] went down".

37. In cross-examination Ms Lindsay agreed that the accused had thrown the cup and saucer as an immediate reaction to "being grabbed" and that he had turned "in the same flow". She agreed that his knee might not have travelled more than 12 inches from a vertical position before contacting Mr Brown's groin and explained that it had not needed to travel very far because Mr Brown had already bent down to avoid the cup. She said that the act had been "a very pointed move" and that it had been "very obvious what [the accused] was trying to do".

38. I accept that the incident occurred substantially as Mr Brown and Ms Lindsay described and that the accused drove his knee into Mr Brown's groin deliberately. It is true that Mr Brown was standing between the accused and the only doorway through which he could have left, and I have considered the possibility of an accidental impact as he lifted his knee to begin to run away. Ms Lindsay clearly deduced that the act was carried out deliberately but a non-expert opinion as to the apparent intention of a person apparently suffering from a significant mental dysfunction, even if adduced without objection, could obviously be given little, if any, weight. However, it seems highly unlikely that his knee could have come into contact with Mr Brown's groin accidentally if the accused had merely attempted to flee. Furthermore, the nature of the incident described by Ms Lindsay strongly suggests that the accused was pressing home an assault and I accept Mr Brown's evidence that the impact to his groin occurred only after he had fallen back against the wall.

39. The issue of self-defence presents greater difficulty. As previously mentioned, once the issue is raised, it is incumbent upon the Crown to prove beyond reasonable doubt that the accused did not believe that it was reasonably necessary for him to act as he did in his own defence or that there were no reasonable grounds for such a belief. In considering these issues, it must be remembered that prior to this incident the accused had been effectively chased up stairs by Mr Brown and that Mr Gumm had gone toward the other set of stairs obviously with the intention of cutting off his escape. When he entered the Vice Chancellor's office Mr Brown came in behind him and, as a consequence, was between the accused and the only exit. Ms Lindsay then reached towards him and at about the same time Mr Brown, who was behind the accused, stated that he was going to have to "take him out" and then took hold of his arm.

40. I have no doubt that any normal person in that position would have understood that he had been repeatedly asked to leave, had no right to remain, and had been taken by the arm for the purpose of being escorted from the building. There was nothing in the account of any of the witnesses that might reasonably have led such a person to fear a violent assault or evoke a belief that it was necessary for him to push Mr Brown, let alone drive his knee into Mr Brown's groin, in order to defend himself. However, the accused was not a normal person but someone with significantly disordered or impaired mental processes. It is impossible to be satisfied to the requisite standard that he did not have such a belief. It is also impossible to determine with confidence what his perceptions of the situation may have been and hence to be satisfied that, in the light of those perceptions, such a belief was not reasonable. I am mindful of the view expressed in Kurtic that some action must have taken place that could have been mistaken as a threat or danger to the accused but, in my opinion, the circumstances to which I have referred reveal a combination of events sufficient to raise such a possibility of mistake by the accused.

41. It may also be significant that Mr Brown did not wholly reject the suggestion of self-defence but protested only that, if the accused had been acting in self-defence, he had used excessive force. Of course it is entirely possible that Mr Brown's answer was attributable to confusion about the concept of self-defence or that he was concerned to suggest that it was unnecessary to consider the issue since, in his opinion, any such claim would have been untenable by reason of the allegedly disproportionate nature of the violence. Whilst I am conscious of these possibilities, I must say that the answer was not wholly reassuring. Mr Brown was the person who initially confronted the accused, went up the stairs after him, followed him into the Vice Chancellor's office, spoke to him, took his arm and suffered the assault charged. Yet, having had that intimate involvement in the incident, he seemed unwilling to dismiss the possibility that the accused had acted in self-defence. In view of that reluctance, it is difficult to see how someone who was not present could exclude the possibility.

42. The contention that the accused used excessive force must be judged by reference to the possibility that he believed such force was necessary and the possibility that, having regard to his perceptions of Mr Brown's actions, there were reasonable grounds for such belief. The evidence does not, in my opinion, exclude either possibility.

43. For these reasons, I am unable to be satisfied beyond reasonable doubt that the accused did not act in self-defence. Accordingly, he must be acquitted.

44. Mr McKenzie gave evidence that on 10 February 2000 at about 12.40 pm he was in his office at NRMA House in Canberra when the door buzzer was activated and Ms McGee, who was his secretary, pressed the release button to open the door. He had been conscious of a person walking along an area adjacent to his office but saw that it was the accused only when the door was pulled ajar. Mr McKenzie had been on the telephone and continued to concentrate on the conversation. The accused and Ms McGee apparently moved away from the door to an area adjacent to Mr McKenzie's office where the blinds had been pulled down to about waist height and he was able to see only their legs. He said that the next thing he clearly remembered was "hearing [Ms McGee] scream out and [seeing] her legs disappear'. He said that at that time the legs of the accused had been in front of her.

45. Mr McKenzie said that he put the phone down and went out of the office to find the accused standing over Ms McGee, who was on all fours and trying to push herself back up whilst the accused was holding her down with his hands on the top of her shoulders. He said that he came behind the accused, "got him in a bear hug", pulled him away and asked him to leave the building. The accused then spoke to Mr McKenzie about a claim for an amount of $70,000. He and two other employees escorted the accused from the building. As they got to the rotating door on the ground floor the accused took hold of Mr McKenzie's tie and told him that he had left his glasses upstairs and that he wanted to go back in to get them. Mr McKenzie told him that they would be returned by the police. Mr McKenzie said that when he went back upstairs he noticed that Ms McGee had a cut to the bridge of her nose and that she was complaining about a sore neck. Photographs depicting the injury to her nose were tendered in evidence.

46. Ms McGee gave evidence that she was in Mr McKenzie's office at about 12.40 pm on 10 February 2000 when the buzzer sounded and she activated the mechanism to open the door. She said that she had been expecting the "maintenance man" and that when she saw the accused she moved around and closed the door to Mr McKenzie's office. The accused came in, put his hands on the reception desk and asked her whether she knew who he was. She said, "yes, I do". She then said:

He then came towards me and he came right up to - right to me and I put my hands up and then he grabbed my arms and the next - I don't remember anything but I remember my pain, intense pain in my face hitting the floor.

47. When asked what she remembered happening after being on the floor, Ms McGee said that she remembered "either crawling or calling to someone from the other office and them coming in" but that when she woke up she "didn't see anyone". She subsequently discovered that she was bleeding from the face and agreed in cross-examination that a graze to the bridge of her nose had apparently been caused by a metal piece of her glasses connecting the eye pieces that had been broken. She also agreed that she had not been punched in the nose. She had some other injuries including a cut on her leg and some bruising on her arms. She said that she had not felt pain at the time they were apparently inflicted and that she had initially just been in shock. It was suggested that the hospital notes referred to her having been punched in the nose but she said that she did not remember ever making a statement to that effect. More importantly, she confirmed in cross-examination that she had an inability to recall what had happened between the time that the accused approached her and the time she ended up getting off the floor.

48. Whilst I have no doubt as to the truthfulness of Ms McGee's evidence, this lacuna in her recollection makes it impossible for me to be satisfied beyond reasonable doubt that the "acts constituting the offence charged" have been established. Ms McGee was obviously frightened of the accused and said that she had put her hands up with her open palms outward, obviously with the intention of fending off his approach. She gave evidence of a prior incident as a result of which she had clearly been left with considerable fear of the accused. Indeed, on this occasion when she first saw him her level of apprehension was such that she immediately said "oh no!". When she came to give evidence she was so frightened that she found it difficult to speak and it was some time before she was able to gain sufficient self control to be able to swear an oath. Thereafter, she made it clear that she found it difficult to look in the direction of the accused. In these circumstances it is difficult to exclude the possibility that she may have fainted. It is also difficult to exclude the possibility that she may have tripped or otherwise fallen accidentally, perhaps as she attempted to back away from the accused. In any event, she could recall no punch, push or other hostile act on the part of the accused that may have caused her to fall to the floor.

49. Mr McKenzie's evidence of seeing Ms McGee's legs disappear whilst the legs of the accused were in front of her is equally incapable of proving that she fell to the floor as a result of an assault. In cross-examination he agreed with the suggestion that he had seen her "go up in the air" but the upper part of her body had been obscured from his view by the venetian blinds and he seemed to have assumed that she had done so from the fact that her legs abruptly disappeared. In any event, he made it clear that he had been unable to see what may have caused such a movement.

50. It is true that Ms McGee gave evidence of the accused grabbing her arms, and that action alone might have constituted an assault. It is also true that she gave evidence of having sustained bruising to her arms in the position where he had taken hold of them. Bruising is, of course, sufficient to constitute actual bodily harm. However, it is incumbent upon the Crown to prove beyond reasonable doubt that the bodily harm was occasioned by the assault. If, in fact, Ms McGee fell accidentally or as a result of fainting and the accused attempted to arrest her fall by holding on to her arms then any bruising thereby caused could not be regarded as having been occasioned by an assault.

51. It is also true that Mr McKenzie gave evidence of seeing the accused attempting to hold Ms McGee down as she attempted to rise. However, there was no evidence as to whether he was attempting to do so due to hostility or simply because he was concerned that she might be dizzy or unsteady on her feet if she were permitted to stand. In the latter event, any bruising sustained as a result of actions taken in a bona fide attempt to prevent her from coming to further harm could not be regarded as having been occasioned by an assault.

52. I must confess to considerable scepticism as to any of these possibilities. However, judicial scepticism is no adequate substitute for proof beyond reasonable doubt. I am unable to be satisfied that the bruising caused to Ms McGee's arms or any other injuries which she sustained during the course of the incident were occasioned by the accused taking hold of her arms in the manner I have described.

53. The standard of proof is a very stringent one and, in all the circumstances, I am unable to be satisfied that the evidence adduced by the Crown has been sufficient to establish to that standard the commission of the acts constituting the offence charged.

54. If this had been an ordinary trial it would have been open to the Crown to seek a conviction for an offence of common assault, even though that offence had not been charged. Section 49 of the Crimes Act provides for alternative verdicts in relation to various stipulated offences and, in particular, enables a jury which is not satisfied the accused is guilty of assault occasioning actual bodily harm to find the accused guilty of an offence of common assault. However, the language of the section does not appear to be applicable to a special hearing of this kind because the law does not permit the accused to be found guilty of any offence.

55. For these reasons the accused must be acquitted of this offence.

56. Mr Gold was a security guard with Chubb Security who was working at the National Archives building in Parkes at about 2.40 pm on 10 August 2000 when he saw the accused in the business or visitors lounge area of the building. The accused was using a telephone. Mr Gold approached to within about five metres in order to make a positive identification of him, unsuccessfully attempted to contact the Security Manager, Ms Wyatt, and then successfully contacted Mr Daley whom he described as the "Technological Manager". Both Ms Wyatt and Mr Daley subsequently approached Mr Gold and after a brief conversation he went to another area of the building to "man" the visitors' reception desk which the receptionist had apparently left unattended. The desk was about 30 metres away from the area in which the accused was standing and, whilst at some point he saw the accused take hold of Mr Daley's identification tag, Mr Gold was unable to hear the conversation between them.

57. Mr Gold then saw the accused walk down the corridor towards him. The accused placed a "styrofoam" cup on an object which Mr Gold described as a "waist height display" and continued walking towards him before turning, picking up the cup and turning back to resume walking down the corridor towards him. Mr Gold said that when the accused was within about five metres of him the accused looked up and stared at him then, as he walked towards him, said "ah, Mr Chubb" and thrust forward his right arm. Mr Gold said that he was struck by a tea bag and that liquid from the cup spilled over him.

58. The National Archives Building had been fitted with video cameras for security purposes and Mr Gold was able to obtain footage from two of the video tapes showing the accused initially in the lounge area and later approaching Mr Gold, apparently with the styrofoam cup. The tapes did not record the accused making any movement toward Mr Gold with the cup. However, the cameras had apparently been set to take photographic images at three second intervals and it was, of course, quite possible that the accused did so during one such interval. The videotape also confirmed that as the accused approached him, Mr Gold stood and moved one step to his left, though he remained behind the desk. The accused left the building by passing that side of the desk and, whilst Mr Gold made no attempt to prevent him from leaving, I think that the accused may have formed the impression that Mr Gold's actions reflected an aggressive attitude toward him.

59. In cross-examination, it was suggested to Mr Gold that the cup had contained only a tea bag but he maintained that there had been fluid in it. He was unable to recall whether a cleaner had been called to mop up the floor but said that Mr Daley had picked up the cup whilst he had picked up the tea bag.

60. Constable Khan gave evidence that he attended at the National Archives Building at about 3.45 pm and spoke to Mr Gold. He said that Mr Gold showed him a foam cup but did not show him a "Chubb [Security uniform] shirt". He noted that Mr Gold was not in uniform. He had a further conversation with Mr Gold at about 10.00 pm that evening when he brought a video cassette to the City Police Station. Constable Khan's evidence was generally corroborated by the evidence of Constable Strachan.

61. Neither Ms Wyatt nor Mr Daley were called to give evidence, the former was apparently in Scotland caring for one or both parents and the latter had taken leave to go camping at an unknown location on the South Coast of New South Wales.

62. I accept that the incident occurred essentially in the manner that Mr Gold described in his evidence. The act of moving the cup so that a tea bag struck Mr Gold's chest, whether with or without some quantity of tea, clearly involved some unlawful application of force and clearly occurred without his consent. Hence, it amounted to an assault.

63. Mr Everson again submitted that I should have a reasonable doubt that the accused may have acted in self-defence. However, I am unable to accept this submission. The nature of the assault described by Mr Gold is not suggestive of an act taken with a view to fending off a potential assailant. More importantly, whilst, as I have mentioned, the accused may have gained the impression that Mr Gold's actions in standing up and moving slightly to the side reflected an aggressive attitude toward him, it was not suggested that he had taken hold of the accused, chased him, harassed him or attempted to impede his departure. I am again satisfied to the requisite standard that no action in fact occurred which could have been mistaken for a threat or danger to the accused. Hence, unlike the position in relation to the alleged assault upon Mr Brown, there is no basis for any contention that his perceptions of some action, as affected by his disordered or impaired mental processes, may have provided a reasonable basis for a belief that it was necessary for him to act as he did in his own self-defence. Consequently, I am satisfied beyond reasonable doubt that the accused did not act in self-defence.

64. For these reasons, I am satisfied beyond reasonable doubt that the accused committed the acts constituting the offence charged.

65. Mr Tony Kidney, a solicitor employed by The ACT Law Society, was in his office in The Law Society Building at Canberra at about 10.25 am on 26 April 2000 when he was informed that the accused was in the reception area. He went out into that area and introduced himself to the accused who proceeded to ask him questions about the appointment of Queen's Counsel in New South Wales. Mr Kidney asked him what he was doing or why he was at The Law Society and the accused responded in what appears to have been a largely incomprehensible tirade interspersed with obscenities. Mr Kidney said the one phrase that he could recall was "I'm involved in law enforcement, don't you fuck around with me". He said that the accused "appeared quite agitated, irrational" and was moving towards him. As he did so Mr Kidney held one hand up as if to ward the accused off and began to move backwards whilst telling the accused not to touch him. The accused then pushed Mr Kidney in the chest. Mr Kidney did not suggest that the push caused him either injury or pain.

66. Mr King, the Executive Director of The Law Society, attempted to call the police from a telephone at the reception desk nearby. The accused apparently noticed this and attempted to wrest the receiver from him. Mr Kidney and Mr King then took hold of the accused and moved him towards the door. Mr Kidney said that the accused did not initially resist but when pushed out of the door he swung around and tried to kick him in the groin. Fortunately, Mr Kidney was able to avoid that kick. He and Mr King then went back inside the office and held the door shut whilst the accountant, Mr McArthur, obtained a key so that it could be locked. At that stage the accused, who had walked towards the lift area, returned and kicked the door.

67. In cross-examination Mr Kidney agreed that the accused had previously commenced proceedings against him in both the Supreme Court and Federal Court. Mr Kidney denied having any recollection of the accused saying words to the effect of "don't assault me" and confirmed that, on the contrary, he had been backing away from the accused as he advanced towards him.

68. Mr King gave evidence of hearing his name being called by Mr Kidney and of rushing to the reception area where he saw Mr Kidney "grappling" with a man who was making a lot of noise. He said that he asked the man to leave and, when he did not do so, attempted to phone the police. The man then attempted to take the handset from him and he and Mr Kidney proceeded to eject him from the office. He said that as they got him to the door the man attempted to kick Mr Kidney in the leg or the groin but that Mr Kidney had stepped aside and there had been no contact. They succeeded in getting him out of the office and closed the door but the man returned and kicked the door. The lock and hinges subsequently required replacement.

69. When asked to explain exactly what was occurring when Mr King said that the man had been "grappling" with Mr Kidney, he said it looked as though they were "squaring off, as people in a brawl do", and explained that he thought that Mr Kidney had had his hand up to repel the person attacking him. His demonstration of the manner in which Mr Kidney had been holding his hand was consistent with Mr Kidney's own demonstration. He added, "I saw Tony with his hand up to the chap's chest and Tony had backed off, he'd been forced against the low desk that is behind the reception desk in our reception area".

70. In cross-examination Mr King admitted that in a handwritten note made later that day he had used the word "remonstrating" rather than "grappling" but said that he did not understand there to be any difference between these terms. He also agreed that he had initially used the word "distressed" rather than "aggressive" but said that he had thought he had just used the wrong word. He conceded that he was not sure whether the person had been distressed or aggressive but said that he had "certainly been aggressive towards [Mr Kidney]" and that "that was the only conclusion I could draw from his actions".

71. Mr McArthur who was an accountant employed by The Law Society confirmed that he had gone to the reception area and had seen Mr King holding a telephone and a man reaching across the counter attempting to grab it the receiver. A struggle ensued between them over the telephone. Shortly afterwards the man was led to the door and left the office. Mr McArthur said that Mr King was attempting to lock the door when the man returned and made a running jump and kicked the door. The man then left the building.

72. Constable Stirling, who attended the offices of The Law Society shortly after this incident, found the door locked and noticed that the door and frame were slightly out of alignment.

73. Ms Duncan, who was The Law Society's receptionist, gave evidence that the accused had told her that he had come to the Society to find out "how barristers are made". She went to Mr Kidney's office and told him that the accused was in the reception area. She returned to her duties but subsequently noticed that the voices had become raised and heard Mr Kidney call out for Mr King. She then went to get Mr McArthur. She confirmed that Mr King had attempted to phone the police and said that she recalled the accused reaching over the counter to take the phone. She activated a security buzzer then dialled the 000 emergency number and made a call to the police. She said that Mr King and Mr Kidney removed the accused from the office and were trying to hold the door closed when the accused returned from the lift area and "sort of did like a karate kick" to the door.

74. Mr Kidney was an obviously credible witness whose evidence of having been pushed by the accused was not challenged in cross-examination. His account of the incident was also substantially corroborated by evidence from Mr King and, to a lesser extent, other witnesses. I am satisfied beyond reasonable doubt that the accused did push Mr Kidney and that the push constituted an assault.

75. I accept Mr Kidney's evidence that prior to being pushed he had been backing away from the accused and telling him not to touch him. Whilst the Crown did not exclude the possibility that the accused had had a legitimate reason for being at The Law Society's office, he plainly had no entitlement to remain once being asked to leave. In any event, it was not suggested to Mr Kidney that he had taken hold of the accused or otherwise physically attempted to eject him prior to that push. It is true that he raised one hand but I accept his evidence that he held it with his palm opened outwards as he attempted to back away from the accused. To return to the partly objective test posited in Kurtic, I am satisfied to the requisite standard that no action in fact occurred which could have been mistaken for a threat or danger to the accused. Hence, there is again no basis for any contention that the accused's perceptions of some action as affected by his disordered or impaired mental processes may have provided a reasonable basis for a belief that it was necessary for him to act as he did in his own self-defence. Consequently, I am satisfied beyond reasonable doubt that he did not act in self-defence.

76. For these reasons, I am satisfied beyond reasonable doubt that the accused committed the acts constituting the offence charged.

77. At about 2.40 pm on 31 July 2001 Mr Beaton, who was then the Acting Director of the Gorman House Arts Centre, was in an office at the Centre when he saw the accused walking on a path adjacent to the office. He left the building and approached the accused. Mr Beaton told him that he was trespassing, that he wanted him to leave and that if he failed to do so he would call the police. He said that the accused had been walking away from him but that he then turned, walked back towards Mr Beaton, said "I've had enough of this" and pushed him. Mr Beaton was uncertain of the precise nature of the push but believed that the accused had pushed him in the chest with both hands open. Mr Beaton said that he lost his footing and fell back against the "edge" of a concrete wall. His head apparently came into contact with the wall causing a laceration which required seven sutures.

78. In cross-examination, Mr Beaton maintained that the accused had stopped walking at a point where the path led up onto a ramp. He rejected the suggestion that the ramp had been subsequently constructed. He also denied that he had pushed the accused or that the accused had acted in self-defence.

79. Mr Duffy, who was then the Security Manager for the Gorman House Arts Centre said that he had been with Mr Beaton in the administration area of Gorman House at about 2.40 pm on 31 July 2000 when Mr Beaton saw the accused walking past the door and left the building. Mr Duffy said that he put some files away before stepping out onto the landing. He then saw Mr Beaton standing on the pathway with his back to the wall and talking to the accused who was standing on the other side of the path facing him. He said that they were having a conversation but that he could not hear what was being said. He then said that the accused suddenly put both hands up and pushed Mr Beaton "hard - right through the hedge and back into the wall" and that the Mr Beaton then "fell down behind the hedge". Mr Duffy then shouted, "I saw that" and the accused left.

80. In cross-examination Mr Duffy, like Mr Beaton, maintained that the ramp had existed for some time prior to the incident in question. There was no evidence to the contrary.

81. Both Mr Beaton and Mr Duffy seemed to be entirely honest witnesses, though there is a substantial contradiction in their accounts of the incident. Mr Beaton maintained that the accused had been walking away and turned to come back along the path to push him whilst Mr Duffy maintained that the two men had been standing on opposite sides of the path when the accused suddenly lunged forward to push Mr Beaton. I am unable to determine with any real confidence which of these two versions was correct or even whether either version provided a wholly accurate account of the relevant events. Mr Everson's submission that the Crown failed to prove to the requisite standard that the accused was acting in self-defence must be considered in this context.

82. Furthermore, Mr Beaton conceded that the accused had made no attempt to walk up the stairs into the building and that the bitumen pathway upon which he had been walking had been open to, and used by, the public. Mr Beaton also conceded that he had previously sought a restraining order against the accused but that his application had been dismissed. It would appear that, having unsuccessfully sought a restraining order against the accused, Mr Beaton had decided to take the law into his own hands by confronting the accused, wrongly accusing him of being a trespasser, demanding that he leave and threatening to call the police if he did not do so. The evidence did not reveal any real justification for this approach. The accused apparently had every right to use the pathway.

83. Mr Everson argued, in essence, that Mr Beaton had displayed a hostile and unreasonable attitude towards the accused and that he may not only have followed the accused down the path to continue remonstrating with him but gone further and actually pushed him. Mr Beaton denied this suggestion and there was no evidence of such a push. Nonetheless, Mr Everson maintained that the issue of self-defence had been properly raised and that the Crown had not excluded the possibility that the accused had acted in his own self-defence. He also argued that the contradiction between the accounts of Mr Beaton and Mr Duffy inevitably cast doubt on the credibility on Mr Beaton's denial.

84. These matters were cogently argued and had Mr Beaton been a less impressive witness I may have found Mr Everson's arguments compelling. Mr Duffy plainly did not see Mr Beaton push the accused but his account of the incident provides only limited corroboration of Mr Beaton's denial of having done so. I am also conscious of what Kirby J has described as a "growing understanding of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the courtroom". See State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 160 ALR 588 at 617.

85. Nonetheless, I am satisfied beyond reasonable doubt of the truth of Mr Beaton's evidence that he did not push the accused. He impressed me as a completely honest man doing his best to tell the truth even when candid answers were likely to expose him to criticism. Hence, whilst I accept that the accused acted in response to conduct which he might well have regarded as provocative, I am nonetheless satisfied beyond reasonable doubt that he was not pushed by Mr Beaton.

86. It was not suggested that any other action occurred which could have been mistaken for a threat or danger to the accused. Hence, there is again no basis for any contention that his perceptions of some action as affected by his disordered or impaired mental processes may have provided a reasonable basis for any belief that it was necessary for him to act as he did in his own self-defence. Consequently, I am again satisfied beyond reasonable doubt that the accused did not act in self-defence.

87. Mr Beaton's account of suffering a cut to his head as a consequence of bumping it on the wall was corroborated by photographs taken by Sergeant Corrigan. The laceration was also seen by Constable Jennings who went to Gorman House with Sergeant Corrigan shortly after the assault. Accordingly, I am satisfied beyond reasonable doubt that Mr Beaton suffered actual bodily harm.

88. I have no reason to suppose that the accused intended to cause the laceration or, indeed, to cause Mr Beaton to suffer any harm at all. The evidence establishes only that he pushed Mr Beaton, apparently with the intention of stopping him from continuing to engage in what he presumably regarded as unwarranted harassment. However, as I have mentioned, it is unnecessary for the Crown to prove that he intended to cause actual bodily harm. It is sufficient for the Crown to prove that such harm occurred as a consequence of the assault. In the present case an inference to that effect is inescapable.

89. For these reasons I am satisfied beyond reasonable doubt that the accused committed the acts which constitute the offence charged.

90. I will hear counsel as to the orders that should be made in the light of these findings.

I certify that the preceding ninety (90) 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