R v Bailiff [2004] ACTSC 42

3. A finding of unfitness to plead may only be made if the Tribunal is 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.

See s 68(3) of the Mental Health (Treatment and Care) Act 1994 (ACT) ("the Mental Health Act").

4. An accused found unfit to plead may not be exposed to conviction or punishment for the alleged offence but, when the Tribunal has found that he or she is unlikely to become fit to plead within twelve months, a special hearing may be conducted in relation to the indictment. Section 317 of the Crimes Act provides that if at such a hearing the court is not satisfied that the Crown has proven beyond reasonable doubt that the accused has engaged in the conduct required for the offence charged then the accused must be acquitted. On the other hand, a finding that the accused has engaged in such conduct does not result in a finding of guilt. A finding to that effect 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".

5. Until recently the test required by s 317 was whether the Crown had proven that the accused "committed the acts which constitute the offence charged," and in R v Ardler [2003] ACTCA 4 (30 March 2004) the Court of Appeal considered the effect of the unamended section, holding that:

When a Special Hearing is embarked upon under Div 13.2 of the Crimes Act 1900, the prosecution is required to prove beyond reasonable doubt the physical acts of the offence charged which would constitute an offence if done intentionally and voluntarily and with any particular intent or knowledge specified as an element of the offence but is not required to negative lack of mental capacity to act intentionally or voluntarily or to have the specific knowledge or intention specified as an element of the offence unless there is objective evidence which raises such an issue including mistake, accident, lack of any specific intent or knowledge of the particularity necessary to constitute the offence that is an element of the offence or self-defence in which case the prosecution must negative that issue beyond reasonable doubt.

6. Whilst the alleged offence occurred prior to the amendment, the provision is of a procedural nature and, in the absence of any argument to the contrary, I am prepared to act on the assumption that the current provision applies to the present hearing. However, whilst the current provision employs different terminology, the amendment was apparently intended to clarify rather than change the effect of the section and neither party suggested that the new formulation of "engaged in the conduct required for the offence charged" would make the statement of principle in R v Ardler no longer appropriate.

7. A finding of non-acquittal does not expose the accused to punishment for the offence in question but, if it is a serious offence, such a finding does invoke the provisions of subs 319(2) of the Crimes Act. This section requires 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.

8. 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.

9. Subsection 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.

10. 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.

11. 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 (ACT). 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 a verdict of a 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 shall take the warning into account in considering his or her verdict.

12. 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).

13. 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.

14. The accused did not give evidence. No adverse inference should, of course, be drawn against him by reason of his failure to do so.

15. 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, Knight v R (1988) 35 A Crim R 314. Hence, to return to the language employed in s 317 of the Crimes Act, conduct will constitute an offence of assault only if it involves these elements.

16. The decision in Ardler does not specifically address the approach that should be taken in relation to any evidence potentially capable of raising an issue as to self-defence. Although commonly referred to as a defence, the general principle is that if self-defence is raised, the Crown bears the burden of proving beyond reasonable doubt 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 if he or she did, that there were no reasonable grounds for such a belief: Zecevic v DPP [1987] HCA 26 (1 July 1987). 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. 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. As Hunt CJ at CL explained in R v Hawes (1994) 35 NSWLR 294 at 305, "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".

17. The resolution of any issue of self-defence may obviously present particular difficulties when 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 R v 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.

18. When the accused has been found unfit to plead a further question arises as to the manner in which such an issue may be dealt with at a special hearing. Whilst the Crown need prove only that the accused engaged in the conduct required by the offence, the application of force will constitute the conduct required by an offence of assault only if unlawful. 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. In my opinion, the provisions of s 317 do not relieve the Crown of the obligation to prove that the relevant application of force was unlawful. However, the Crown is not obliged to negative the possibility that the accused acted in self-defence unless there is objective evidence which fairly raises such an issue.

19. During the course of the learned Crown prosecutor's opening address it was suggested that the assault may have been more extensive than that previously alleged in the particulars provided in a case statement dated 7 April 2003. Mr Everson, who appeared for Mr Bailiff, objected to any attempt to amend the particulars and it seemed to me that such a course might present real difficulties in relation to the further conduct of the proceedings. Issues relating to fitness to plead are made in the context of the relevant allegations and, to take one example, it is possible that the Mental Health Tribunal might conclude that a person had sufficient understanding of the issues to instruct counsel in relation to one charge but not another. Furthermore, Mr Everson was obliged to take instructions from a guardian appointed by the Guardianship Tribunal and that person had made a decision to elect for trial by judge alone on the basis of the charge as particularised. When issues of this kind were raised, the Crown prosecutor quite properly sought an adjournment to obtain instructions and subsequently informed me that the Crown would adhere to the particulars. Having regard to the view that I have taken of the evidence, the Crown case was clearly not prejudiced by that decision.

20. Mr Seaman, who was then employed as a security guard at Westfield Belconnen ("the Mall"), gave evidence that at about 11.25 am on 8 February 2003 he and another security guard, Mr Weir, had attended a music store in the Mall apparently following an automated call for assistance. He saw a person subsequently identified as Mr Bailiff talking to the store manager. Shortly afterwards, four police officers arrived, apparently in response to a telephone call from Mr Bailiff, and they had a short conversation with both the manager and Mr Bailiff. The police then left. One of the people working in the music store, to whom Mr Bailiff had apparently been speaking in a somewhat aggressive manner, subsequently asked Mr Seaman to have him removed. Mr Seaman then left the store to ask the police to return whilst Mr Weir remained behind.

21. The police went back to the store with Mr Seaman and asked Mr Bailiff to leave. He proceeded to do so. Mr Seaman and Mr Weir began to follow him, initially maintaining a distance of about 10 to 15 metres in accordance with an established protocol for escorting people from the premises. However, they caught up with him when he had travelled about 20 metres from the store and stopped to protest at his exclusion. He was again told to leave and resumed walking towards the stairway leading out of the Mall. As they began to descend the stairs they were walking only about two steps behind him.

22. Mr Seaman said that as they got to the landing he began to explain to Mr Bailiff that he had been banned from the Mall for the day. He said that Mr Bailiff turned, grabbed him by the top of his shirt and pushed him backwards. He fell back against Mr Weir but regained his balance after Mr Weir pushed him forwards. A scuffle then ensued. Mr Seaman seemed unable to remember exactly what happened next but said that he did recall having his head down near the waist of the accused and that the accused had had his forearm around his throat. He also said he felt something hit his back though the impact was not particularly hard. He said he subsequently saw Mr Weir restraining Mr Bailiff and moved to assist him. Mr Bailiff then attempted to kick him.

23. In cross-examination, Mr Seaman agreed that the protocol for Westfield Belconnen Mall required security staff to remain a reasonable distance behind a person who had been asked to leave the Mall. He said that this requirement was intended to reduce the risk of altercations. On this occasion he and Mr Weir caught up with the accused when he stopped near the East India Company store and they had then followed him at a distance of about an arm's length because he was still trying to engage them in conversation. Mr Seaman conceded that when interviewed by police shortly after the incident he had given the police a version of events that differed in quite significant respects from the account he provided in his evidence in chief. When pressed about some of the discrepancies he was unable to say which version had been correct and said that he had little memory of those interviews. He agreed that he had told Constable Slater that Mr Bailiff had put an arm around his neck and "was squeezing my neck in a fashion that was lifting me off the ground". He maintained in cross-examination that this allegation had been true. He was permitted to stand in the witness box to demonstrate how it had occurred. He explained that he had been facing Mr Bailiff with his head down around his waist, that Mr Bailiff had had one arm around his neck and that he had been lifting him with that arm. I found both his explanation and his demonstration unconvincing.

24. Mr Weir gave evidence confirming that he had gone to the music store with Mr Seaman and that he had been present when the police officers attended. After they had left, Mr Bailiff became more agitated and the staff asked the two security officers to have him removed. Mr Seaman then left to get the police and returned with the officers. They spoke to the accused and he commenced to leave. Mr Seaman and Mr Weir followed at a distance of five to ten metres but approached more closely when Mr Bailiff stopped outside where the Freedom shop used to be located to speak to them. Mr Seaman asked him to leave and he resumed walking towards the exit. They followed at a distance of about one metre and as he walked down the stairs they were "a couple of steps" behind him. Mr Weir said that Mr Seaman asked Mr Bailiff if he understood that he had been asked to leave the centre and that he was not allowed back that day. The accused then turned and grabbed Mr Seaman's shirt on either side of his collar. He said that at that point Mr Seaman "leant back a bit" but remained standing upright. Mr Weir went past them to restrain Mr Bailiff, grabbing him from behind with his arms around his chest and his hands locked together in front in a type of bear hug. He said that Mr Seaman then went down low and put his arms around Mr Bailiff's waist "like a tackle", the momentum apparently generated by this movement caused him to move backwards down the stairs and he was obliged to let go.

25. Mr Weir was an extremely large and apparently powerfully built man. He said that he was six foot seven inches tall and weighed about 120 kilograms. Mr Weir was much larger than Mr Bailiff and would obviously have been much stronger than him. It is difficult to understand why Mr Seaman might have thought it necessary to seize Mr Bailiff around the waist when he was already being restrained by a man as powerful as Mr Weir and when such a move would not have prevented him from moving his arms and legs if he had chosen to lash out violently. The most immediate effect of Mr Seaman's intervention seemed to have caused Mr Weir to lose his balance.

26. In cross-examination Mr Weir conceded that he had been unable to see the front of Mr Seaman's shirt when Mr Bailiff took hold of it but maintained, nonetheless, that he had been able to see Mr Bailiff's hands on the shirt. He also claimed that whilst he was standing behind Mr Bailiff holding him he saw Mr Bailiff punching downwards on to Mr Seaman's back. Mr Weir, like Mr Seaman, conceded that he had given the police a version of events that differed in significant respects from the account given in his evidence in chief. His evidence also contradicted that given by Mr Seaman in some respects. In particular, he said that he had not seen Mr Bailiff with his arm or hand across Mr Seaman's throat whilst Mr Seaman was leaning forward with his arms around Mr Bailiff's waist.

27. I found Mr Seaman's account of Mr Bailiff squeezing his neck and lifting him off the ground with one arm quite improbable and the further evidence suggesting that he would have had to accomplish this feat whilst being restrained by Mr Weir did nothing to enhance its credibility. Whilst Mr Weir's account of seeing Mr Bailiff punch downwards on to Mr Seaman's back was somewhat more plausible, it was not wholly consistent with Mr Seaman's evidence and, given the inconsistencies in the evidence of both men I was also left in considerable doubt as to whether this had occurred.

28. The particulars of the charge had been taken from a statement of facts prepared by the police shortly after the incident and reflected what Mr Seaman told them at the time. The allegations seem to have been changed and expanded in the time that has passed since. I suspect that both Mr Seaman and Mr Weir found it difficult to recall precisely how the scuffle with Mr Bailiff unfolded and in giving evidence each seemed dependent upon a substantial measure of reconstruction. At one point Mr Weir conceded that he had been shocked by what he had just read in his own police statement. Having had the opportunity of observing both men in the witness box and seeing them subjected to a searching cross-examination I formed the view that their evidence was generally reliable insofar as it related to the sequence of events up to the point at which the scuffle commenced but that their description of what occurred thereafter was at least hopelessly confused.

29. In all the circumstances I am satisfied beyond reasonable doubt that Mr Bailiff reacted angrily to the conduct of the two security guards in following so closely behind him as he walked down the stairs and that he turned and took hold of Mr Seaman's shirt in the vicinity of the collar. I am not satisfied that he took hold of his tie, that he subsequently tightened his grip or that he spoke the words alleged.

30. Despite the proffered explanation, I find it difficult to accept that Mr Seaman and Mr Weir had any legitimate reason for walking so closely behind Mr Bailiff. It appears from photographs tendered in evidence that the stairs were only about 30 centimetres deep and it is understandable that someone in Mr Bailiff's position may have seen the actions of two large men following only two steps behind and above him as harassing or even intimidatory. However, the evidence does not, in my opinion, raise any issue of self-defence.

31. Consequently, I am obliged to find that Mr Bailiff engaged in the conduct required by the offence of assault in that he took hold of another man's shirt.

32. This case has again highlighted the inadequacy of the approaches taken to the treatment and care of mentally ill people and responses to inappropriate behaviour attributable to mental illness. Despite his confident manner, Mr Bailiff suffers from both brain damage and a serious psychiatric illness. The brain damage was sustained in a motor vehicle accident which also resulted in the death of his sister when he was 15 years old. These events have obviously had a profound effect upon his life. He appears to be a highly intelligent man whose perceptions are constantly coloured and distorted by his mental impairment. His irrational and sometimes disturbing behaviour is clearly attributable to his mental condition.

33. In May 1996 he was assessed by Dr J Sydney Smith then the Director of the Neuropsychiatric Unit at Prince Henry Hospital, who stated that:

I had no doubt that this dramatic and qualitative charge [sic] in him is the result of the onset of frankly psychotic symptoms and I believe he fulfils the DSM IV criteria for the diagnosis of Manic Episode. Unfortunately, the episode has been chronic, extending over some five or six years. In his current state, he is not capable to manage his own financial or legal affairs.

34. On 14 January 1999, Dr Greg Hugh, a psychiatrist at Darwin Urban Mental Health Services said that the issue of diagnosis was a contentious one and ventured his own opinion in the following terms:

In my opinion the most likely diagnosis is psychotic disorder, due to brain injury, with delusions, and mood disorder, due to brain injury, with manic features (more simply, frontal lobe syndrome). However, I think it is also very possible that [Mr Bailiff] has a primary psychotic disorder, such as schizophrenia or bipolar disorder and that the brain injury is a comfounding [sic] problem. Regardless of the diagnosis, it is clear that [Mr Bailiff] has benefited from medication and containment and likely would benefit from appropriate rehabilitation. His judgment is so impaired that to leave [Mr Bailiff] without treatment is inviting further conflict with the law, and may possibly place others at risk, given his history of inappropriate disinhibition, grandiosity, persecutory ideation and an apparent delight in overstepping accepted social boundaries.

35. On 12 October 1999, Associate Professor Cathy Owen, the Clinical Director of ACT Mental Health Services, expressed an alternative diagnosis of "pseudologica fantastica".

36. In a detailed and very helpful report dated 24 August 2003, Dr Graham George, a consultant psychiatrist, adverted to the fact that Mr Bailiff had apparently been unconscious for a period of four weeks following the car accident in 1985 and had suffered brain damage. He pointed out that his symptomatology since that time had been well documented. Dr George said that on the day he was interviewed he appeared to be hypomanic and "exhibited both pressure of speech and flight of ideas as seen in the hypomanic or manic phase of bipolar affective disorder". His associations were often irrational and he did not appear to follow a logical sequence of thought. There was a sense of euphoria, grandiosity and paranoia associated with his presentation and evidence of delusional ideas with respect to various people he mentioned. He appeared to be preoccupied about the death of his sister and many of his ideas were related to her death. Whilst noting that there had been a variety of opinion expressed in relation to the appropriate diagnosis, Dr George said that he was more inclined to agree with the views expressed by Dr Sydney Smith and Dr Hugh. He explained that the nature of bipolar affective disorder has a relapsing/remitting course and it is possible that people affected by such a disorder can continue in a hypomanic phase for months or even years. Given the relapsing and remitting course of the disorder, a person such as Mr Bailiff can present differently at different times and Dr George suggested that this may explain the difference in diagnoses. When assessed in August 2003, Dr George believed that his symptoms were caused by a combination of "bipolar affective disorder (of an organic and/or functional origin) and predominantly, a frontal lobe syndrome". He concluded that he was unfit to plead and, in the absence of psychiatric intervention resulting in him taking medication on a continuous basis, it was unlikely that he would become fit to plead within the next twelve months.

37. Dr George thought it important to point out that Dr Hugh had reported that after several weeks of treatment on anti psychotic and mood stabilising medication Mr Bailiff had appeared less intrusive and demanding and markedly less pressured in his speech. He was still affected by grandiosity and persecutory ideation but these had also improved considerably. Dr Hugh concluded that he had made considerable progress during the two months of treatment but was very likely to be non compliant without assertive follow up and likely to come into further conflict with the law and, possibly, place others at risk given his history of "inappropriate disinhibition, grandiosity, persecutory ideation and apparent delight in overstepping acceptable social boundaries".

38. It should be abundantly clear from this history that Mr Bailiff needs appropriate psychiatric treatment and care and that any tendency to behave in an inappropriate manner should be appropriately addressed within the mental health system rather than by repeated ineffectual attempts to address it within the criminal justice system.

39. In particular, the repeated attempts to invoke the criminal law, have him "not acquitted" of what have usually been relatively minor offences and remitted back to the Mental Health Tribunal seem to have been a substantial waste of time and public funds. In an appropriate case, such an approach may ensure that the community is protected from further acts of violence or sexual abuse by a dangerously psychotic person who can be held in custody until the Tribunal is satisfied that he can be safely released. However, this is not such a case.

40. Mr Bailiff has previously been referred to the Tribunal following his "non-acquittal" on somewhat similar charges and it seems unlikely that the Tribunal will be persuaded to adopt a different approach by reason only of my finding that he took hold of a man's shirt in the circumstances mentioned earlier.

41. It is also unlikely that Mr Bailiff's future conduct will be curbed by becoming involved in a succession of special hearings. Indeed, it was clear from his conduct and demeanour during the special hearing that he enjoyed being brought to the Supreme Court and given what he seemed to regard as a starring role in the proceedings. Given his history of grandiosity and what Dr Hugh described as an "apparent delight in overstepping acceptable social boundaries" that might have been expected.

42. Cases of this kind inevitably involve substantial public expense. The accused must be brought before the Magistrates Court and time allocated for a committal hearing. Following committal to the Supreme Court, a judge refers the matter to the Tribunal to make the necessary determinations about fitness to plead on the advice of a suitably qualified specialist who interviews the accused, reviews his or her medical history and addresses the statutory criteria in the context of the issues likely to arise at the trial. If the Tribunal finds that the accused is unfit to plead and is unlikely to become fit to plead within the ensuing twelve months and the Director of Public Prosecutions decides to proceed with the charge, the Supreme Court allocates time for the special hearing, sometimes at the expense of delaying the trial of more serious matters. In the interim, the Guardianship Tribunal is asked to appoint a guardian to instruct legal representatives to appear on behalf of the accused at the special hearing and to make any election for trial by judge alone rather than a jury trial should that be considered appropriate. The special hearing proceeds, either by judge and jury or by judge alone and witnesses again give evidence and are cross-examined before the jury retires to consider whether the Crown case has been established or the judge retires to write a judgment. At each stage counsel for both the Crown and defence are likely to be paid from the public purse. Even if the special hearing itself is relatively short, the overall cost of such a saga would probably run into tens of thousands of dollars.

43. Yet, in many respects the proceedings are inherently unsatisfactory. The accused is usually unable to give coherent instructions or reliable evidence in his or her own defence and potentially crucial mental elements of the offence must generally be ignored. Hence, it is almost inevitably a somewhat one sided trial and one in which such possibilities as mistake, accident and lack of any specific intent or knowledge, must all be ignored unless there is objective evidence to raise them. Furthermore, no matter what the outcome, the accused can be neither convicted nor punished. Indeed, the Supreme Court has no power to make any decision as to the future management of the accused. Save in more serious cases of the kind mentioned earlier, the only real consequence of a "non-acquittal" is that the accused is again referred to the Tribunal and it has the benefit of a finding that he or she engaged in the conduct required by a particular offence.

44. In many cases such a finding will be of limited, if any, assistance to the Tribunal because it will not involve any resolution of potentially crucial issues such as whether the conduct reflected some malicious intent or was the product of mistake or accident. In minor cases, it is difficult to see any point in using a succession of special hearings as a means of repeatedly referring a mentally ill person to the Tribunal unless, of course, some new and worrying feature of his or her conduct has emerged or the Tribunal has declined to accept that he or she is prone to act in the manner alleged. In the absence of some such consideration it seems absurdly cumbersome to require the Tribunal to repeatedly assess the accused, in the context of the facts allegedly constituting a succession of minor offences, so that it can make determinations enabling the Supreme Court to hear proceedings in which the only likely result is that the accused will be referred back to the Tribunal in relation to the same facts.

45. More fundamentally, a compassionate and caring society should be able to find means of adequately managing mentally ill people without constant resort to the criminal justice system. The behaviour of such people may be a complete nuisance and it may sometimes be necessary to take firm action in order to protect others. In some cases, such as when mentally ill people are prone to committing acts of serious violence or sexual abuse, it may even be necessary to confine them for long periods. However, when a person's aberrant behaviour is essentially the product of brain damage and/or serious mental illness rather than any real criminal predisposition, it is unrealistic to expect that it can be controlled by simplistic reliance on the deterrent effect of the criminal law. At the risk of belabouring the obvious, people cannot be deterred from distorted patterns of thought due to brain damage or mental illness and, if the underlying condition is not addressed, deterrence alone will be unlikely to substantially reduce the risk of similar behaviour in the future. Consequently, others may remain at risk and mentally ill people may themselves be at risk of violence due to the reaction their behaviour provokes in others. In recent years there has been a trend, evident in most Australian jurisdictions, to rely more heavily on punishment than treatment of mentally ill offenders. This may appeal to some sections of the community but it is largely ineffective and often unjust. In many cases, timely treatment and management can substantially reduce the risk of a mentally ill person harassing or assaulting people and that is obviously a more effective means of protecting the community than leaving the underlying problem unaddressed and subsequently seeking to blame the person for conduct largely attributable to his or her condition. It should also be remembered that people found unfit to plead will almost inevitably have such disordered patterns of thought that they cannot fairly be regarded as wholly responsible for their actions. In this Territory, the Government has recently announced a wide-ranging review of forensic mental health services and associated legislation. It is to be hoped that this will lead to a more effective and compassionate response to the needs of those concerned.

46. It is obviously necessary to have some effective mechanism for referring mentally ill people who have allegedly committed even relatively minor offences to the Tribunal so that informed decisions can be made about their future care and management. Section 15(1) of the Mental Health Act already permits police officers and staff of the Office of Director of Public Prosecutions to refer an alleged offender to the Tribunal for a mental health order if the referring officer believes on reasonable grounds that, because of mental dysfunction or mental illness, that person's health or safety is likely to be substantially at risk or the alleged offender is, or is likely to do serious harm to others. If that is perceived to be inadequate because it does not extend to cases in which there are no reasonable grounds to believe that any such risks exist, then the legislation could be amended. It might also be desirable to give the Director a right of audience before the Tribunal in cases in which there has been some allegation of criminal conduct. In the interim I would suggest that special hearings should be reserved for those cases in which the public interest is likely to be served in some real and tangible manner.

47. So far as the present case is concerned, I am satisfied that, having regard to the criteria for detention in s 308 of the Crimes Act it is more appropriate to order that the accused again submit himself to the Tribunal to enable it to make a treatment order than it is to detain him in custody pursuant to s 319(2).

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the Crown: ACT Director of Public Prosecutions