• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Representation: Counsel S Naidu (Crown) K Ginges (Accused)

Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Accused)

File Numbers: SCC 97 of 2020 SCC 98 of 2020

MOSSOP J:

Introduction

1. The accused, Kelly Jackson, has been charged with one count of arson contrary to s 404(1) of the Criminal Code 2002 (ACT).

2. The position of the accused was that she contested whether the Crown could prove the elements of the offence beyond reasonable doubt. If it did, then she wished to contend that she was not guilty by reason of mental impairment under s 28 of the Criminal Code. The Crown indicated that it would agree, for the purposes of s 321 of the Crimes Act 1900 (ACT), to the entry of a verdict of not guilty by reason of mental impairment.

Section 321 does not apply in this case

3. At the commencement of the trial there was an issue as to whether or not it was open to the accused to contest whether or not elements of the charge were made out in circumstances where s 321 of the Crimes Act applied. Section 321 applies “if an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court”. Section 322 of the Crimes Act relates to the explanation that needs to be given to a jury if “evidence is adduced that tends to establish that the accused is entitled to a special verdict of not guilty because of mental impairment”. When read in the context of s 322, it is clear that s 321 only covers the limited circumstances in which the entry of a special verdict with the agreement of the prosecution will resolve the issues that need to be determined in the proceedings. In such a case, the need for a trial is avoided. As the subsequent section, s 322, makes clear, the operation of s 28 of the Criminal Code may be raised in a trial so that if the jury is satisfied that the offence is otherwise proven, it may still return the special verdict of not guilty because of mental impairment. That must also be the case in a trial by judge alone. Even though trial by judge alone is not mentioned in s 321 or s 322, that is only because it must have been assumed that a judge sitting alone could work out the legal and practical consequences of a verdict of not guilty by reason of mental impairment, as distinct from a verdict of guilty or not guilty. There was therefore no need to include a provision such as s 322 about the directions that must be given.

4. In a case in which an accused person wished to contend that the Crown cannot prove one or more elements of the offence but, if the elements were proven beyond reasonable doubt, then wished to contend that a verdict of not guilty by reason of mental impairment should be entered, the appropriate course was to enter a plea of not guilty, rather than attempt to deal with the matter within the scope of s 321 of the Crimes Act. Because of the position adopted by the accused, s 321 had no application in this case.

5. In reaching this conclusion I have not ignored those cases where judges have treated cases in which a special verdict was sought with the agreement of the prosecution as a “trial”: R v Cross [2017] ACTSC 91; 319 FLR 288 at [6]-[9]. Those authorities seem to be based upon giving an expanded operation to the requirement in s 321(2) that the verdict be “appropriate”. That approach was adopted without reference to the purpose of the provision which was identified as being to permit a “consent” verdict to be entered: see Explanatory Memorandum, Crimes (Amendment) Bill 1994 at 7.

Procedure

6. On 1 June 2021 the accused filed an election for trial by judge alone under s 68B of the Supreme Court Act 1933 (ACT).

7. Following some discussion of the approach of the accused to the charge and the possible application of s 321 of the Crimes Act, the accused was arraigned and pleaded not guilty.

8. Facts were then agreed and a document recording those agreed facts tendered, becoming Exhibit 1. The agreement as to facts narrowed the scope of evidence that needed to be called.

General criminal trial directions

9. Under s 68C(2) of the Supreme Court Act I am obliged to set out:

(a) the principles of law applied; and

(b) the findings of fact which I make.

10. I am also obliged to take into account any warning or direction to be given, or comment to be made, that would have been made to a jury in the proceedings had the matter been tried before a jury: s 68C(3).

11. I have given myself the directions as to the nature of criminal trials set out in R v Mulcahy [2010] ACTSC 98 at [13]-[24] and the directions about expert evidence set out in R v Sidaros (No 5) [2020] ACTSC 354 at [23], [24] and [26] adjusted so that they refer to the expert witnesses whose evidence was admitted in the present case.

12. I have also given myself directions under s 165 of the Evidence Act 2011 (ACT). The first is a direction in relation to the admission made by the accused at the scene of the fire to the effect that she had only intended to or tried to light a little fire. I warn myself that that evidence may be unreliable. I inform myself that the matters that may cause it to be unreliable include that the accused may have been suffering from the effects of intoxication by alcohol, cannabis and possibly methylamphetamine and that she was also likely to have been suffering the effects of drug-induced psychosis as well as the stress associated with having her house burned down. I therefore warn myself of the need for caution in determining whether to accept that evidence and the weight to be given to it. In relation to the evidence of the admission which the accused’s mother, Vicki Jackson, gave evidence was made to her, I warn myself that the evidence may be unreliable. I inform myself that the matters that may cause it to be unreliable include the mental health of the accused as described in the reports of Dr Allnutt.

13. The second is a direction in relation to the evidence of Vicki Jackson, the mother of the accused, that the reliability of her evidence may be affected by her mental health conditions of which she gave evidence and which were described in the medical records which became Exhibit 6. I therefore warn myself of the need for caution in determining whether to accept that evidence and the weight to be given to it.

Elements of the offence

14. Arson is a charge under s 404(1) of the Criminal Code which provides:

404 Arson (1) A person commits an offence if the person– (a) causes damage to a building or vehicle by fire or explosive; and (b) intends to cause, or is reckless about causing, damage to that or any other building or vehicle.

15. Building is defined to include part of a building and any structure whether or not moveable that is used, designed or adapted for residential purposes: s 404(4).

16. The elements of the offence of arson are:

(a) The accused engaged in conduct.

(b) The accused intended to engage in that conduct.

(c) The accused’s conduct caused damage to a building by fire.

(d) The accused intended or was reckless about causing damage to the building.

17. The Crown made it clear that for the purposes of element (d), it alleged recklessness rather than intention.

Agreed facts

18. The following facts were agreed pursuant to s 191 of the Evidence Act 2011 (ACT).

The Building

19. In 2018, the accused’s father, Ross Jackson, entered into a personal agreement with the accused to rent his property to the accused. The property is a single-storey, three-bedroom, duplex house located at 6 Eaglemont Retreat, Conder in the ACT (building). The building shares a common wall, being the garage wall, with the neighbouring duplex home at 8 Eaglemont Retreat, Conder.

20. As at 21 November 2019, the accused was living inside, and renting, the building.

Lead up to the fire on 21 November 2019

21. On 21 November 2019 the accused was at home at the building. At about 8:00pm that evening, Senior Constable Robert Watt and Constable Rebecca Davidson attended the building to conduct a welfare check on the accused following the accused’s friend reporting to police that she had concerns that the accused was hearing voices to self-harm.

22. When police knocked on the front door, the accused answered the door and identified herself. She was wearing a black singlet top and jeans. The accused’s small dog was with her at the time.

23. The accused told police that she was doing okay but was feeling depressed because she did not have her son with her. She further stated that she was enrolling into rehabilitation and was looking forward to having her son back. The accused had been enrolled to stay at the residential alcohol and drug dependence rehabilitation centre, Karrilika, commencing on 27 November 2019.

24. Senior Constable Watt observed the accused was upset and she appeared to be under the influence of alcohol. The smell of cannabis was coming from inside the building. The accused told police that she was having a few drinks and pot before going into rehab.

25. Police did not observe any signs of self-harm to the accused’s wrist or arms. The accused did not indicate to police that she was hearing voices or was thinking of self-harming.

26. Senior Constable Watt sought a second opinion regarding the accused’s mental welfare, by contacting ACT Mental Health (ACTMH) at about 8:14pm. He arranged for ACTMH to speak to the accused over the phone.

27. After speaking with the accused over the phone, ACTMH spoke to Senior Constable Watt and informed the officer that they held no immediate concerns for the accused’s welfare. Satisfied that the accused appeared safe and well, police left the accused at the building and departed the location.

28. Police left the accused at about 8:15pm

Lighting a fire inside the building

29. Later that same evening, on 21 November 2019, before 8:30pm, the accused was alone inside the residence.

30. At about 8.30pm Mr Andrew Constable was sitting on his couch at 8 Eaglemont Retreat, when he heard the accused running to his front door and calling for help. The accused approached, upset, and told Mr Constable that her house was on fire. Mr Constable ran outside to the front yard. Mr Constable saw that the neighbouring duplex, 6 Eaglemont Retreat, was “well alight”.

31. Mr Constable then ran around to the back of his house to grab a hose, he ran back to the front of the building and tried to extinguish the fire using the hose.

32. He saw the accused run back inside the building whilst yelling and screaming. He yelled to her to get out.

33. Mr Constable was watering the fire through the front door of the building. He contacted ACT Fire & Rescue for assistance, and handed the hose to a neighbour, Matthew Bennett, whilst he went back to his own yard to retrieve his dog and to move his cars to safety.

34. By this stage, other neighbours on the street had come out after hearing hear multiple loud bangs coming from the accused’s residence and hearing the accused screaming for help. Neighbours could see large flames and smoke coming from the accused’s residence.

35. Mr Bennett had taken the hose from Mr Constable to fight the fire. After it got too hot, he dropped the hose and walked away. His partner, Kirilyn Allsop, contacted 000 telling the operator at first that she thought there had been a domestic violence situation after hearing screaming and loud bangs, before she walked out the front and saw a massive fire at the accused’s residence.

36. Mr Bennett observed the accused sitting and crying on the curb opposite the burning building. He went to check on the accused and to find out if anyone else was inside the burning residence. The accused told Mr Bennet that there was no-one else in the house apart from her dog. Mr Bennett and the accused had a short conversation.

37. At about 9:00pm, ACT Fire & Rescue attended the scene. Firefighter Thomas Rose was on shift and observed that the building was fully engulfed by fire. Firefighter Rose saw the accused run towards the burning building saying: “my baby, my baby”. A neighbour later told Firefighter Rose that the accused was talking about her dog.

38. Firefighter Rose restrained the accused until police arrived, who then restrained, arrested and removed the accused.

39. The accused was crying and yelling about her house and her dog whilst she was being restrained by police. Senior Constable Watt attended the scene and recognised the accused being restrained by other police officers, and he observed the accused’s residence had been extensively damaged by fire.

40. The accused was subsequently arrested and conveyed to the ACT Watch House. In the early hours of the following morning, at 12:12am on 22 November 2019, a medical officer deemed the accused to be unfit for interview due to her level of intoxication and elevated blood alcohol level.

Complete fire damage to the building

41. Firefighters managed to extinguish the fire, however, the building and its contents were extensively damaged. After the fire had been extinguished, the accused’s dog was found alive in the backyard of the residence.

42. During the incident, the firefighters’ priority was to protect the neighbouring duplex home of Mr Constable, to stop the fire from jumping. Mr Constable’s home sustained smoke damage and he was not able to stay there for a few months because the power had to be disconnected due to safety concerns.

43. AFP crime scene investigators examined the fire scene when it was safe to do so on the morning of 23 November 2019. The following findings were recorded:

(a) This had been an advanced fire with the fire spreading rapidly inside the building, leaving major fire and smoke damage.

(b) The fire had travelled and spread through the roof. The roof had completely collapsed in, with rooms and contents inside the building being destroyed.

(c) The front part of the house (living room, porch, main entrance and dining room areas) had all sustained major fire damage consistent with having been fully engulfed by fire.

(d) The power meter box was intact and undamaged, indicating that the fire had not started there. (e) Based on the observed fire patterns and areas of visible damage, the area of origin of the fire was determined to be in the vicinity of the living/dining/kitchen room areas.

(f) Samples of fire debris were collected from various parts inside the building. From these samples no ignitable liquid was identified due to the extent of the fire damage.

(g) The cause of the fire is undetermined.

44. The accused’s clothing, which she had been seen to be wearing by Senior Constable Watt and when arrested was examined by AFP Forensic. No ignitable liquids were identified in the clothing worn by the accused.

45. The owner of the building, Mr Jackson, did not give permission for the accused, or anyone else, to set fire to the building or to damage his property. As at the date of the fire, the residence was valued between $450,000-$500,000 and the residence was fully furnished with the contents value of approximately $20,000.

Evidence

46. In addition to these facts, a number of witnesses gave oral evidence.

Andrew Constable

47. Mr Constable lived in the duplex house adjoining the house where the fire occurred. On 21 November 2019 he became aware of the fire. He went out the front to see what was happening. He saw a fire inside the house which he described as a “wall of flames” on the front window. He went around the side of his house and obtained hose and directed the hose through the front door of the house. The front window of the house collapsed and he then hosed in through the window. He then moved back towards his house and hosed onto the garage. He persisted until a neighbour took the hose from him. He then went to his home and got some of his things, got a dog from his backyard and moved cars that were at his house. He recalled people coming out from houses on the street, although he was concentrating on getting his things. He said that the weather was warm and that it was dry.

48. Prior to the fire, he had consumed eight to 10 drinks over a period.

49. Mr Constable said that he told police about a red Subaru which had stopped when he was at the front of the house. He had yelled that he needed help. He could not recall any communication back from the driver. When he next looked the car was gone.

50. He said he was initially alerted to the fire because somebody had come to the door. He had heard someone shout “my house is on fire” but he did not see the person at this time.

51. He agreed that he had thought that the accused was in the house, even though he had not seen her go into the house. He yelled for her to get out.

52. The last time he saw the accused she was across the street, kneeling down and crying. She had looked shocked and in a high state of distress.

53. In re-examination he said that the fire had sobered him up quickly. Further, he said in relation to the driver of the Subaru, that he had seen a silhouette but could not recognise any person. Matthew Bennett

54. Mr Bennett lived in a house on the same side of the road two doors up from the duplex which comprised numbers 6 and 8.

55. He ran up to where Mr Constable was hosing the fire and asked if he could assist. Mr Constable handed him the hose. He attempted to saturate the roof of the garage near where number 6 was attached to number 8. Another neighbour came up behind him and assisted him to pinpoint where to direct the hose.

56. There came a point where he had to put the hose down because it was too hot. He later observed a young lady sitting in the gutter across from the house. She was very distraught. He tried to reassure her that everything was going to be okay. He asked how she was. She said that there was no one in the house but there was a dog. He reassured her that the dog would be fine. His evidence was she said words “along the lines of”: “It was my fault. There was only meant to be a small fire”.

57. At some point the woman got up and took a few steps in front of him. Her hysteria increased and she started to make a move quickly towards the house. He got up and held her back. The firefighter asked him what he was doing and then went to get the police. The police then dealt with the accused. They subsequently asked him to participate in a recorded conversation.

58. In cross-examination he said that heard a loud bang and then heard yelling. He told his partner to call 000. When he went to the house, the man who was spraying the house with a garden hose handed him the hose and then left. He agreed that although he had some experience in dealing with fires with the Rural Fire Service, this was something different and his adrenaline was “pumped”. That evening he had previously had one or two beers after work.

59. When he spoke to the woman in the gutter she was sobbing. It was suggested to him that he had told police that the woman in the gutter said: “It’s all my fault because I just tried to light a little fire”. He didn’t recall that as he had not looked at the statement. He agreed that he had tried to convey to police the essence of what the accused had said. It was subsequently agreed between the parties that the transcript of his conversation with police recorded him saying that the accused had said “it’s all my fault because I just tried to light a little fire”.

60. It was suggested that it was the firefighter and not him that restrained the accused. He said that he definitely held her.

61. He subsequently participated in a digitally recorded conversation at his own house. He said that there were a number of police there and that he found that process to be very intimidating, even though he was not accused of any wrongdoing.

62. It was suggested to him that he might have misinterpreted what the accused told him and he said: “I don’t think so. Generally, words are - when things like that are happening, you try to remember what you can.”

63. It was suggested to him that, as a result of the adrenaline and the intimidating interaction with the police officers, he may have misinterpreted what he was told by the accused or may have miscommunicated matters to the police. He accepted that as a possibility. It was not suggested to him that he had misinterpreted what she said. No particular misinterpretation or miscommunication was suggested to him and the cross-examination did not explore this possibility any further.

Diana Simoes

64. Senior Constable Simoes was the informant. She gave evidence that she attended the scene. She was informed that the accused had been arrested. At 10:07pm that evening she attended the Watch House. She was subsequently informed by a forensic medical officer that the accused was not fit for interview because she was intoxicated.

65. The accused’s clothes were seized. They were a pair of jeans and a singlet. The officer gave evidence that the singlet was white although in cross-examination she agreed that it was black.

66. A total fire ban declaration was tendered through Senior Constable Simoes. That declaration recorded that the basis for the declaration was that the Commissioner of the ACT Emergency Services Agency was satisfied that “severe weather conditions conducive to the spread of fire exist”.

67. In cross-examination Senior Constable Simoes’ evidence was that the clothes of the accused were seized at 10:07pm. The report of the forensic medical officer that the accused was not fit for interview was received at 12:09am.

68. A breath alcohol screening device indicated that she had a breath alcohol reading of 0.145 at about 10pm. She agreed that the doctor expected the level of alcohol to decline over time. She agreed that when the accused’s blood alcohol level was 0.145 she was not then fit for interview and that she would not have expected her to be fit for interview at 9:30pm. She agreed with the proposition that part of “the reason why police take the approach that she is not fit for an interview with that type of reading is that what she might say to police may not be reliable”.

69. She agreed that she received a report indicating that the clothing had tested negative for accelerants.

70. She agreed that she had recorded that the accused was of a slim build and that she had described the accused in her statement as “appearing distressed”.

71. She had no information on a red Subaru. No officer told her that they had spoken to a Jake Wenzle and she had not spoken to a Jake Wenzle.

Tracey Rollings

72. Tracey Rollings was a constable based at the Tuggeranong police station. She attended the scene. There were police and fire and rescue vehicles there. The house was engulfed in flames. The accused was on the opposite side of the road being apprehended by police. At some point while the accused was kicking and flailing on the ground, she had a conversation with Mr Bennett on the street. She took notes while she was talking to him. He said that the accused ran out of number 6 saying that the residence was in flames. He asked her if anybody was inside. She said yes her dog. The accused said: “It’s all my fault. I only intended to start a little fire.” At 9:37pm Constable Rollings conveyed her to the Watch House.

73. In cross-examination it was identified that Constable Rolling’s notebook said that Mr Bennett told her that the accused had said “it’s all my fault. I tried to light a little fire”.

74. After having spoken with Mr Bennett, Constable Rollings relayed the information she obtained to Officers John Burns and Troy Gordon. The recorded conversation took place after that. She spoke to Mr Gordon within minutes of speaking to Mr Bennett. It was suggested to Constable Rollings that the accused had said “all my fault. I didn’t mean to. I just tried to light a little fire.” Although Constable Rollings could not recall what she told Officer Gordon, she agreed that she would have told Officer Gordon what she had been told by the accused.

Benjamin Cabot

75. Benjamin Cabot, a forensic chemist, adopted the report prepared by Dr Brenda Woods, also a forensic chemist. That report reached the conclusion that no common ignitable liquids were identified on six items collected from the scene of the fire. That was fire debris from locations identified as “Marker 1”, “Marker 2” and “Marker 3” as well as a control sample, a pair of blue denim jeans and a black singlet. The report describes the method by which residues of ignitable fluids are tested for and the reasons, apart from their absence from the scene, why ignitable liquid residues may not be detected.

76. In cross-examination Mr Cabot was asked about the substances that were tested for and said they included petrol, kerosene, turpentine, diesel, alcohol, methyl ethyl ketone, methanol, white spirit, adhesive removers and engine starters. He confirmed that no volatile organic compounds have been found on the jeans or the singlet that were tested. He was asked about how long such items would remain on clothing and indicated that it all depended upon the nature and quality of the liquid and the environment and activity of the person whose clothes they were.

77. He was asked questions about whether a pile of clothes could be lit with a match or a lighter. He said it depended upon the fabrics involved. He was asked about whether remnants of a pile of clothes would remain after a fire and he said that it depended upon the ferocity of the fire and the surface area involved.

78. He was then asked about the possibility that a liquid in a container kept in the ceiling cavity might ignite. He said that there was a known phenomenon known as a BLEVE – boiling liquid expanding vapour explosion. He explained that this might lead to a container exploding but there would still need to be an ignition source for there to be a resulting fire. He was asked about whether or not a container with flammable liquid exploding might cause loud booms or bangs such as those that were heard two or three houses away. He was asked whether this could be consistent with a BLEVE and said it “could be possible”. He explained that common instances of BLEVEs were LPG or petrol tanks which explode as a result of heat from a surrounding fire and then the vapour is ignited by the surrounding fire.

79. Mr Cabot was asked about the possibility of a flame from a lighter lighting a bong creating an explosion. He said there would need to be contact between the lighter and the vapour. The source of ignition might be a spark, a flame, a hot stove or electrical wires if there was some short circuit or sparking.

Ian Franca

80. Ian Franca is a crime scene investigator employed by the AFP. He prepared an 11-page report on his crime scene examination and that was admitted along with a bundle of photographs taken during the police investigation of the fire. The report contained a record of a thorough examination of the scene which was documented in the attached photographs. The report described the locations of markers 1, 2 and 3. Marker 1 was an area where there was an absence of carpet flooring or underlay. Marker 2 was an area where there was a section of unburnt carpet that had likely been protected by furniture. Both of these were in the area between the living room and the dining room. Marker 3 was within the dining room and was located adjacent to a section of partially burnt flooring.

81. The report also described that in the kitchen, the position of the knobs on the upright stove could not be determined and there were no obvious areas of interest on other appliances or on the cabinetry. The pattern of fire was described as originating from the front of the dwelling (the living room, dining room and kitchen areas) and moving towards the rear of the dwelling. Examination of other areas did not record any area indicative of being the location of the fire. Apparent blood was collected from outside the premises. A sketch diagram annexed to the report indicates the direction of the fire in different areas in and around the building.

82. The conclusion of the report in relation to the fire was as follows:

Based on the observed fire patterns and areas of visible damage, the area of origin of the fire was determined to be the vicinity of the combined living/dining room. Due to an absence of flooring in the middle of these rooms (Marker A), the collection of an unknown electrical item and the visible damage observed to the catwalk board, a number of fire debris samples were collected to test for the presence of ignitable liquids or electrical failures. In the absence of confirmatory results from these samples, the cause of the fire is undetermined. However, should the results of this testing confirm the presence of ignitable liquids or electrical failures within those samples the cause of the fire may be determined as deliberate. The exact mechanism of ignition is unknown.

83. In oral evidence he gave examples of fire indicators that indicate the directional spread of a fire. He also gave examples of evidence that might indicate the cause of a fire. These were accelerants, ignitable liquids, electrical items, suspicious areas indicative of mechanical damage such as door or window damage. He explained that evidence relating to the cause and location of the fire may not be present in every case because the intensity of the fire may mean that evidence is lost. He said that the fire in the present case had caused the structure to partially or fully collapse and that it was of extreme intensity. He said that the fire indicators described on the sketch plan at the end of his report led him to the opinion that the fire started in the vicinity of the living room, dining room and kitchen. He could not identify the exact cause of the fire.

84. In cross-examination he said he was not able to determine the fuel loads. He was satisfied that the fire had built up to the point of “flashover”, the point at which all fuel sources ignite spontaneously. He was not able to say whether the fire commenced in the body of the house or in the ceiling.

85. His examination of the scene did not identify whether the kitchen had a gas stove or an electric stove.

86. He agreed that the timber in the ceiling cavity was a source of fuel that allowed the fire to travel through the roof. He agreed that, at one point, the fire must have travelled through the roof and this assisted the roof to collapse. He agreed that he did not locate any evidence that the fire was deliberately lit but could not exclude the possibility. He could not determine the method of ignition. He said that occasionally during a fire items would build up pressure and pop or explode. Vicki Jackson

87. Ms Jackson is the mother of the accused, who is her youngest daughter. The accused has one child. At times during 2019 the child was out of the care of the accused. In November 2019 he was not in her care. Between December 2020 in January 2021 the accused was in Hyson Green psychiatric facility at Calvary Hospital. Ms Jackson visited her daughter nearly every day and took the child in with her. The child was staying with her at the time. Between Christmas 2019 and 11 January 2020 the accused said to her that she had a flashback and that “I lit a bag of [the child]’s clothes”. Ms Jackson said that when told that she said “Did you?” and the accused said again “I lit a bag of [the child’s] clothes”. She said that when the accused said that [the child’s] clothes, she appeared lucid and was able to be understood. She appeared to Ms Jackson to be able to understand her.

88. In cross-examination she said that she did not follow up on what she had been told.

89. She was asked about her own mental health history and said that she suffered from chronic and major depressive disorder, borderline personality disorder and had childhood ADHD. She agreed that she had five admissions to the Hyson Green facility the most recent of which was between 26 February and 16 March 2021.

90. She was asked about family law proceedings and family violence proceedings brought in relation to the accused and [the child] and her visits to solicitors at Legal Aid in order to get assistance in relation to those matters. She appeared uncertain about what proceedings she had commenced. She was asked about an affidavit which she was said to have sworn for the purposes of proceedings in the Federal Circuit Court. While she appeared uncertain in her evidence about that, no evidence was led to establish what she had in fact done in the Federal Circuit Court. She was asked how she came to make her statement to police on 27 March 2021. She said that she went home from Hyson Green and found damage to her home because of violence by the accused and her ex-husband. She contacted police to see if they could do anything. She was telling the whole story and she “suddenly remembered” what the accused had said. She said: “Literally, it just came to me and I said to the policeman, not even in context.” This was the first time that she had recalled what the accused had told her. She denied having a history of recalling things that did not occur. She agreed that when not on medication, a consequence of her borderline personality disorder was that she would do things that were impetuous. She agreed that her borderline personality disorder would not improve with treatment.

91. She denied having been told by the accused about a flashback from the fire in which the accused remembered sitting on a couch with fire and flames all around her. She denied telling police about what the accused had said to her in an effort to have the child returned to her care.

92. She was asked again about the circumstances in which the accused told her about the flashback. She could not recall details such as where they were going or what they were wearing but did say that it occurred as they left the accused’s room at the facility and were going into the corridor.

93. She denied that the accused had a history of telling her about events which she knew not to be true. Admissions to Dr Allnutt

94. The accused tendered three reports of Dr Allnutt in support of the proposition that the accused suffered from a mental impairment at the time of the offending and, as a consequence, if the offence was otherwise proved, the special verdict of not guilty by reason of mental impairment should be entered. There was no order limiting the use of these reports. These reports contain a number of admissions and other evidence about the actions and mental state of the accused, which are relevant to whether or not the elements of the offence of arson are made out. The relevant passages are as follows:

95. Page 2:

At the time of the alleged offending she was not taking any psychiatric medication, saying she had stopped her medication about two weeks beforehand.

96. Page 3:

At the time of the alleged offending she was drinking alcohol, about a bottle of vodka a day, and had been doing that for about three weeks. Before that she was drinking about two bottles of wine a day for around two months, and before that was drinking in a binge-like fashion on weekends. She said she first started alcohol at 12 and her use of alcohol to manage stress was modelled in the context of her family environment, where alcohol was sometimes used to manage stress. She said when she started drinking at 12 she was feeling lonely and sad.

97. Page 4:

At the time of the alleged offending she was smoking cannabis all day (she could not say how much) and was also using methamphetamines, smoking “all the time”. She was also using cocaine on and off, possibly a few times over two months.

98. Page 5:

At the time of the alleged offending she was living in her father’s house and had been living there for two or three years. She was taking substances (as described above) and alcohol daily.

99. Page 6:

She said that in the month before the alleged offending “It felt like there were cameras on me. I could hear people talking, saying ‘Why is she doing that? What’s wrong with her?’ My friends were on the other side of the door making fun of me. No matter where I went, they could see me, and they were talking about me. I could not make them go away”. The voices were internal but sounded like they were other people’s voices, not of her own mind. She did not experience any disturbances in taste or smell or have any visions. … Your client said overall, she had poor recollection of the alleged offending. Her last recollection of those events was sitting on her couch, about to drink vodka. She was using cannabis at the time and had last used ice earlier that day (she thought it was a point), and a couple of lines of cocaine the night before. Her last recollection was that she had had a bottle of wine and had just taken half a bottle of vodka out of the freezer. Her next memory was trying to put out a fire. She recalled having a fire blanket in her hands in the lounge room, and the flames were everywhere. She recalled running to a neighbour next door, telling him there was a fire, and remembered feeling scared. Her next recollection was going back to the house to get her dog and then being in the paddy wagon and watching the house go up in flames. She recalled being taken to the Civic Watch House, where they took her clothes from her. She remembered that the voices continued at that time and she was admitted to Woden Psychiatric Unit for one week.

100. Page 13: On 21 November 2019 there were multiple phone calls received by her mother and friend, Sammy, about concerns for Kelly. Kelly had sent a text message to Sam saying, “I don’t know what’s going on in my head”. She reported hearing voices of a deceased family member telling her to self-harm and end her life. An AFP patrol was dispatched. On site the AFP advised she was overly cheery and happy, saying all the right things. They advised they were aware of concerns around self-harm but said Kelly presented with no visible concerns for deliberate self-harm. Multiple attempts were made to build a rapport, however she was guarded and engaged superficially, answering many questions with “fine” when asked specifically about perceptual disturbances, and was advised of concerns of auditory command hallucination, which she denied. She said she was fine and reported she wanted to go back to the TV and “pull a bong”.

101. Page 14:

There was an assessment conducted on 22 November 2019. At that stage she was arrested on a charge of arson. She was distressed and was covering her ears, wanting the voices to stop. She would not answer questions and when she did, it was hard to hear what she was saying because she was facing the floor. She heard two voices; one was her ex-partner … She said she could hear 10 voices coming from people she knew, all inside her head, telling her to be a better person and commenting on things. A few years before she had thought she could read people’s minds. The voices had been getting worse in the past four days. She meant to attend detox and was dishevelled, in tears, distressed, and often would not answer questions. She was in acute distress with suicidal ideation. The impression was increasing auditory hallucinations in the context of illicit drug use. The voices were inside her head, commentary in nature, and suggested a resolving drug-induced psychosis on a background of a borderline personality disorder and polysubstance dependence.

Consideration

Did the accused intentionally light a fire?

102. The crime scene evidence establishes that a fire occurred and that it commenced in the living/dining/kitchen area of the premises. It could not be determined whether it occurred within the habitable area of the building or in the ceiling cavity. The exact mechanism of the commencement of the fire could not be determined. The forensic chemistry evidence was that no evidence of accelerants was located.

103. The most significant evidence relied upon by the Crown is the evidence of the admissions said to have been made to Mr Bennett and the accused’s mother, Ms Jackson.

104. I accept the evidence of Mr Bennett. I do not consider the minor variations in the terms of what was said by the accused between the evidence in court of Mr Bennett, and his recorded conversation with police have any significance. The substance of the evidence is that the accused said that she blamed herself for the fire and that she had only intended to light a little fire. In its context, the reference to a little fire was to contrast what was intended with what subsequently developed.

105. The bare possibility, accepted by Mr Bennett, that he might have misunderstood what the accused was saying or that he may have miscommunicated what he understood to have been said when talking to the police, does not cause me to have any doubt about the accuracy of the evidence given by Mr Bennett. I find that notwithstanding the circumstances in which the admission was communicated to him, that he accurately understood what was being said. Further, given the consistency between the evidence that he gave in the witness box without having refreshed his memory from a transcript of his statement and the terms of the statement, I find that there was no miscommunication of what he had heard to the police in either his conversation with Constable Rollings or his subsequently recorded interview.

106. Notwithstanding the evidence of intoxication of the offender, I do not have a doubt about the accuracy of her admission, having regard to the fact that shortly before its making she had been able to effectively communicate with police officers who had visited the house prior to the fire, she had reacted to the existence of the fire once it became established by seeking help from a neighbour and was able to think about and respond to the potential threat to her dog caused by the fire (even though her ultimate reaction was impulsive and was characterised by Mr Bennett as involving increasing “hysteria”). I consider that a spontaneous admission at the scene of the event as it was occurring to a sympathetic bystander would have been an accurate one and properly reflect her sense of guilt about the magnitude of the fire that had eventuated. Further, it is consistent with the limited facts known about the source of the fire in the kitchen, dining or living room area. The lighting of the fire is consistent with the evidence of her disturbed mind in the extracts from Dr Allnutt’s report to which I have referred.

107. So far as the evidence of Ms Jackson is concerned about the admission made between December 2020 in January 2021, that admission is consistent with the admission made to Mr Bennett. It is consistent with the accused’s upset at the removal of her child from her care. However, I have not placed any weight upon that admission because of:

(h) Its temporal remoteness from the events in question.

(i) The fact that the accused was at the time within a psychiatric facility and the reasons for her admission to the psychiatric facility at that time, as disclosed in the report of Dr Allnutt dated 4 June 2021 at page 5, indicate serious mental health conditions.

(j) The description of the admission as a “flashback” in circumstances where she had not previously recalled the events which tends to give rise to a doubt about its accuracy.

108. Further, my observations of her mother when giving evidence did not give me confidence that her recollection was clear, particularly in circumstances of conflict within the family including court proceedings, the details of which were not fully explored.

109. The alternative scenarios pointed to by the accused are not sufficient to cause me to have a reasonable doubt about the starting of the fire by the accused. In particular the theoretical possibility of an explosion of volatile materials stored in the ceiling cavity had no objective support in the evidence. The inability to exclude the ceiling cavity as a possible location of the start of the fire and the hearing of noises by the neighbours were not sufficient to give rise to a reasonable doubt about the accuracy of the accused’s admission to Mr Bennett.

110. Similarly, the evidence that a red Subaru had been seen on the street as the fire took hold of the premises is not sufficient to create a reasonable doubt. The mere failure to be observed to have stopped to assist with the fire is not sufficient to create a reasonable doubt arising from the possible involvement of the driver of the vehicle in the starting of the fire in the area where the evidence establishes it was started.

111. I am therefore satisfied beyond reasonable doubt that the accused lit a fire and did so intentionally. Did the lighting of the fire cause damage to the building?

112. So far as the third element is concerned, I am satisfied beyond reasonable doubt that the lighting of the fire caused damage to the building by fire. Having regard to the terms of the admission made to Mr Bennett, I cannot be satisfied beyond reasonable doubt that the accused intended that the damage to the building would be as extensive as it was. However, that does not detract from the fact of the causal link between her conduct in lighting the fire and the subsequent destruction of the building.

Was the accused reckless?

113. That leaves the final element which is that the accused was reckless about causing the damage to the building.

114. Section 20 of the Criminal Code provides that a person is reckless in relation to a result if the person is aware of a substantial risk that the result will happen and having regard to the circumstances known to the person, is unjustifiable to take the risk. Section 29 of the Criminal Code provides that a person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility. These provisions are the equivalent of ss 5.4 and 7.3(6) of the Criminal Code (Cth).

115. The relationship between these two provisions is not easy. That arises because in proving recklessness the burden remains on the Crown, yet s 29 refers to a person not being able to “rely on” a mental impairment to “deny … the existence of a fault element”.

116. Counsel for the Crown explained their operation as follows. When considering recklessness, it is necessary to take into account all of the facts including the facts relating to mental impairment. This may mean that the requirement of recklessness is not satisfied because the person’s state of awareness of risk, or awareness of the circumstances that might make the risk unjustifiable, will be affected by a person’s mental impairment. If the requirement of recklessness is not made out, then that cannot lead to the acquittal of the person if it is established that the requirements of s 28 are met.

117. Counsel for the accused explained the operation slightly differently. He submitted that s 29 required that in considering the operation of s 20, if there were reasons not related to mental impairment which would lead to the conclusion that recklessness was not proved beyond reasonable doubt then the accused was entitled to an acquittal. In this case, he pointed to the statements of the accused that she intended to go into rehabilitation as well as her concern for her welfare of her dog and her emotional reaction to the was consistent with somebody who neither intended nor was reckless as to the damage caused by the fire.

118. The High Court in R v Falconer (1990) 171 CLR 30 (Falconer) addressed how to deal with a situation where there was a possibility of either non-insane automatism or insanity. The court said that it was necessary to first consider whether the Crown had excluded beyond reasonable doubt non-insane automatism and if not, the accused was entitled to an unqualified acquittal. If the Crown did exclude non-insane automatism, then the jury was required to consider whether the accused had proved on the balance of probabilities a mental impairment. If the mental impairment was not established, then the jury should convict if the other elements of the offence were established beyond reasonable doubt. This methodology gave full effect to the presumption that the accused was of sound mind unless and until mental impairment was proved. The effect of the Commonwealth and Territory Criminal Codes is to extend the scope of this methodology to fault elements as well as voluntariness. While the Falconer methodology can work well if there is a discrete choice between automatism caused by a mental impairment and other automatism, the way in which it might work in the context of an issue of recklessness has not been considered in any case to which I was referred.

119. The point of the Falconer methodology is to ensure that mentally impaired persons do not escape criminal responsibility altogether if they cannot discharge the burden of proof associated with establishing a mental impairment. The same approach appears to me to be appropriate when giving effect to the requirement of s 29 of the Criminal Code. That is made clear by the quotation in the explanatory memorandum for the Criminal Code to the terms of the explanatory memorandum for the Commonwealth Code. The quoted portion provided:

Where the accused lacks a fault element required by the crime alleged, or lacked (due to "mental impairment" as defined) "voluntariness", the accused is confined to the mental impairment defence… [A] verdict of acquittal on the basis of involuntariness under [subclause 15(1)] is precluded by [subclause 28(7)] if the jury is satisfied that the involuntariness flowed from a mental impairment.

120. The wording of s 29(1) is unfortunate because it suggests some burden upon the accused person to rely upon a particular matter in order to deny the existence of a fault element. The intention however is to ensure that in cases where a fault element cannot be established because of the mental impairment, that the matter is dealt with by way of a special verdict rather than an acquittal. It gives effect to the same approach adopted in Falconer. Stephen Odgers has suggested the potential for a lacuna to exist because of different burdens of proof. He submits it is possible that there would be a case in which a fault element could not be established beyond reasonable doubt and yet a mental impairment denying criminal responsibility was not established on the balance of probabilities: see the discussion in Stephen Odgers, Principles of Federal Criminal Law th (Lawbook Co, 4 ed, 2019) at 7.3.280. However, Jeremy Gans said that in such a situation the effect of the statutory provisions would be to prevent an acquittal based upon the failure to establish a fault element or the voluntariness of the offence because of mental impairment, where the burden of establishing such an impairment in a way that denies criminal responsibility has not been discharged: Jeremy Gans, Modern Criminal nd Law of Australia (Cambridge University Press, 2 ed, 2017) at 122. While it is not necessary in this case to resolve those differences, the latter approach appears consistent with the language of s 29 and the rationale for the Falconer methodology.

121. The Falconer methodology suggests that in relation to determining whether the fault element of recklessness is established, first it is necessary to consider whether the Crown has excluded a possibility not arising from mental impairment. The statutory definition of the fault element of recklessness, involving as it does an enquiry into the state of mind of the accused, is such that it will be an unusual case in which there are circumstances which do not involve a consideration of the mental impairment. However, I accept the submission made on behalf of the accused that there may be cases in which a doubt about recklessness arises by reasons clearly unconnected with a person’s mental impairment. An example might be where it was not proved beyond reasonable doubt that an unimpaired person could have been aware of a substantial risk of the result happening. In such a case, the accused person’s impairment would not be relied upon in order to deny the existence of the fault element. However, the matters pointed to in the present case were so intimately related to the accused’s state of mind that, for the purposes of s 29, they cannot be disentangled from her mental impairment.

122. The Falconer methodology then directs the enquiry to the question of mental impairment under s 28. As I explain in the next part of these reasons, it has been proved on the balance of probabilities that the accused was suffering from a mental impairment of one or other, or both, of the types referred to in s 28(1)(a) and (b). That means that the accused is entitled to a special verdict of not guilty because of mental impairment. Having regard to that conclusion, it is unnecessary to consider any further the issue of recklessness.

Mental impairment

123. Essential to the conclusion that I have just reached is that it has been established on the balance of probabilities that the accused when carrying out the conduct required for the offence was suffering from a mental impairment that had one or more of the effects set out in s 28(1) of the Criminal Code. That section provides:

28 Mental impairment and criminal responsibility (1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect thatꟷ (a) the person did not know the nature and quality of the conduct; or (b) the person did not know that the conduct was wrong; or (c) the person could not control the conduct.

124. A person is presumed to not have been suffering from a mental impairment: s 28(4). This presumption is only displaced if it is proved on the balance of probabilities that the person was suffering from a mental impairment: s 28(5).

125. A mental impairment is defined as including senility, intellectual disability, mental illness, brain damage and severe personality disorder: s 27(1) of the Criminal Code.

Dr Allnut’s evidence about mental impairment

126. For the purposes of any finding that the accused is not guilty by reason of mental impairment”, the accused tendered three reports of Dr Stephen Allnutt’s dated 31 August 2020 (Exhibit 7), 23 October 2020 (Exhibit 8) and 4 June 2021 (Exhibit 9).

127. The Crown and the accused agreed that the evidence of Dr Allnutt established on the balance of probabilities that the accused “did not know the nature and quality of the conduct” within the meaning of s 28 (1)(a) or “did not know that the conduct was wrong” within the meaning of s 28 (1)(b) as explained by s 28(2). The basis of that agreed conclusion was summarised by the parties as follows.

128. In those reports, Dr Allnutt has outlined the accused’s mental health history, including her history of depression from the age of 12, being the victim of physical and sexual assaults, the death of her partner and other matters leading to a diagnosis of a chronic adjustment disorder with depressed mood, possible bipolar affective disorder and a chronic depressive and anxiety disorder.

129. Dr Allnutt referred to the accused’s description of a “constellation of psychotic symptoms”, which were consistent with either a drug-induced psychotic disorder or another chronic psychotic disorder. Dr Allnutt referred to the documentation relating to the accused’s 2020 and 2021 Hyson Green admission, where she was principally diagnosed with “emotional dysregulation in the context of complex and chronic PTSD, alcohol use disorder, substance use disorder, ADHD and ODD [oppositional defiance disorder] in childhood”.

130. Dr Allnutt recounted that the accused was experiencing psychotic symptoms proximal to and after the alleged offending, which would likely have been present at the time of the alleged offending, however because she had no specific memory of the fire starting she could not identify any motivation. He also considered that at the relevant time, the accused was suffering from a drug induced psychosis which (by the time he had seen her on 30 July 2020) was in gradual resolution but with persistence of symptoms.

131. Dr Allnutt considered that the accused’s diagnosis of a drug-induced psychosis at the relevant time likely resulted from the reaction of an “unhealthy mind” (ADHD and ODD in childhood, chronic adjustment disorder, depressive disorder, possible bipolar affective disorder and borderline personality disorder/traits), to an external influence (substances). Dr Allnutt’s opinion in this regard has specific application to the definition in s 27 of the Criminal Code of “mental illness”.

132. Dr Allnutt considered that the accused was experiencing command auditory hallucinations on 21 November 2019 with the potential to influence her behaviour, such as to undermine her capacity to know the wrongfulness of her actions at the material time and possibly her capacity to know either the nature or the quality of her actions at the time. It is also plausible that at the time she may not have known the quality of lighting the fire as to its consequences but realised that quality after the fire was set. Dr Allnutt considered that the accused would have been more vulnerable to act due to her state of mind, driven by irrational thought processes at the material time of the alleged offending and would have been less likely to consider the consequences of her actions.

The Crown and Defence agreed that, for the purposes of s 28(1)(a) and s 28(1)(b) of the Criminal Code, the psychiatric evidence establishes that the accused “was suffering from a mental impairment that had the effect that—

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

(b) she did not know that the conduct was wrong (noting that s 28(2) provide that this includes where the person “cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong”): s 28(1)(b).

133. The conclusion expressed in Dr Allnutt’s final report is as follows:

Overall, my opinion has not changed significantly from my original diagnostic formulation in my report dated 31 August 2020. I would add that on this interview she gave a proximal history of episodes consistent with hypomania (characterised by euphoria, decreased need for sleep, increased energy, racing thoughts, talkativeness and increased spending) which could last a few days, consistent with a diagnosis of bipolar affective disorder. Overall, she has an underlying “mental impairment” and as expressed in my report dated 23 October 2020, an “unhealthy mind”. I maintain my view that, her psychosis at the relevant time of the alleged offence could be argued as having “resulted from the reaction of a relevantly unhealthy mind to an external stimulus” (substances). To the best of my understanding, this meets the legal definition of a “mental impairment” as defined in Pahl. I remain of the view that it can be inferred that her capacity to consider the consequences of engaging in the lighting of a fire (which would include damage to property) was probably impaired. Whether she lit a fire with the intention of causing damage to property, some other intention, or whether she lit a small fire that she misjudged as result of her psychosis, and which resulted in damage, is a legal matter for the court after examining all forensic evidence.

134. In my view, the evidence of Dr Allnutt is sufficient to establish on the balance of probabilities, a mental impairment by reason of one or other, or both, of the matters referred to in s 28(1)(a) or (b). The opinion of Dr Allnutt is consistent with the decision in R v Pahl [2017] ACTSC 68 at 133; 266 A Crim R 41. It is not necessary to dissect out the separate probabilities of each of these alternatives but is sufficient to reach the overall conclusion that a mental impairment has been established on the balance of probabilities.

135. For that reason, the appropriate verdict is the special verdict of not guilty by reason of mental impairment.

Is the offence a serious or non-serious offence?

136. Whether or not the offence of arson in the present case must be classified as a serious offence (within the meaning of s 324 of the Crimes Act) or a non-serious offence (within the meaning of s 323 of the Crimes Act) turns upon whether the offence is “an offence involving actual or threatened violence”: see the definition of “serious offence” in s 300 of the Crimes Act. In R v Smith [2012] ACTSC 146; 269 FLR 233 (Smith), Refshauge J had to deal with the same issue in the context of arson committed by a person who was suffering a mental impairment. His Honour observed at [45]:

It is a pity that the legislature has not seen fit to provide a definition of “an offence involving actual or threatened violence”. That remark was made 11 years ago. It is a remark with which I concur.

137. In Smith Refshauge J examined the meaning given to the word “violence” in a number of different contexts in the United Kingdom and in Australia, including R v Butcher (1986) VR 43. His Honour referred to the decision in R v Hueston (1995) 5 Tas R 210 (Hueston), where Wright J considered whether arson was a crime of violence. In that case, his Honour came to the conclusion that the crime of unlawfully setting fire to property involved an element of violence, although Refshauge J was ultimately uncertain about the decision’s overall significance. The conclusion reached by his Honour was:

In the circumstances, there is no evidence of likely harm here to other persons. The fire was in the house. There were no other persons in the house. The neighbour who came on the scene was able, without apparent difficulty, to extinguish the fire that was outside in the tree and, although extensive damage was done, there was no material before me that suggested there was, to use the words of Wright J, “substantial risk of direct injury resulting therefrom to other persons”. In my view, this was not a crime of violence within the meaning of the definition of “serious offence” in s 300 of the Crimes Act.

138. His Honour returned to the issue in R v Aleer [2016] ACTSC 75. In that case, the accused had a lit a fire in the engine of a car parked on residential premises, confronted and attacked and injured another person, smashed windows in the house, punched his sister and damaged a communications’ panel box by fire. After referring to his earlier decision in Smith, his Honour said:

In this case, on the other hand, there was a very direct risk to persons who were in the house and who may have been injured if the flames had in fact reached the eaves, or the vehicle had exploded more intensely than it did. In my view, all three of the counts on the indictment were, for these proceedings, serious offences.

139. In R v Cross [2017] ACTSC 91 Penfold J dealt with a charge of arson. When the accused set fire to his vehicle he had no intention to harm anyone. 250 to 300 people were present some metres away. There was a risk of damage to nearby trees and possibly two other cars in a nearby car park. Her Honour found that because violence or threatened violence towards property did not amount to a serious offence, the offence was not a serious offence.

140. In R v Singsathitsuk [2021] ACTSC 26 Elkaim J was dealing with the case in which the accused had set fire to a bathroom at his residence, a bin containing leaves and an electrical appliance. His Honour accepted a submission based upon Smith that it was not a crime of violence because “there is no evidence of likely harm here to other persons”.

141. The approach taken in Smith and subsequent cases does not limit the enquiry by reference to the elements of the offence. It is rather, to look at the circumstances disclosed by the evidence and asked whether there was a “substantial risk of direct injury resulting therefrom to other persons”.

142. There are four points to be made about the approach adopted in Smith and subsequent cases.

143. First, the reference to serious offence would more naturally be read as a reference to the statutory requirements for the offence rather than the factual circumstances of the offence. That is because of the language used in ss 323 and 324 and the definition of “serious offence” in s 300 of the Crimes Act. For example, in s 324 the reference is to a person having been “charged with a serious offence”. The enquiry must be as to what the person is charged with rather than to the factual circumstances ultimately proved in relation to the offence. Similarly, in s 323 the reference is to a person having been “charged with an indictable offence other than a serious offence”. The discussion of serious offences as a subset of indictable offences is consistent with the enquiry being as to the nature of the charged offence rather than the factual circumstances of the alleged offending. That is also consistent with the way in which “serious offence” is defined. The definition provides relevantly “an offence involving actual or threatened violence and punishable by imprisonment for longer than 12 months”: see s 300 of the Crimes Act. The reference to the required penalty indicates an enquiry directed to the offence provision and suggests that the reference to “actual or threatened violence” is to something required as an element of the offence rather than a factual circumstance relating to the offending.

144. Second, the approach adopted in the authorities might be seen as giving a rather strained meaning to the concept of “an offence involving actual or threatened violence” in that violence involves a connotation of a direct actual or threatened inflection of personal injury upon a person, rather than merely the creation of a state of affairs which in which there was a substantial risk of harm to a person. However, it must be recognised that any strain on the language has not been considered an insuperable barrier in the authorities referred to in Smith to characterising arson offences as being crimes of violence or involving an element of violence.

145. Third, the effect of the interpretation adopted is to expand the range of offending which is captured by the concept of a “serious offence”. If the definition of serious offence was interpreted as requiring violence or a threat of violence as an element of the offence, then arson under s 404 of the Criminal Code would not constitute such an offence. It would be clear that the accused would be dealt with under s 323 of the Crimes Act. However, interpreting the definition in a manner that permits examination of the facts of the case, rather than the elements of the offence has the effect of expanding the pool of offending that may be characterised as a “serious offence” and hence expanding the pool of cases in relation to which the provisions of s 324 apply. The provisions of s 324 are more restrictive than those in s 323 which would apply in relation to a non-serious offence. Given the context (provisions in the Crimes Act determining the scope of orders restricting the liberty of mentally impaired persons), it is an area of statutory interpretation in which the principle of legality ought to be applied. The principle has been taken by the High Court to be a working hypothesis known to both legislatures and the courts. It is often articulated as favouring a construction if one is available which avoids or minimises the statute’s encroachment upon fundamental principles rights and freedoms at common law: see North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41; 256 CLR 569 at [11] and the authorities cited therein. However, that articulation does not adequately explain the underlying rationale, which in turn informs the content of the principle. That rationale was explained in R v Home Secretary; Ex parte Simms [2000] 2 AC 115 at 131:

But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

146. This explanation of the principle has been cited with approval in judgments in the High Court: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [30] (Gleeson CJ); K Generation Pty Ltd v Liquor Licencing Court [2009] HCA 4; 237 CLR 501 at [47] (French CJ); Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196 at [311] (Gageler and Keane JJ). The principle derives its force from its consistency with the fundamental constitutional structure of a government which involves the elected legislature bearing the burden of political accountability for the laws which it makes.

147. In the present case, the legislature has failed to clearly articulate that what constitutes a serious offence is to be based upon the factual circumstances of the offending rather than the elements of the offence. The application of the principle of legality would give the definition of serious offence a more confined operation rather than the broader one which it has been given.

148. Fourth, given that arson is an offence not uncommonly committed by persons who are mentally impaired, it is a matter of some significance as to whether or not that offence or act giving rise to the commission of that offence is to be categorised for the purposes of Part 13 of the Crimes Act as a “serious offence”.

149. Having made these observations, it is a case in which it cannot be said that the earlier decisions by single judges of this court are plainly wrong. They adopt an interpretation which is reasonably open and consistent with decisions in other jurisdictions arising in similar contexts. Given that the approach has been adopted in a number of cases decided by single judges, it is appropriate that I follow the same approach: see Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Constitution Place Case) [2020] FCA 1070; 299 IR 231 at [107]-[110]. That is made easier because of the conclusion that I have ultimately reached on this issue.

150. The Smith approach allows arson to be characterised as a serious offence where the facts disclosed that there was a substantial risk of direct injury resulting from the fire to other persons. It appears to treat the question as “essentially a jury question”: Hueston at 214. In Hueuston itself, that allowed a series of incidents in which the offender set fire to his bedding while living in shared accommodation, to be characterised as offences involving an element of violence.

151. In the present case there was an adjoining residence. The garages to the two residences were separated by a common wall. There was at least one person present in the adjoining house. There was at least a risk that a fire which consumed number 6 might spread to number 8. However, that risk is not, in my view, enough to allow the characterisation of the offence as one involving “actual or threatened violence”. The Crown submitted that in determining whether the offence involved actual or threatened violence it was not open to take into account the intention of the mentally impaired person. That approach appears to be inconsistent with the approach taken by Penfold J in Cross where the intention of the offender was referred to in a way which indicated that it was considered to be significant. It is unnecessary to resolve that issue in this case. If regard may be had to intention, then in this case there is no evidence of any intent to cause harm to any other person. Similarly, the evidence is not sufficient to establish recklessness in relation to harm to other persons. No person was in fact harmed. The submissions put by the Crown made reference to the consequences of the fire and whether Mr Bennett and Mr Constable were put at risk while fighting the fire. Even on the Smith approach these post offence circumstances could not be relevant to characterising the offence other than by casting light on the likely consequences of the conduct comprising the offence. In this case, the offence involved arson causing damage to property only. The nature of the property damage was such that it also created the risk of fire spreading to other property which may in turn have created a risk to any occupants of that property at the time of the spread. That possible risk is not sufficient in my view to allow the offence to be characterised as an offence of violence. I observe that the impressionistic nature of the characterisation exercise is a matter which tends to reinforce the points made earlier about the proper interpretation of the definition of “serious offence”.

152. Because the relevant offence is a an “offence other than a serious offence” within the meaning of s 323 of the Crimes Act, the relevant provision in relation to orders following the special verdict is s 323. Section 323 contemplates two types of dispositions. The first is an order requiring the accused to submit to the jurisdiction of the ACAT to enable recommendations to be made as to how the accused should be dealt with. Once those recommendations are received the court may make any further orders that it considers appropriate including but not limited to requiring the accused to be detained for review by the ACAT under s 180 of the Mental Health Act 2015 (ACT) or that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or forensic mental health order under that act. The alternative is not to refer the matter to the ACAT to make recommendations but instead in the first instance to make any orders that the court considers appropriate. That may include the two types of orders under the Mental Health Act referred to earlier.

153. Before determining how to deal with the accused in the present case it is necessary to give the parties the opportunity to lead such evidence and make such submissions as they see fit.

Orders

154. The order of the Court is:

155. On the charge of arson (CC2019/12540) a verdict of not guilty because of mental impairment is to be entered.

I certify that the preceding one hundred and fifty-four [154] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 14 July 2021