R v McLaughlan [2008] ACTSC 49

PRACTICE AND PROCEDURE - special hearing - trial by judge alone - requirements for election by guardian.

Crimes Act 1900

Crimes Act 1914 (Cth) s 23V

Criminal Procedure Act 1986 (NSW)

Evidence Act 1995 (Cth) ss 84, 85 and 90

Guardianship and Management of Property Act 1991 s 67(1)(a)

Supreme Court Act 1933 s 68B

Uniform Evidence Law Sydney: Thomson Law Book Co, 7th ed, 2006

R v Esposito (1998) 45 NSWLR 442

R v McNeill (No 1) [2007] NFSC 2; (2007) 209 FLR 124

R v Ye Zhang [2000] NSWSC 1099

R v Ul-Haque [2007] NSWSC 1251

R v Jung [2006] NSWSC 661

R v Taylor [1998] ACTSC 47

R v Munce [2001] NSWSC 1072

R v Braun (NSWSC, Hidden J, 24 October 1997, unreported)

R v Starecki [1960] VicRp 22; [1960] VR 141

Truong (1996) 86 A Crim R 188

Donnelly (1997) 96 A Crim R 432

Parker (1990) 19 NSWLR 177

R v GA (NSWCCA, Gleeson CJ, James and Sperling JJ, 17 July 1997, unreported

The Queen v Massey [2000] ACTSC 107

Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250

The Queen v Tran [2003] ACTSC 53

The Queen v Collins [2004] ACTSC 48

The Queen v Evans [2007] ACTSC 11

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

R v King [2004] ACTSC 82; (2005) 155 ACTR 55

R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 637

Bailey (1977) 66 Cr App R 31

Hall (1988) 36 A Crim R 368

1. The accused caused damage to the house premises, a building, at 5 Nevile Place, Latham, in the Australian Capital Territory, by voluntary setting fire to it, that being the conduct required for an offence under s 404 of the Criminal Code 2002 (ACT), with which offence the accused was charged.

1. Some time around 7 pm on Sunday 13 January 2008, Mr Steven Scowcroft, resident at 3 Nevile Place, Latham in the Australian Capital Territory, was working on his laptop when his partner, Ms Megan Armstrong, told him that a fire alarm had gone off and that she had seen smoke coming out of the bedroom window on the neighbouring premises at 5 Nevile Place, Latham.

2. Mr Scowcroft went to his backyard to have a look and he saw smoke coming from under the roof tiles and from the bedroom window of the next door house.

3. He jumped over the dividing fence into the backyard of the neighbouring house and walked or ran around to the front door. The front door was open but the screen door was closed but unlocked. He called out to see if anyone was inside but received no response.

4. Mr Scowcroft then went inside and looked around. He saw a dog in the lounge room section of the house, but the hallway door was closed. He notice more smoke coming out of the hallway room. He opened the door, looked around the corner of the bedroom and noticed bright orange flames which appeared to be in the centre of a dressing table or duchesse in the bedroom. He did not notice whether there was anyone in the room at this time.

5. The dressing table was fully alight and the fire had gone up the walls to the ceiling. He went to the kitchen to find a container and grabbed a jug. It was, however, clearly not going to be big enough to put sufficient water on the fire, so he ran outside and told his partner to get his hose and throw it over the fence.

6. Mr Scowcroft then ran back inside and noticed a woman, the accused, lying on the bed in the main bedroom. She was fully awake and appeared to him to be aware of what was happening. He described her as having a large smile on her face while watching the fire. He told her to get up and vacate the premises.

7. He then ran back outside, grabbed the hose which his partner had thrown over the fence, smashed the bedroom window and started hosing water onto the fire.

8. At about this time another neighbour, Che Bliesner, arrived at the premises. He put the time when he heard a loud crack and breaking glass and noticed smoke coming from the house over his back fence at about 6.00 pm. Given the evidence of Mr Scowcroft and that the Fire Brigade was called at 7.30 pm, this seems a little early, but nothing turns on that.

9. He saw a male using a hose, spraying through the window adjacent to the driveway. This was Mr Scowcroft.

10. Mr Bliesner then climbed the back fence to his house to get a hose which he used to spray water on the fire in the house. He noticed flames licking out of the broken window to the room where the fire appeared to be concentrated. He thought it might have been the kitchen. That does not seem to accord with other facts but, again, nothing turns on that.

11. Mr Bliesner estimated that he was hosing for about 30 seconds to a minute before the Fire Brigade teams arrived. They arrived at 7.36 pm, 7.40 pm and 7.46 pm. An ambulance arrived at 7.50 pm.

12. Both Mr Scowcroft and Mr Bliesner then stood back to allow the fire officers to address the fire.

13. Mr Bliesner saw the members of the Fire Brigade enter the house and then some members walk a female out of the house. She was covered in soot and appeared disoriented. He went over to her to assist in keeping her away from the house. The female was non-responsive, "scrambled" and kept moving about. Mr Bliesner attempted to speak to her but was unable to get any sense out of her.

14. Neither Mr Scowcroft nor Mr Bliesner described any other person as being in or near the house apart from the female and, later, police, fire and ambulance officers.

15. Mr Scowcroft described what he had seen in the bedroom. On the first occasion, the room was full of black smoke, but he could see into the room. The dressing table and clothes were burning and there were flames to the right of the bedroom door. On the second occasion, he saw that the fire had extended a bit and he noticed a woman lying on the bed. He described her as "fully aware of what was going on and she seemed to be pretty happy." He identified her as his neighbour. She was known to the police; she was the accused, Jane Sharon McLaughlan.

16. It appears that the police were called and at about 7.40 pm Constable David Healey was requested by police communications to attend 5 Nevile Place, Latham, due to a report of a house fire. He and his partner, Constable James McCue, arrived at about 7.44 pm and saw two fire trucks and ACT Fire Brigade personnel putting out a fire.

17. Constable Healey was directed to a female, the accused, who was sitting on the front lawn. She introduced herself as Jane McLaughlan.

18. Constable Healey noticed that she appeared to be covered in soot and he could smell an intoxicating substance on her breath. He went to the front of the house, picked up a green plastic chair and gave it to the accused so she could sit on it.

19. At about 7.55 pm, he asked the accused what had happened. The evidence of her reply was the subject of an application to exclude it under ss 85 and 90 of the Evidence Act 1995 (Cth) which I deal with below.

20. Constable Healey then administered a caution which evoked a reply from the accused which I excluded as the circumstances surrounding it did not comply with s 23V of the Crimes Act 1914 (Cth).

21. Constable Healey then suggested that an ambulance officer should examine the accused and Ambulance Officer Hutchinson attempted that but she refused to permit him to do so.

22. By this time, Constables David Pritchard and Adam Potts had arrived at the premises and spoke to Mr Scowcroft and later Mr Bliesner.

23. Acting Sergeant George Riley had also been requested to attend and he had arrived at about 7.46 pm. He saw a small amount of smoke still coming from the house and smoke marks and fire damage in the rooms in the front of the house.

24. At about 8.15 pm Detective Acting Sergeant Kate Laidler advised Detective Constable Matthew Gale of the fire and he and Constable Jason Dziubinski left for the premises, arriving there at about 8.44 pm. Constables Richard Gough and Sally Nayda arrived at about 8.45 pm.

25. Constable Dziubinski was briefed by Acting Sergeant Riley and inspected the outside of the house. He noticed that both front and rear doors were open and a bedroom window on the left side of the house had been broken. He saw fire, smoke and water damage in the premises, though it appeared to him to be concentrated in the area of the room with the broken window.

26. At about 8.04 pm, the accused handed the keys to the house to Constable McCue. She said, "Can you look after these for me, please" and he said "OK".

27. As a result of this conversation with Acting Sergeant Riley, Constable Dziubinski, in company with Constable Gough, approached the accused and said:

Jane, my name is Jason Dziubinski and I'm from the Police. You are under arrest for arson at this stage. I must caution you, that you do not have to say or do anything, but anything you do say or do, may be recorded and used in evidence."

28. She replied: "Good, Let's go". Constable Gough then walked her to a nearby caged police vehicle and she was placed inside and taken to the City Watchhouse.

29. The premises were secured and a number of police were stationed on static guard duties overnight until a forensic examination was made of the premises from about 10.30 a.m. on Monday morning.

30. When the accused was taken to the Watchhouse, she was examined by Dr Alexandra Tyson at about 10.25 pm. Dr Tyson found her to be co-operative, quiet and suicidal. She took a medical history of multiple suicide attempts, brain damage and drug dependency. She noted, somewhat cryptically, "Psychiatric diagnosis -? What". She noted the psychiatric history and medications and that the accused used alcohol heavily and cannabis.

31. She noted that she displayed no respiratory distress, no watery eyes, no cough and that she denied having a sore throat or nasal irritation. Dr Tyson noted the accused repeatedly stated that she was suicidal.

32. Dr Tyson also noted that the accused was oriented as to person and place and partially as to time. Her concentration was normal, her recent memory good but her remote memory was poor. She described her mood as resigned but her speech as normally responsive and appropriate contextually. She noted that she had "insight and awareness".

33. Dr Tyson formed the opinion that the accused was not fit to be interviewed "due to psychiatric condition and suicidal intent/focus". Dr Tyson did not explain exactly how this rendered the accused unfit to be interviewed. For example, she did not suggest she was delusional, confabulating or confused.

34. It appears that the accused was then charged with arson.

35. The next day, on Monday 14 January 2008, a search warrant was obtained for the premises at 5 Nevile Place, Latham. Detective Senior Constable Matthew Ciantar and Constable David Johnston took the warrant to the premises where they were met by Forensic Officer Gareth Williams. A few minutes later Detective Sergeant Michael Pearce arrived; he was to act as "Independent Sergeant" because the accused was then in custody and not present at the premises.

36. A search of the premises was conducted and the officers seized a box of matches and a green BIC lighter.

37. Forensic Officer Williams examined the premises. He took a series of digital photographs which were ultimately also admitted into evidence. Forensic Officer Williams produced a report which set out his findings in detail.

(1) the bathroom, laundry, second bedroom and kitchen had sustained smoke damage only;

(2) fire damage was confined to the front entrance, hallway and the main bedroom;

(3) fire damage to the walls and ceiling of the hallway was more extensive towards the main bedroom entrance;

(4) the door from the entrance hallway to the rear of the house was open with fire damage, indicating it was open during the fire development;

(5) the door of the main bedroom was open with fire patterns indicating that it was also open during the fire development;

(6) fire damaged clothing and bedding were on the bed in the main bedroom, with damage being greater to the northern and western sides;

(8) the wooden slats of the bed beneath the mattress was undamaged, indicating that the fire had not spread from below the bed;

(9) a partially melted television was on a wooden chest of drawers against the northern wall of the main bedroom;

(10) on a small single drawer side table at the north east corner of the main bedroom were found some items, including the box of matches and an ashtray containing several cigarette butts;

(11) on a wooden vanity with a mirror on the south west corner of the main bedroom was some fire damaged clothing and on the floor below it was the green lighter;

(12) the most severe fire damage was on the northern side of the main bedroom where three chests of drawers of similar height were located and items of fire damaged clothing were on top of each and the wall and ceiling above the clothing on them was fire damaged;

(13) the fire damage to the interior side of the bedroom door began at the height corresponding to the height of the chests of drawers;

(14) no ignition sources were located within the fire damaged clothing;

(15) there were no obvious odours of ignitable liquids in the main bedroom or in other areas of the house.

39. Forensic Officer Williams eliminated all electrical items in the main bedroom as the cause of the fire. He concluded:

It appears that separate fires have been lit on one or more areas of the clothing on the chests of drawers on the northern wall and the vanity. Fire damage to the items on the bed indicated this area as being a separate seat of the fire. The fire appears to have been deliberately lit in these separate areas. Matches and a cigarette lighter were located in the main bedroom, however the ignition source used to light the separate fires could not be conclusively determined.

40. Forensic Officer Williams was not cross-examined on his report. Indeed, all the evidence in this case was given by way of written statements which were tendered by consent. Some parts, mainly the conventional hearsay which police statements often contain to make meaningful and connect conversations, were excluded and not admitted. No maker of any statement was cross-examined.

41. Apart from the matters already addressed, no other parts of the tendered written statements were challenged as to their admissibility.

42. The evidence in the statements recounted two earlier interactions between the police and the accused.

43. Constables Geoff Wilks and David Ladd attended the premises at 5 Nevile Place, Latham, at about 6.30 pm on 4 January 2008. The accused was there and stated to them that she wanted to kill herself with a rope. The house was checked and no rope was found. The police officers formed the view that the accused was drunk.

44. The police officers were recalled to the premises at about 7.20 pm the same evening after the accused had contacted Emergency Services stating that she was going to burn the house down. They entered the house and saw a petrol can in the living room. After a conversation with the officers, the accused walked out to the front of the residence and shouted "I am going to burn the fucking place down." The accused was arrested. Constable Ladd tipped 2 litres of petrol from the can onto the front lawn, leaving the can empty.

45. On 12 January 2008, at 2.00 pm, police were requested to attend again at 5 Nevile Place, Latham. Acting Sergeant Riley and Constables Potts and Wilson attended. The accused met them at the door; she appeared agitated and upset. Acting Sergeant Riley observed scars on her forearms which indicated to him that she had engaged in attempts at self-harm on earlier occasions.

46. The accused said "I need help. I don't know how to do it." The accused led the officers down the hallway to a back bedroom. At the end of the hallway was an upturned bucket underneath the manhole in the ceiling. The manhole was open and the beams in the roof exposed.

47. The accused picked up an electric blanket which had been lying on the floor next to the bucket. Acting Sergeant Riley noted that there was a makeshift noose in the electrical cord of the blanket. The accused said, "I need to know where to hang it. You need to help me kill myself."

48. The accused was then taken into protective custody and taken to The Canberra Hospital where she was left in the care of the mental health staff.

49. As noted above, Constable Healey, some 15 minutes or so after his arrival at the burning house, asked the accused what had happened. She gave an answer which would amount to an admission in the light of the charge laid against her.

50. Mr Archer, who appeared for the accused, sought to have the admission excluded relying on ss 85 and 90 of the Evidence Act 1995 (Cth). Section 85 provides

85 Criminal proceedings: reliability of admissions by defendants

(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:

(a) in the course of official questioning; or

(b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued.

(2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.

(3) Without limiting the matters that the court may take into account for the purposes of subs (2), it is to take into account:

(a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and

(b) if the admission was made in response to questioning:

(i) the nature of the questions and the manner in which they were put; and

(ii) the nature of any threat, promise or other inducement made to the person questioned.

51. Section 90 is in the following terms:

90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:

(a) the evidence is adduced by the prosecution; and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

52. This is a criminal proceeding (see the Dictionary to the Evidence Act 1995 (Cth) and so both sections apply.

53. Section 85 relevantly applies only where the admission is made in the course of "official questioning". That phrase is also defined in the Dictionary of that Act; it means "questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence". Clearly Constable Healey, as a police officer, was an investigating official (also so defined in the Dictionary to that Act) but neither Mr J Lawton, who appeared for the prosecution, nor Mr Archer addressed the issue of whether the first question of a police officer who comes onto the scene of an event, such as a fire, not obviously the result of an offence, is engaged in "the investigation of the commission or possible commission of an offence." I would reserve a final decision to another day on that issue but am content to accept that it more likely than not does fall within the definition, especially as I heard no objection to its applicability from the prosecution and no argument on the issue.

54. Mr Archer contended that the admission should be excluded because Dr Tyson had, at least partly on the grounds of the accused's psychiatric condition, formed the opinion that, at 10.30 pm, some 2 ½ to 3 hours later, was not fit to be interviewed. I rejected the contention and admitted the admission.

55. In the course of preparing these reasons, however, I have had to read the statements tendered by the prosecution much more carefully. In part this stems from a misunderstanding of the accused's position. Initially, I understood from an answer I thought I had been given by Mr Archer that he was not contending that I should acquit the accused. In that approach I either misunderstood what Mr Archer said or he misstated the position. In the light of that position, I had thought I was able to rely on the, no doubt thorough, consideration of the case that counsel for both prosecution and defence had given it.

56. Having now carefully considered the whole of the material in some detail, I am of the opinion that my decision to admit the evidence of the admission was wrong.

57. Section 85 is directed to the reliability of admissions rather than their voluntariness (which was the common law precursor to the section: see, for example, R v Ye Zhang [2000] NSWSC 1099 at [51]). Where the question legitimately arises, usually by the defence identifying an arguable point as to whether the circumstances were such that the truth of an admission might have been adversely affected, then the prosecution must establish on the balance of probabilities that this is unlikely: R v Esposito (1998) 45 NSWLR 442 ("Esposito") at 459-460; R v McNeill (No 1) [2007] NFSC 2; (2007) 209 FLR 124 at 155.

58. The question for the court does not include a consideration of the actual truth or reliability of the admission: Esposito at 460; R v Ul-Haque [2007] NSWSC 1251 at [102]. The focus of the inquiry to be undertaken by the court is upon the impact of the circumstances in which the admission was made on the actual reliability of the admission: Esposito at 460.

59. The section does not require police impropriety: R v Jung [2006] NSWSC 661 at [7]. No such impropriety is alleged here and none is discernible. Indeed, it would be very proper and entirely expected that Constable Dzuibinski should ask the question he did. Further, it is not necessarily the case that Constable Dzuibinski should have known of the matters I have taken into account, such as the personal condition of the accused. As Higgins J (as he then was) said in R v Taylor [1998] ACTSC 47 at [29]:

[I]t is obvious from the terms of s 85(2) that the "circumstances" are not confined to those known to the interrogator. Nor are they confined to any objective tendency in the questions or the manner in which they had been put to produce an unreliable or untruthful answer.

To a large extent, that latter kind of issue is addressed by s 84 of the Evidence Act 1995 (Cth).

60. In considering this issue, however, I have, however, been troubled by what fell from McClellan J in R v Munce [2001] NSWSC 1072, where his Honour addressed whether the psychiatric impairment of the accused can be included in consideration of whether s 85 applies to exclude evidence of an admission. His Honour referred to the well-known passage in R v Rooke (NSWCCA, 2 September 1997, unreported) where Barr J said

I think that the expression "the circumstances in which the admission was made" as used as in subs (2) is intended to mean the circumstances of and surrounding the making of the admissions, not the general circumstances of the events said to form part of the offence to which the admissions are relevant. That is because, first, it is the plain meaning of the words. Secondly, it follows because subs (1) intends the section to have effect only where there is official questioning (or an act of the kind relevant under par (1)(b)). So far as the present appeal is concerned, the section may be said to be intended to require courts to inquire, where appropriate, into the process by which official questioning produces evidence tendered at trial. If the circumstances of the official questioning are such as to produce untruthful or unreliable evidence of admissions - adversely to affect their truth - the evidence is inadmissible. But the section is only concerned with the truth or reliability of evidence of admissions in this limited way. It has generally no part to play in the admissibility of evidence of admissions which may be untrue or unreliable for other reasons. Untruthfulness or unreliability in those circumstances is not a question for the trial judge at all, but for the jury. The authors of ALRC 26 said at par 765, speaking of the draft forerunner to s 85, "the trial judge should determine as a preliminary issue whether the reliability of the admission may have been impaired by the way it was obtained". This construction is consistent with subs 189(3).

61. His Honour then went on to address the particular circumstances of the case before him and said

[27] In the present case the accused's questioning arose from his voluntary presentation at the Auckland police station where he agreed to a formal interview. There is no suggestion that that interview was other than scrupulously fair. Although the accused has consumed significant alcohol and cannabis during the course of the day, it is not suggested that he was intoxicated or unable to understand and respond to the questions he was asked. No doubt his long-term abuse of both substances gave him a tolerance beyond that of an ordinary person.

[28] Although, by reason of his undoubted psychiatric problems there may be real doubt as to whether the accused was giving an accurate account of the events, there is nothing arising from the objective circumstances of the interview which would impact upon the truth of the admission.

[29] In my opinion s 85 does not allow me to reject the ERISP. Whether the admissions should be accepted is a matter for the jury.

62. The author of Uniform Evidence Law (Sydney: Thomson LawBook Co, 7th ed, 2006), Stephen Odgers SC comments at p 341 "it is not self-evident why those circumstances [referred to in s 85(2)] do not include the vulnerabilities of the suspect of which the police were unaware." Mr Odgers also points to s 85(3) which clearly refers to the subjective circumstances of the person being questioned and notes that the reference "is not subject to any qualification that the condition or characteristic be one that was known to the official questioner or `objectively' apparent".

63. That certainly seems to be the approach taken in R v Braun (NSWSC, Hidden J, 24 October 1997, unreported) but McClellan J in R v Munce (supra) specifically adverted to that case. Admittedly, R v Braun (supra) was a case where the accused "was handcuffed for her own safety and still considered at risk of harming herself".

64. It is clear that a psychiatric illness is not itself sufficient to prove the unlikelihood of the reliability of an admission: R v Starecki [1960] VicRp 22; [1960] VR 141 at 151-2. Similarly, the fact that a person being questioned is depressed is not, by itself, sufficient to show that the reliability of admission made are adversely affected: Truong (1996) 86 A Crim R 188 at 193. For a somewhat different view, see Donnelly (1997) 96 A Crim R 432 at 435. In Parker (1990) 19 NSWLR 177 at 183-4. Gleeson J observed

Persons who are intellectually handicapped or who suffer from disease or disorder of the mind are by no means necessarily incapable of telling, or admitting, the truth

65. Nevertheless, if the psychiatric and psychological vulnerabilities and circumstances of a person questioned are clearly potentially relevant to the issue of reliability and it would appear from the decision of the NSW Court of Criminal Appeal in R v GA (NSWCCA, Gleeson CJ, James and Sperling JJ, 17 July 1997, unreported) that if relevant they are to be considered in the context of s 85(2).

66. Andrew Ligertwood in Australian Evidence (LexisNexis Butterworths: Sydney 4th ed, 2004) submits at p 644 that "[t]here must be some intersection between the condition of the suspect and the questioning process before s 85 can take effect". He refers, as an example, to R v Taylor (supra) but that was a similar case to this, in that the accused had alcohol induced brain damage, was affected by alcohol and had a "cultural" objection to "dobbing". His mental state meant that he could not understand the caution. It is not clear on this material where there is the supposedly necessary "intersection" between the condition and the questioning process. It is, for example, quite unlike Waters [2002] ACTSC 13; (2002) 129 A Crim R 115 where Gray J found an evidentiary basis for requiring exclusion in the accused's concerns that "unless he confessed, the police might involve his de facto wife, keep him in custody and continue to harass him". This does actually look a little like a case under s 84, but perhaps it was not sufficient to be oppressive conduct.

67. The weight of authority, accordingly, seems to be that the personal and psychological vulnerabilities of the accused such as described by Mr Bliesner (see below) are relevant to the issue of whether it is unlikely that the truth of the admission was adversely affected.

68. I remain of the view that Dr Tyson's opinion in this case is not of great assistance in itself and that the initial response of the accused to an open question is, without more, quite unlikely to be adversely affected by the fact that it was asked by a police officer or that it was asked immediately after the accused has been taken from a burning house. In such a situation, the answer is probably more likely to be reliable.

69. I am concerned, however, about two other matters to which my attention was not specifically drawn and which, together with the accused's psychiatric condition and the above circumstances, appear to require me to revisit my original view.

70. The first is not strong, in itself, but adds weight to the others. It is that Constable Healey noted that he "could smell an intoxicating substance on [the accused's] breath". On previous occasions police had found her drunk.

71. The second and more important consideration is the description given by Mr Bliesner of the accused when he went to help her. He reported:

Once the Fire Brigade entered the house, I hold [sic] the Fire Brigade members walk a female out of the house. The female was covered in soot and smoke and appeared disorientated. I went over to the female and assisted in keeping her away from the house. The female was non responsive, scrambled and I could not keep her in one spot as she was continually moving about. I attempted to speak with the female, but was unable to get any sense out of her.

72. Given this statement, to which my attention was not specifically drawn, together with the other circumstances, I consider that the question of whether the circumstances, including the accused's mental and intellectual disability (s 85(3)(a)), were such as to make it unlikely that the truth of the admission was adversely affected must be decided in favour of exclusion and I so rule.

73. Having excluded the evidence on this basis, it is not necessary for me to consider whether I should exercise a discretion under s 90 and I do not do so.

74. Before the matter was listed for trial, I found that the accused was unfit to plead and that she is unlikely to become fit to plead within the next 12 months. I relied for this finding on the opinion expressed in a report of Dr G J George dated 25 March 2008, which was supported by both prosecution and defence counsel.

75. Accordingly, the trial, which, by consent, I set down for hearing later that day, proceeded as a special hearing under s 316 of the Crimes Act 1900.

76. The Public Advocate had been appointed guardian of the accused under s 67(1)(a) of the Guardianship and Management of Property Act 1991 by emergency order made on 30 May 2008 until 9 June 2008. This appointment was limited to "accommodation and legal issues". In my view, "legal issues" was wide enough to include a power for the Public Advocate to exercise the power under s 316(2)(b)(ii) of the Crimes Act 1900, namely to express a view as to whether it was in the best interests of the accused to be tried by a single judge without a jury.

77. Having regard to the terms in which the opinion was expressed by Dr George, I was satisfied that the accused was incapable of making an election to have the special hearing to be a trial by a single judge without a jury.

78. Mr Archer submitted that I could accept the election by the Public Advocate as guardian that he announced orally from the bar table. I rejected that contention and required that the guardian's notification that in his or her opinion it is in the best interests of the accused for the special hearing to be a trial by a single judge without a jury (s 316(2)(b)(ii) of the Crimes Act 1900) to be in writing or orally on oath. If a person of sound mind is required by s 68B of the Supreme Court Act 1933 to elect for trial by judge alone in writing witnessed by a lawyer, then at least a similar formality is required where the accused is unfit to plead.

79. A document to the relevant effect was filed and the trial was listed and proceeded before me.

80. Section 316 of the Crimes Act 1900 requires that a special hearing shall be conducted as nearly as possible as if it were an ordinary criminal proceeding. Section 317 of that Act prescribes the verdicts that may be given on a special hearing.

81. This trial was so conducted, though the actual adducing of evidence was not in the usual form of trial because it was done by the consensual tender of the statements by the prosecution witnesses with no cross-examination. This is, of course, entirely permitted and, if it is necessary, reliance could be placed on s 184 of the Evidence Act 1995 (Cth).

82. As it was a trial by judge alone, s 68C of the Supreme Court Act 1933 provides the relevant procedure. It is in the following terms:

68C Verdict of judge in criminal proceedings.

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.

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.

83. In The Queen v Massey [2000] ACTSC 107, Einfeld J held that the principles set out by the High Court in Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250, in considering similar provisions in New South Wales, namely s 33 of the Criminal Procedure Act 1986 (NSW), as it then stood, should be applied in conducting such a trial. In that case, the High Court held at 262-3, amongst other things, that

(1) the finding referred to in the section is of the character that would have been expressed in "a verdict of a jury", namely a finding of the ultimate guilt or otherwise;

(2) a failure to comply with the requirement to include the principles of law and the findings of fact is an error of law and may mean that justice has miscarried; and

(3) this obligation is not "satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached".

84. The approach thus mandated has been followed in a number of cases since then, including The Queen v Tran [2003] ACTSC 53, The Queen v Collins [2004] ACTSC 48 and more recently in The Queen v Evans [2007] ACTSC 11. In the latter case, Connolly J said:

[I]t is the obligation of a judge of this Court, conducting a judge alone trial, to state each and every legal principle that is applied in reaching a conclusion as to the accused's innocence or guilt. In R v Collins [2004] ACTSC 48, Weinberg J observed at [5] that:

It follows that I am required to set out the general principles that are applicable to this trial, both as to matters adjectival and substantive as well as the findings on fact on which I rely.

I adopt this approach.

It is important to restate certain general observations concerning the conduct of any criminal trial, and to remind myself that these must be applied in the case of a trial by judge alone. A statement of general principle made by Gray J in R v Tran [2003] ACTSC 53 at [4]-]5] was adopted by Weinberg J in R v Collins, and with respect I adopt the same observations, being:

I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution, and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence established guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.

85. I respectfully adopt this approach, too, and I direct myself accordingly.

86. The accused was charged with arson contrary to s 404 of the Criminal Code 2002. That section 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.

Maximum penalty: 1 500 penalty units, imprisonment for 15 years or both.

87. For a special hearing, however, the verdict is a more limited one. Section 317(1) of the Crimes Act 1900 provides:

317 Verdicts available at special hearing

(1) At a special hearing that is a trial by jury, the jury shall, if satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged), advise the court accordingly.

88. The approach that a jury (and, therefore, a judge sitting alone without a jury) must apply was considered in R v Ardler [2004] ACTCA 4; (2004) 144 A Crim R 552. There was, however, a difference in s 317(1) there under consideration, for instead of the word "conduct required for the offence charged" now appearing, the words considered were "the acts that constitute the offence charged".

89. The Court of Appeal in R v Ardler (supra) was asked to answer a question of law on a reference appeal. At 567 it held

We would modify the question of law to be decided in the manner proposed by the DPP in his amended application so that the question asks:

What has to be proved when a Special Hearing is embarked upon under Div 13.2 of the Crimes Act 1900 to determine whether the accused "committed the acts that constitute the offence charged"?

We answer that questions as follows:

When a Special Hearing is embarked upon under Div 13.2 of the Crimes Act 1900, the prosecuting 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.

Pleas of mental impairment, provocation, or diminished responsibility are not able to be relied upon at a Special Hearing.

90. As noted above, this case has to be approached with caution because of the change in the wording of s 317(1) of the Crimes Act 1900. Whilst this amendment came into effect on 16 March 2004, it did not apply retrospectively to special hearings that had taken place prior to its commencement: s 337 Crimes Act 1900.

91. Gray J had to consider in R v King [2004] ACTSC 82; (2005) 155 ACTR 55 what change these amendments had effected. At 60, His Honour described the position as follows:

[21] The expression in the legislation requiring a court to consider whether an accused "committed the acts which constitute the offence charged" were replaced by the words "engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged)". The revised explanatory statement which accompanied the Bill explained:

[The substitution of] the term "engaged in the conduct required for the offence charged (or an offence available as an alternative to the offence charged)" for the current phase "committed the acts that constitute the offence". This amendment clarifies that proof of intentional elements is not required at a special hearing. That is to say, it is only the physical elements of the offence that must be established at a special hearing. The Prosecution is not required to establish intent, or any mental element, of any offence. In the Outline at the commencement of the Revised Explanatory Statement it is said that "[t]he Bill is silent as to what, if any, and the circumstances in which, defences may be raised at a special hearing".

It is quite clear from the Revised Explanatory Statement that there was no intent on the part of the legislature to, in some way, redress the matters that subsequently were the subject of decision in R v Ardler.

[22] New definitions were inserted into s 300 of the Crimes Act 1900:

"Alternative Offence", for an offence means an offence available as an alternative to the offence.

"Conduct" - see Criminal Code s 13.

"Engage in conduct" - see Criminal Code s 13.

The Criminal Code 2002 (ACT) defines conduct and engage in conduct in s 13:

In this Act:

"conduct" means an act, an omission to do an act or a state of affairs.

"engage in conduct" means:

(a) do an act; or

(b) omit to do an act.

[23] In the Code, the purpose of defining "conduct" and "engage in conduct" is for the purposes of the concept of "physical elements of an offence". Section 14 of the Code provides:

A "physical element" of an offence may be

(a) conduct; or

(b) a result of conduct; or

(c) a circumstance in which conduct, or a result of conduct, happens.

[24] The Code then goes on to provide that conduct can only be a physical element if it is voluntary and what is constituted by voluntariness is described in s 15 of the Code. It may be a matter for debate as to whether this concept of voluntariness applies to the definition of "conduct" insofar as that definition applies to Div 13 of the Crimes Act 1900 or whether what the common law has developed as that concept is to be applied.

92. His Honour then perceptively comments at 61 on a curiosity of the amendment:

[25] It is curious that the legislature did not replace the concept in Div 13 of the Crimes Act 1900 of "committed the acts that constitute the offence" with the concept of "the physical elements of the offence".

93. Given, however, that the other meanings of physical element are "a result of conduct" and "the circumstances in which conduct, or the result of conduct, happens", (s 14 Criminal Code 2002) this limited approach may be understandable.

94. In the event, his Honour referred to a confusing example in the Explanatory Statement (which I do not reproduce) and said at 62:

The example given in the explanatory statement cannot create an ambiguity in what I regard as the clear words of the provision which will apply to those offences regarded as alternative offences where the alternative is made out on different conduct disregarding the intent required to make out the full offence.

It was for these reasons that I ruled that the question of intent and the pleas of provocation and diminished responsibility were not available as matters to be considered on the special hearing.

95. In my view, the ruling about intent applies to this case. I note, however, that in R v Ardler (supra), the Court of Appeal said at 565:

It seems to us that it is consistent with the purpose of the legislation for the Crown to be relieved of the obligation to prove that the accused had the requisite mens rea for the offence where there is evidence of mental impairment warranting a finding of diminished responsibility or of insanity which otherwise, would be a defence.

Nevertheless, if the offence charged requires a specific intent of the particularity necessary to constitute the offence, such as the offence of arson referred to in s 117 of the Crimes Act, "to endanger the life of another person", that specific intent must be proved in order that the "acts" proved will constitute that offence rather than a lesser offence.

If the specific intent or knowledge is present, it is no answer for it to appear that that specific intent or knowledge was the consequence of mental impairment. However, the mental impairment will be relevant to the question whether that intent or knowledge was in fact present.

96. In my view the Court of Appeal's comment in relation to the offence of arson contrary to s 117 of the Crimes Act 1900 does not apply here. In the first place, it does not seem to me that the Code offence is an offence of specific intent, since the fault (mental) element is not a specific intention, but includes recklessness. In the second place, the Code does carefully distinguish physical and fault elements and separates them out in the provisions establishing offences. So far as the physical element is conduct, that is all that is required to be made out.

97. Accordingly, what I need to find in order that the accused be non-acquitted of the offence of arson (in the context of this case) is to find that the accused by a voluntarily act caused damages to a building by fire.

98. As a result of the exclusion by me of the admissions attributed to the accused, the case becomes a circumstantial case. I must, therefore, be mindful of what was said by the High Court in R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 637:

It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.

The force of that proposition is well illustrated by the decision in Plomp v The Queen_. There, this Court held that the motive of the accused to murder his wife (he having proposed marriage to another woman on the representation of his being a widower) was one circumstance to be taken into account in deciding whether he had killed his wife while they were surfing alone together, at dusk, in apparently good conditions. His application for special leave to appeal against conviction was refused upon the basis that it was open to the jury to be satisfied beyond reasonable doubt that he had murdered his wife._

Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal. As Gibbs CJ and Mason J said in Chamberlain [No 2]:

At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence may support its correctness; in such a case the jury should not be told to look at the evidence of each witness `separately' in, so to speak, a hermetically sealed compartment'; they should consider the accumulation of the evidence: cf Weeder v The Queen.

Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider `the weight which is to be given to the united force of all the circumstances put together': per Lord Cairns, in Belhaven and Stenton Peerage, cited in R v Van Beelen; and see Thomas v The Queen and cases there cited.

And as Dixon CJ said in Plomp:

All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done.

(Emphasis added)

(Footnotes omitted)

99. Bearing all these matters in mind, I turn to the findings I make in this case.

100. The accused was found alone in her home on the evening of 13 January 2008. The bedroom was on fire and she was lying, apparently unafraid and unconcerned that the house was burning around her.

101. The accused had a history of attempting self-harm and had not long before the events of this evening threatened to burn her house down; on that occasion, a can of petrol was found in her house.

102. The day before the incident, the accused had apparently been preparing to hang herself when police arrived at her house.

103. The police found in the burnt house the means of ignition, namely matches and a lighter in the accused's bedroom. It must also be borne in mind that they had also found an ashtray with cigarette butts in it. It is, perhaps, important that the butts were in the ashtray and not strewn around the room.

104. When interviewed by Dr Tyson later that night, the accused was suicidal and Dr Tyson noted that she "repeatedly stat[ed a] suicidal intent".

105. While furniture and clothing had been damaged in the fire, the house itself was also damaged to a significant degree. A claim for compensation for that damage alone amounting to $18,750 was made by Housing ACT supported by a quote from an apparently reputable building contractor.

106. Officer Williams, the forensic officer formed the view that separate fires had been deliberately lit in one or more areas of clothing. Mr Archer submitted that Officer Williams only said "[t]he fire appears to have been deliberately lit ..." (emphasis added) and submitted that I could reject that and rely on the possibility that the fire was lit when a match or cigarette had been left alight on the clothing.

107. In the absence of cross-examination of Officer Williams, I should not read too much into the use of that word. It is more likely than not that the Officer was using it with the caution that one would expect of a good forensic scientist. As noted above, Officer Williams was not challenged by cross-examination. I cannot disregard relevantly unchallenged expert evidence: Anderson v R [1972] AC 100 at 106. As was said by Lord Parker CJ in Bailey (1977) 66 Cr App R 31 at 32

The court has said on many occasions that of course juries are not bound by what the medical witnesses say, but at the same time they must act on evidence, and if there is nothing before them, no facts and no circumstances shown before them which throw doubt on the medical evidence, then that is all that they are left with, and the jury, in those circumstances, must accept it.

108. See also Hall (1988) 36 A Crim R 368 at 370-371.

109. While there were cigarette butts found in the bedroom, they were in an ashtray and not strewn about to show carelessness; the accused was wide awake while the fire was at this stage raging; the accused had previously threatened suicide, including by burning the house down; the seat of the fire was on the chest of drawers and not on the bed; the means of ignition were found in the room; there were multiple fires started in the room. There were no facts or circumstances which throw doubt on the forensic evidence.

110. Taking all these matters together, they provide a strong circumstantial case that the accused by voluntary acts started the fires that burnt the house.

111. The only other hypothesis put forward consistent with innocence is that a lighted cigarette or a match could have inadvertently been left on the clothing. It would, of course, have to have been several cigarettes or matches. While possible, I do not consider that a reasonable hypothesis in the light of all the facts I have found.

112. I am therefore, satisfied beyond reasonable doubt that the accused caused damage to the house premises, a building, at 5 Nevile Place, Latham, by voluntarily setting fire to it, being the conduct required for the offence charged and I so find.

113. I shall hear the parties on what further orders should be made.

I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: Director of Public Prosecutions (ACT)

Solicitor for the defendant: Legal Aid Office of the (ACT)