R v Medcalfe [2002] ACTSC 83

"(1) ...THAT on the 4th day of September 2000 at Canberra ...[he] assaulted George Iliev.

(2) ...THAT on the 4th day of September 2000 at Canberra ...[he] without lawful authority or excuse took a vehicle, namely a taxi TX 92 for use by himself."

3. On 22 October 2001, I required the accused to submit to the jurisdiction of the Mental Health Tribunal pursuant to s 428E (now s 310) Crimes Act 1900 ("Crimes Act").

4. Eventually, the Mental Health Tribunal, on 7 March 2002, determined that the accused was not fit to plead to the proposed indictment and was unlikely to become fit to plead within 12 months from that date.

5. A Guardianship Order was made on 21 March 2002, appointing the Community Advocate as guardian for the purposes of making an election of the kind specified in s 316 of the Crimes Act, that is, for a special hearing by judge alone rather than by jury.

6. Once a person is found unfit to plead, he or she cannot, of course, be indicted and required to stand trial. However, in place of the common law position, namely, that the person so found be detained and dealt with at the pleasure of the Crown, without any determination as to whether the person had committed the acts complained of, there is to be a "special hearing" (s 315 Crimes Act).

7. The nature and conduct of that hearing is provided for by s 316 Crimes Act:

"(1) Subject to this section, the court shall conduct a special hearing as nearly as possible as if it were an ordinary criminal proceeding.

(2) A special hearing shall be a trial by jury -

...

(b) unless -

...

(ii) before the court first fixes a date for the hearing, any guardian of the accused notifies the court 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."

8. Accordingly, on 7 April 2002, the accused's guardian notified the Court that the special hearing should be by judge alone. For reasons not clear to me that election was repeated on 15 April 2002 and 21 June 2002. On 24 May 2002 the Court fixed 26 June 2002 as the date for the trial.

9. On 26 June 2002 I commenced the hearing. The charges were read to the accused but no plea was taken. It was, in my view, inappropriate and unnecessary to take a plea. Inappropriate, because the accused had been found unfit to plead. Unnecessary, because by reason of s 316(8) of the Crimes Act, the accused is deemed to have pleaded not guilty.

10. The accused was represented by Mr Everson of counsel. Representation, notwithstanding unfitness to instruct counsel, is both required and permitted by ss 316(6) and 316(7) of the Crimes Act.

11. One possible result of a special hearing is defined by s 317 of the Crimes Act. The relevant provision is subsection (3):

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

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

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

12. The converse, these charges alleging both a "serious" offence (see s 300 Crimes Act - "actual or threatened violence") and a "non-serious" offence - the assault alleged being "serious" and the taking and using of the motor vehicle, despite carrying a higher maximum penalty, not being a "serious offence", the alternative findings are (per ss 318 and 319 Crimes Act):

"(1) ...where -

...

(b) ...

(i) ...the judge is satisfied beyond reasonable doubt that the accused committed the acts which constitute the offence charged ..."

Then, if that finding is made in respect of a non-serious offence, per s 318(2) Crimes Act:

"(2) ...the court may make such orders as it considers appropriate, including the following:

(a) that the accused be detained in custody until the [Mental Health] tribunal orders otherwise;

(b) that the accused submit to the jurisdiction of the tribunal to enable the tribunal to make a mental health order."

13. Pursuant to s 319, if a similar finding is made in respect of a serious offence then:

"(2) ... the court shall order that the accused be detained in custody until the tribunal orders otherwise unless, in consideration of the criteria for detention in section 308, it is satisfied that it is more appropriate to order that the accused submit to the jurisdiction of the tribunal to enable the tribunal to make a mental health order."

14. It will be noted that the special hearing, being conducted as if it was a criminal trial, with any adverse finding being made only if the criminal standard and burden of proof are satisfied, is subject to the same rules of evidence as in such a trial.

15. Accordingly, it was open to Mr Everson, as he did, to object to the admission into evidence of two records of interview between Constables Braithwaite and Collins and the accused on 5 September 2000 and between Constables Braithwaite and Tadic and the accused on 11 October 2000.

16. It should be noted at the outset that the police officers are not accused of any impropriety in their conduct of those records of interview. Rather, Mr Everson suggested, the accused's intellectual deficit was such that I could not be satisfied that the accused understood that he need not respond to questions asked of him. Further, that some of his answers might well be tainted by a desire on the part of the accused to be agreeable rather than accurately reflecting an understanding of the questions asked and then answered.

17. In support of that submission there was tendered a report which had been provided to the Mental Health Tribunal from Ms Laura Bennett, a Forensic Nurse Specialist. That report contained summaries of the reports of others. Although it was objected to, that was on the basis of Ms Bennett's lack of relevant expertise not on the basis of a challenge to the expertise of those whose opinions she summarised. In my view, it was necessary to avoid unwarranted expense and delay to admit Ms Bennett's summary of those opinions.

18. It was apparent from that evidence that, although the accused perceived himself, and liked to be perceived, as having good domestic skills, he grossly overstated his abilities. That was an example of a general behavioural trait. He suffers a mild intellectual disability but his intellectual ability is below that of 98 per cent of the population.

19. Dr Subhas Chandra was reported by Ms Bennett to have expressed the opinion that the accused:

"... understands simple commands and instructions including simple yes and no questions, and questions offering two or more choices.

... would have difficulty understanding routines in new situations, and has a limited understanding of consequences.

"... likes to think he knows everything, and therefore, finds it difficult to ask questions or to seek clarification.""

20. In short, he was described as vulnerable and lacking the skills to protect himself. His disability adversely affects his comprehension, reasoning, memory, learning, judgment, and motivation to a "substantially disabling degree".

21. In the first record of interview this assessment was starkly confirmed in the following exchanges:

"Q8. Okay. Before I ask you any quote - questions in relation to this matter I must caution you that you are not obliged to say or do anything. Okay?

A Mm'mm.

Q9. Anything you do say or do will be recorded by the audio and video equipment and can be used in court. Do you understand that?

A Yep.

Q10. Can you repeat to me in you (sic) own words what I've just said to you in relation to the audio - audio tapes and - Do you have to answer my questions?

A I forgot what it was.

Q11. All right. Do you have to answer my questions?

A Yeah.

Q12. No you don't. There's no obligation on you to do so unless you wish to, okay?

A Yep."

22. He thereafter agreed that he need not answer questions but was willing to do so (and did). He claimed to have done year 12 at Phillip (now Canberra) College. He agreed that he received a disability pension. His disability, he said, was merely that he had (as he does) an artificial leg. He claimed never to have been assessed by anybody from Mental Health (he had, of course).

23. Mr Everson's submissions were, in my view, sound. The accused, clearly to my mind, was not capable of deciding whether or not to answer questions nor to make any reasonable judgment as to whether it was advisable to speak or not. He was not capable of assessing the consequences. He clearly wished to impress on questioning police that he was quite normal and capable of answering questions as they wished them answered.

24. In the result I was not satisfied that the accused understood the caution. Indeed, I formed the view that he was responding in a manner that would, he thought, please the interviewer. That is not to say that it might not have been the truth. That is not to the point (see s 189 Evidence Act 1995 (Cth)). That impression was consistent with his intellectual disability. Thus the records of interview were excluded as I was satisfied that it would have been unfair to use the evidence (see s 90 Evidence Act 1995 (Cth)). Given the accused's mental incapacity it also seems to me that s 137 would also have required their exclusion.

25. I then turn to the evidence which was admitted. In doing so I remind myself that:

* the burden of establishing that the accused committed the acts which constitute an offence lies on the prosecution;

* the accused bears no onus of proof nor any obligation to offer any rebuttal of the prosecution case;

* if, after all the admissible evidence has been given there remains an hypothesis reasonably open consistent with the accused not having committed the relevant acts then I must so find;

* any finding of fact necessary to make an adverse finding must be made to the criminal standard, that is, beyond reasonable doubt;

* the accused is presumed to be innocent until and unless the contrary has been established beyond reasonable doubt. ("Innocent" in this context means the verdict referred to in s 317(3));

* in considering the admissible evidence, if more than one inference is open, that inference most consistent with innocence must be drawn unless or until other evidence excludes it.

26. First there was the evidence of Mr George Iliev. He was a taxi driver. The taxi was owned by a Mr Ricky Simatupang. It was TX 92. His evidence was not challenged and I accept it.

27. Mr Iliev took a call, between 8.30 and 9.00 pm, directing him to 4 Edwards Street, Higgins. That was the disability group house at which the accused lived. Mr Iliev, on arrival saw two persons waiting for him. They were the accused and Ms Tamara Batterham. The latter had her right arm straight down beside her body. It is apparent to me that she was holding but concealing the knife she later produced.

28. The male person, Mr Iliev said, "just hopped in the back seat behind me". The female person then walked across the front of the taxi and got into the front passenger seat. He turned towards her and saw that the female passenger had a knife, pointing towards him.

29. Mr Iliev concluded that he was about to be robbed. He offered his money. As he did so, the female person said, "Don't - don't press any button, I'm gonna stab you". She declined the money saying to Mr Iliev, "We don't need your money, just get out of the car. Get out of the car."

30. Mr Iliev activated a hidden alarm and got out of the car as requested. He asked for and was given a book that he had had with him in the taxi. The taxi was driven off. Mr Iliev did not say by whom.

31. The male person had said nothing, Mr Iliev said, the orders to him had come from the female person.

32. In cross-examination he said that he could not say whether the male person "looked ... to be scared".

33. There was thereafter a pursuit over 20 kilometres of the taxi by taxis and police vehicles. The course of the vehicle is not presently relevant save that when stopped it was apparent, and I so find, that the accused was driving it. The vehicle was stopped by police in New South Wales.

34. It was not apparent from Mr Iliev's evidence who drove the taxi away. However, the vehicle was under almost constant surveillance by police and others for a considerable distance before it entered New South Wales and I am satisfied, beyond reasonable doubt, that it was driven by the accused for at least that distance. Indeed, I have no doubt, having heard the tape of a security device in the taxi that he had been the only driver since the taxi was driven away. There was no direct observation of him driving the vehicle in the Territory. It was dark. However, there was no reasonable opportunity for him and Ms Batterham to switch places. Thus there is, in my view, no reasonable possibility that he drove the vehicle only in New South Wales. Indeed, I am satisfied, as I have said, that he drove the vehicle away.

35. It was submitted by the Crown that, if I was satisfied that the accused had driven the vehicle as alleged, then it could be inferred from that that not only had he taken the vehicle without lawful authority but he was acting in concert with Ms Batterham in doing so. I should say that it was assumed that the female person was Ms Batterham, although there was no direct evidence of her identity. It is convenient, however, so to refer to her.

36. Apart from the fact that Ms Batterham threatened Mr Iliev with the knife, and the accused was then present, there is no evidence that the accused knew she was going to do so before the assault was committed. It is certainly very likely that he did but that does not exclude the reasonable possibility that Ms Batterham decided to commandeer the taxi and that the accused, seeing that she had done so, joined in the taking and using of the vehicle. Indeed, that possibility is strengthened by a consideration of his intellectual deficit.

37. It seems to me apparent from the tape of the conversation (Exhibit 1) of the persons in the taxi, recorded by the security device, that the accused was voluntarily driving it. To that extent he was acting voluntarily in concert with Ms Batterham in the escapade. He was not being coerced by her. However, nothing said during the journey addressed the issue as to whether the accused had been aware that Ms Batterham had intended to commandeer the taxi by threatening the driver with a knife at any time before she had in fact done so.

38. It seems to me, therefore, that, as the accused himself did not threaten Mr Iliev, he can have "committed" the acts constituting the assault only if I am satisfied beyond reasonable doubt that he acted in pre-concert with Ms Batterham and it was a joint enterprise agreed between them that she would assault the taxi driver to get possession of the taxi.

39. I cannot be so satisfied. There is a reasonable doubt about that. Thus the accused is to be regarded as having been found not guilty of that offence.

40. However, it is clear beyond any such doubt that once the taxi was commandeered and Mr Iliev expelled from it at knife point, the accused joined, then or a little later, in the taking of the vehicle.

41. The next question is whether I need to be satisfied of more than that he drove the vehicle and that it was in fact taken without lawful authority.

42. The test legislatively prescribed refers to the "acts" alleged to constitute the offence charged. That issue falls to be determined in the context that, being unfit to plead, the person accused is unlikely to be able positively to contribute to his or her defence. The material upon which a conclusion is to be drawn must, therefore, be limited.

43. The extent to which knowledge or intention, such being an element of an offence needs to be proved in a special hearing is not entirely clear. On the one hand, the section in question carefully uses the expression "the acts which constitute the offence". Yet, as Crispin J observed in R v Morris [2002] ACTSC 12 (15 March 2002) it is unlikely that the legislative intended to expose a person to liability for apparently (or possibly) accidental acts merely because the person committing the act was found unfit to plead. Some offences can be committed only by means of a mental act (for example, conspiracy. See Morris (supra) at [16]).

44. In fact, of course, an act such as striking a person or driving a vehicle can only be an element of an offence if it is performed deliberately and voluntarily. Accidental or involuntary acts cannot be those of a "reus" (that is, in Latin, of an accused person, a prisoner or a defendant). A person who deliberately and voluntarily strikes another may not be guilty of an offence because they lack mental capacity to commit a crime. They may also be unfit to plead but the two issues are not the same.

45. In the present case, there may or not be some mental defect which deprives the accused of criminal capacity. That is not to be determined in these proceedings.

46. However, the presence of requisite knowledge of that which converts the driving of a motor vehicle into an offence is necessary for the act of driving to be an act constituting an offence or, at least, an element of it.

47. In the present case it seems to me that this accused was aware that the vehicle was taken without authority or excuse. I so conclude from the tape of his utterances during the driving as well as from the circumstances preceding the driving which occurred in his presence.

48. I therefore conclude that the accused committed the acts which constitute the offence of taking a vehicle without lawful authority for use by himself as alleged and I so find.

49. I will now hear counsel as to the orders to be made in consequence of that latter finding.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

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