R v Peter Morris [2002] ACTSC 12

(c) between 1 January 2000 and 31 April 2000 engaging in sexual intercourse with the complainant who was then twelve years old; and

(d) between 1 August 2000 and 12 October 2000 committing a still further act of indecency upon the complainant who was then thirteen years old.

3. The notice of motion giving rise to the present application was filed on 28 September 2001 and was listed for hearing before me on 25 October 2001. However, during the course of argument I formed the opinion that a serious question had arisen as to whether the applicant was fit to plead to the offences with which he had been charged and I ordered that he submit himself to the jurisdiction of the Mental Health Tribunal to enable the Tribunal to determine that issue.

4. On 17 December 2001 the Tribunal determined that the applicant was not fit to plead to the charges and was unlikely to become fit to plead to them within the ensuing twelve months.

5. Section 315 of the Crimes Act 1900 provides that in such circumstances the Court shall conduct a special hearing in relation to an accused person. Section 316 provides that the hearing shall be conducted "as nearly as possible as if it were an ordinary criminal proceeding". The special hearing shall be a trial by jury unless there is an election for trial by judge alone. If the accused is incapable of making such an election it may be made on his or her behalf by a guardian appointed by the Guardianship Tribunal under the Guardianship and Management of Property Act 1991.

6. The range of verdicts available at a special hearing is determined by s 317, which is in the following terms:

(1) At a special hearing that is a trial by jury, the jury shall, if satisfied beyond reasonable doubt that the accused committed the acts which constitute the offence charged, advised the court accordingly.

(2) If the jury is not satisfied in accordance with subsection (1) -

(a) the jury shall return a verdict of not guilty in respect of the offence charged; and

(b) the accused shall be dealt with as though the jury had returned that verdict at an ordinary trial.

(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.

(4) An advice under subsection (1) -

(a) does not constitute a basis in law for the recording of any convictions for the offence charged; and

(b) constitutes a bar to further prosecution of the accused for any offence in respect of the acts which were alleged to constitute the offence charged.

7. It may be noted that the decisive question is whether the jury or, in the case of the special hearing by a judge without a jury, the judge is satisfied beyond reasonable doubt that the accused committed "the acts which constitute the offence charged". There may be some scope for debate as to the precise meaning of this phrase since an offence is constituted by a number of elements, one or more of which usually consist of things done by the offender, which may be referred to as objective elements, and one or more of which consist of knowledge, intention or some other state of mind, which may be referred to as subjective elements. Hence, an act which causes a person's death will constitute an offence of murder only if it was carried out with the intention of causing the person's death or with reckless indifference to the probability of causing death: see s 12 of the Crimes Act 1900. It may be difficult to construe subjective elements as "acts". Yet in the absence of such elements the "acts" alleged by the Crown would be incapable of constituting the offence charged or, perhaps, any offence at all. What then does the section require? Does it require the Crown to prove beyond reasonable doubt each element of the relevant offence or only objective elements?

8. Neither answer seems wholly satisfactory. The former would require the Crown to prove the necessary subjective elements even though s 317 and the other sections dealing with the prosecution of people found unfit to plead are obviously directed to ensuring public protection from dangerous acts committed by people suffering from some substantial mental impairment, and the effectiveness of those provisions might be seriously eroded by such a requirement. On the other hand, it is difficult to see how a jury could be satisfied that acts could constitute offences without proof of the subjective elements and even more difficult to imagine that the legislature could have intended to exclude any issues as to the knowledge or intention of the accused from consideration at a special hearing. In that event, a jury would be obliged to treat any act leading to the death of another person as murder even if the accused had lacked any homicidal intent, the relevant act had occurred accidentally and she or he had not even known of the danger.

9. It is true that a "non acquittal" does not constitute a conviction or expose the accused to sentencing but the consequences may nonetheless be significant. Section 319 creates a prima facie requirement for immediate detention and this is obviously predicated upon the assumption that the accused has previously acted in a manner that would have constituted an offence even if the finding of unfitness to plead had prevented a normal trial. Furthermore, the court may relieve the accused of that requirement only if, "in consideration of the criteria for detention in section 308", it is more appropriate to order submission to the jurisdiction of the Mental Health Tribunal. Section 308 requires the court to consider, inter alia, "the nature and circumstances of the offence with which the accused is charged". Hence, it seems to be contemplated that even this discretion must be exercised on the assumption that once a finding of non acquittal has been made the accused should be treated as if he or she had committed the offence. Furthermore, ss 301 to 303 inclusive make it clear that a person may be detained for a period as long as any term of imprisonment that would have been imposed if "the person had been found guilty of that offence". That would obviously be both unfair and unreasonable if the accused had committed the relevant acts innocently. For example, it would be absurd to treat a postal worker who unwittingly delivered a letter bomb as a murderer merely because he or she was subsequently found unfit to plead.

10. Nonetheless, the latter position would appear to reflect the law in South Australia. In that State, however, the relevant legislative provision, s 269MB of the Criminal Law Consolidation Act 1935 (SA), expressly provides that the Court need be satisfied only that the objective elements of the offence be established beyond reasonable doubt and that there is no defence to the charge that could be established on the assumption that the defendant's mental faculties were not impaired at the time of the alleged offence. In R v T [1999] SASC 429; (1999) 75 SASR 235, the Full court of the Supreme Court of South Australia ruled that this provision has the consequence of relieving the Crown of the need to prove the intention of the defendant. The decision was based upon the wording of the section, but the Full Court did say that "requiring the Court to make a finding about intent, on the assumption that T's mental faculties were not impaired, would be to require the Court to embark upon an almost impossible, and seemingly pointless inquiry". It may be noted that the requirement to act on the assumption that the defendant's mental facilities were not impaired applied only to defences and that intent had been an element of the offence charged. The apparent confusion in the statement may, perhaps, be explained by reference to the nature of the issues raised in argument but, whatever the reason, it should not be seen as providing any endorsement of the legislative policy reflected in the South Australian statute, or as a basis for assuming that s 317 of the Territory enactment had been intended to reflect a similar policy. In any event, the legislative provision with which I am concerned is in quite different terms and the decision is obviously distinguishable.

11. Even recourse to the explanatory memorandum does not make the meaning of s 317 (s 428K of the Crimes Amendment Bill 1994) entirely certain. It does state that the sole question to be determined by the jury is "did the accused carry out the acts constituting the actus reus of the offence charged?". The term actus reus normally refers, collectively, to the objective elements, with the term mens rea being used to refer to the whole of the subjective elements. Hence, at face value, this statement would appear to make it clear that the section had been intended to require proof of only the objective elements of the offence. However, the use of the term actus reus has been criticised as potentially misleading.

12. In Haughton v Smith [1975] AC 476 at 491 Lord Hailshom said that:

[the term] derives, I believe, from a mistranslation of the Latin aphorism, "Actus non facit reum nisi mens sit rea." Properly translated, this means that, "An act does not make a man guilty of a crime, unless his mind be also guilty." It is thus not the "actus" which is "reus," but the man and his mind respectively. Before the understanding of the Latin tongue has wholly died out of these islands, it is as well to record this as it has frequently led to confusion. [emphasis in original]

13. In the subsequent case of R v Miller [1982] UKHL 6; [1983] 2 AC 161 at 174, Lord Diplock pointed out that the use of the term had long been criticised and was likely to mislead. His Lordship said:

This expression is derived from Coke's brocard . . . "et actus non facit reum, nisi mens sit rea" by converting incorrectly into an adjective the word "reus" which was there used correctly in the accusative case as a noun. As long ago as 1889 in Reg. V. Tolson (1889) 23 Q.B.D 168, 185-187, Stephen J, when dealing with a statutory offence ... condemned the phrase as likely to mislead, though his criticism in that case was primarily directed to the use of the expression "mens rea". In the instant case . . . it is the use of the expression "actus reus" that is liable to mislead . . .

My Lords, it would I think be conducive to clarity of analysis of the ingredients of a crime that is created by statute, as are the great majority of offences today, if we were to avoid bad Latin and instead to think and speak . . . about the conduct of the accused and his state of mind at the time of that conduct, instead of speaking of actus reus and mens rea.

14. It is true, of course, that a court should not decline to take into account extrinsic evidence of legislative intent merely because of quibbles about the etymology of words used in its expression and, despite these suggestions that the term can sometimes be misleading, I would have been inclined to accept that the reference to actus reus in the explanatory memorandum was intended to refer, collectively, to the objective elements of the offence had it not been for other apparently contradictory statements.

15. However, in dealing with the preceding section (s 428J in the amending Bill) the explanatory memorandum states that the explanation to the jury should include a direction that "the accused should be acquitted unless the offence is proved beyond reasonable doubt". An "offence" can obviously be proven only by establishing all elements, both objective and subjective. Hence, at face value, this statement is incompatible with the statement referred to earlier and it is difficult to know how the two might be sensibly reconciled.

16. It seems unlikely that the legislature believed that offences consisted only of physical acts or that it intended to create situations of obvious injustice by denying an accused the right to an acquittal when not guilty of the offence charged. For example, it is difficult to accept that the legislature would have intended to prevent a person from being acquitted of intentionally causing grievous bodily harm when the injuries had obviously been caused accidentally. Other passages in the explanatory memorandum make it clear that the section was intended to at least ameliorate the "great disadvantage" that the accused might suffer if a full trial proceeded and to protect his or her rights. Those objectives are plainly incompatible with the introduction of a scheme that might operate so unfairly. It would also be difficult to envisage any way in which offences such as conspiracy could be accommodated within such formulation that excluded any elements based on states of mind. The essence of conspiracy is, of course, merely an agreement to effect a criminal purpose and, whilst the agreement may be deduced from overt acts of the accused, such acts are not elements of the offence.

17. The difficulty experienced in seeking to deduce the intention of the legislature from the explanatory memorandum is compounded by apparent confusion in the language employed. For example, after referring to the disadvantage that would be suffered by an accused at a full trial, the memorandum states: "[t]herefore the following scheme has been adopted because it protects the rights of the person who is unfit to plead, gives the Court flexibility in deciding what options apart from prison are available in respect of disposition, and places the accused in the position of being involved in a lengthy and complex trial" (sic). It is difficult to understand how the last of these objectives could be reconciled with the first or why it might have been seen as an appropriate objective. There may have been a typographical error and the sentence may have been intended to reflect some hope that the scheme would avoid involving the accused in a lengthy and complex trial. However, it is by no means clear how even that could have been seen as a likely consequence of provisions requiring hearings which were to proceed as trials but with added complications due to the mental impairment of the accused, the need for special directions and the artificiality of excluding subjective elements from consideration. In any event, the meaning of this passage, which is between the apparently contradictory statements referred to earlier, is not entirely clear.

18. It should also be noted that the explanatory memorandum stated that s 319 (section 428M in the amending Bill) had provided only narrow options for disposition "because the Court is dealing with a person who has committed a serious offence". Hence, the reference to the need to be satisfied only of the actus reus is both preceded and followed by statements suggesting that the commission of the actual offence must be proven and must be considered in the context of statutory provisions which seem to be predicated upon that assumption.

19. Considered as a whole, the meaning of the relevant portions of the explanatory memorandum do not seem to emerge with substantially greater clarity than the meaning of the section itself. One possible explanation for that apparent contradiction is that the reference to the acts constituting the actus reus was intended to exclude not essential elements of the offence such as knowledge or intention but the need for the jury to consider any defences based on the mental impairment of the accused. Such a construction would be consistent with the overall objectives stated in the explanatory memorandum and, perhaps, with either some clumsiness of expression, as is evident in the preceding passage, or even with the term being used as a shorthand means of referring to the aphorism Actus non facit reum nisi mens sit rea.

20. It would also be consistent with the terms of the Bill which it purported to explain. The section clearly does not require the Court to consider any defence of mental impairment as provided by section 320. The fact that such a defence does not fall within the ambit of the issues specified in s 317 should cause no injustice because a "non-acquittal" after a special hearing does not constitute a conviction (see subs 317(4)) and the consequences of such a finding are the same as those that ensue following an acquittal on the ground of mental impairment (see, for example, ss 319 and 324). However, provisions expanding the nature of this defence and those governing the consequences of an acquittal on that ground were contained in the same Bill and would presumably have been in contemplation when the explanatory memorandum was drafted.

21. Whatever the terms of the memorandum, it is clear from statute that the acts must be such as to constitute the offence charged and that a person who is not acquitted must be treated as if he or she had committed the offence, though the consequences will be non-punitive in character.

22. In all of the circumstances I was satisfied that, notwithstanding the statement in the explanatory memorandum suggesting that only the actus reus need be proved, it is incumbent upon the Crown to prove all of the essential elements of an offence at a special hearing, but that defences of mental impairment or diminished responsibility may not be raised.

23. The present application fell to be determined in this context.

24. Mr Bellanto QC who initially appeared with Mr Everson for the applicant, referred to the inherent right of the Court to stay the prosecution of a criminal proceeding "which will result in a trial which is unfair". He referred to the decision of the High Court of Australia in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 per Mason CJ and McHugh J at 300 and cited several other authorities.

25. The general principle is clear but the test is a stringent one. In Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 Mason CJ quoted, at 34, the observation of Wilson J in the earlier case of Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 111:

To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root "of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences".

26. In the present case it was argued that the breadth of the dates within which each of the offending acts were alleged to have occurred embarrassed the applicant in attempting to answer the Crown case and, in effect, reduced him to a position in which he could only make a general denial. The applicant had been a truck driver and there were extensive records as to his movements. Had the occurrence of the alleged offences been pleaded with greater particularity he may well have been able to establish an alibi by proving that he had been driving a truck interstate at the relevant time. The form of the indictment was said to have deprived him of that opportunity.

27. Following the finding that the applicant was unfit to plead, Mr Everson called evidence with a view to establishing the particular problems which the applicant might encounter during a special hearing due to his mental impairment. For present purposes it is unnecessary to recount the nature of that evidence in any detail. However, it is clear that the applicant has extremely poor verbal ability and comprehension, and that he suffers from substantial memory problems. Whilst he would probably be able to understand basic allegations if explained in simple terms, he would be incapable of understanding much of the proceedings or adequately addressing some or all of the issues likely to arise. Furthermore, he might be at a significant disadvantage in giving evidence because he would be likely to express agreement with any leading question confidently put to him in cross-examination. In these circumstances Mr Everson maintained that the potential unfairness to which he and Mr Bellanto had referred in their earlier submissions would virtually deny the applicant any chance of an acquittal. He would not only be incapable of maintaining a defence based upon alibi but might also be incapable of adequately maintaining even a general denial. The force of these arguments cannot be doubted.

28. On the other hand, the Crown argued that a prosecution in respect of serious sexual offences in relation to a child should not be stayed merely because the complainant is unable to identify the precise date upon which the offences allegedly occurred. The Crown suggested, no doubt correctly, that many children are unable to provide a precise account of the dates upon which they were molested, and that demands for greater particularity than could be provided by reference to their recollection of the relevant events would inevitably prevent many cases from being prosecuted. The provisions of s 319 which govern the manner in which persons found unfit to plead should be dealt with in consequence of an adverse finding at a special hearing are not punitive in character but are intended to facilitate both the treatment and care of the person found to have committed the relevant acts and the protection of the community. In the present case there has been evidence that the applicant's mental impairment might have reduced his inhibitions and/or "control mechanisms" in relation to sexual behaviour, and that this could conceivably lead to some continuing risk of the sexual abuse of children. There is an obvious need for the community to be protected from the risk of such conduct. Hence, the Crown argued that this was the sort of case to which the relevant provision should be presumed to have been directed.

29. The Crown also pointed out that special hearings can only be conducted in relation to allegations against people found unfit to plead, and that such people would almost invariably have only a limited understanding of the nature of the proceedings and/or the evidence adduced against them. Many would also be unable to give persuasive evidence in their own defence. Accordingly, hearings of this kind will almost inevitably involve some significant measure of unfairness to the accused and if the Court were to stay proceedings on that basis then the statutory provisions providing for such hearings would be effectively nullified.

30. In R v Davis [1995] FCA 1321; (1995) 57 FCR 512 at 517 a Full Court of the Federal Court of Australia hearing an appeal against a decision to stay proceedings against a doctor for sexually molesting patients, upheld the following statements of principle: "first that the grant of a permanent stay is an exceptional step, justifiable only where the Court is satisfied that an unfair trial will ensue and there is no other means, such as directions to the jury, that will bring about a fair trial; and, secondly, that it is not enough that there be unreasonable delay in bringing the proceedings or, even, that unreasonable delay has caused prejudice to the accused". Their Honours explained that prejudice to the accused must be weighed against the community's right to expect that those charged with criminal offences be brought to trial.

31. Had the applicant been a person of unimpaired intellectual capacity, neither the breadth of the range of dates within which the offences were said to have occurred, nor the difficulties that the applicant might encounter in relation to establishing defences of alibi would have justified the grant of a stay of proceedings. In those circumstances there might well have been some prejudice to the applicant but, in my opinion, that consideration would have been clearly outweighed by the community's right to expect that charges of sexual assault allegedly committed upon children be brought to trial.

32. Regrettably, the applicant does not enjoy an unimpaired intellectual capacity and he will be placed in an extremely invidious position by having to face a hearing in relation to allegations of serious criminal offences when his mental impairment will seriously limit his ability to answer those allegations.

33. However, the legislature must be taken to have intended that special hearings would proceed even in such circumstances. That, at least, is clear from the explanatory memorandum, which expressly acknowledges that "a person who is unfit to plead is unable to give instructions and make a defence and so such a person would be at a great disadvantage if a full trial proceeded". It seems to have been considered that the need to ensure that the public is duly protected from potentially dangerous acts requires that a hearing be conducted into allegations of prior criminal acts, even when those who allegedly committed them may have such a degree of mental impairment that the conduct of the proceedings could not be entirely fair to them. The legislature also seems to have taken into account the fact that the consequences of an adverse finding are not intended to be punitive in character. Whatever the reasons for the underlying legislative policy, any issues of unfairness and the balancing exercise suggested in Davis must be considered in that context. I do not suggest that there could never be cases in which it would be appropriate to stay the conduct of a special hearing on the ground of unfairness to the accused. However, despite the carefully reasoned argument presented by Mr Everson, I was not satisfied that this was such a case.

34. For these reasons I dismissed the application.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Counsel for the applicant: Mr A Bellanto QC with Mr C Everson

Solicitor for the respondent: ACT Director of Public Prosecutions