Supreme Court of the ACT|2009-11-10

R v REINHOLD STEURER [2009] ACTSC 150 (10 November 2009)

R v REINHOLD STEURER [2009] ACTSC 150 (10 November 2009)

CRIMINAL LAW - re-assessment of fitness to plead - nature of required ability to follow the course of proceeding - view of court proceedings as "gobbledygook" not necessarily indicative of unfitness - relevance of advice from accused's legal representatives about capacity to give instructions.

CRIMINAL LAW - significance of accused's mental state in criminal proceedings - ACT legislative scheme - verdicts available at ordinary trials and special hearings - special verdict of not guilty because of mental impairment.

CRIMINAL LAW - orders required after special verdict - detention order or order that person submit to jurisdiction of ACAT for mental health order to be made - matters to be taken into account in deciding which order to make - comparison of ACT and NSW arrangements - form and effect of detention order.

CRIMINAL LAW - orders required after special verdict - requirement where detention order made for best estimate of likely sentence if person had not been acquitted - inappropriateness of best estimate requirement where person found not guilty because of mental impairment - difficulty in giving reasons for best estimate where accused not guilty because of mental impairment - some ACT best estimates roughly half of maximum term of imprisonment.

Criminal Code 2002 (ACT), ss 13, 27, 28, 56, 57, 58, 59, 60, 44

Explanatory Memorandum, Crimes (Amendment) Bill 1999 (ACT)

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

R v Cosseddo [2000] NSWSC 446

R v Dashwood [1943] KB 1

R v Goonerage [2005] ACTSC 96

R v Paul John McDermott [2003] ACTSC 1; (2003) 172 FLR 1

R v Polanski [2000] NSWSC 854

R v Pratt [2009] NSWSC 1108

R v Wilson [2002] NSWSC 297

Veen v The Queen [No. 2] [1988] HCA 14; (1988) 164 CLR 465

Mayer-Gross, Slater and Roth, Clinical Psychiatry, Baillière, Tindall & Cassell, London, 3rd ed, 1970

On 12 May 2009 Reinhold Steurer was found fit to plead to a charge of murder.
On 12 May 2009 Reinhold Steurer was found not guilty because of mental impairment of the murder of Michael Steurer on 26 April 2007.
A detention order under s 324 of the Crimes Act 1900 (ACT) in respect of Reinhold Steurer will be made on a date to be fixed.

ACT Health prepare an assessment of the mental health status of Reinhold Steurer, a treatment and care plan for Mr Steurer, and a risk assessment relating to Mr Steurer.

1. Reinhold Steurer was charged with the murder of his father, Michael Steurer, who died on 26 April 2007 of blood loss after being stabbed by his son shortly after a minor disagreement between the two men.

2. This judgment covers several aspects of the criminal justice system's dealing with Mr Steurer, as follows:

(a) re-assessment of his fitness to plead ([4] to [23] below);

(b) trial ([24] to [73] below);

3. In the course of the judgment I comment on the legislation applicable in this case and some problems that I have encountered in applying it. Those comments are found at [100] to [109] below. In summary, my concern is that the effect of the ACT legislation is to require an assessment in the nature of a sentencing process for an accused person who has been found not guilty because of mental impairment, even though as a matter of principle it is incongruous to apply a process (sentencing) that is based on criminal responsibility to a person who has been found not to be criminally responsible for his actions. Not surprisingly, an incongruous process produces incongruous results - first, that judges dealing with such cases find themselves making decisions for which no rational reasons can be given, and secondly that a person who was not criminally responsible for his actions risks being detained in respect of those actions for longer than he would have been if he had been criminally responsible for them. In saying this, I note that the arrangements for supervision and regular review of detention orders relating to people who have been found not guilty because of mental impairment are likely to protect against any serious injustice being done to such people, but this fact, while comforting, does not justify maintaining an approach which seems to be wrong in principle and which leads judicial officers to act inconsistently with the normal requirements for the exercise of judicial discretion.

4. On 16 December 2008 I found Mr Steurer fit to plead to the charge, but ordered that Mr Steurer be assessed again within the period of two months before the date fixed for his trial, with specific reference to the concerns expressed by Drs George and Allnutt relating to Mr Steurer's auditory hallucinations and his delusional beliefs respectively.

5. Mr Steurer's trial was fixed for 12 May 2009. On 19 March 2009 I made an order for the re-assessment required in conjunction with my original finding that Mr Steurer was fit to plead.

6. The first matter for determination on the day set down for trial was Mr Steurer's continued fitness to plead. On the morning when I had to decide on Mr Steurer's continued fitness to plead, the trial proceedings were expected to be completed by lunchtime that day, and Mr Steurer's counsel advised that earlier that morning he had had a clear conversation with Mr Steurer; counsel described Mr Steurer as "mentally the fittest I've seen him".

7. Pursuant to the order made on 19 March, Dr George provided another assessment of Mr Steurer's fitness to plead, which was dated 1 May 2009.

8. Dr George's initial assessment dated 31 July 2007 had been that Mr Steurer was fit to plead against all but one of the criteria set out in s 311(1) of the Crimes Act 1900 (ACT) (set out in Appendix A to this judgment). He reported as follows:

(a) Mr Steurer understood that the current charge related to his murder of his father, and how he had killed his father.

(b) Mr Steurer could cope with challenging the jury; he understood scenarios that might require this, and that if he thought someone should not be on his jury he should talk to his lawyers about it.

(c) He understood the concept of pleading; he proposed to plead guilty, but understood that a plea of not guilty was also available to him.

(d) He understood the nature of the court proceedings, and had relevantly been able to describe what had happened in the Magistrates Court.

(e) He understood the significance of the evidence that would be given and the purpose of that evidence.

(f) Mr Steurer believed that he could instruct and, indeed, that he had already instructed, his legal representatives.

9. However, Dr George was concerned about the effect of Mr Steurer's auditory hallucinations on his attention and concentration, specifically in relation to his ability to follow the course of proceedings in the court (s 311(1)(d) of the Crimes Act). He found that Mr Steurer was unfit to plead because of the auditory hallucinations.

10. Dr Stephen Allnutt, who had also reported on Mr Steurer, had commented on the possible impact of Mr Steurer's delusional beliefs in two areas, namely his ability to challenge members of a jury on rational grounds and his ability to give instructions to his lawyers. He also noted that Mr Steurer was vulnerable to incorporating the court in his delusional beliefs.

11. For the new assessment, Dr George asked Mr Steurer questions directed at each of the criteria for fitness to plead set out in s 311(1) of the Crimes Act. He did not confine his assessment to the matters of Mr Steurer's auditory hallucinations and his delusional beliefs, as mentioned in the order for re-assessment.

12. As a result of this inquiry, Dr George reported his view that Mr Steurer remained unfit to plead, but this time reached his conclusion by reference to the criteria set out in ss 311(1)(d) and (f) of the Crimes Act.

Ability to follow the course of the proceeding (par 311(1)(d))

[Mr Steurer] was then asked whether he believed he could follow the course of proceedings. He said that, in general terms, he often found listening to the proceedings of a court "gobbledygook". He said that, often, he can "sit in court and let them talk without absorbing anything that is said ... it is just jargon ... ". He then added, "I bought myself a dictionary in the last two years to look up some of the terms which they use". By this he seemed to be indicating that he did not understand the meaning or context of legal language. This made it difficult for him to follow the course of events.

He did not indicate that he was really aware of voices on a continuous basis and said there may be days when he is not aware that he suffers from "voices". However, he said that, on occasions, this could interfere with his concentration. He then added "sometimes I speak to friends of mine by telepathy ... I can go for weeks sometimes without hearing anyone". He seemed to be indicating that he would have difficulty following the proceedings of the court.

14. It seems that, as far as Mr Steurer's auditory hallucinations are concerned, these have reduced since Dr George last saw him. Dr George noted in his general comments that Mr Steurer had said that "the auditory hallucinations of which he was aware were not nearly as predominant as had been the case two years ago when last examined". It is not clear to me that Mr Steurer's comments about the voices he sometimes heard necessarily indicated that he would have difficulty following the proceedings of the court.

15. As to Mr Steurer's comments about finding the proceedings of a court "gobbledygook", and that often, he can "sit in court and let them talk without absorbing anything that he said ... it is just jargon", I do not consider that these indicate difficulty in following the proceedings of the court within the meaning of s 311 of the Crimes Act.

16. Dr George's comments imply that an accused person can only be found fit to plead if he or she has the ability to follow the course of proceedings in a court, including the ability to understand legal terminology and the legal processes that were being undertaken, as well as a willingness to keep concentrating on those legal processes. If this were the real test, it is clear that a large majority of persons involved in criminal proceedings could be assessed as unfit to plead. Mr Steurer's reported comment that he had bought himself a dictionary in order to be able to look up some of the terms which are used in court indicates not that he would be unable to follow the course of proceedings in court to an extent that rendered him unfit to plead but, to the contrary, that he might have a better understanding of court processes than many other accused persons with no relevant questions over their mental processes.

17. Dr George did not specifically address the delusional beliefs that had concerned Dr Allnutt in his original fitness to plead assessment. He noted that Mr Steurer did not report any persecutory delusional ideas, but referred to comments from Mr Steurer that "he often communicated with his friends through the process of thought transference". To the layperson that belief would appear to be delusional, but Dr George does not identify it as such; nor does he note the absence of delusional beliefs of the kind that concerned Dr Allnutt.

Ability to give instructions to the person's lawyer (par 311(1)(f))

18. In relation to this criterion, Dr George reported as follows:

Lastly, he was asked whether he felt capable of giving instructions to his solicitor. He said in response to this, "I am inclined to leave it up to him (solicitor)". He was then asked whether he had ever spoken to his solicitor about the nature of his case and his response to this was to say "yes, I have talked to him about what would happen if my mother passed away ... ". By this, he was indicating that he really did not understand the nature and the context of the question and that in all likelihood, he would have difficulty communicating effectively to his legal representative with respect to different aspects of his case.

19. I am not persuaded that Mr Steurer's response to Dr George's question necessarily indicated an inability to understand the question or a difficulty in communicating effectively to his legal representatives about aspects of his case. It seems to me far more likely to have indicated a simple misunderstanding of Dr George's question, of the sort that occurs routinely in communications between people whose mental functioning is not in at all compromised. Dr George does not report making any attempt to clarify his question, in a way that would be normal in a conversation between people whose mental capacities were not in issue. I do not regard Mr Steurer's possible misinterpretation of Dr George's question, or his possible inclination to focus on issues that were of most concern to him (particularly his mother) rather than ensuring that he answered exactly the question asked by Dr George, as indicating an inability to properly instruct his legal representatives. Among other things, I would expect Mr Steurer's lawyers to put more effort into clarifying any instructions they received that seemed ambiguous or not properly directed to the questions they had asked.

20. I note that in 2007, when Dr George assessed Mr Steurer as being in much worse condition mentally than he found him in 2009, Dr George did not have any concerns about Mr Steurer's ability to instruct his legal representatives.

21. I note also in this context that Mr Steurer's counsel, who has been acting for him throughout the court proceedings, indicated from the bar table that his (admittedly inexpert) assessment was that Mr Steurer was "mentally the fittest I've seen him" and, in particular, advised that he had no concerns at that stage about accepting instructions from Mr Steurer. I took account of this advice (albeit that it was advice confirming rather than questioning fitness to plead) in reliance on the statement of the Court of Criminal Appeal in R v Dashwood [1943] KB 1 at 4, that information raising a question about an accused's fitness to plead may be accepted from any source. The Court said:

It does not matter whether the information comes to the court from the defendant himself or his advisers or the prosecution or an independent person, such as, for instance, the medical officer of the prison where the defendant has been confined.

22. In summary, then, it seemed to me that I was not obliged to accept Dr George's assessment that Mr Steurer was currently unfit to plead. In reaching this conclusion, I took account of the following matters:

(a) Dr George reported that there had been a noticeable improvement both in Mr Steurer's physical health and in his ability to communicate and discuss matters with no obvious formal thought disorders, and that Mr Steurer was having fewer auditory hallucinations than previously, including sometimes going for weeks at a time with no such hallucinations. Although he did not do any formal testing of Mr Steurer's cognitive functions, Dr George assessed him as oriented in time, place and person, with a reasonable memory, reasonable judgment and partial insight; I do not consider that limited insight of itself raises any question in relation to fitness to plead.

(b) The concerns that Dr George expressed in his re-assessment related to matters that he had not seen as a problem in his earlier assessment of Mr Steurer. The emergence of those concerns, despite an improvement in Mr Steurer's mental health generally and no indication of any deterioration in particular aspects of his mental health, did not seem to be consistent with Dr George's overall assessment of Mr Steurer's mental health, or to be based on a proper interpretation of s 311.

(d) Mr Steurer's counsel's advice that he had no concerns about Mr Steurer's current capacity to give instructions.

23. On this basis, I remained satisfied that Mr Steurer was fit to plead, so his trial was able to proceed in the normal way.

The significance of a person's mental state in criminal proceedings

24. For reasons which will become apparent, it is useful at this stage to set out the processes in the ACT for dealing with accused persons whose mental state, either at the time of the alleged offence or at the time of trial, may be in issue. Relevant provisions of Part 13 of the Crimes Act are set out in Appendix A to this judgment.

25. There are two main ways in which a person's mental state may be relevant to the way in which the criminal justice system deals with their liability for conduct that might constitute a criminal offence.

26. The criminal justice system starts from the presumption that an accused person is capable of participating in that system in various ways, such as by entering a plea and giving instructions to his or her lawyers, and is capable of understanding the basics of criminal proceedings (such as that a trial is an inquiry about whether he or she committed the relevant offence). In the ACT this is expressed as a presumption that an accused person is "fit to plead" (Crimes Act s 312(1)). It may be established, however, that because of the accused person's mental state, he or she is not capable of such participation; this is described in the ACT in terms of the accused person not being fit to plead.

27. Secondly, there is the question of the accused person's mental state at the time the alleged offence was committed. In general terms, the significance of this question is whether an accused person was capable of forming whatever intention was necessary to render the person criminally liable for his or her actions.

28. There is no necessary connection between these two issues. In some cases, a person whose original actions (the offending behaviour) were affected by his or her mental state will still or again be affected by mental problems in relation to participation in the resulting criminal proceedings. In other cases a person whose offending behaviour was affected by a disordered mental state may be entirely fit to plead by the time a criminal proceeding is instituted in respect of that behaviour, and equally, a person who was entirely in control of his or her offending behaviour may, by the time a criminal proceeding is instituted in respect of that behaviour, have lost the capacity to participate in that proceeding.

29. It would seem logical for each question of mental capacity to be dealt with at the appropriate point in the criminal proceeding and according to its immediate significance, but without confining the options at later points in the proceeding except where there is a direct link between the options concerned and the question of mental capacity. In particular, there is no reason that I can see why a finding in relation to an accused person's fitness to plead should limit the options for dealing with the consequences of the accused's mental state at the time of the alleged offence.

30. However, the approach suggested at [29] above is not the one adopted in the ACT legislation. Rather, criminal proceedings are streamed depending on the accused person's fitness to plead, and remain separate beyond the point where fitness to plead would seem to be relevant, until the two different kinds of proceedings are drawn together again just at the point where separate treatment would again seem to make sense.

31. In particular, the ACT legislation seems to overlook the significance of a verdict of not guilty because of mental impairment. It might be thought implicit in the description of a verdict as "not guilty by reason of mental impairment" that there should be no question of blame or punishment, only a question of the safety of the community and the accused. As Hoeben J said in R v SE [2009] NSWSC 785 at [67] about the equivalent NSW verdict (not guilty on the grounds of mental illness), it means "that legally the accused is not to blame for his actions nor to be punished for his actions".

The ACT scheme - Crimes Act provisions

32. As already mentioned, the first question for the purposes of the criminal process is whether an accused person is fit to plead (Division 13.2, Crimes Act). If the person is found to be fit to plead, an ordinary trial is held (s 315B). If the person is found unfit to plead and unlikely to become fit to plead, the next step is a special hearing (s 315C). A special hearing is to be conducted "as nearly as possible as if it were an ordinary criminal proceeding" (s 316(1)), but in the ACT the question to be answered is whether the fact-finder (jury or judge) is satisfied beyond reasonable doubt that "on the evidence available, the accused engaged in the conduct required for the offence charged (or an alternative offence)" (ss 316(9) and 317). The purpose of a special hearing is to ensure that unless the conduct can be proved beyond reasonable doubt, the accused person will be acquitted despite his or her unfitness to take part in a normal trial.

Verdicts available at ordinary trials and special hearings

33. At an ordinary trial (s 321 of the Crimes Act), the available verdicts are:

34. At a special hearing (s 317), the available verdicts are:

(a) not guilty (equivalent to an ordinary acquittal); and

(b) a finding that the accused engaged in the conduct required for the offence charged or an alternative offence (engaging in conduct means doing or omitting to do an act and does not include any mental element; s 13 of the Criminal Code 2002 (ACT), and see R v King [2004] ACTSC 82; (2004) 155 ACTR 55 at [21]).

35. Under the legislation but for no apparent reason, a verdict of not guilty by reason of mental impairment is not available at a special hearing, even if the court or jury could be satisfied of the appropriateness of that verdict in the same way as they could be satisfied for an accused who is fit to plead. Thus, a finding at a special hearing that the accused engaged in the conduct required for a relevant offence covers two quite different cases, namely the case of a person whose actions were attributable to mental impairment and that of a person whose actions were wholly or largely unrelated to any mental impairment.

36. The verdicts of guilty and not guilty have the same consequences for a person who has been subject to a fitness to plead inquiry as they have for an accused whose mental capacities have not been in issue. That is, a person found guilty at an ordinary trial will be sentenced in the normal way, and a person found not guilty without qualification at an ordinary trial or a special hearing will go free.

37. A verdict of not guilty because of mental impairment (a verdict available in an ordinary trial), and a finding that the accused engaged in the conduct required for the offence charged or an alternative offence (a verdict available in a special hearing), although not necessarily reflecting similar findings as to the person's culpability, have the same consequences as each other. Those consequences are as follows:

(a) First, the court must order either that the accused be detained in custody until the Administrative and Civil Appeals Tribunal (ACAT) orders otherwise, or that the accused submit to the jurisdiction of ACAT to enable ACAT to make a mental health order (ss 319 and 324 of the Crimes Act).

(b) Secondly, if the order is that the accused be detained in custody, the court must also indicate whether, if the accused had been convicted at "normal criminal proceedings" (s 301(1) or "had not been acquitted" (s 302(1)), it would have imposed a sentence of imprisonment and if so, the court must specify its "best estimate" of the sentence it would have considered appropriate if the accused had been found guilty of the offence (ss 301(2) and 302(2)). The court must not order that an accused be detained for longer than the estimated sentence (s 303).

38. This is the framework within which I have been required to deal with the charge against Mr Steurer. I shall return to this framework after dealing with Mr Steurer's trial.

39. Following my determination that Mr Steurer was fit to plead, he was arraigned and entered a plea which I recorded as "not guilty by reason of mental impairment" (Mr Steurer's words were "not guilty by reason of psychiatry problem").

40. On 15 April 2008 Mr Steurer had elected for trial by judge alone. Section 68C of the Supreme Court Act 1933 (ACT) specifies the procedures to be followed for a trial by judge alone. In summary:

(a) the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;

(b) the judge must provide a judgment setting out the principles of law he or she applied and the findings of fact he or she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict, Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250); and

(c) the judge must take into account any warnings that would, under a Territory law, have had to be given to a jury in the case.

41. I set out first the general directions I have given myself.

42. The prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt. To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt.

43. It is not enough for the prosecution to persuade me that the accused is probably guilty or even that he is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the prosecution does not have to do so.

44. If the accused offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.

45. In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness's evidence. I may, if I think fit, accept part and reject part of the same witness's evidence.

46. The accused did not give evidence at the trial; however in the circumstances I do not see any need to set out the usual directions about inferences that must not be drawn from that fact.

What needs to be proved, and by whom - Criminal Code provisions

47. Sections 27, 28, 56, 57, 58, 59 and 60 of the Criminal Code 2002 (ACT) are set out in Appendix A to this judgment. They provide as follows about mental impairment and criminal responsibility, including how mental impairment must be proved.

(a) The prosecution has the legal burden of proving (beyond reasonable doubt) every element of an offence relevant to guilt, and of disproving (also beyond reasonable doubt) any matter in respect of which the defendant has discharged an evidential burden of proof (ss 56 and 57(1)); and

(b) A person is not criminally responsible for an offence if, at the time of the offence, a mental impairment meant that the person:

(i) did not know the nature and quality of his or her conduct (s 28(1)(a));

(ii) did not know that the conduct was wrong (defined as being unable to "reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person", was wrong; see ss 28(1)(b) and 28(2)); or

(c) There is a presumption against a person having suffered from a mental impairment at the time of the conduct required for the offence (s 28(4)).

(d) This presumption can be displaced if it is proved on the balance of probabilities that the person was suffering from a mental impairment (s 28(5)).

(e) An accused person wishing to deny criminal responsibility by establishing that he or she was suffering from a mental impairment has an evidential burden of proving mental impairment; that is, unless the prosecution has already presented sufficient evidence to that effect (s 58(5)), the accused must present or point to evidence suggesting a reasonable possibility of the necessary mental impairment (s 58(2)). "Mental impairment" for these purposes is defined in s 27 as including, relevantly, mental illness, which is defined as "an underlying pathological infirmity of the mind".

48. Under s 321 of the Crimes Act, where an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court, the court:

... must enter a special verdict that the person is not guilty of the offence because of mental impairment if -

(a) the court considers the verdict appropriate; and

(b) the prosecution agrees to the entering of the verdict.

49. Thus the necessary steps in this trial are as follows. First, the prosecution must prove Mr Steurer's conduct, being the killing of his father but not including any mental element of the offence, beyond reasonable doubt. If this is not done, then Mr Steurer is entitled to an ordinary verdict of not guilty. If it is done, the question then becomes Mr Steurer's responsibility for that conduct. Unless the prosecution has already done so, the defence may then point to evidence suggesting a reasonable possibility that Mr Steurer was suffering from a mental impairment such that he cannot be held criminally responsible for his conduct. If:

(a) evidence suggesting a reasonable possibility of a mental impairment is identified; and

(b) I am satisfied on the balance of probabilities that Mr Steurer was suffering from such a mental impairment; and

(d) the prosecution agrees to the entering of that verdict;

then I must enter a special verdict that Mr Steurer is not guilty because of mental impairment.

50. Counsel for the DPP tendered an agreed statement of facts, which was as follows:

The accused is charged with the murder of his father, Michael Steurer.

The accused is 51 years old and has for the last 20 years been treated in the community for paranoid schizophrenia by Dr Ramesh Gupta. He receives fortnightly injections of Modecate which are administered by the ACT Health Service. The accused received his injection of Modecate at 9.00 am on Thursday 26 April 2007.

At about 2.45 pm that day the accused was at his home address ... . The accused lives there with his father and mother.

The accused had been helping his father put up some shelving in the garage of the premises. The accused and his father had a verbal disagreement about how the shelving should be put up and the accused returned to the house. A short time later his father entered the house and sat down on a sofa bed in the dining room near the accused.

He asked his father "have you ever been stabbed?". His father replied "no".

The accused went to the kitchen and took a 29 centimetre stainless steel knife from a drawer. He then returned to the dining room and stabbed his father in the chest several times. His father fell to the floor and died as a result of blood loss.

The accused then went to his bedroom.

The accused's mother had been outside the house watering the garden. She returned inside and discovered her husband's body in the dining room. She knelt down beside him and saw that he was not breathing. Mrs Steurer went to the accused's bedroom and saw the accused sitting at his desk. She said "You'll have to find other accommodation". The accused did not respond.

Mrs Steurer then left the bedroom and rang her GP, Dr Marinos. Dr Marinos immediately left his practice and arranged for an ambulance.

Dr Marinos arrived at the premises about 2:53 pm. Mrs Steurer met him outside the premises and took him to the body of her husband. Dr Marinos examined Mr Steurer and determined that he was dead and did not attempt resuscitation. He went to the accused's bedroom. The accused told Dr Marinos that he had stabbed his father. Dr Marinos asked "Why?" and the accused responded "I wanted to".

Police attended and cordoned off the house. The accused spoke to several police officers and told them that he killed his father.

He was taken into custody and participated in a taped record of interview after being assessed as fit for interview by Dr Denise Krause. During the record of interview the accused made full admissions to killing his father. He stated that he stabbed his father at least three times in the chest. He stated that he aimed to stab his father in the heart in order to kill him. He said that his father had attempted to defend himself but he overpowered him. He said that he used the knife to cut through his father's shirt first so that he could get to his heart. He stated that he had to use a lot of force and bent the knife when it hit bone.

He stated he wanted to kill his father because he didn't like him enough. He stated that he had thought about killing his father in the past while he was sleeping. He stated that he didn't do it at those times because he wanted his father to be awake so that his father "could feel it".

51. There was no objection from defence counsel to any part of the statement of facts and the statement satisfied me beyond reasonable doubt that Mr Steurer engaged in the conduct required to establish the charge of murder.

Mr Steurer's mental state at the time of the killing

52. Counsel for the DPP then tendered psychiatric assessments of Mr Steurer prepared by three psychiatrists, whose qualifications are set out in Appendix B to this judgment. They were:

(a) report by Dr R K Gupta, Senior Specialist in Psychiatry, Phillip Health Centre, ACT Health, dated 17 July 2007;

(b) report by Dr William E Lucas, Consultant Forensic Psychiatrist, dated 29 October 2007; and

53. Each report was prepared, and assessed Mr Steurer's mental functioning, at a time relatively close to the time of the killing.

54. Dr Gupta has been Mr Steurer's treating psychiatrist since February 1987 (that is, for more than 20 years before the killing of Michael Steurer).

55. Dr Gupta diagnosed Mr Steurer as suffering from Schizophrenia ICD-10 Code; DSM-IV Code 295.60, and reported that, in 2007, he had suffered from the illness for at least 20 years. He explained that:

Schizophrenia is an illness characterised by specific psychological symptoms and leading, in the majority of cases, to a disorganisation of the personality of the patient. The symptoms interfere with the patient's thinking, emotions, conation, and motor behaviour, and with each in a characteristic way. The disorganisation of personality often results in chronic invalidism and life long disability.

56. Dr Gupta quoted lengthy extracts from Mayer-Gross, Slater and Roth, Clinical Psychiatry, Baillière, Tindall & Cassell, London, 3rd ed, 1970 to explain some of the significant disturbances affecting schizophrenic patients; I repeat much of the material quoted by Dr Gupta below, because it provides an explanation for many of Mr Steurer's most notable symptoms in a way that is relatively accessible to the lay reader:

DISTURBANCE OF EMOTIONS IN SCHIZOPHRENIA

Emotional blunting.

Emotional blunting in the established schizophrenic was regarded by Kraepelin as characteristic of the personality change in chronic cases. He spoke of "affective dementia" in contrast to the "intellectual dementia" seen in patients with demonstrable brain damage.

The loss of capacity for experiencing certain emotions may be an early symptom and, in some cases, for a long time the only sign of the disease. The flattening of emotional reaction progresses from the more refined and tender feelings of sympathy and regard for family and friends, to primitive emotions of fear, rage, hilarity and eroticism. The latter often persist when differentiated responses have long been blunted. The theory of a primary withdrawal can explain the schizophrenic's loss of interest in his appearance and his lack of regard for the feeling of others. It cannot, however, account for the rapid fluctuations of emotion observed in many schizophrenics, nor for the incongruity between affect and thought and action. Transient states of election, ecstasy, desolation, dread or panic, bewildering the patient, are frequent in early schizophrenia. They may occur in sudden bursts side by side with emotional blunting and the absence of warm human feelings. They may be the basis of delusional ideas or combine with primary delusions in an acute schizophrenic attack.

INCONGRUITY OF AFFECT IN SCHIZOPHRENIA

Incongruity of affect and accompanying thought can be considered as a further example of splitting of personality. It sometimes appears as if only the patient's expression of emotions is not in step with his flow of ideas or of talk. But from many descriptions the disassociation between feeling and thinking is beyond doubt. The appropriate emotion is in other cases only delayed in time so that the patient speaks of bereavement with carelessness followed by a flood of tears some time later when an indifferent subject is being discussed. A trifling affair may arouse wild fury and an incident pregnant with pathos may be treated with levity.

Blunting of emotion and the other primary emotional disturbances are partly or wholly responsible for callous and apparently motiveless crimes of violence, which sometimes are the first sign of a beginning schizophrenia (Wilmanns, 1922). They include homicide, suicide, sexual attacks or self-mutilation. The lack of feeling removes civilized restraint; but a delusional misinterpretation or a hallucinatory command may also contribute to the antisocial act. On the other hand, the weakness of will and indecision of the schizophrenic prevents the execution of such deeds in most cases where otherwise the risk might arise. The actual number of crimes committed by established schizophrenics is, in fact, relatively small.

DISTURBANCES OF VOLITION IN SCHIZOPHRENIA

Here again the most common disturbance is a blunting of will power, Berze's basic insufficiency of activity. Complaints of patients about the weakening of their will, their inability to make decisions or to act, are not rare; but many do not seem to realize their reduced activity and efficiency. They have ready, though often vague or empty, excuses if asked why they are inactive, spend their days in bed, and do not progress in their work; or they regard these matters as requiring no explanation.

The latter can be theoretically attributed to disturbance of the self. In fact, some workers have made the weakness or loss of the self the central symptom of schizophrenia. The passivity phenomena in which this loss is best seen are indeed very characteristic of schizophrenia. The patient tells us that his thoughts, feelings, speech and action are not his own. His thoughts are put into his head by an outside influence; his emotions are artificially made; he is made to laugh, to cry, to remain mute, to utter nonsensical words or obscene phrases, to perform bizarre movements, or to act against his will.

DELUSIONAL BELIEFS IN SCHIZOPHRENIA

Encapsulation of delusional ideas is frequently seen in residual states. Patients vary very much in the degree to which they can maintain their original personality and adapt to a normal life. Whether they live a more or less sheltered life, inside or outside hospital, depends on this. In some cases, one sees a longitudinal splitting, as it were, in the current of life; both the reality-adapted and the delusional world go on alongside each other. On certain occasions, e.g. when meeting certain relations, or a return to certain localities, or during an interview with the doctor who treated the patient early in his illness, the delusional complex comes to the surface and florid symptoms reappear. The chronic schizophrenic is at the mercy of the psychological situation in which he finds himself, a quality which can be used to his advantage therapeutically.

57. Dr Gupta then applies his understanding of schizophrenia to the transcript of Mr Steurer's police interview on the day his father was killed.

... during the interview Reinhold laughs when answering questions 125, 131, 140, 179, 195, 204, 206, 211, 235 and 236. These are Reinhold's inappropriate emotional responses to the demands of the situation and as such are typical and are diagnostic of Schizophrenia. Incongruent emotional reactions indicate advanced disease processes of Schizophrenia. His inappropriate emotional responses are a testimony to the illness he suffers namely Schizophrenia and also its effects on his mind causing the defect as evident in his emotionally incongruent laughter's [sic] in answering these questions.

58. As to the possibility that the earlier dispute about the carpentry activity (mentioned in the statement of facts set out at [50] above) is the trigger for stabbing his father, Dr Gupta says:

I therefore reject the notion that the carpentry dispute in itself is the trigger for the stabbing of Mr Michael Steurer. I am of the opinion that it is the thought that comes to him to stab his father, which is an important trigger in Reinhold's subsequent action. Dr Bonner in his assessment highlights the importance [of] this particular thought. This thought must be separated from what happened outside (the carpentry dispute) for the simple reason that Reinhold was not even himself aware outside that he was going to mortally wound his father. Dr Bonner refers to this type of thought as 'autochthonous' thought. A thought that has certain degree of sudden urgency about it and happens in schizophrenia. The reason that a patient fails to have any internal resistance to such thought or idea or impulse is that the illness process of schizophrenia erodes the patient's volitational capacity (capacity to be able to assert one's own will) as is described at the beginning of this report. Furthermore, such thought and its medico legal importance has been the subject of numerous rulings and over rulings by the courts of law.

... has an established diagnosis of Schizophrenia, which is a mental illness and falls within the realm of Mental illnesses in the International Classification of Mental illnesses well as in American classificatory Diagnostic and Statistical Manual for mental illnesses. Schizophrenia as it affects reasoning, all mental faculties and processes as a whole, it is a disease of mind as well.

Defect of Reason

It is my opinion that from his illness namely Chronic Schizophrenia, Mr Reinhold Steurer has developed such defect of reason of his mental abilities/faculties that at the time of committing the offence he was incapable of controlling his relevant act of mortally wounding his father.

It is clearly documented in Dr Bonner's interview of Mr Steurer (Dated 27.04.07) after he was arrested and was in remand that he (Reinhold) got the thought that he must stab his father. There was no internal resistance to this thought in Reinhold's mind arising from moral and emotional understanding of the rights and wrongs, which have been eroded by the pathological processes of Schizophrenia. He did not even for a split second think through about the emotional, social and legal consequences of what he was going to do. He was like a robot as his illness has made him so. He gets up goes to kitchen and picks up a knife and unable to stop himself he stabs his father. He has no mercy for as I quoted earlier from the textbook under the heading of emotions, the disease process has blunted the fine human qualities of care, consideration, love, regard, sympathy, empathy out. It would then appear Mr Steurer was driven by an overwhelming idea to stab his father without having been able to reason with some calmness, so know [sic] he ought not to stab his father, but still felt driven to do it.

60. Dr Gupta summarises his conclusions about Mr Steurer as follows:

In my opinion Mr Reinhold Steurer suffers from a mental illness being Chronic Schizophrenia. That he has no senility, no intellectual disability and no brain damage.

Mr Reinhold Steurer's said illness is of long standing duration and is of permanent nature. This is not a condition that in this case is a reaction of healthy mind to powerful extraordinary external stimuli. He continues to receive treatment and has always complied with treatment requirements. He has been a model patient in his treatment compliance as well as punctuality in work place as well as with his appointments at the Health Center.

It is my opinion that Mr Reinhold Steurer did not know the nature and quality of his conduct of mortally wounding his father (beyond very narrow cognitive knowledge) by reason of his illness being Chronic Schizophrenia, which has caused him impairment of his thinking, emotions, volitions and perceptions.

It is my opinion that Mr Reinhold Steurer at the time of killing his father did not know that his conduct was emotionally and morally wrong. He did not know the moral, social and personal consequences of such conduct either. Furthermore due to the nature of his illness he had no capacity to reason/provide an internal resistance with moderate or any degree of sense and composure about whether the conduct as perceived by reasonable people was wrong.

It is my opinion that Mr Reinhold Steurer's action at the time of mortally wounding his father i.e. 'stabbing' he was acting as a robot to his idea, thought, impulse due to his emotions, volition, thinking processes and indeed the sum total of all his mental faculties having been severely damaged by his long standing illness.

61. Dr Lucas provided a comprehensive assessment of Mr Steurer's history and general mental condition, and reported in detail on the accounts of the killing and its aftermath that were given by Mr Steurer and others. He emphasised the "high degree of emotional blunting and incongruous reactions, in effect, an absence of emotional reactions in any way appropriate to what had happened" that Mr Steurer had demonstrated in talking to police and to experts who had seen him shortly after the incident. His summary was as follows:

Mr Steurer was suffering from a mental impairment at the time he was killing his father.
The mental impairment was due to his mental illness, chronic paranoid schizophrenia.
Mr Steurer knew the nature and quality of the conduct. I refer to the physical nature and quality of his actions.
In my opinion Mr Steurer's mental state at the time, due to his mental illness, was such that he could not reason with a moderate degree of sense or composure about whether the conduct as perceived by reasonable people was wrong. By way of explanation, Mr Steurer's severe emotional blunting due to schizophrenia prevented him reasoning with a moderate degree of sense and composure. In addition, there may have been an element, not directly expressed by Mr Steurer, of his being influenced by a longstanding and apparently well encapsulated delusional beliefs about his father.
Mr Steurer's conduct was controlled and deliberate while stabbing his father but because of his schizophrenia it could be said that normal emotional control of his actions was absent or impaired.

62. That is, Dr Lucas believes that Mr Steurer did not know his conduct was wrong. Possibly he also believes that Mr Steurer could not control his conduct; Dr Lucas's use of "it could be said" is ambiguous - it is not clear to me whether this phrase expresses uncertainty about whether the particular words he has chosen are apt or uncertainty about the substance of the matter, namely whether Mr Steurer was really unable to control his conduct.

63. Dr Allnutt's report refers to a review on the papers, but Dr Allnutt has confirmed that he saw Mr Steurer twice in order to prepare the report. I note also that the headings in Dr Allnutt's report, and indeed his introduction, refer to Michael Steurer, the victim, but it is apparent that Dr Allnutt's assessment is in fact of Reinhold Steurer, the accused.

64. Dr Allnut made the following comments about Mr Steurer's mental state at the time of his father's killing:

The Defendant describes a number of delusional beliefs of a persecutory nature that were present at the material time that the alleged offence occurred. He also describes ongoing hallucinatory experiences and, in my view, based on my interview with him and a review of the material, there are reasonable grounds to conclude that at the material time that the alleged offence occurred the Defendant was suffering from a condition consistent with the legal definition of "mental impairment" in the form of psychosis.

Psychosis is a state of mind that impacts on a person's capacity to reason and to make rational interpretations about his environment. Striking in his account of his mental state at the time that I saw him was the strong impression I gained that the delusional beliefs that he held at the time that I saw him were probably present at the time of the alleged offence. His presentation when I saw him, whilst slightly improved was similar to that during the police interview. Given his history and the nature of symptoms he described to me including beliefs that he has special patents, that Justice Gunnow was involved in his patents; that he was previously in the Iraq War; that he had previously been an Admiral; that his father had previously shot him in the head; that people communicated him with through "prompts" and telepathically; added to this, probably cognitive impairments caused by his schizophrenia such as inflexibility in thought, and concrete thinking - I believe he was significantly impaired in his capacity to make rational interpretations about his environment or to have insight into his thought processes such that he suffered from a severe defect of reason.

65. Dr Allnut does not accept that Mr Steurer satisfies all three tests for avoiding criminal liability. He is not convinced about Mr Steurer's incapacity to know the nature and quality of his conduct or his inability to control his conduct, saying:

I do not believe, however, that he was so impaired by his mental impairment that he was incapable of knowing the nature and quality of his actions. That is, I believe that he maintained capacity to know that by stabbing his father in the chest around his heart he could potentially take his father's life. I am also of the view that he appreciated that his action could result in the death of his father.

I am not of the view that the Defendant lost capacity to control himself. I believe the Defendant acted in a deliberate manner and made a deliberate decision to act in that manner. While he might have been angry, I do not believe that his capacities to control himself were significantly eroded by his mental illness.

66. Dr Allnut is, however, convinced that Mr Steurer did not know that his conduct was wrong, saying:

I am of the view, however, that the Defendant was significantly [compromised] in his capacity to reason about the wrongfulness of the matter at the material time. While the Defendant does describe being aware to some degree of the wrongfulness of his actions around the time of the alleged offence, his description of his mental state was that he also felt entitled, and saw no other options but killing his father as a reasonable option. While his presentation at police interview and to others was on face, of an individual who coldly and callously took his father's life with little provocation and no apparent remorse, this presentation is due to an "erosion" of his cognitive faculties due to the long term effects of the disease of schizophrenia and not due to an underlying callous antisocial type of personality. As described by Dr Gupta, people with schizophrenia can manifest emotional blunting and appear disinterested or emotionally disconnected from tragic events that impact on them and others, and not uncommonly discuss acts such as their involvement in a homicide in dispassionate and seemingly matter of fact manner showing little evidence for remorse (if the person delusionally believes their actions were justified then this would be another reason to appear less regretful).

His description of events to me suggest that he was limited in his capacity to reason about the matter of wrongfulness with a moderate degree of sense of composure because of the impairments in his cognitive flexibility compounded by ongoing long-term delusional beliefs which might have included (at least at some level) a belief that his father had previously shot him (with possible associated feelings of resentment). In this sense, his belief that his father should die and that this was the best way of dealing with the situation could be regarded a delusional in and of itself. I believe that while aware that his actions were legally wrong he saw the stabbing of this father as justifiable as a consequence of his limited capacity to reason about the issue.

67. All three doctors agreed that Mr Steurer is a person of above-average intelligence, with no cognitive deficiency or impairment, no intellectual disability, no brain damage and no personality disorder. There was no suggestion that his auditory hallucinations influence his decisions.

68. There was general agreement that Mr Steurer suffers from chronic schizophrenia (described by Dr Lucas as "paranoid schizophrenia", and by Dr Allnutt as involving "persecutory delusion"), and that when he killed his father he did not know his conduct was wrong. Dr Gupta also believes that Mr Steurer did not know the nature and quality of his conduct, and he and possibly Dr Lucas also believe that at the time of the killing Mr Steurer was not, meaningfully, in control of his actions.

69. The reports of Drs Gupta, Allnutt and Lucas satisfied me on the balance of probabilities that at the time he killed his father, Mr Steurer was suffering from a mental impairment, being chronic schizophrenia, that meant at least that he did not know that his conduct in killing his father was wrong "in the sense that ordinary reasonable persons understand right and wrong".

70. I am not convinced on the balance of probabilities that Mr Steurer did not know the nature and quality of his conduct, and I do not need to consider what is covered by the test in s 28(1)(c) of the Criminal Code that a person is unable to control his or her actions, or specifically whether Mr Steurer was unable to control his actions within the meaning of that provision.

71. The finding that Mr Steurer did not know that his conduct was wrong was sufficient to satisfy me that a special verdict of not guilty because of mental impairment was an appropriate verdict for the purposes of s 321(2)(a) of the Crimes Act.

72. Counsel for the prosecution agreed to the entering of the special verdict.

73. Accordingly, I formally entered a special verdict that Reinhold Steurer was not guilty of the murder of his father, Michael Steurer, because of mental impairment.

74. When a special verdict is entered in relation to a serious offence, s 324 of the Crimes Act requires the court to make one of two possible orders, being:

(a) an order (which I shall refer to as a detention order), that the accused be detained in custody until the Administrative and Civil Appeals Tribunal (ACAT) orders otherwise; or

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

75. The detention order is the default order; the court may make an order that the accused submit to the jurisdiction of ACAT to enable the making of a mental health order only if satisfied, having regard to the criteria for detention in s 308 of the Crimes Act, that the latter order is more appropriate.

76. A decision about which order should be made under s 324 of the Crimes Act requires consideration of the criteria for detention set out in s 308. One of those matters is any recommendation made by ACAT about how the accused should be dealt with (s 308(e)). Accordingly, on 12 May 2009 I made an order seeking a recommendation for this purpose from ACAT. On 15 September 2009 ACAT replied recommending the making of a detention order rather than an order that Mr Steurer submit to the jurisdiction of ACAT to enable it to make a mental health order. In making that recommendation ACAT relied on the experts' reports provided to me and did not obtain further reports; noting that Mr Steurer's condition is of long standing and is not, in the view of any of the three doctors who reported, likely to change significantly, I do not have any concern about this approach.

77. ACAT's recommendation reflects its concerns that:

(a) if Mr Steurer were ordered to submit to the jurisdiction of ACAT, the processes for informing ACAT of the Court's decision and for holding an inquiry into the referral of the matter to ACAT may take weeks or even months (among other things, ACAT may need to obtain further psychiatric assessments), and until the process is completed and the mental health order (probably a psychiatric treatment order) is made, Mr Steurer would not be in custody;

(b) mental health orders tend to be made for periods of up to 6 months; for a person in Mr Steurer's circumstances to be kept under supervision for any significant period, this might require new mental health orders to be made on multiple occasions;

(c) it is not clear that repeated psychiatric treatment orders (or even a first such order) could be made in respect of Mr Steurer, given that ACAT is not convinced from a medical point of view that all the criteria for making the order would clearly be satisfied (among other things, the need for and the benefit of involuntary psychiatric treatment is far from clear - see ss 28(b), (c) and (d) of the Mental Health (Treatment and Care) Act 1994 (ACT)).

78. The other matters to be considered, and my comments on them in the context of the ACAT recommendations, are set out below.

The accused's mental condition and its implications for the future

(a) the nature and extent of the accused's mental impairment, including the effect it is likely to have on the person's behaviour in the future;

(b) whether or not, if released -

(i) the accused's health and safety is likely to be substantially impaired; or

(ii) the accused is likely to be a danger to the community.

80. Mr Steurer has been being treated for his current condition for over 20 years. With the one tragic exception that has given rise to these proceedings, he has apparently managed to live a relatively normal life for many years, including holding down a public service position for over 15 years. None of the psychiatric assessments suggest that the killing of his father indicated any general deterioration in Mr Steurer's condition or an increased risk of any further offending behaviour. Dr Allnut mentioned the possibility that Mr Steurer "had been acutely unwell at the time of the offence", and he cautioned that Mr Steurer "continues to manifest ongoing symptoms of a serious mental illness which could fluctuate over time". Dr Lucas reports an interview with Mr Steurer at the Belconnen Remand Centre shortly after his admission, and notes that the interviewer, a Ms Joelene Cravino, advised that there was "no indication of an acute psychotic episode", no new delusions, and an "unusual calm" considering his recent experiences. Dr Gupta reports that Mr Steurer continues to receive treatment and has been "a model patient".

81. Nor was there any suggestion that there is more treatment than has previously been available that should be provided to Mr Steurer. None of the three doctors indicated any expectation that Mr Steurer's current and long-standing condition is likely to improve; Dr Gupta specifically says that Mr Steurer's illness "is of long standing duration and is of permanent nature". Dr Gupta does caution that Mr Steurer may be at risk of self-harm, pointing out that in the "straight logic" often found in schizophrenia, Mr Steurer believes that since he killed his father he must also be killed.

82. On the other hand, the likely arrangements for Mr Steurer's care were he to be released immediately do not seem to be entirely reliable; Mr Steurer's mother is not young, and she may find her role in managing Mr Steurer's condition into the future more burdensome without the support previously provided by Mr Steurer's father. Counsel for the DPP suggested that I might have regard to the evidence of Mr Steurer's mother at the committal hearing, during which she asked the court to give Mr Steurer bail and said that he was "better off at home" and that "he wouldn't stab me".

83. Section 308(c) requires consideration of "the nature and circumstances of the offence with which the accused is charged". These are described in detail at [50] above. The offence was one which, absent mental impairment, would have been a truly horrific one which would certainly have required a lengthy term of imprisonment. However the relevance of this where mental impairment has been found is not clear; in relation to an accused who has been found not guilty, there should be no need for punishment or deterrence, and I note that the risk of danger to the community is separately addressed in s 308(b)(ii).

84. Section 308(d) sets out the principle "that a person should not be detained in a correctional centre unless no other reasonable option is available". Mr Steurer is currently on bail and living in Brian Hennessey House at Calvary Hospital. If this accommodation, which counsel for the prosecution advised was a "semi-secure facility", were available on a long-term basis it would in Mr Steurer's interests and in his mother's interests seem to be a reasonable and probably preferable alternative to confinement in the Alexander Maconochie Centre, and accommodating Mr Steurer there would not have any negative implications for the community more broadly. ACAT's letter included advice that if a detention order is made, Mr Steurer may be able to be released on conditions, which could include conditions as to his accommodation. Thus it may be that Mr Steurer could remain in, or return to, Brian Hennessy House even if a detention order is made.

85. Having regard to ACAT's recommendation and the reasons for it, and also to the likelihood that Mr Steurer's condition will not improve and to the possible options for Mr Steurer's accommodation under a detention order, I am not satisfied that instead of making a detention order, it would be more appropriate to order Mr Steurer to submit to the jurisdiction of ACAT so that it can make a mental health order. Therefore, I must make a detention order.

86. In conjunction with making a detention order, namely that Mr Steurer be detained until ACAT orders otherwise, s 302 of the Crimes Act requires me to indicate whether, if Mr Steurer had not been acquitted, I would have imposed a sentence of imprisonment and if so, to indicate a "best estimate" of what that sentence would have been. Section 303 prohibits me ordering detention for longer than the estimated sentence.

87. There are two problems that I see with these legislative requirements. Before explaining those problems and trying to estimate what sentence I would have imposed if Mr Steurer had been found guilty, it is useful to compare the ACT scheme, described in [32] to [38] above, with the NSW arrangements (I have focussed on the NSW arrangements largely because the non-ACT cases drawn to my attention have all been NSW cases).

88. The NSW arrangements are established by the Mental Health (Forensic Provisions) Act 1990 (NSW) (the NSW Mental Health Act). The following table compares the ACT and NSW arrangements. In each jurisdiction there is an alternative to a detention order but those alternatives are not relevant for present purposes. The shaded rows show the points of difference.

Order for detention and "best estimate" of prison term

Order for detention until released by due process of law

Order for detention and "best estimate" of prison term

Order for detention until released by due process of law

"Best estimate" of prison term (called "limiting term")

89. The NSW Mental Health Act (s 19(2)) provides for a special hearing for a person who is unfit to be tried (equivalent to a finding of unfitness to plead in the ACT). However, the purpose of the NSW special hearing is described in s 19(2) as:

... ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.

90. This contrasts with the ACT position described in [32] above, in that the ACT inquiry in a special hearing is only whether the person engaged in the relevant conduct, not whether he or she committed the offence.

91. As in the ACT, the special hearing is conducted "as nearly as possible" as if it were an ordinary criminal trial, although in NSW a judge-alone trial is the default position for a special hearing (s 21A of the NSW Mental Health Act).

92. The verdicts available at a NSW special hearing (s 22) are:

(b) not guilty on the grounds of mental illness; or

(c) that "on the limited evidence available, the accused person committed" the offence charged or an available alternative offence.

93. As in the ACT, a verdict of not guilty at a special hearing has the same effect as such a verdict reached at an ordinary trial (s 26 of the NSW Mental Health Act).

94. The consequences of a verdict at a NSW special hearing that "on the limited evidence available, the accused person committed" the offence charged or an alternative one are that the court:

(a) must indicate whether if the special hearing had been a normal trial it would have imposed a sentence of imprisonment; and

(b) if so, must nominate a "limiting term", described as the "best estimate" of the sentence the court would have considered appropriate if the person had been found guilty at such a trial (s 23).

95. The limiting term, like a normal sentence, is set by reference to the circumstances of the offence and the nature of the offender's culpability. The effect of the limiting term is to ensure that a person is not unfairly disadvantaged by the fact that the person is or has become unfit to participate in a normal criminal trial by the time the trial occurs (see ss 52(2) and 54). Once a limiting term is set, the Mental Health Review Tribunal makes determinations about where the person should be detained which it notifies to the court, and the court then makes an order for detention having regard to the Tribunal's determination.

96. If at a special hearing in NSW a verdict of not guilty on the grounds of mental illness is entered, the person is dealt with as if such a verdict had been reached at a normal criminal trial (s 25). In the ACT, however, an equivalent verdict ("not guilty because of mental impairment") is not available at a special hearing. The equivalent verdict is instead subsumed within the verdict that the person is found to have engaged in the relevant conduct.

97. The effect of these two different approaches is that in NSW the setting of a limiting term applies only to a person who is unfit to be tried but who has been found at a special hearing to have committed the offence charged, whereas in the ACT the "best estimate" requirement also applies to a person who, if fit to plead, would have been found not guilty because of mental impairment as well as to a person who is fit to plead and who has at a normal trial been found not guilty because of mental impairment.

98. By contrast, if in NSW a person is found not guilty on the grounds of mental illness, the court makes an order under s 39, being either an order that the person be detained until released by due process of law (which process involves a Judge or former Judge of the NSW Supreme Court) or an order that the person be released from custody. The focus is not on blame or punishment (actual or estimated) (see Hoeben J in R v SE, quoted at [31] above), but on ensuring the safety of the community and the accused. The requirements for ensuring community safety are not seen as bearing any necessary relationship to the gravity of the accused's actions, let alone to the gravity of those actions in the hypothetical case of the actions having taken place in the absence of mental illness.

99. The logic of the NSW approach seems to be that a person who continues to be a serious danger to him or herself or to the community may need to be detained for longer than would be justified by the offence if committed by a person who is not mentally impaired. The NSW arrangements give full discretion in how long such a person is detained to the Mental Health Review Tribunal; the requirement that the Tribunal must be headed for that purpose by a Judge or former Judge of the NSW Supreme Court presumably reflects a view that the requirements of justice must be observed in administering the person's detention. If the detention is related to the need for community safety (or the person's own safety), then the fact that the NSW approach may mean that a person is detained for longer than would be justified by the nature of his or her "offending" behaviour is beside the point. Indeed, it is possible that such a person might have been compulsorily detained under mental health arrangements even where there had been no offending behaviour.

R v REINHOLD STEURER [2009] ACTSC 150

At a glance

Court

Decision date

Source

Judgment (386 paragraphs)

R v REINHOLD STEURER [2009] ACTSC 150 (10 November 2009)

Parties

Legislation Cited (12)

Cases Cited (3)