SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: / R v Klobucar (No 4)Citation: / [2016] ACTSC348
Hearing Date(s): / 7 November 2016
Last written submissions received: /
22 November 2016
DecisionDate: / 25 November 2016
Before: / Penfold J
Decision: / The application for a stay of proceedings in respect of two charges of possession of a prohibited weapon (CC14/445 and CC14/446) is refused.
Catchwords: / CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Adjournment, Stay of Proceedings or Order Restraining Proceedings – application by accused for permanent stay of proceedings – two charges of unlawful possession of prohibited weapon – accused previously found not guilty by reason of mental impairment of charge of murder on same day as date of possession charges – Crown declined to consent to court entering special verdicts under s 321,Crimes Act 1900, or dismissing orders under s 334, Crimes Act1900 –whether conduct of Crown amounts to abuse of processor prosecutorial oppression –stay refused.
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – two charges of unlawful possession of prohibited weapon – application of s28,Criminal Code 2002 (mental impairment defence)to offences where conduct element consists of a state of affairs rather than conduct.
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – two charges of unlawful possession of prohibited weapon – power of the Supreme Court to make orders under s 334, Crimes Act 1900 – whether charges are back-up or related charges – whether s 334 requires causal link between offending and mental impairment –s 334 does not apply to charges.
Legislation Cited: / Crimes Act 1900 (ACT), ss 321, 334, 374, 375
Crimes (Sentencing) Act 2005 (ACT), s 7
Criminal Code 2002 (ACT), ss 11, 12, 13, 14, 15, 22, 28
Legislation Act 2001 (ACT), s190
Magistrates Court Act 1930 (ACT), ss 90A, 90B
Prohibited Weapons Act 1996 (ACT), ss 2B, 3, 4A, 5, Schedule1, Dictionary
Supreme Court Act 1933 (ACT), ss 68CA, 68D, 68E
Cases Cited: / He Kaw Teh v The Queen [1985] HCA46, 157 CLR 523
Jago v The District Court of New South Wales[1989] HCA 46; 168 CLR 23
Nelson v Heil [2013] ACTSC 11; 274 FLR 226
R v Klobucar (No 2) [2016] ACTSC 53
R v Klobucar (No 3) [2016] ACTSC 347
R v Martindale [1986] 1 WLR 1042
Walton v Gardiner[1993] HCA 77; 177 CLR 378
Texts Cited: / ACT Mental Health Review Committee, Legislative Assembly of the Australian Capital Territory, Balancing Rights (1990)
Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 16 June 1994, 2026, 2257-8 (Terry Connolly, Attorney-General)
Parties: / Danny Klobucar (Applicant)
The Queen (Respondent)
Representation: / Counsel
Mr J Purnell SC (Applicant)
Mr M Fernandez with Ms A Jamieson-Williams (Respondent)
Solicitors
Sharman Robertson Lawyers (Applicant)
ACT Director of Public Prosecutions (Respondent)
File Number: / SCC 214 of 2014
Introduction
1.In February and March 2016, Danny Klobucar was tried for the murder of Miodrag Gajic, who died around 11.00 am on 1 January 2014.The jury returned a verdict of not guilty by reason of mental impairment.By the time Mr Klobucar was released into a mental health facility in accordance with orders made by ACAT after the jury delivered its verdict, he had spent at least 804 daysin custody since his arrest on the day Mr Gajic was killed. That period in custody was taken into account when I set a best estimate of sentence for the killing of Mr Gajic: R v Klobucar (No 2) [2016] ACTSC 53.
2.At the trial evidence was given of:
(a)an attack, allegedly by Mr Klobucar, on one Francis McKeanon 5December 2013, less than four weeks before the killing of Mr Gajic;
(b)an incident in which Mr Klobucar allegedly damaged property, and spray-painted peculiar graffiti on the driveway, at the home of his friend, Steven Kitanovic, later on the day that Mr Gajic was killed;
(c)odd behaviour by Mr Klobucarin the evening of the day Mr Gajic was killed, as a result of which he was arrested that night, before his involvement in Mr Gajic’s death was suspected; and
(d)a search of Mr Klobucar’s vehicle after Mr Klobucar was arrested.
3.After Mr Klobucar’s arrest, he was charged with a variety of other offences arising out of some of the matters outlined at [2] above. So far, those charges have been dealt with as shown in the following table:
Charge no / Date of offence / Offence charged / Statusof chargeCC14/443 / 1/1/2014 / Burglary (Lighthouse Pub) / Plea of not guilty by reason of mental impairment entered 6/6/2016; Crown consented to entry of special verdict.
Verdict entered 25/11/16 under Crimes Act 1900 (ACT), s321. Resolved.
CC14/444 / 1/1/2014 / Common assault of Patrick Collins (Lighthouse Pub) / Withdrawn 6/6/2016.Resolved.
CC14/445 / 1/1/2014 / Possess prohibited weapon (butterfly knife) / Subject of stay application dated 11/7/2016.
CC14/446 / 1/1/2014 / Possess prohibited weapon (nunchakus) / Subject of stay application dated 11/7/2016.
CC14/447 / 1/1/2014 / Possess property reasonably suspected of being stolen (numberplate) / Withdrawn 6/6/2016.Resolved.
CC14/448 / 2/1/2014 / Refuse to provide a breath sample – repeat offender / Withdrawn 6/6/2016.Resolved.
CC14/449 / 1/1/2014 / Use unregistered vehicle / Withdrawn 6/6/2016.Resolved.
CC14/450 / 1/1/2014 / Use uninsured motor vehicle / Withdrawn 6/6/2016.Resolved.
CC14/451 / 1/1/2014 / Use vehicle with numberplate issued for another vehicle / Withdrawn 6/6/2016.Resolved.
CC14/452 / 1/1/2014 / Indecent exposure / Dismissed unconditionally 6/6/2016 under Crimes Act 1900 (ACT), s334(2)(b).Resolved.
CC14/1940 / 1/1/2014 / Damage property (door and glass panels, the Lighthouse Pub) / Notice declining to proceed filed by the Crown on 8 June 2016.Resolved.
CC14/1941 / 1/1/2014 / Affray / Dismissed unconditionally 6/6/2016 under Crimes Act 1900 (ACT), s334(2)(b).Resolved.
CC14/2594 / 1/1/2014 / Murder / Jury verdict of not guilty by reason of mental impairment. Resolved.
CC14/2875 / 5/12/2013 / Intentionally inflict grievous bodily harm on Francis McKean / Plea of not guilty by reason of mental impairment entered 6/6/2016; Crown consented to entry of special verdict;verdict entered 25/11/16 under Crimes Act 1900 (ACT), s321.Resolved.
Outstanding charges
4.As shown in the table, the only two outstanding charges are CC14/445 and CC14/446, two charges of possessing a prohibited weapon. The charges relate respectively to possession, on 1 January 2014, of a butterfly knife and a set of nunchakus, which were found in Mr Klobucar’s vehicle when it was searched after he was arrested at the Lighthouse Pub on the evening of Mr Gajic’s killing.
5.Evidence about the finding of the nunchakus in Mr Klobucar’s vehicle was given during the murder trial by Constable Richard York, who had gone to the Lighthouse Pub in Belconnen on the night of 1 January 2014, with some colleagues, in response to a report of a disturbance. When he arrived at the Lighthouse Pub he saw Mr Klobucar being restrained on the ground by four other men;Mr Klobucar then behaved aggressively towards police before he was eventually arrested and transported to the City Watch House in a caged police vehicle.
6.Constable York said that while he was at the Lighthouse Pub he became aware of a White Nissan Navara parked nearby; one of his colleagues, Sergeant Faram, subsequently searched the vehicle, and a set of blue nunchakus was among the items seized from the vehicle during that search.
7.Other evidence about Mr Klobucar’s possession of nunchakus was given by his uncle, Anthony Klobucar, who on the evening of 1 January 2014 had spent time with his father (Danny Klobucar’s grandfather). Danny Klobucar was already at the unit when his uncle arrived; Anthony Klobucar said that Danny had been drinking and had appeared “scattered, agitated and restless”.
8.Anthony Klobucar said that at some point during the evening Danny had brought a set of nunchakus into the house, and had “moved them about a bit”. Anthony Klobucar speculated that Danny had brought them in from his vehicle.
9.No evidence was led during the trial in relation to Mr Klobucar’s possession of a butterfly knife. However, the police statement of factsincluded in the papers provided to the Supreme Court when the possession charges were committed to the Courtalleges that police found the knifein the driver’s side door compartment of Mr Klobucar’s vehiclewhen it was searched outside the Lighthouse Pub following Mr Klobucar’s arrest. For present purposes, there does not seem to be any challenge to that allegation.
10.Having regard to the resolution of all other matters arising out of the events of the period from 5December 2013 to 2 January 2014, Mr Klobucar,or perhaps more accurately his lawyers, had apparently expected that these two charges would also be dealt withunder s321 or 334 of the Crimes Act 1900 (ACT), in reliance on the mental impairment Mr Klobucarwas found to have been suffering on 1 January 2014.However, the Crown has declined to give the necessary consents.
11.The Crown has its own view about how these two charges should be dealt with,and has indicated that if Mr Klobucar pleaded guilty to the two charges, the Crown would not press for any penalty more severe than could be addressed by reference to time served (Mr Klobucar having already spent well over two years in full-time custody before being tried for Mr Gajic’s murder).
12.Thus, in practical terms, what is at stake for Mr Klobucar is the recording of convictions on two charges of possessing prohibited weapons and, possibly, the recording of terms of imprisonment for those offences (although with no custody left to be served, either immediately or possibly later).
Application to stay outstanding charges
13.Counsel for Mr Klobucar says that the Crown, in declining to consent to the entry of special verdicts under s321 or the making of orders under s334, is engaging in an abuse of process, and that proceedings on the two charges should accordingly be permanently stayed.
14.Counsel has further submitted that, even if the Crown’s refusal to consent to such verdicts or orders is not an abuse of process, the continuation of proceedings in relation to the two offences would be futile and would bring the administration of justice into disrepute.
Can the charges be dealt with under s321 or 334?
15.The first question in considering the stay application is whether the Crown is correct in asserting that the charges do not fall within the scope of either s321 or 334 and that therefore the Crown has no power to consent to action being taken by the Supreme Court under either of those sections.
Relevant legislation
Crimes Act 1900
16.Sections 321 and 334 of the Crimes Actare relevantly as follows:
321Supreme Court—plea of not guilty because of mental impairment
(1)This section applies if an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court.
(2)The Supreme 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.
334Powers of Magistrates Court
(1)This section applies where, in proceedings to which this division applies before the Magistrates Court, that court is satisfied that—
(a)the accused is mentally impaired; and
(b)on an outline of the facts to be alleged in the proceedings, or any other evidence the Magistrates Court considers relevant, it would be appropriate to deal with the person under this division.
(2)If this section applies, the Magistrates Court may by order—
(a)dismiss the charge and require the accused to submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order or forensic mental health order; or
(b)dismiss the charge unconditionally.
(3)In determining whether to make an order under subsection (2) (a) or(b), the Magistrates Court shall have regard to—
(a)the nature and seriousness of the mental impairment; and
(b)the period for which the mental impairment is likely to continue; and
(c)the extent to which by reason of the accused’s mental impairment the accused is likely to do serious harm to himself or herself or others; and
(d)whether the ACAT could make an order under the Mental Health Act 2015, section 101 (Forensic psychiatric treatment order) or section 108 (Forensic community care order); and
(e)the seriousness of the alleged offence; and
(f)the antecedents of the accused; and
(g)the effectiveness of any order previously made under subsection (2) (a) or (b), including to the extent to which—
(i)the order assisted the accused to obtain appropriate treatment and care for his or her mental impairment; and
(ii)access to that treatment and care has enabled the accused to modify his or her behaviour, being behaviour of a kind that has previously resulted in the accused having been charged with an offence.
(4)Despite subsection (2), the Magistrates Court may only make an order under that subsection in relation to proceedings with respect to an indictable offence that may be heard and determined summarily with the consent of the director of public prosecutions.
...
Prohibited Weapons Act 1996
17.The possession offences arise under s5 of the Prohibited Weapons Act 1996 (ACT), which is relevantly as follows:
5Offence—unauthorised possession ... of prohibited weapons
A person commits an offence if the person—
(a)possesses ... a prohibited weapon; and
(b)is not authorised by a permit, or otherwise under this Act, to possess ... the weapon.
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
18.The concept of possession is explained in s3 of the Prohibited Weapons Act, which is relevantly as follows:
3Meaning of possession—Act
(1)For this Act, a person has possession of a prohibited weapon ... if the person—
(a)...
(b)has the weapon or article at premises owned, leased or occupied by the person; or
(c)...
19.The Dictionary to the Prohibited Weapons Act relevantly defines “premises” as meaning “the whole or any part of any ... vehicle ...”.
20.Both nunchakus and butterfly knives are specified in Schedule 1 to the Act, and each is therefore a “prohibited weapon” as defined ins 4A of the Prohibited Weapons Act.
21.By s2B of that Act, Chapter 2 of the Criminal Code 2002(ACT) applies to the prohibited weapons offence.
Criminal Code 2002
22.The operation of the Criminal Code in relation to establishing an offence is that the Crown must prove the existence of the physical elements of the offence and, for each physical element for which a fault element is required, the fault element or one of the fault elements for that physical element. The significant provisions of the Criminal Codefor this case are as follows:
11Elements
(1)An offence consists of physical elements and fault elements.
(2)However, the law that creates the offence may provide that there is no fault element for some or all of the physical elements.
(3)The law that creates the offence may provide different fault elements for different physical elements.
12Establishing guilt of offences
(1)A person must not be found guilty of committing an offence unless the following is proved:
(a)the existence of the physical elements that are, under the law creating the offence, relevant to establishing guilt;
(b)for each of the physical elements for which a fault element is required—the fault element or 1 of the fault elements for the physical element.
Note 1 See pt 2.6 on proof of criminal responsibility.
...
13Definitions—conduct and engage in conduct
In this Act:
conduct means an act, an omission to do an act or a state of affairs.
...
engage in conduct means—
(a)do an act; or
(b)omit to do an act.
14Physical elements
A physical element of an offence may be—
(a)conduct; or
...
15Voluntariness
(1)Conduct can only be a physical element if it is voluntary.
...
(4)If the conduct required for an offence consists only of a state of affairs, the state of affairs is voluntary only if it is a state of affairs over which the person is capable of exercising control.
...
22Offences that do not provide fault elements
(1)If the law creating an offence does not provide a fault element for a physical element that consists only of conduct, intention is the fault element for the physical element.
(2)...
23.Under s28 of the Criminal Code, which applies to offences to which chapter 2 of theCriminal Code applies, a person may escape criminal responsibility for an offence by reference to the effect of a mental impairment from which the person is suffering. Section 28 is relevantly as follows:
28Mental impairment and criminal responsibility
(1)A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that—
(a)the person did not know the nature and quality of the conduct; or
(b)the person did not know that the conduct was wrong; or
(c)the person could not control the conduct.
(2)For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.
(3)The question whether a person was suffering from a mental impairment is a question of fact.
(4)A person is presumed not to have been suffering from a mental impairment.
(5)The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.
(6)Theprosecution may rely on this section only if the court gives leave.
(7)If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must—
(a)for an offence dealt with before the Supreme Court—return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or
(b)for any other offence—find the person not guilty of the offence because of mental impairment.
Supreme Court Act 1933
24.Section 68CA of the Supreme Court Act 1933 (ACT) defines “back-up offence” and “related offence” for the purpose of s68D, which requires the Supreme Court, in specified circumstances, to exercise certain powers conferred by the Crimes Act on the Magistrates Court. Those provisions are relevantly as follows:
68CADefinitions––pt 8
In this part:
back-up offence, in relation to an indictable offence (the first indictable offence), means an offence––
(a)that is––
(i)a summary offence; or
(ii)an indictable offence that is capable of being dealt with summarily by the Magistrates Court under the Magistrates Court Act 1930, part 3.6 (Proceedings for offences punishable summarily); and
(b)at least some of the elements of which are similar to the elements that constitute the first indictable offence; and
(c)that is to be prosecuted on the same facts as the first indictable offence.
related offence, in relation to an indictable offence (the first indictable offence), means an offence, other than a back-up offence—
(a)that is––
(i)a summary offence; or
(ii)an indictable offence that is capable of being dealt with summarily by the Magistrates Court under the Magistrates Court Act 1930, part 3.6 (Proceedings for offences punishable summarily); and
(b)that arises from substantially the same circumstances as those from which the first indictable offence has arisen.
68DBack-up and related offences
(1)This section applies in the following circumstances:
(a)if the Magistrates Court commits an accused person for trial or sentencing to the Supreme Court under any of the following provisions of the Magistrates Court Act 1930: