SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v Klobucar (No 4)

Citation: [2016] ACTSC 348

Hearing Date(s): 7 November 2016

Last written submissions received: 22 November 2016

Decision Date: 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 Act 1900 – whether conduct of Crown amounts to abuse of process or prosecutorial oppression – stay refused.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – two charges of unlawful possession of prohibited weapon – application of s 28, 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, 375Crimes (Sentencing) Act 2005 (ACT), s 7Criminal Code 2002 (ACT), ss 11, 12, 13, 14, 15, 22, 28Legislation Act 2001 (ACT), s 190Magistrates Court Act 1930 (ACT), ss 90A, 90BProhibited Weapons Act 1996 (ACT), ss 2B, 3, 4A, 5, Schedule 1, Dictionary Supreme Court Act 1933 (ACT), ss 68CA, 68D, 68E

Cases Cited: He Kaw Teh v The Queen [1985] HCA 46, 157 CLR 523Jago v The District Court of New South Wales [1989] HCA 46; 168 CLR 23

Nelson v Heil [2013] ACTSC 11; 274 FLR 226R v Klobucar (No 2) [2016] ACTSC 53R v Klobucar (No 3) [2016] ACTSC 347R v Martindale [1986] 1 WLR 1042Walton 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: CounselMr J Purnell SC (Applicant)

Mr M Fernandez with Ms A Jamieson-Williams (Respondent)

SolicitorsSharman 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 days in 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 McKean on 5 December 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 Klobucar in 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:

2

Charge no Date of offence

Offence charged Status of charge

CC14/443 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), s 321. 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 vehicleWithdrawn 6/6/2016. Resolved.

CC14/452 1/1/2014 Indecent exposure Dismissed unconditionally 6/6/2016 under Crimes Act 1900 (ACT), s 334(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), s 334(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), s 321. 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,

3

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 facts included in the papers provided to the Supreme Court when the possession charges were committed to the Court alleges that police found the knife in the driver’s side door compartment of Mr Klobucar’s vehicle when 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 5 December 2013 to 2 January 2014, Mr Klobucar, or perhaps more accurately his lawyers, had apparently expected that these two charges would also be dealt with under s 321 or 334 of the Crimes Act 1900 (ACT), in reliance on the mental impairment Mr Klobucar was 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 s 321 or the making of orders under s 334, 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.

4

Can the charges be dealt with under s 321 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 s 321 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 Act are relevantly as follows:

321 Supreme 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.

334 Powers 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.

5

(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 s 5 of the Prohibited Weapons Act 1996 (ACT), which is relevantly as follows:

5 Offence—unauthorised possession ... of prohibited weaponsA 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 s 3 of the Prohibited Weapons Act, which is relevantly as follows:

3 Meaning 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 in s 4A of the Prohibited Weapons Act.

21. By s 2B 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 Code for this case are as follows:

11 Elements(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.

6

12 Establishing 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....

13 Definitions—conduct and engage in conductIn 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.

14 Physical elementsA physical element of an offence may be—

(a) conduct; or

...

15 Voluntariness(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.

...

22 Offences 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 s 28 of the Criminal Code, which applies to offences to which chapter 2 of the Criminal 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:

28 Mental 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.

7

(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) The prosecution 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 s 68D, 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:

68CA Definitions––pt 8In 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.

8

68D Back-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:

(i) section 90B (Back-up and related offences––transfer to Supreme Court);

...

(b) at the conclusion of the trial of an accused person for an indictable offence, or in the course of a sentencing proceeding.

(2) The court must deal with any back-up or related offence with which the accused person has been charged if the court considers that it is in the interests of justice.

Magistrates Court Act 1930

25. The primary significance of the definitions of back-up and related offences in the Supreme Court Act is that when an accused is, under s 90A(7) of the Magistrates Court Act 1930 (ACT), committed for trial on an indictable offence, s 90B of the Magistrates Court Act requires proceedings for any back-up or related offences also to be transferred to the Supreme Court. Section 90B of the Magistrates Court Act is as follows:

90B Back-up and related offences––transfer to Supreme Court(1) This section applies if a person (the accused person)––

(a) is committed for trial under section 90A (7); and

(b) has been charged with a back-up or related offence.

Note Back-up offence and related offence––see the dictionary.

(2) The prosecutor must tell the court about the back-up or related offence.

(3) The court must transfer the proceeding for the back-up or related offence to the Supreme Court, to be dealt with under the Supreme Court Act 1933, part 8 (Back-up and related offences).

(4) Subsection (3) does not prevent the accused person being charged with an offence after committal under section 90A (7).

(5) However, if the accused person is charged with a back-up or related offence after committal under section 90A (7), the court must transfer the proceeding for the offence to the Supreme Court, to be dealt with under the Supreme Court Act 1933, part 8.

26. The dictionary to the Magistrates Court Act adopts the definitions of “back-up offence” and “related offence” set out in s 68CA of the Supreme Court Act.

Could the weapons offences be established?

27. In the context of the stay application, counsel for Mr Klobucar made general submissions to the effect that the weapons offences could not in any case be established by the Crown, given the state of the evidence. He submitted that:

there is no evidence that Klobucar even knew the weapons were in the car and there is no evidence of Klobucar having any reason for having those weapons in the car and there is no evidence of how long those weapons had been in the car and there is no evidence of why those items were in the car or who owned those weapons (emphasis in original)

9

28. The submission appears to be incorrect to the extent that the evidence at Mr Klobucar’s trial was that when he visited his grandfather on the evening of 1 January 2014, some hours before his arrest (at [8] above), he had arrived in the vehicle that was later seized, and had at one point brought in the nunchakus observed by his uncle.

29. Apart from that, the submission appears to be largely irrelevant in that in this case, none of the matters identified by counsel need be proved in order to make out the offence of possession.

30. The evidence identified at [5] to [8] above about the nunchakus would in my view satisfy the definition of possession for the purposes of s 5 of the Prohibited Weapons Act, and would establish that it was Mr Klobucar who had that possession. The Crown would presumably be able to prove the absence of authorisation if that were the case. Matters such as the period for which the weapon had been in Mr Klobucar’s vehicle and his reason for having it in his vehicle would be irrelevant.

31. The same could presumably be said about the butterfly knife, although at this stage I have seen no direct evidence as such of Mr Klobucar’s possession of the knife. As noted at [9] above, the seizure of the butterfly knife was mentioned in the original police statement of facts, and in its written submissions, the Crown stated that Sergeant Faram seized the butterfly knife from the pocket of the driver’s side door of Mr Klobucar’s vehicle. Presumably this, and any absence of authorisation to possess the knife, could be proved by evidence if it becomes necessary. As noted below, if there is in fact any gap in the evidence about the butterfly knife, that would emerge in the normal processes of dealing with the charge, and would not be appropriately dealt with by a stay.

32. It may be, as defence counsel implied in his submissions, that Mr Klobucar’s knowledge of the presence of the weapons, or at least of the butterfly knife, in his vehicle would not be able to be inferred from the other evidence in the Crown case, having regard to the clear evidence of his disordered mental state on 1 January 2014 (although I note the case of R v Martindale [1986] 1 WLR 1042 at 1044 as authority for the proposition that simply having forgotten about possessing something does not provide a defence).

33. It may even be that in a trial of the weapons offences, the Crown would be required to prove both that Mr Klobucar had knowledge of his possession of the weapons and that there was no honest and reasonable mistake involved in relation to that possession (eg about whether he was authorised to possess them). However, the possible inadequacy of the Crown evidence is not relevant either to the entry of a mental impairment verdict or to the dismissal of the charges under s 334 of the Crimes Act. To the contrary, the inadequacy of the Crown case, if such emerged at trial, would establish Mr Klobucar’s entitlement to an acquittal, not to a disposal of the charges in a way that assumes a form of responsibility.

34. I note also that the making of submissions challenging the Crown’s capacity to establish the physical elements of the weapons offences raises difficult questions for the defence in the context of Mr Klobucar having pleaded not guilty by reason of mental impairment to those two offences. However, I do not see any need to pursue those questions in the current context.

10

Mental impairment verdict (s 321, Crimes Act)?

35. On 6 June 2016, Mr Klobucar was arraigned on the two weapons charge, and entered pleas of not guilty by reason of mental impairment. However, as mentioned, the Crown has declined to consent under s 321(2)(b) to the entry of special verdicts (not guilty by reason of mental impairment) in respect of those charges.

36. There does not appear to be any challenge to the assertions that the two weapons were prohibited weapons, that they were found in Mr Klobucar’s vehicle on 1 January 2014, and that Mr Klobucar was not authorised to possess them. Thus, it seems that the elements of each offence could be made out (although as already noted, so far no evidence of the location of the butterfly knife has been identified). In any case, the entry of pleas of not guilty by reason of mental impairment themselves imply an admission by the accused to the conduct constituting the offence.

37. The Crown does not dispute the evidence given in the murder trial, or the jury’s conclusion in that trial, that on 1 January 2014 Mr Klobucar was suffering from a mental impairment.

38. The Crown’s reason for refusing to consent to the entry of special verdicts in relation to the weapons offences is, in general terms, that although the weapons offences were committed on the day of Mr Gajic’s death, there is no reason to accept that any relevant conduct on Mr Klobucar’s part:

(a) took place while Mr Klobucar was mentally impaired; or

(b) reflected, or resulted in any way from, his mental impairment.

39. On that basis, the Crown says, s 28 of the Criminal Code could not relieve Mr Klobucar of criminal responsibility for the offences, and therefore a verdict of not guilty by reason of mental impairment under s 321 of the Crimes Act could not be “appropriate”, and the Crown cannot consent to it being entered.

40. The Crown did not in its original submissions expand on the nature of the “relevant conduct” mentioned at [38] above, or explain why s 28 did not relieve Mr Klobucar from criminal liability for it. After I raised my interpretation of s 28 with the parties, and gave an opportunity to provide further submissions about that issue, the Crown made written submissions essentially adopting the conclusions set out below.

41. In my view, a careful examination of the Criminal Code provisions set out at [22] above suggests (although not for the reasons originally put forward by the Crown) that s 28 has no application to the possession offences.

42. By s 13 of the Criminal Code, conduct means an act, an omission to do an act or a state of affairs, but to engage in conduct means to do an act or omit to do an act. That is, there is no definition of engaging in conduct in relation to conduct that consists of a state of affairs. A possession offence may involve only a state of affairs (He Kaw Teh v The Queen [1985] HCA 46, 157 CLR 523 at 564, Brennan J), and that seems to be the current case.

43. Thus, there is no concept under the Criminal Code of engaging in conduct that constitutes the weapons offences in this case, and therefore nothing that can be identified as “carrying out the conduct required for the offence” for the purpose of an application of s 28. It is unfortunate that ss 13 and s 28 of the Criminal Code refer respectively to “engaging in” and “carrying out” conduct, but I cannot see any basis on

11

which to give those expressions different meanings in this context, nor any particular different meanings that could be attributed to them.

44. If there is no aspect of the possession offence to which s 28 can sensibly be applied, then there is no need to consider, for instance, the conduct engaged in by someone at some time before the weapons were found in Mr Klobucar’s vehicle that resulted in him being apparently in possession of the weapons on the date specified in the charge, or anything else beyond the factual basis for finding a state of affairs (possession of the weapons) that can be attributed to Mr Klobucar (see [36] above).

45. In short, I cannot see any basis for a finding that s 28 of the Criminal Code is applicable in relation to the weapons charges, and could excuse Mr Klobucar from criminal responsibility for either of the weapons offences.

46. In those circumstances, it cannot be said that the Crown is acting unreasonably in declining to consent to the entry of verdicts of not guilty by reason of mental impairment in relation to the two weapons charges. Rather, the Crown could not properly consent to such verdicts.

47. I note in passing the submission made on behalf of Mr Klobucar to the effect that other charges have been, or will be, addressed by reference to the mental impairment he suffered in late 2013 and early 2014 despite the absence of psychiatric evidence specifically linking his mental state with the offences concerned, and that therefore his mental impairment should also be able to be relied on in relation to the weapons offences.

48. That submission is not correct, in that there is a report from psychiatrist Dr Carroll linking Mr Klobucar’s attack on Mr McKean, and the burglary at the Lighthouse Pub, with his mental impairment (referred to at [48] to [51] in R v Klobucar (No 3) [2016] ACTSC 347). If it had been necessary (as to which see [66] to [73] below), Dr Carroll’s opinion would also have provided a basis for dismissing, by reference to mental impairment, the charges of affray and indecent exposure which were committed at the Lighthouse Pub in the course of the burglary.

49. The submission is misleading, in that it overlooks the fact that a number of other charges arising directly or indirectly from the events at the Lighthouse Pub were simply withdrawn, or not proceeded with, with no reference to mental impairment.

50. The submission is irrelevant given my conclusion that s 28 of the Criminal Code is not available in relation to the weapons offences because there is no relevant “conduct” to which s 28 can be applied.

Dismissal of charges (s 334, Crimes Act)?

51. Counsel for Mr Klobucar has submitted that the two weapons charges should be dismissed under s 334(2) by reference to Mr Klobucar’s mental impairment, but the Crown has declined to consent, as required by s 334(4), to the charges being dealt with in that way.

52. In support of his submission, counsel for Mr Klobucar noted that I had under s 334, with the consent of the Crown, dismissed two other charges that were “related to the burglary and weapons offences”.

12

53. The reason given for the Crown’s position in relation to s 334 is:

(a) that the powers under s 334 are only available to the Supreme Court in relation to “back-up” or “related” charges transferred from the Magistrates Court;

(b) that the weapons charges are not “back-up” or “related” charges; and

(c) that therefore the Supreme Court has no power to deal with the charges under s 334.

54. Further, the Crown says, s 334 requires a connection between the relevant mental impairment and the matters giving rise to the charges, but no such connection has been shown and no such connection can be discerned.

Powers of Supreme Court under s 334

55. On its face, s 334 only confers power on the Magistrates Court. However, s 68E(3) of the Supreme Court Act gives the Supreme Court the same powers as the Magistrates Court in relation to a “back-up offence” or “related offence” as defined in s 68CA (at [24] above).

Were the weapons offences transferred as “back-up” or “related” offences?

56. The weapons charges arise under s 5 of the Prohibited Weapons Act (at [17] above), and carry a maximum penalty of 500 penalty units and 5 years imprisonment. As such, those offences are indictable offences (s 190, Legislation Act 2001 (ACT)) capable of being dealt with summarily (ss 374 and 375, Crimes Act). They are to that extent capable of satisfying the definitions of “back-up” offences and “related” offences. However, that does not establish that in this case they are back-up or related offences.

57. In s 68CA, “back-up” and “related” offences are defined “in relation to” indictable offences. Such an offence must bear a specified relationship to a particular indictable offence; either:

(a) it must have some elements in common with the indictable offence, and must be prosecuted on the same facts; or

(b) it must arise from substantially the same circumstances as the indictable offence.

58. Section 90B of the Magistrates Court Act provides for proceedings in relation to back-up and related offences to be transferred to the Supreme Court when a person is committed to the Supreme Court for trial. Although it is not explicit, I consider it clear that s 90B provides for the transfer of offences that are back-up or related offences in relation to an offence in respect of which the person is committed to the Supreme Court for trial under s 90A(7). Section 90B does not in my view permit the transfer to the Supreme Court, when an accused is committed for trial on an indictable offence, of all other outstanding charges which the accused happens to be facing, merely because they are summary or capable of being dealt with summarily and irrespective of their connection or lack of connection with the indictable offence committed for trial.

59. Defence counsel submitted that the weapons offences are “related” to the burglary offence committed at the Lighthouse Pub on the evening of 1 January 2014 in that they arise from substantially the same circumstances as the burglary, and noted that the

13

evidence of Constables Faram and York given in the murder trial demonstrates the “contemporaneity and circumstances” of the burglary and weapons charges. I am not convinced that the weapons offences “arise from substantially the same circumstances” as the burglary offence, although it is true that they came to light on the day of the burglary and that they came to light after police arrested Mr Klobucar in relation to the burglary and searched his vehicle.

60. In this case, however, there is no need to examine in any more depth the question whether the weapons offences could be found to be “related” to the burglary. The court files, which contain the formal notices by which the various offences identified in the table at [3] above came to the Supreme Court, are quite clear:

(a) six charges were committed to the Supreme Court for trial, being charges of murder, intentionally inflict grievous bodily harm, burglary, damage property and the two charges of possess a prohibited weapon (CC14/445 and CC14/446); and

(b) eight other charges (including indecent exposure and affray) were transferred to the Supreme Court under s 90B of the Magistrates Court Act.

61. I note in passing that neither the s 90B transfer document, nor anything else I have been able to find on the court files, identifies the indictable offences in relation to which the eight charges were transferred under s 90B. This seems to me to be an inadequate exercise of the power under s 90B, but fortunately it is not a problem in the current context. In this case, what is relevantly clear is that neither of the weapons charges was transferred to the Supreme Court under s 90B, and both of them were simply committed for trial. Accordingly, neither of them has been identified, or transferred, as a back-up or related offence for the purpose of s 68CA of the Supreme Court Act and therefore the Supreme Court has no power to dismiss them under s 334 of the Crimes Act.

62. It is true that, as submitted by counsel for Mr Klobucar, charges of affray and indecent exposure were dismissed unconditionally under s 334, and that they were in general terms “related” to the burglary offence: the indecent exposure took place in the course of Mr Klobucar’s attempts to force his way into the Lighthouse Pub, and the affray took place after he effected the burglary by achieving entry to those premises.

63. However, the only connection between the weapons offences and the burglary offence was that after the course of conduct involving the burglary, indecent exposure and affray, Mr Klobucar was arrested, and after he was arrested his vehicle was searched, and during that search the weapons were discovered.

64. In any case, as already noted at [60] above, the indecent exposure and affray charges were transferred to the Supreme Court as back-up or related charges, and accordingly could be dealt with in the Supreme Court under s 334 of the Crimes Act. The weapons charges were not so transferred and are not able to be dealt with under s 334.

65. The conclusion that the weapons charges cannot be dealt with under s 334 means that I do not need to address the Crown’s fall-back submission that s 334 only permits the dismissal of a charge against a mentally impaired person where there is a connection between the mental impairment and the matters giving rise to the charge.

14

Does s 334 require a causal link between offending and mental impairment?

66. However, since there has been considerable argument, during the proceedings relating to these charges, about the need under s 334 for a causal connection between the alleged offending and the mental impairment, I make the following comments.

67. First, I note that s 334(1) specifies two conditions for the exercise of the power conferred by the section, being that the accused is mentally impaired and that, having regard to the alleged facts or relevant evidence, “it would be appropriate to deal with the person under [division 13.6]”. Neither s 334(1) nor any other provision of s 334 explicitly requires that there be a causal link between the mental impairment and the subject of the charge. The test set out in s 334 for the Magistrate is simply whether it would be “appropriate” to deal with the person by dismissing the charge.

68. Section 334(3) sets out a list of eight matters to which the Magistrate is to have regard “in deciding whether to dismiss the charge under s 334(2)(a) or s 334(2)(b)”. That provision is arguably ambiguous. It might mean:

in deciding whether to make any order under the section and, if an order is to be made, in deciding whether to make an order of the kind specified in s 334(2)(a) or an order of the kind specified in s 334(2)(b)

69. Alternatively it might only mean:

in deciding, having decided to make an order under the section, whether to make an order of the kind specified in s 334(2)(a) or an order of the kind specified in s 334(2)(b)

70. However, having regard to the matters listed in s 334(3), this ambiguity may not matter. The matters listed could all be relevant in deciding whether it is appropriate to make any order under s 334, and also in deciding which order under s 334(2) to make, but nothing in the list, nor the combined effect of the list, renders a causal connection between the mental impairment and the offending a clear pre-requisite to making any order under s 334. For instance, ss 334(3)(c) and (g) direct the Magistrate’s attention, among other things, to the opportunity for making orders in the offender’s own interests, not only in the community’s interests. I can see no reason to read those provisions as implicitly relevant only to a mentally-impaired offender whose offending can be directly linked to his or her mental impairment, rather than to any mentally-impaired offender whose offending has brought him or her to the attention of the criminal justice system.

71. I also note in this context the detailed discussion of the operation of s 334 in Nelson v Heil [2013] ACTSC 11; 274 FLR 226 (Nelson). Refshauge J began his review of the history of the legislation (at [2]) by quoting a report to the ACT Legislative Assembly entitled Balancing Rights (1990), in which the Review Committee recommended conferring a power on the court “to discharge the person or refer the person into the mental health system for care, treatment and protection” where, among other things, an offender’s mental illness “has not been found relevant to the offence”.

72. His Honour’s identification of the provision as a diversionary provision (at [61]) is also consistent with a reading of the section as potentially applicable to any offender whose offending has brought him or her into the criminal justice system. His Honour’s response to the submission made in Nelson, that the Chief Magistrate should not have considered whether the alleged offending was related to the appellant’s mental illness, was to point out (at [25]) that “such an issue must ordinarily be included in a consideration of the seriousness of the offence” (as required by s 334(3)(e)). However,

15

his Honour did not suggest that s 334 could only be applied where there was a causal relationship between the alleged offence and the mental illness.

73. Nor can any requirement for a causal connection be found in the Presentation Speech in relation to the Bill that became the Crimes (Amendment) Act 1994 (ACT) (Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 16 June 1994, 2026, 2257-8 (Terry Connolly, Attorney-General)), quoted by Refshauge J in Nelson at [4], which noted only that:

A Magistrate may conclude that, having regard to the person’s mental dysfunction and the minor nature of the alleged offence, it is appropriate that the charge be dismissed and the person be referred to the mental health authorities.

Conclusions – availability of ss 321 and 334, Crimes Act

74. In summary, while accepting that on the date specified in the two weapons charges, 1 January 2014, Mr Klobucar was suffering from a mental impairment:

(a) I consider that s 28 of the Criminal Code has no application in relation to the charges of possessing prohibited weapons and therefore that there would be no scope for entering a verdict under s 321 of the Crimes Act even if the Crown purported to consent; and

(b) I am satisfied that the Supreme Court has no power to deal with the weapons charges under s 334 of the Crimes Act even if the Crown purported to consent.

The stay application

75. In final submissions, counsel for Mr Klobucar identified what he submitted were 10 grounds for granting a permanent stay, and said that “any one of [them] entitles and enables the Court to order a permanent stay”. They were as follows:

(i) doomed to fail;

(ii) prosecutorial oppression;

(iii) the refusal of the DPP to discontinue these minor matters in the circumstances of this matter;

(iv) the refusal of the DPP to consent to a dismissal of the charges under s.334 (4) of the Crimes Act 1900 because of mental impairment;

(v) the refusal of the DPP to consent to a verdict of not guilty due to mental impairment under s.321 of the Crimes Act 1900;

(vi) not granting the permanent stay in the factual matrix and history of this case is capable of bringing the administration of justice into disrepute;

(vii) not granting the permanent stay in the factual matrix and history of this case would be to cause a waste of the Court’s time and tax payers’ money because even if convicted the prosecution agree that “time served” is sufficient punishment;

(viii) not granting a permanent stay in the factual matrix and history of this case would be manifestly unfair to the applicant as he was mentally ill and mentally impaired at the relevant time (1 January 2014) suffering from schizophrenia and psychotic delusions;

(ix) not granting a permanent stay in the factual matrix and history of this case would be allowing the court process to be brought into disrepute among right thinking people;

16

(x) As per Gaudron J in JAGO the categories for the grant of a permanent stay are not closed and the Court itself is entitled to categorise a basis for a permanent stay.

Failure to consent to orders under s 321 or 334

76. If neither s 321 nor s 334 of the Crimes Act is applicable in this case, then the Crown could not consent to the charges being dealt with under either of those sections, and accordingly the Crown’s refusal to give such consent could not justify the submission made on behalf of Mr Klobucar that the Crown’s pursuit of the two charges is itself a basis for permanently staying proceedings on those charges. Counsel conceded that this conclusion would eliminate grounds (i), (iv) and (v).

Likely outcome of proceedings

77. As noted, the Crown has indicated that, if Mr Klobucar were to plead guilty to the two weapons charges, it would not press for any sentence that could not be finalised in reliance on “time served” since Mr Klobucar’s arrest on 1 January 2014. In these circumstances, defence counsel said in written submissions:

in the factual matrix of this case and the disposition thus far of the charges of murder, recklessly inflicting grievous bodily harm and burglary it would be both manifestly unfair and bring the administration of justice into disrepute to now have either a judge alone trial or a jury trial on the 2 charges of possess prohibited weapons wherein the end result would almost certainly be not guilty by reason of mental impairment or a sentence of time served if convicted. Thus no legitimate forensic or prosecutorial purpose is justifiable.

78. This argument generally addresses all the remaining grounds set out at [75] above.

Options for finalising the weapons charges

79. Despite counsel’s submissions, a trial of some sort is not the only way of finalising the weapons charges if they are not stayed. The two charges could be dropped by the Crown, or they could be resolved by Mr Klobucar pleading guilty to those charges. That is, the failure of the stay application would not render a trial inevitable.

80. As noted at [36] above, there is evidence on which to base a finding that the state of affairs aspect of the weapons offences is satisfied, specifically that the two weapons were in Mr Klobucar’s possession without authorisation. At [45] above, I have concluded that there is no scope for mental impairment verdicts in relation to those two charges. Nor is there any suggestion that Mr Klobucar is currently unfit to plead. There is nothing in the evidence available to me at this stage to suggest that if Mr Klobucar pleaded guilty to the weapons charges, the court would be obliged for any reason to reject those pleas.

Consideration

Unfairness to Mr Klobucar?

81. Counsel offered various explanations of why it would be unfair to Mr Klobucar to pursue a trial on the two weapons charges.

82. Counsel said that pursuing a trial would:

give rise to an unfairness to Klobucar who was then suffering from paranoid schizophrenia as well as being mentally impaired. (emphasis added)

83. This submission does not advance Mr Klobucar’s position, for two reasons.

17

84. First, the mental impairment Mr Klobucar was suffering on 1 January 2014 reflected what had been diagnosed as paranoid schizophrenia or another similar disorder; his mental impairment was not a separate condition suffered by Mr Klobucar “as well” as that diagnosed condition. Nor can I see any basis for a general proposition (albeit irrelevant in this case) that a person who is unfortunate enough to suffer two different kinds of mental difficulties should thereby be excused from having his or her offending behaviour dealt with appropriately.

85. Secondly, counsel’s submission appears to be to the effect that it is unfair to apply the proper processes of the law to a person who has at some point engaged in conduct that might have constituted an offence but for the effect of a contemporaneous mental impairment. That is a curious submission, because the proper processes of the law include a detailed set of processes specifically intended to deal fairly with exactly such circumstances. I cannot see what is unfair about applying such processes.

86. Although counsel for Mr Klobucar did in earlier submissions describe the Crown’s pursuit of the weapons charges as “a complete waste of taxpayers’ money”, he did not identify the costs imposed on the defence by the Crown’s approach as an aspect of unfairness to Mr Klobucar. Nevertheless I note in this context that the fact that the weapons charges could be dealt with by way of guilty pleas that would not be obviously inappropriate, and sentences of “time served”, means that they need not impose more than a minor financial burden on whoever is funding Mr Klobucar’s defence. Even a defended trial would be short and straightforward, unless it involved a defence case quite different from anything that has been put so far.

87. Furthermore, having regard to the evidence, I cannot see that there would be any unfairness in an outcome that involved the recording of justifiable convictions on the weapons charges. If there is a reason why the recording of convictions would be unfair to Mr Klobucar independently of the matters already raised in support of a stay, that could be identified in any sentencing process that followed either a trial or pleas of guilty.

Bringing the administration of justice into disrepute?

88. Nor is it clear why the Crown’s pursuit of the two weapons charges would bring the administration of justice into disrepute.

89. Counsel for Mr Klobucar submitted that the Crown’s pursuit of the weapons offences would be “futile” in that it would not have any practical impact, would therefore be “a complete waste of taxpayers’ money”, and would serve “no legitimate forensic or prosecutorial purpose”.

90. It is certainly true, as already noted, that the resolution of the charges, whether by guilty pleas or by any of the likely outcomes of a trial, will have little or no practical effect on Mr Klobucar.

91. However, it is clear that criminal processes, and especially the imposition of sentences, have a significance beyond their impact on the particular offender. Of the sentencing purposes identified in s 7 of the Crimes (Sentencing) Act 2005 (ACT), at least general deterrence (s 7(1)(b)) and denunciation (s 7(1)(f)) may be significant irrespective of the fact that the circumstances of a particular offender may mean that a sentence imposed on him or her has no practical impact. General deterrence in particular may have a substantive significance in connection with offences such as possession of prohibited

18

weapons. Thus it cannot be said that, in the current context, it is necessarily futile for the Crown to pursue the finalisation of the weapons charges when it will have no practical effect on Mr Klobucar, or that pursuing those charges constitutes “prosecutorial oppression” or an abuse of process.

92. Counsel for Mr Klobucar referred me to Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 395-6, in which the majority (Mason CJ, Deane and Dawson JJ) said:

As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. (citations omitted)

93. Counsel submitted that “in this case the weighing process resoundingly falls in favour of a permanent stay”, but without explaining how the matters claimed to justify a stay should be weighed against the public interest matters identified in Walton v Gardiner. Since I have not found that any of the circumstances relied on to justify a stay carry any weight, this submission must fail.

Categories for a grant of a permanent stay are not closed

94. I assume that ground (x) for the grant of a stay set out at [75] above is a reference to Gaudron J’s statement, made in Jago v The District Court of New South Wales [1989] HCA 46; 168 CLR 23 (Jago) at 74 in the context of an application for a permanent stay of criminal proceedings due to delay, that:

The power of a court to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands. (citations omitted)

95. Clearly this comment is not of itself a ground for granting a stay in any particular case. In Jago, her Honour went on at 77-78 to say:

The features which attend the criminal process enable the general considerations to be refined somewhat in their application to the grant of a permanent stay of criminal proceedings. One particular feature relevant to criminal proceedings is that the question whether an indictment should be presented is and always has been seen as involving the exercise of an independent discretion inhering in prosecution authorities, which discretion is not reviewable by the courts. Originally, the unreviewable nature of that discretion was seen as an aspect of the prerogative power vested in the office of Attorney-General. ... More recently, the unreviewable nature of that discretion has been seen as deriving from the nature of the subject matter to be decided and, perhaps, the incompatibility of judicial review with the ultimate function of a court in a criminal trial. ... Thus, it may be said that the power to grant a permanent stay of criminal proceedings is not to be exercised on the basis of an opinion that an indictment should not have been presented.

Another feature attending criminal proceedings and relevant to the grant of a permanent stay thereof is that a trial judge, by reason of the duty to ensure the fairness of a trial, has a number of discretionary powers which may be exercised in the course of a trial, including the power to reject evidence which is technically admissible but which would operate unfairly against the accused. ... The exercise of the power to reject evidence, either alone or in combination with a trial judge's other powers to control criminal proceedings, will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair. The existence and availability of these powers, when considered in the light of the necessarily limited scope of the power to grant a permanent stay, serve to indicate that a court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if

19

unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay.

(citations omitted)

96. Nothing in counsel’s submissions has identified anything that, in my view, renders the proceedings in relation to the two weapons offences “so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay”.

Other matters

97. Finally, counsel for Mr Klobucar made several somewhat obscure submissions by reference to aspects of earlier negotiations between the parties about these charges. It is unnecessary to canvass those submissions at this stage: even if counsel’s interpretation of the contents of items of correspondence is correct, none of his submissions would, if accepted, have the effect of conferring on the court a power to dispose of the weapons charges under s 321 or 334 of the Crimes Act, and none of them have been framed so as to identify the Crown’s approach to the weapons charges as any kind of prosecutorial oppression or abuse of process.

Conclusion

98. For the reasons set out above, Mr Klobucar’s application for a stay of the two charges of possessing a prohibited weapon must be refused.

I certify that the preceding ninety-eight [98] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.

Associate: David Hoitink

Date: 25 November 2016

20