ANTAL v Police

[2020] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

ANTAL v POLICE

[2020] SASC 196

Judgment of The Honourable Auxiliary Justice David

20 October 2020

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - STALKING - GENERALLY

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - GENERALLY

Appeal against an order of a Magistrate declaring the appellant liable to supervision, ordering a limiting term of a period of six months and releasing the appellant on a conditional licence.

The appellant was charged with two separate offences of unlawful stalking contrary to s 19AA(2)(a) of the Criminal Law Consolidation Act 1935 (SA). The appellant stalked two different people in various ways by the use of Facebook, hanging around their homes, and the use of email.

At the hearing in the Magistrates Court on 14 May 2019, it was agreed by both prosecution and defence counsel that a finding should be recorded that the appellant was mentally incompetent to commit the offences and that the objective facts as presented to the Court in the police apprehension reports had been proved beyond reasonable doubt. As a result, the Court found the appellant not guilty of the two offences, but declared that he was liable to supervision. On 10 December 2019, the Court released the appellant on a conditional licence, but ordered a limiting term of six months.

The appellant appeals on two grounds. Firstly, to base the order for a period of detention on Court documents which refer to the appellant as having been charged with “Stalking While Possessing Offensive Weapon – Basic Offence” is erroneous because the offence did not involve an offensive weapon. Secondly, that in allowing this to happen, his counsel was incompetent.

Held, granting permission to appeal and dismissing the appeal:

1. The application for an extension of time to appeal is granted.

2. The references in the various Court documents to possessing an offensive weapon was an administrative mistake and no more. The learned Magistrate had no material put before her or heard any evidence to suggest that an offensive weapon was used.

3. The conduct of counsel in agreeing to the objective facts was not incompetent.

4. Pursuant to s 42(5) of the Magistrates Court Act 1991 (SA), any reference in the Court papers in relation to this matter should expunge the offending as being “stalking whilst possessing an offensive weapon” or any reference to “offensive weapon”.

Criminal Law Consolidation Act 1935 (SA) s 19AA, s 269W, Div 4 subdiv 2; Magistrates Court Act 1991 (SA) s 42, referred to.

ANTAL v POLICE
[2020] SASC 196

Magistrates Appeal:  Criminal

1. DAVID AJ:          The appellant was charged with two separate offences of unlawful stalking contrary to s 19AA(2)(a) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).

2. The offences themselves involved two occasions whereby the appellant stalked two different people in various ways by the use of Facebook, hanging around their homes, and the use of email.  There was never any suggestion in the charges that there was a use of an offensive weapon.  The offences took place on 8 October 2017 and the matter finally came on for hearing in the Magistrates Court on 14 May 2019.

3. The appellant in this appeal is unrepresented, but was represented by legal counsel during some appearances in the Magistrates Court. At the hearing on 14 May 2019, it was agreed by both prosecution and defence counsel that a finding should be recorded that the appellant was mentally incompetent to commit the offences and that the objective facts as presented to the Court in the police apprehension reports had been proved beyond reasonable doubt. As a result, the Court found the appellant not guilty of the two offences, but declared that he was liable to supervision pursuant to Division 4, Subdivision 2 of the CLCA. Follow up reports required by the CLCA were then ordered.

4. On 10 December 2019, the Adelaide Magistrates Court declared the appellant liable to supervision and released him on a conditional licence.  However, the Court ordered a limiting term of a period of six months.  That period has since elapsed.  It is to be noted that in the appellant’s signed order, a limiting term of 12 months was incorrectly specified.  This was an administrative mistake which was subsequently rectified.

5. The appellant now seeks to appeal against that order and lodged a notice of appeal on 28 August 2020.  Normally, an appeal must be instituted within 21 days after the order which is the subject of appeal.  Clearly, the appellant’s present application is out of time, subject to an extension being granted.  I would extend the period of time in which to appeal because the appellant was unrepresented and also because of his personal circumstances as far as his mental incompetence is concerned.

6. The appellant now appeals on two grounds.  Firstly, that in the course of the Court documentation, there are a number of documents which refer to the appellant as having been charged with two counts of “Stalking While Possessing Offensive Weapon – Basic Offence”.  The appellant now argues before me that to base the order for a period of detention on those objective facts is erroneous because the offence did not involve possessing an offensive weapon.  Secondly, that in allowing this to happen, his counsel was incompetent.

7. The matter can be dealt with expeditiously.  The references in the various Court documents to possessing an offensive weapon was an administrative mistake and no more.  Clearly, the Court did not base the decision to set the limiting term on that mistake because the decision was based on the police apprehension reports which made no mention of an offensive weapon.  As a result, the learned Magistrate had no material put before her or heard any evidence to suggest that an offensive weapon was used.  It follows that the conduct of counsel in then agreeing to the objective facts was not incompetent. 

8. On the basis of the material presented to the Court by way of psychiatric reports, especially that of Dr Smith of the Forensic Mental Health Service dated 7 May 2019, the Court found the appellant mentally incompetent to commit the offences. Such a decision was justified. In that report, Dr Smith set out the appellant’s extensive psychiatric history. I further add that if there was difficulty in receiving instructions from the appellant, his legal counsel was justified in making the decisions he did pursuant to s 269W of the CLCA, which provides:

   269W—Counsel to have independent discretion

   (1)If the defendant is unable to instruct counsel on questions relevant to an investigation under this Part, the counsel may act, in the exercise of an independent discretion, in what he or she genuinely believes to be the defendant’s best interests.

   (2)If the counsel for the defendant in criminal proceedings (apart from proceedings under this Part) has reason to believe that the defendant is unable, because of mental impairment, to give rational instructions on questions relevant to the proceedings (including whether to be tried by judge alone), the counsel may act, in the exercise of an independent discretion, in what the counsel genuinely believes to be the defendant’s best interests.

9. Because of the administrative error that was made in the charge, I grant permission to appeal but dismiss the appeal. I make the further order that, pursuant to s 42(5) of the Magistrates Court Act 1991 (SA), any reference in the Court papers in relation to this matter should expunge the offending as being “stalking whilst possessing an offensive weapon” or any reference to “offensive weapon”.