Gadickas v Police No. Scciv-04-223

GADICKAS v POLICE
[2004] SASC 114
Magistrates Appeal (Ex tempore)

DUGGAN J. In this somewhat unusual case the appellant appeared before the Adelaide Magistrates Court on 23 December 2003 charged with trespass and failing to give her name and address to a police officer. She is a 20 year old single woman.
These allegations arose out of an incident at the Embassy Hotel, North Terrace on the morning of 18 December 2003. The appellant was on the premises and, despite various requests or numerous requests by the staff, she refused to leave. She was then removed from the premises by the police. She then refused to state her name and address to the police officers.
It was stated by the police prosecutor in an affidavit tendered on the hearing of the appeal that the appellant has an extensive history for this type of offence, but he is unsure as to the extent of his submissions to the magistrate on this topic.
The court record shows that the appellant pleaded guilty to the charges. The magistrate convicted the appellant on each count. He imposed a global penalty. The appellant was ordered to enter into a bond in the sum of $200 to be of good behaviour for 12 months.
In the course of his sentencing remarks the magistrate observed that the appellant had been in custody for five days. The appellant has appealed against conviction and sentence.
The notice of appeal was filed out of time, but there was a satisfactory explanation for the delay and the application for an extension of time is granted.
The grounds of appeal against conviction, as originally drafted, complained that the magistrate failed to conduct an investigation pursuant to Part 8A of the Criminal Law Consolidation Act, into whether the appellant was, at the time of the offences, mentally competent to commit the offences or, alternatively, whether she was mentally fit to stand trial.
After some discussion at the commencement of this hearing Ms O’Connor, for the appellant, applied for leave to amend the grounds of appeal so as to include a ground asserting that the appellant may not have understood the nature of the proceedings at the time of her plea of guilty. There was no objection to the amendment and I allowed it. I also allow fresh evidence in the form of affidavits sworn by Claire Mary O’Connor, Bronwen Josephine Waldron and Eric Johan van Kruyssen.
Ms O’Connor’s affidavit has annexed to it a report from Dr Raeside, a psychiatrist. He interviewed the appellant on 31 March 2004. At the interview she was vague and distractable, demonstrating a moderate degree of psychotic thought disorder. She said she could hear voices.
It seems that it was difficult to obtain a reliable history from her, but Dr Raeside examined records relating to the appellant’s previous admissions to the Royal Adelaide Hospital. She was admitted to the hospital in July 2001 and was clearly psychotic on arrival, although there were no such symptoms on the following day when she was discharged. It was thought then that she was suffering from an amphetamine induced psychosis.
The next admission was in May 2003. On this occasion she presented at the hospital with disorganised behaviour, impulsivity, psychotic features and mood changes. She settled quickly on admission and was placed on anti-psychotic medication for drug induced psychotic features.
Then there is a record of an admission to the hospital on 24 December 2003, the day after the hearing at the Adelaide Magistrates Court. On this occasion the appellant was taken to the hospital by police after being found in a house which was being renovated. She was found to be in a catatonic state and unable to give any coherent history. It was difficult for the staff at the hospital to obtain a clear picture from her of the circumstances of this incident. Eventually, she absconded from the ward at the end of her admission and travelled to Sydney where she was admitted to a psychiatric unit.
Dr Raeside took a history of extensive drug taking from the appellant. He concluded that she had a significant past history of disturbances in her mental state over the last few years which was aggravated by ongoing and heavy illicit drug use. He said that there was a possibility of underlying schizophrenia. Based on the information available to him he concurred with the history of drug induced psychosis, although he was not prepared to exclude the possibility of evolving schizophrenia.
He then addressed the question of her mental competence to commit the offences to which she pleaded guilty. He concluded that, on the balance of probabilities, the appellant was not mentally incompetent to commit the offences. However, it was his view that the appellant may have been mentally unfit to stand trial at the time of her court appearance. He referred to psychotic thought disorder, general distractibility and poor concentration in her presentation. He said that he would recommend a review of the appellant’s fitness to plead in two months after treatment measures had been instituted.
Mr van Kruyssen stated in his affidavit that he was a senior duty solicitor in the Adelaide Magistrates Court on 23 December 2003 and that he spoke to the appellant in the holding cells. He was not instructed to make any submissions for her, nor did he do so.
On 2 January 2004 the appellant telephoned Ms Waldron, a solicitor employed by the Legal Services Commission, who had acted for her on previous occasions. The appellant was incoherent and, although she mentioned appealing against a court decision, Ms Waldron got the impression that the appellant wanted to appeal against another matter in which Ms Waldron had acted for her.
Ms Waldron stated in her affidavit that she acted for the appellant at the Holden Hill Magistrates Court on 26 November 2003, but sought leave to withdraw as Ms Waldron was of the opinion that the appellant was mentally unfit to enter a plea. This was not the matter which is now before this Court on appeal.
There is insufficient evidence before me to support the grounds of appeal alleging that the magistrate erred in not holding investigations pursuant to Part 8 A of the Criminal Law Consolidation Act. However, the respondent concedes that there is merit in the ground of appeal which has been added by way of amendment. In my view, this concession is appropriate. In Liberti (1991) 55 A Crim R 120 at 122, Kirby J said:
“For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81.”
It is for the appellant to establish a proper reason for setting aside the conviction Ferrer-Esis (1991) 55 A Crim R 231 at 223:
“If a defendant pleads guilty without appreciating the nature of the charge or not intending to admit guilt or, upon the admitted facts, the defendant could not have committed the offence charged, the court may quash the conviction. (R v Forde [1923] 2 KB 400 at 403).”
In my view the present case, comes within the first of the exception referred to above. There is sufficient material before me, in particular in the medical report of Dr Raeside, to support the contention that there is a real risk that there was a miscarriage of justice in that the appellant may not have understood the nature of the charges to which she pleaded guilty. For these reasons the time for filing the notice of appeal will be extended to the date upon which the notice of appeal was filed. The appeal against conviction will be allowed. The convictions will be set aside and there will be a new hearing before another magistrate in the event that the prosecution contends to or proposes to proceed with the charges.

[2004] SASC 114

19 April 2004