Giordimaina v Police

GIORDIMAINA v POLICE
[2000] SASC 103

Magistrates Appeal

BLEBY J: The appellant appeals against a conviction and sentence in the Magistrates Court of South Australia. The conviction was for a breach of s 46 of the Road Traffic Act, by driving at a speed dangerous to the public. The offence is alleged to have occurred on 5 November 1996 at Montague Road, Ingle Farm at about 10.40am. The appellant was apprehended by a speed camera to be travelling at 123 kph in a 60 kph zone. The appellant had one previous conviction for speeding and one for another breach of s 46 of the Road Traffic Act.
The minimum penalty that the Magistrate could impose was a fine of $300. The maximum penalty was a fine of $600 or imprisonment for three months. Section 46 also requires that there be a driving licence suspension of not less than three years.
On 1 April 1997, the Magistrate convicted the appellant and imposed a $600 fine, with a further $116 fees and other costs, and allowed two years in which to pay the fine and costs. He imposed a licence disqualification of four years from 2 April 1997.
The appeal is against both conviction and sentence. It is now over three years since the conviction and sentence were imposed. The ground of appeal in relation to the conviction is that the appellant was not mentally competent at the time of the commission of the offence. So far as the sentence is concerned, it is said that the sentence was manifestly excessive.
Dealing with the ground of appeal in relation to the conviction, s 269E of the Criminal Law Consolidation Act 1935 relevantly reads as follows:
“269E(1): If, on the trial of a person for an offence -
(a). the defendant raises a defence of mental incompetence, or
(b). the court decides, on application by the prosecution or on its own initiative, that the defendant’s mental competence to commit the offence should be investigated in the interests of the proper administration of justice,
the question of the defendant’s mental competence to commit the offence must be separated from the remainder of the trial.
(2)The trial judge has a discretion to proceed first with the trial of the of the objective elements of the offence or with the trial of the mental competence of the defendant.”
What constitutes mental incompetence is set out in s 269C of the Act. That section reads:
“296C..... A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment -
(a). does not know the nature and quality of the conduct; or
(b). does not know that the conduct is wrong; or
(c). is unable to control the conduct.”
For the purpose of that section and of other sections in Part 8A of the Act, “mental impairment” is defined as including a mental illness, an intellectual disability or a disability or impairment of the mind resulting from senility (s 269A(1)). “Mental illness” is defined as meaning “a pathological infirmity of the mind (including a temporary one of short duration)”. (s 269A(1))
It follows from s 269E that if it appeared at the trial that there was some prospect that the appellant was suffering from a mental impairment, as defined in the Act, at the time of the offence, and that in consequence there was some prospect that the appellant did not know the nature and quality of the conduct, that the conduct was wrong, or that the appellant was unable to control the conduct, the court should have investigated the appellant’s mental competence to commit the offence.
It is not necessary in these circumstances to analyse the provisions of s 46 of the Road Traffic Act and the necessary components of the three offences specified in s 46(1). There is no reason why offences of strict liability should not be the subject of a mental incompetence defence under Part 8A of the Criminal Law Consolidation Act, particularly if there are raised questions of voluntariness or inability to control the conduct in consequence of a mental impairment. There may also be raised questions of the capacity of the person to know that what he or she was doing was wrong, whether he or she was capable of reasoning about the rightness or wrongness of the conduct according to ordinary standards with a moderate degree of sense and composure. There may even be questions as to the capacity of the person to know the nature and quality of the conduct.
I am not saying, nor could I possibly say on the present state of the evidence, whether any of these conditions applied to the appellant on 5 November 1996. The question for present purposes is whether the evidence and material before the Magistrate gave rise to the operation of s 269E Criminal Law Consolidation Act, namely whether there was sufficient material to require the magistrate to consider whether the appellant’s mental competence to commit the offence should be investigated in the interests of the proper administration of justice.
At the hearing before the Magistrate, the appellant was unrepresented. The initial description of the proceedings, which appears in the affidavit of Grant Watterson filed in connection with this appeal, is unremarkable. He said that prior to the matter proceeding the Magistrate informed the appellant of the appellant’s rights, including the right to legal representation. He also advised the appellant of the likely penalties for offences of this type. The appellant indicated that the matter was to proceed, and a plea of guilty on the relevant count was entered.
However, the prosecutor also informed the Magistrate that on 22 January 1997 police attended at the appellant’s address and spoke to the appellant in relation to the offence in the presence of the appellant’s father. The police were informed that the appellant had recently been released from Glenside Hospital and was under substantial medication for a mental disorder. The appellant’s father stated that the appellant would be undergoing continual treatment for at least another year. The police described the demeanour of the appellant at that time to be similar to a person grossly affected by alcohol. That was all reported by the prosecutor to the Magistrate.
The appellant also told the Magistrate that the appellant could not remember the offence. A medical report from Dr Chris Gillis from the Golden Grove Medical Centre dated 26 February 1997 was tendered to the Magistrate. That read, so far as is material:
“(The appellant) suffered from a psychotic illness in November ‘96 which required admission to a psychiatric institution in early November. (The appellant) remained there for three months and has made a good recovery. The appellant was out of touch with reality at the time of the speeding offence - (the appellant) thought that (the appellant) had to prevent a homicide!”
All that material that was before the Magistrate does not establish that the appellant was mentally incompetent at the time of the offence. Much more information would be needed. It does give rise, however, to a very real possibility that the appellant was suffering from a mental impairment as defined in the Criminal Law Consolidation Act at the time of the offence. It is not for me to conclude whether at that time the appellant knew the nature and quality of the conduct, or whether the appellant knew the conduct was wrong, or whether the appellant was unable to control the conduct. There was evidence before the Magistrate at the time of trial that suggested that one or more of those factors might have been present. In other words, there was evidence that raised that possibility.
Given the fact that the appellant was unrepresented, and although the appellant had not raised the possibility of a mental incompetence defence, the prosecution should have been alert to the possibility, and so should the Magistrate have been. The question of possible mental incompetence does not seem to have been considered. There was, in my opinion, sufficient evidence before the Magistrate to require that it should be considered. The proceedings, therefore, miscarried on that ground. Had the Magistrate directed his mind to the question, there was also ample material to require him to cause an inquiry to be made into the appellant’s mental competence at the time of the offence.
In those circumstances, the Magistrate was obliged to take one of two possible courses under s 269F of the Act. The first alternative was to conduct a trial as to the mental incompetence of the appellant. If the Magistrate was satisfied that the appellant was not mentally incompetent, he could then proceed with the trial. If he was satisfied that the appellant was mentally incompetent at the time, he would then proceed to determine whether the objective elements of the offence had been proved and if they were established, he was then obliged to find the appellant not guilty, but liable to supervision.
The second alternative was that he could first try the objective elements of the offence. If they were established, he could then proceed to determine the mental competence of the appellant. If he was satisfied that the appellant was not mentally incompetent, he would then proceed to determine the subjective elements of the offence, such as voluntariness or intent (to the extent that that might have been relevant, if at all) and knowledge. If that were established, he would then be entitled to find the appellant guilty. If he were satisfied that the appellant was mentally incompetent, again, the finding would have to have been not guilty but liable to supervision.
Neither of those two alternative courses was followed, so the proceedings miscarried on that ground also.
It is now over three years since the conviction. The notice of appeal was out of time by almost two years and nine months. The appellant’s explanation for the delay is, “Firstly, I was unrepresented and was not aware of the time limits. Secondly, at the time I was still feeling the affects of my illness and the medication relating to it and was in no fit state to make decisions of that nature or to drive safely. Thirdly, at that time I did not have employment which required a driver’s licence and fourthly, if this Honourable Court determines that my appeal against conviction is unsuccessful, then I appreciate that it would have been necessary for me to serve a significant period of disqualification in any event.” (I quote from the appellant’s affidavit.)
I have not been informed as to whether or not the fines and costs have been paid, but the licence disqualification has now been operating for over three years, although it seems, perhaps, of little practical disadvantage to the appellant, at least until recently. Although the delay is significant, it is not suggested that evidence relevant to the appellant’s mental incompetence on 5 November 1996 is not now available and that an enquiry could not now be made in the same manner as it could have been in April 1997.
The facts as I have recited them indicate the possibility of a conviction having been recorded where it should not have been and, therefore, the possibility of a miscarriage of justice. If it is within the Court’s power now to rectify and remove that possibility, then the Court’s process should be engaged to allow that to occur.
I, therefore, think that it is appropriate in the unusual circumstances of this case to extend the time within which to lodge the notice of appeal. I also think that it is appropriate in the circumstances that the appeal should be allowed and the conviction and sentence set aside to enable the proper enquiry now to be made.
I have said nothing about the sentence imposed by the Magistrate. In the circumstances it is inappropriate that I should. Dependent on the outcome of the enquiry which now has to occur, the question of penalty may never arise. If the appellant was not mentally incompetent at the time and the appellant is found guilty of the offence, it will be for the Magistrates Court to impose an appropriate penalty, taking into account all the circumstances disclosed by the evidence as to the appellant’s mental competence, and what has happened in the intervening period. It will be for the court hearing the charge to make its own determination in those circumstances. One of the relevant circumstances is that the appellant has been prevented from holding or obtaining a driver’s licence for something over three years. There will, no doubt, be others.
Therefore the orders that I make are as follows:

1... I extend to 11 January 2000 the time within which to lodge the notice of appeal against the conviction and penalty imposed on 1 April 1997.
2... The appeal is allowed and the conviction and penalty are set aside.
3... I direct that the matter be remitted to the Magistrates Court of South Australia sitting at Elizabeth to determine, in the exercise of its discretion, whether to proceed with the trial of the objective elements of the offence or with the trial of the mental competence of the appellant at the time of the offence in accordance with s 269E(2) of the Criminal Law Consolidation Act, and generally to proceed thereafter in accordance with the requirements of Part 8A Division 2 of the Criminal Law Consolidation Act.
4... The respondent is to pay the appellant’s costs of the appeal fixed at $150.

Mr McGee, I should explain for the benefit of your client of the effect of what I have done and no doubt you can pass this on to your client with clarification if there is any need for it. The effect of what I have done is to set aside the order of disqualification, amongst other things. I am unable to say at the moment whether that enables the driving licence to be automatically restored. That is a matter you will have to take up, I think, with the Registrar but it should not be assumed that the driver’s licence will automatically be restored.
I should perhaps warn your client that if the Magistrates Court concludes that the appellant was not mentally incompetent at the time, the licence could conceivably be suspended again. That is a matter for the Magistrates Court.
If the Magistrate concludes that the appellant was mentally incompetent at the time, it is unlikely that the Magistrate would make an order suspending the licence because there would not be any penalty imposed. But in that event, the appellant may well become the subject of a supervision order under Division 4 of Part 8A of the Criminal Law Consolidation Act and he may be released on licence on conditions then decided by the Court. That could possibly include - it is a matter for the Court - conditions as to the driving of a motor vehicle and the holding of a driver’s licence. In other words, the future of the driver’s licence, which I think is what this case is probably all about, and the appellant’s ability to drive, will be up to the Magistrates Court one way or the other.
No doubt if there is any further explanation needed, Mr McGee, you can discuss that with your client.

[2000] SASC 103

11 April 2000