Key v Police - [2011] SASC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KEY v POLICE
[2011] SASC 66
Judgment of The Honourable Justice Duggan
30 June 2011
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - GENERALLY
Application for an extension of time to appeal against convictions – applicant pleaded guilty in the Magistrates Court in October 2000 to various traffic offences – appeal against conviction on the basis that the applicant, at the time of the alleged offences, the applicant was suffering from a mental impairment which rendered him mentally incompetent to commit them – whether extension of time warranted.
Held: application for extension of time within which to appeal against the convictions granted – applicant has long history of mental illness diagnosed as chronic bipolar disorder – applicant’s mental illness providing satisfactory explanation for mental incompetence defence not being raised earlier – in the interests of justice to grant an extension of time – appeal allowed – matter remitted to the Magistrates Court for hearing.
Key v Police [2010] SASC 192, considered.

KEY v POLICE
[2011] SASC 66
Magistrates Appeal: Criminal

DUGGAN J: This is an unusual case which involves an application for an extension of time within which to appeal against convictions recorded in October 2000.
The applicant is 32 years of age. On 25 October 2000 he pleaded guilty in the Adelaide Magistrates Court to riding a bicycle on a footpath, failing to keep to the left of a median strip, entering an intersection showing a red light and failing to state his name and address. It is alleged that the offences occurred when he was apprehended riding a bicycle in the city on 21 September 2000.
The applicant has a long history of mental illness. The circumstances which led to the charges occurred less than a month after his discharge from Glenside Hospital where he was being treated for a bipolar affective disorder.
The ground of appeal which is sought to be argued is that, at the time of the alleged offences, the applicant was suffering from a mental impairment which rendered him mentally incompetent to commit the offences. The applicant was unrepresented at the time of entering the pleas of guilty.
The applicant’s background and mental history are summarised in the judgment of Gray J in Key v Police.[1] In that case, the applicant made an application for an extension of time within which to appeal against a conviction recorded in the Magistrates Court in September 2006. The application was granted after Gray J concluded that the applicant was potentially mentally incompetent at the time of the offence with which he was charged. The appeal was allowed and the conviction and the orders made by the Magistrate were set aside. The charge was remitted to the Magistrates Court for rehearing.
[1] [2010] SASC 192.
The applicant’s mental illness has been well documented since the time of his first admission to Glenside Hospital in January 1999. On that occasion the applicant was diagnosed as suffering from bipolar affective disorder, a diagnosis which has been consistent from then until the present time. The applicant has been admitted to psychiatric institutions for treatment on many occasions since 1999.
Dr Craig Raeside provided a report on the applicant for the hearing before Gray J. In his report dated 14 December 2006, Dr Raeside confirmed the diagnosis of chronic bipolar disorder and noted chronic hypomanic symptoms. He said that the applicant’s condition had not improved despite ongoing treatment. Dr Raeside expressed the view that the applicant was then unfit to plead and stand trial. He also considered that the applicant’s mental incompetence to commit the offence then under consideration could have been established on the balance of probabilities.
At my request Dr Raeside provided a psychiatric report on the applicant relevant to the present matter. In his report dated 23 March 2011 he said that he was unable to conduct an adequate interview with the applicant because of the applicant’s demeanour and behaviour. Dr Raeside confirmed his previous diagnosis of chronic bipolar disorder with recurrent manic episodes. He said the applicant remains chronically hypomanic and has been non-compliant with medication and treatment. Dr Raeside noted that the applicant has undergone extended hospitalisation over the last few years.
After referring to the alleged offences which are the subject of the present application, Dr Raeside stated:
Given the above history it would be my opinion that Mr Key was severely mentally unwell at the time of the alleged offending as noted above. Although it is likely that he knew the nature and quality of his alleged actions, I think that on a balance of probabilities he would have been unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions. Although his behaviour was likely disinhibited and poorly controlled there is no indication that he would have been totally unable to control his behaviour.
Therefore, although I have not had opportunity to discuss with Mr Key the alleged offending itself it would be my opinion that he has a mental incompetence defence available to him.
I am unclear as to Mr Key’s current fitness to plead given lack of opportunity to speak with him, but based on his presentations to me, information from staff, and his deteriorating mental state it would be my opinion that he is currently unfit to plead.
Mr Key clearly requires assertive psychiatric treatment. He is refusing to comply with a Community Treatment Order and I suspect his mental state will decline further until eventually he is able to be detained to a psychiatric facility.
It is not my function on this application to determine the merits of a defence of mental incompetence. I simply note that on the information available to him, it is Dr Raeside’s view that it is more probable than not that the applicant was mentally incompetent to commit the offences.
It is, of course, very rare for an extension of time to be given where the delay is as long as it is in the present case. The considerations relevant to a grant of an extension of time are referred to in the judgment of Gray J. However, a recurrent feature of the applicant’s illness is that he has limited insight into his condition. Furthermore, an opinion of the type expressed by Dr Raeside was not available to the applicant at the time of the Court hearing into the present matters. As the applicant was unrepresented on the occasion he appeared before the Court in relation to these matters and bearing in mind his mental condition and the fact that he did not have the benefit of a report expressing the conclusion to which Dr Raeside came, it is understandable that the defence of mental incompetence was not raised at the hearing.
In my view, it is in the interests of justice to grant an extension of time within which to appeal against the convictions, allow the appeal and set aside the convictions and penalties imposed. I will remit the matter to the Magistrates Court for hearing, but it will be for the prosecution to determine whether to proceed with the charges.