Key v Police

Case [2010] SASC 192

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

KEY v POLICE

[2010] SASC 192

Judgment of The Honourable Justice Gray

2 July 2010

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

Appeal against conviction - defendant and appellant convicted in 2006 of the offence of damage property contrary to section 85(3) of the Criminal Law Consolidation Act 1935 (SA) - defendant appealed against conviction on basis that not mentally competent or fit to plead - whether extension of time warranted.

Held: extension of time within which to appeal granted - appeal allowed - conviction and other orders recorded by the Magistrate set aside - matter remitted to the Magistrates Court for determination - evidence demonstrated defendant's ongoing difficulties with chronic bipolar disorder - evidence indicated that there was merit in the defendant's complaint - ongoing mental health difficulties of the defendant provided satisfactory explanation for the delay in lodging the appeal - in the interests of justice to extend time to appeal, allow the appeal, and remit the proceeding for rehearing.

Criminal Law Consolidation Act 1935 (SA) s 85(3); Mental Health Act 1993 (SA); Supreme Court Civil Rules 2006 (SA) r 286, referred to.
Ventura v Sustek (1976) 14 SASR 395; R v Balchin (1974) 9 SASR 64; Jackamarra v Krakouer (1998) 195 CLR 516; Police v Warren [2000] SASC 285, considered.

KEY v POLICE
[2010] SASC 192

Magistrates Appeal

GRAY J:

Introduction

  1. This is an appeal against conviction.

  2. The appeal raises a number of unusual matters.  An extension of time of more than three years is sought with respect to a conviction of causing minor property damage.  The substance of the complaint was that the appellant and defendant, Simon Key, was mentally ill at the time of the alleged offence, that his mental illness was of long standing and was continuing, and that his explanation for the delay in lodging the appeal was the disabilities occasioned by his mental illness.  At times on the appeal, Mr Key represented himself.  This caused particular difficulty as it was readily apparent that he suffered from a degree of mental instability.  Notwithstanding the lengthy delay, I consider that for the reasons that follow, an extension of time should be granted, the appeal should be allowed, the orders of the Magistrate should be set aside and the proceeding remitted for rehearing.

  3. As an extension of time of more than three years is a most unusual order in a summary matter, I propose to set out my detailed reasons for the making of the relevant orders.

    Background

  4. On 11 September 2006, Mr Key was convicted of the offence of damage property contrary to section 85(3) of the Criminal Law Consolidation Act 1935 (SA).[1]  A fine of $250.00 was imposed, and an order was made for compensation in the amount of…

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Key v Police [2010] SASC 192
Case
[2010] SASC 192
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CaseChat Overview and Summary

In the case of Key v Police, the appellant, Mr Key, sought an extension of time to appeal his 2006 conviction for damaging property contrary to section 85(3) of the Criminal Law Consolidation Act 1935 (SA). Mr Key was convicted in his absence, and the appeal against his conviction was lodged more than three years out of time. The central issue before the court was whether Mr Key's appeal was mentally competent or fit to plead at the time of his conviction, and if so, whether an extension of time was warranted.

The court found that Mr Key suffered from Chronic Bipolar Disorder with recurrent manic episodes, and his mental state rendered him unfit to plead at the time of his conviction. The court considered the observations of Dr Raeside, who confirmed that Mr Key was mentally incompetent for the charge and unfit to plead and stand trial as of 11 September 2006. The court also noted that Mr Key's unstable mental state had resulted in his detention for treatment on numerous occasions in recent years. Given the evidence before the court, it was clear that Mr Key's mental illness significantly impaired his ability to reason about the wrongfulness of his actions and his conduct at times.

The court concluded that it was appropriate to remit the matter to the Magistrate, allowing for counsel to provide advice to the Police in relation to whether to proceed with the matter. If Mr Key is found mentally unfit, the court will be in a better position to assess the appropriate order to be made in respect of any limiting term or licence provisions to be imposed.

In conclusion, the court extended time to appeal and allowed the appeal. It set aside the conviction and other orders recorded by the Magistrate and remitted the proceeding to the Magistrates Court for hearing and determination. The court's decision was based on the evidence before it, which demonstrated that Mr Key suffered from ongoing difficulties with chronic mental illness, and that ultimately there was merit in the appeal.

Orders

Orders of the court

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Background

Background to the litigation

As an extension of time of more than three years is a most unusual order in a summary matter, I propose to set out my detailed reasons for the making of the relevant orders.Background On 11 September 2006, Mr Key was convicted of the offence of damage property contrary to section 85(3) of the Criminal Law Consolidation Act 1935 (SA).[1] A fine of $250.00 was imposed, and an order was made for compensation in the amount of $653.60 to be paid to the relevant insurer and $300.00 to be paid to the owner of the damaged property.[1] Section 85 of the Criminal Law Consolidation Act 1935 (SA) relevantly provides: The conviction was recorded following a trial conducted in Mr Key’s absence. At that time the Magistrate remarked:I find the charge proved.I take into account in fixing penalty [Mr Key] was apparently agitated, if not suffering from mental disturbance on the day in question, evidenced by his behaviour in the office of the victim at about 11 o’clock in the morning and the facts [sic] that he was still hanging around the premises at 5.10 p.m. and behaving as he was in a [sic] irrational manner.That being so, I also take into account the fact that he caused damage to the vehicle of the victim, either deliberately or recklessly as alleged. I am not sure which. The victim had done nothing to him that would warrant [Mr Key] paying him that attention at all. … The appeal against conviction was lodged on 26 October 2009 and as a consequence was more than three years out of time. The alleged offence was committed on 4 January 2006. It is apparent that property damage to a motor vehicle occurred in the context of Mr Key preventing the exit of vehicles from a car-park associated with a building which housed a Government department. Mr Key blocked a number of vehicles from exiting in an attempt to gain access to paperwork allegedly denied him by staff-members of the Government department. The driver of the damaged motor vehicle gave evidence that when Mr Key blocked his vehicle, he stated something to the effect of “No one is leaving until I get my paperwork. …” The driver attempted to reverse his vehicle away from Mr Key, at which point Mr Key “leapt onto the bonnet of [the] vehicle”, landing with both his knees and elbows on the vehicle. Damage caused by Mr Key leaping onto the bonnet required repair, costing “well over $1,000.00”. As noted, the trial proceeded in the absence of Mr Key. The matter first came before the Court on 6 February 2006. On that occasion, Mr Key attended and represented himself, pleading not guilty to the charge. At that time, the matter was listed for a pre-trial conference on 24 April 2006. The pre-trial conference proceeded on that date, with Mr Key again representing himself. The matter was unable to be resolved and was set for trial on Monday 11 September 2006. When Mr Key failed to appear on 11 September 2006 the trial proceeded ex parte. It is apparent that no inquiries were made as to his whereabouts. The driver of the damaged vehicle gave evidence, in addition to the evidence of the police officer who attended at the scene. The Appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is appropriate in the circumstances to remit the matter to the Magistrate. This course will allow for counsel to provide advice to the Police in relation to whether to proceed with the matter. In particular, if Mr Key is found mentally unfit the Court on remittal will be in a better position to assess the appropriate order to be made in respect of any limiting term or licence provisions to be imposed. Conclusion I extend time to appeal and allow the appeal. I set aside the conviction and other orders recorded by the Magistrate. The proceeding is remitted to the Magistrates Court for hearing and determination.

Ratio Decidendi

Legal Principle Established

With respect to Mr Key’s current fitness to plead, Dr Raeside made the following observations:…there is no doubt that [Mr Key] suffers from a severe mental illness, namely Chronic Bipolar Disorder with recurrent manic episodes and remains chronically hypomanic. He has poor insight into the nature and severity of his mental illness, has been non-compliant with medication and treatment in the past, frequently absconding as an inpatient, and failing to follow up as an outpatient. He has proved a particularly challenging patient in these settings and has had rather extended hospitalisation over the last few years. …Whilst I believe [Mr Key] has an adequate understanding of the role and function of the court, the nature of the current legal situation, and other matters to do with his appeal, I believe that his overall psychiatric condition and mental state would render him vulnerable in a court setting, particularly should he choose to represent himself. I think this would impact on his ability to follow the course of proceedings in court, to make rational and considered decisions on the information being discussed, and be able to adequately represent his current position. It is also likely to influence the instructions he provides to any legal representative. Consequently, whilst I acknowledge [Mr Key] has probably improved somewhat in recent weeks with ongoing regular treatment, I think that for current purposes he is unfit to plead, particularly should he choose to represent himself. I think this is unlikely to improve over the next 12 months given his recent history. I would recommend that should the Court find [Mr Key] unfit that the matters proceed with him represented, in order to adequately deal with the appeal and the previous issues.Consideration of the Merits The material before the Court demonstrates that Mr Key suffers from ongoing difficulties with chronic mental illness. The evidence before the Court indicates that ultimately there is merit in the appeal. As earlier observed, it is of particular relevance that when Mr Key was arrested and remanded in custody on 13 September 2006, his mental health was such that he was subsequently detained under the Mental Health Act and transferred to Glenside Hospital to be detained in a secure closed ward. The observations of Dr Raeside confirm the tenuous mental state of Mr Key at that time. As earlier discussed, it was Dr Raeside’s opinion that Mr Key was mentally incompetent for the charge for which he was convicted and further, would have been unfit to plead and to stand trial as of 11 September 2006. From the material provided to the Court it is clear that Mr Key’s unstable mental state has resulted in his detention for treatment on numerous occasions in recent years. It is apparent that on a number of occasions, Mr Key’s hospitalisation followed on from his apprehension by police for behaviour seemingly associated with his mental condition. For example, in his report of 13 May 2010, Dr Raeside outlined Mr Key’s arrest after trying to register a vehicle using a false name and address; that of a member of parliament against whom Mr Key informed Dr Raeside he held “a bit of a grudge … for some of the things he’s done to me”. Similarly, Mr Key was admitted to Glenside Hospital in February 2010 having been apprehended by police officers after he sent a number of threatening emails to politicians and local council members of whom he had addresses. It is relevant to note that the 27 counts for which Mr Key was found mentally incompetent, including the offences of dishonestly take property without owner’s consent, commit nuisance or annoyance, carry offensive weapon, assault police, fail to leave a public passenger vehicle when requested, disorderly behaviour, refuse to give name and address, resist police, hinder police and assault police, all occurred over the course of the year 2006. Those offences are indicative of the unstable nature of Mr Key’s disorder over the course of that year. As Dr Raeside observed, although the relative contribution of Mr Key’s mental illness to the offences varied, “on most occasions he was probably mentally incompetent by virtue of his manic features to his mental illness, significantly impairing his ability to reason with a moderate degree of sense and composure about the wrongfulness of his actions, and probably also significantly impairing his conduct at times”.