Key v Police - [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

This is an appeal against conviction.
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.
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
Mr Key appeals against the orders of the Magistrate on the ground of mental incapacity. It was submitted that Mr Key was found not guilty, as a consequence of want of mental capacity, of a further 27 charges committed in close proximity in time to the conviction recorded in the within proceeding. It was contended that an extension of time was warranted due to the repeated hospitalisation and detention of Mr Key under the Mental Health Act 1993 (SA) in the ensuing years. Mr Key pointed to his detention at Glenside Hospital from October 2006 until February 2007, periodic detention throughout 2008, further detention from January to July 2009, and subsequently, on a number of occasions during the remainder of 2009 and in early 2010.
The granting of an extension of time in which to bring the appeal was opposed by the Police. It was contended that Mr Key had not filed any affidavit to support the application. It was said further that Mr Key had not identified any possibility that a miscarriage of justice might occur by the failure to extend time. Finally, it was submitted that there was no material before the Court capable of establishing that the appeal might be successful in the event that the extension was granted. In particular, it was said that there was no adequate explanation for the failure to attend the trial in September 2006.
The appeal proceeded with Mr Key on occasion representing himself and on occasion permitting a legal representative to act on his behalf. More than once, Mr Key did not attend. It was apparent that the non-attendance during the course of the appeal hearing was on at least one occasion due to Mr Key’s detention under the Mental Health Act. The appeal was adjourned a number of times, in part as a consequence of non-attendance, but also in order to obtain information in relation to the 27 other charges earlier referred to. During the course of this process, a report from a forensic psychiatrist, Dr Craig Raeside, was provided to the Court. That report, dated 14 December 2006, was proximate to the time at which Mr Key claimed to be mentally unwell.
The introduction of Dr Raeside’s report as fresh evidence[2] was not opposed by the Crown. This was appropriate. The evidence contained in the report ought to be allowed as fresh evidence as it brings to this Court’s attention relevant details as to Mr Key’s mental state proximate to the time of his trial in September 2006. That evidence would likely have had an important influence on the case.[3] Subsequently, during the course of the appeal, further evidence from Dr Raeside was tendered.
[2] Rule 286 of the Supreme Court Civil Rules 2006 (SA) relevantly provides:
...
(3)Subject to any limitation on its powers arising apart from these rules, the Court may—
(a)draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
…
[3] See the remarks of Bray CJ in Ventura v Sustek (1976) 14 SASR 395 at 399-400 (Wells J agreeing) adopting the remarks of Lord Denning in Ladd v Marshall [1954] 1 WLR 1489 at 1491.
Extension of Time
As earlier observed, the notice of appeal was lodged on 26 October 2009, more than three years out of time. Mr Key sought an extension of time within which to appeal upon the following grounds:
[Mr Key] has had significantly long periods of psychiatric detention in the last 3 years. and has had many admissions of a similar nature since 4/1/99. [Mr Key] was unable to lodge an appeal against the judgement earlier due to this.
When considering an application for an extension of time, the Court has regard to a number of matters, including the length of the delay, the reasons for the delay, the merits of the appeal and the interests of justice. In Balchin[4] the Full Court made the following relevant remarks:
…normally the Court will refuse to grant an application for extension of time within which to appeal, except in a case where, on the merits, the appeal would be likely to succeed (R. v. Marsh), or where through exceptional circumstances or some untoward vicissitude, the applicant has been prevented from applying his mind to the question of appeal (R. v. Hatfield). The practice of this Court in relation to the granting of an extension of time within which to appeal was stated in R. v. Tame as follows:
"This Court has held, from time to time, that when a sentence is passed or a conviction is recorded, the right of appeal, or to apply for leave to appeal is one which, according to the Act, must be made promptly, that is, within the ten days allowed by the Act. If it is not, the right of appeal is gone, and the time will not, in the ordinary course of things, be extended, unless there is some ground for apprehending that justice has miscarried."
[footnotes omitted]
[4] R v Balchin (1974) 9 SASR 64 at 65-66 (Hogarth ACJ, Bright & Walters JJ).
In Jackamarra v Krakouer[5] Kirby J, in relation to procedural time defaults, observed:
[5] Jackamarra v Krakouer (1998) 195 CLR 516 at [66].
The first rule is that there are no rigid rules. Procedural discretions, such as those in question here, are typically expressed in very wide language. In the exercise of such discretions, courts should not be trammelled by a rigid set of rules, whether called guidelines or principles, which would impede the application of rules of court with the flexibility needed to do justice in the particular case. This is why it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time. Of necessity, each case must depend upon its own particular circumstances.
Nevertheless, it is useful to keep in mind a number of considerations which have commonly been taken into account. The starting point for the exercise of any power granted under legislation is the ascertainment of the terms of the grant and a consideration of the purposes for which the power has been afforded. Thus, if a rule requires that "special reasons" or "special circumstances" be shown as a pre-condition to a procedural indulgence, this will indicate a need to demonstrate circumstances out of the ordinary. But where, as is usually the case (and is the case here), the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application. Necessarily, the indulgence is not granted as of course. It is for the party seeking to persuade the decision-maker to show that it should be granted. Such persuasion will usually depend upon the provision of an acceptable explanation of how the time default occurred. Neither a party nor its legal advisers may simply assume that a request for an extension of time will always be acceded to. Inherent in the grant of a discretionary power is the assumption that it will sometimes be refused.
Courts have often drawn a distinction between the approach which they take to time limits of a substantive character and those appropriate to procedural rules. Thus in In re Salmon (dec'd), Sir Robert Megarry V-C contrasted the requirement for the institution of proceedings within a certain time under the Inheritance (Provision for Family and Dependants) Act 1975 (UK) with procedural rules typically found in rules of court:
"[T]he time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules."
For the purpose of this classification, which I accept, it cannot be doubted that the requirement under the Rules of the Supreme Court of Western Australia, that an appeal be entered for hearing within a specified time, is one of a procedural character and not one touching the substance of a party's appellate rights.
The party seeking indulgence bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile. …
…
[footnotes omitted]
Relevant matters to be assessed when considering an application to extend time were summarised in Warren:[6]
[6]    Police v Warren [2000] SASC 285 at [16]-[17].
The following rules guide the court in considering an application to extend time:
The discretion exists for the sole purpose of doing justice between the parties.[7]
Some material must be advanced upon which the court can exercise its discretion.[8]
There is an obligation to explain with frankness and candour the reason for delay.[9]
The longer the delay the more exceptional or substantial the explanation required.[10]
If no sufficient grounds of appeal are disclosed an extension will not be granted.[11]
The court is not obliged to consider the merits in detail.[12]
The court will consider whether any substantial grounds exists [sic] for apprehending a miscarriage of justice.[13]
Absent satisfactory explanation about delay an applicant is still entitled to an extension if otherwise there will be a miscarriage of justice.[14]
[7]    Hughes v National Trustees Executors & Agency Co of Australasia [1978] VR 257; Gallo v Dawson (1990) 93 ALR 479
[8]    Ratnam v Cumarasamy (1964) 3 All ER 933 at 935.
[9]    Hall v The Nominal Defendant (1967-68) 117 CLR 423 at 435.
[10] R v Foster (1996) 187 LSJS 135; R v Balchin (1974) 9 SASR 64; R v Armstrong (1983-84) 35 SASR 356.
[11] R v Trotter (1979) 22 SASR 64.
[12] Jackamarra v Krakouer (1998-99) 195 CLR 516.
[13] Gikas v Police (1999) 202 LSJS 301 at 306.
[14] Gikas v Police (1999) 202 LSJS 301 at 306.
Mr Key’s Background and Mental State
Mr Key was born in Adelaide in 1978. He has a significant history of mental disorder and has been diagnosed with bipolar disorder. He has had contact with the Mental Health Service since the age of 21 and has subsequently been detained on numerous occasions under the Mental Health Act. The reports before the Court disclose that Mr Key has a severe mental health disorder requiring “protracted hospitalisation” over the course of the last several years. Those reports indicate that his mental health was unstable both during 2006 and in the ensuing years.
Mr Key’s antecedents include numerous offences. His history discloses a predominance of nuisance type offences such as disorderly behaviour, failure to obey officer’s directions, hinder police and resist police. In addition, numerous vehicle offences have been charged. The history records convictions for a number of minor matters, including the offence of pedestrian disobey traffic lights in 1997, and convictions in 2000 for the offences of failure to comply with a request to stop vehicle, enter an intersection showing a red traffic light and riding a bicycle on a prohibited footpath. The report confirms the submission that Mr Key was found mentally incompetent to commit a further 27 offences charged. Those offences occurred in a period from February to October 2006. The 27 offences were consolidated on to two files, and on 4 September 2007, following the finding of mental incompetence, a 6 month limiting term was imposed in relation to all offences.
The question of Mr Key’s mental competence to commit the offences on one of the consolidated files was assessed by Dr Raeside in his report of 14 December 2006. At that time, Dr Raeside also assessed Mr Key’s fitness to plead and stand trial in relation to those matters.
Following an interview with Mr Key, Dr Raeside made a diagnosis of chronic bipolar disorder, with chronic hypomanic symptoms. Dr Raeside noted that Mr Key’s lack of improvement at that time, despite ongoing treatment, represented considerable treatment resistance, demonstrating a severe bipolar disorder. Dr Raeside concluded that Mr Key was unfit to plead and stand trial:
I believe that [Mr Key] is currently unfit to plead and to stand trial given his ongoing mental illness. Although he probably understands the role of the various court officers, his current symptoms would prevent him from being able to adequately follow the course of proceedings and comprehend rationally the impact on him. He would be unable to provide and [sic] adequate defence in [sic] his behalf.
His situation is further complicated by his desire to represent himself, which ordinarily would raise the bar regarding fitness. It is unclear whether [Mr Key’s] fitness would improve over the next 12 months. Ideally his situation would improve with treatment, but so far there has been little optimism that this might be the case. I would recommend a further review of his fitness in three months.
Dr Raeside further concluded that he would favour a mental incompetence defence:
With respect to [Mr Key’s] mental competence to commit the alleged offences my knowledge of his recent mental health and the information provided to me suggests that he was probably suffering a mental illness (mental impairment) at the time with associated irritability, poor judgment, and aggressive behaviour. Police noted that he was uncooperative and referred to the police as “the enemy”. Although information is limited I would favour a mental incompetence defence on the balance of probabilities.
It is of particular relevance to note that Mr Key’s arrest in relation to those offences for which Dr Raeside was assessing Mr Key’s mental state, took place on 13 September 2006, two days after the trial of the offence the subject of the within proceeding. Dr Raeside observed:
…[Mr Key] was arrested and remanded in custody to the Adelaide Remand Centre on 13/9/06. He was placed in the infirmary at the Adelaide Remand Centre after his arrival and was subsequently detained under the Mental Health Act and transferred to the Royal Adelaide Hospital where he was given and [sic] injection of antipsychotic medication and then transferred to Glenside Hospital where he has remained in Brentwood North, a secure closed ward. This was interrupted by a transfer to James Nash House for two weeks before he was eventually bailed and returned to Brentwood North.

As Dr Raeside did not directly address the question of Mr Key’s mental competence in relation to the matter the subject of the within proceeding, with the consent of the parties I directed that an updated report from Dr Raeside be obtained. Two further reports were provided to the Court. The first, dated 7 April 2010, was prepared by Dr Raeside on the basis of his previous interviews with Mr Key but without the benefit of a further consultation. The second, dated 13 May 2010, was prepared following an interview with Mr Key, and assessed his current fitness to plead.
By way of the report dated 7 April 2010, Dr Raeside assessed Mr Key’s likely mental state at the time of the trial on 11 September 2006. Dr Raeside again asserted his previously formed opinion that Mr Key suffered from a psychiatric disorder – a chronic bipolar disorder with chronic hypomanic symptoms, suffering from severe manic episodes at times. In his report, Dr Raeside noted that at the time of his previous assessment of Mr Key, he thought it likely that Mr Key had been experiencing manic symptoms throughout 2006, to a greater or lesser extent, which had significantly interfered with his daily functioning and brought him into contact with police at various times. Dr Raeside observed:
I previously assessed [Mr Key] in relation to a number of offences that occurred throughout 2006 and noted that the relative contribution of his mental illness to the offences varied. However, it was my opinion that “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”. This was a little less clear in relation to some driving offences, but I also thought he was quite mentally unwell at those times as well, having been admitted to hospital soon afterwards.
When I assessed [Mr Key] in December 2006 I noted the difficulties on interview and offered the opinion that he was then unfit to plead and stand trial given his ongoing mental illness. Significantly, this opinion was based on his presentation on 12/12/06 and it was apparent that he had been much more unwell when he first arrived at the Adelaide Remand Centre on 13/9/06. Therefore he would have been more unwell at the time of the trial and given my reasoning on 14/12/06 it would be my opinion that he most likely was unfit to stand trial at that time.
Dr Raeside in his report again drew attention to Mr Key’s limited insight into the nature and severity of his mental illness and ultimately concluded:
…I believe it is most likely that [Mr Key] was mentally incompetent for the charge for which he was convicted whilst unrepresented on 11/9/06 and that he would have been unfit to plead and stand trial at that time.
In the report of 13 May 2010, Dr Raeside outlined Mr Key’s ongoing difficulties with his mental state. Dr Raeside pointed to Mr Key’s “considerable psychiatric involvement with protracted hospitalisation” since his earlier assessment. The report outlined some of the behaviour indicative of mental disorder and, in some cases, associated with the laying of charges by the police. The report further discussed the difficulties associated with the management of Mr Key and his mental disorder, including a history of absconding from psychiatric wards, a lack of insight into his condition, a fragile psychosocial situation with poor supports which predisposes him to relapse, and demonstrated aggression. These matters contributed to an assessment of Mr Key as being both challenging and posing “significant risks and nuisance when unwell.” Dr Raeside further observed:
…Aggravating his condition were multiple losses in his life, legal issues, and functional impairment, resulting in a possible preference to remain in a chronic hypomanic state to ward off depressive symptoms, but as a result impair development of insight and complicate consistent management of his mental illness.
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”.
The application to extend time is to be assessed against the context provided by the severity of Mr Key’s bipolar disorder and his protracted hospitalisation. Mr Key’s mental condition, and the consequent ongoing admission to or detention in institutions, is of particular relevance to the consideration of whether to extend time, when regard is had to the fact that he has predominantly represented himself in his dealings with the Court.
It is axiomatic that when Mr Key has been detained, he has not been well enough to make adequately informed decisions in relation to his legal position and rights. As Dr Raeside noted in his report when assessing Mr Key’s mental state as at 11 September 2006, he thought it likely that Mr Key had been experiencing manic symptoms throughout 2006 which had significantly interfered with his daily functioning. Having regard to the subsequent hospitalisations throughout 2007 and thereafter, it may be extrapolated that at those times, Mr Key’s mental condition would have continued to interfere with his ability to function. His resistance to obtaining legal representation further suggests that his ability to make decisions in his best interests, may be, and may have been in the past, compromised by his mental condition. As Dr Raeside observed in his report of 13 May 2010:
…[Mr Key’s] overall psychiatric condition and mental state would …likely …influence the instructions he provides to any legal representative.
In these circumstances, having regard to the ongoing mental difficulties suffered by Mr Key, there is a satisfactory explanation for the delay in lodging the appeal. To borrow the words of the Court in Balchin, in these proceedings Mr Key has been prevented from applying his mind to the question of the appeal through exceptional circumstances or some untoward vicissitude – chronic and ongoing mental illness. In addition, it is relevant that the reports of Dr Raeside provide a persuasive indication that Mr Key’s complaint has merit and that he was mentally unfit at the time of the trial which proceeded on 11 September 2006, and potentially mentally incompetent at the time the offence occurred. It is further of relevance that the trial proceeded ex parte in circumstances where it is apparent from the timing of Mr Key’s subsequent apprehension that he was not acting rationally nor in his best interests. Ultimately, it would appear that to deny the opportunity to assert a mental impairment defence, when the delay in pursuing that claim has occurred as a consequence of a defendant’s mental condition, may result in a miscarriage of justice.
Despite the delay, it is appropriate in the interests of justice to extend time to appeal against conviction and allow the appeal.
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.

(2)A person who, without lawful excuse, damages (other than by fire or explosives) another's property that is a building or motor vehicle—

(a) intending to damage property; or
(b) being recklessly indifferent as to whether his or her conduct damages property,

is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(3)A person who, without lawful excuse, damages another's property (other than a building or motor vehicle)—

(a) intending to damage property; or

(b)being recklessly indifferent as to whether his or her conduct damages property,

is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

It is apparent from the terms of the above section, that Mr Key ought to have been charged pursuant to section 85(2).