STAMATAS v Police - [2013] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
STAMATAS v POLICE
[2013] SASC 106
Judgment of The Honourable Justice Stanley
5 July 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - GENERALLY
Appeal against findings of the Chief Magistrate - the Chief Magistrate found the appellant not guilty by reason of mental impairment - the appellant appealed on the grounds that she was not mentally impaired and was not behaving inappropriately at the time the offences are said to have taken place - the appellant challenged the substance of the charges - in the Magistrates Court, counsel for the appellant conceded the objective elements of the offence.
Held: Appeal dismissed - the Chief Magistrate correctly assessed all the evidence before the Court - the Chief Magistrate made no error of fact or law - there is no basis to interfere with the Chief Magistrate's decision.
Summary Offences Act 1953 (SA) s 7(1), s 18(2); Supreme Court Civil Rules 2006 (SA) r 295(1)(e); Mental Health Act 2009 (SA); Criminal Law Consolidation Act 1935 (SA) part 8A, referred to.
R v Stevens (2010) 107 SASR 456, considered.

STAMATAS v POLICE
[2013] SASC 106
STANLEY J:
Introduction

This is an appeal from a judgment of the Magistrates Court. On 12 August 2012 the appellant was charged with the offences of disorderly conduct in a public place, using offensive language and loitering in a public place, contrary to ss 7(1)(a), 7(1)(c) and 18(2) of Summary Offences Act 1953 (SA) respectively. On 26 February 2013, the Chief Magistrate found the appellant not guilty of the offences by reason of mental incompetence.
The appellant appeals from the judgment of the Chief Magistrate on the basis that she was not behaving inappropriately at the time the offences are said to have taken place, she does not recall using offensive language, and she complied with the requests of the police officers at Sturt Police Station on 12 August 2012.
The Chief Magistrate did not provide written reasons for her finding that the appellant was not guilty of the offences by reason of mental incompetence. Accordingly, this Court received a report from the Chief Magistrate dated 20 June 2013 on questions relevant to the appeal, pursuant to r 295(1)(e) of the Supreme Court Civil Rules 2006 (SA). On the hearing of the appeal, the Court received affidavits of the appellant sworn 14 March 2013, Emmanuel Athans sworn 24 May 2013 and Michael Sidney Hegarty sworn 21 June 2013.
Background
The appellant’s offending was alleged to have occurred in the car park of the Sturt Police Station at various times on 12 August 2012. The appellant was arrested on 12 August 2012.
Following her arrest, the appellant underwent a psychiatric examination on 13 August 2012. As a result of the psychiatric examination, the appellant was detained at the Margaret Tobin Centre pursuant to a Detention and Treatment Order Level 1, made in accordance with the Mental Health Act 2009 (SA). On 20 August 2012, a Detention and Treatment Order Level 2 was made in relation to the appellant. An appeal to the Guardianship Board by the appellant was dismissed following a hearing before the Board on 7 September 2012, at which time the appellant continued to be detained in the Margaret Tobin Centre pursuant to the Detention and Treatment Order Level 2.
The appellant did not attend court on 6 September 2012 and a warrant was issued for her arrest. The appellant was under detention at the Margaret Tobin Centre at that time. The appellant was discharged from the Margaret Tobin Centre on 24 September 2012.
At a pre-trial conference on 21 December 2012, at the request of the police prosecutor, the Court ordered a psychiatric report on the appellant to be prepared pursuant to ss 269F and 269K of the Criminal Law Consolidation Act 1935 (SA) (“the Act”).
A report was subsequently provided to the Magistrates Court by Dr Evangelina Chin dated 20 February 2013.
The hearing on 26 February 2013
As the Chief Magistrate did not provide written reasons, I have had recourse to her report and to the affidavits of Mr Hegarty and Mr Athans to establish what occurred in the course of the trial.
The appellant appeared before the Chief Magistrate in the s 269 court on 26 February 2013. The appellant was represented by Mr Hegarty. The police prosecutor was Mr Athans. At this time, the Court had before it the report of Dr Chin. Mr Hegarty entered a plea of not guilty on behalf of the appellant and submitted she had available a mental incompetence defence to the charges.
Dr Chin’s report was in relation to s 269K of the Act on the preliminary diagnosis of the appellant’s condition and s 269FA on her mental competence to commit the offences.
The Chief Magistrate considered a number of matters from Dr Chin’s report. In particular, the Chief Magistrate noted the history of the appellant’s mental health. The appellant had been admitted to Flinders Medical Centre in July 2004, seemingly as a consequence of her non-compliance with her medication following the lapse of a Community Treatment Order (“CTO”) in April 2004. Subsequent to the expiry of a further CTO in July 2006, the appellant was admitted to hospital in 2007. In February 2008 and again in June/July 2008, the appellant was admitted to Flinders Medical Centre. The appellant was next admitted to hospital in April/May 2009. Following the expiry of a CTO in July 2010, the appellant was admitted to hospital in August/September 2010. Although on a CTO, the appellant had been able to avoid contact with the community team and had not had any treatment since her previous discharge. The appellant continued to avoid treatment and was admitted again in February/March and June/August 2011. The appellant’s next admission was in March/April 2012. The appellant was most recently admitted in August/September 2012 subsequent to her arrest at the Sturt Police Station. Despite a CTO, the appellant again avoided treatment in August and December 2012.
Dr Chin’s report notes an assessment by Dr Raeside that the appellant suffered from a “chronic psychotic disorder that was prone to relapse when non-compliant with medication”.
The Chief Magistrate noted that the appellant had a history of mental illness with admissions to hospital generally characterised by “querulous behaviour, aggression and frank psychotic symptoms”. In particular, the Chief Magistrate took into account Dr Chin’s finding that the appellant’s current mental state appeared to be stable and she seemed to have made a good recovery subsequent to her admission following her arrest. The Chief Magistrate noted that there was a current CTO on the appellant and, despite past difficulties with compliance, the prognosis was “guarded”.
Dr Chin concluded that the appellant was mentally incompetent to commit the offences charged. Dr Chin also concluded that the appellant was able to give rational instructions and was mentally fit to stand trial.
In reliance on Dr Chin’s report, the Chief Magistrate found the appellant not guilty of the offences by reason of mental incompetence. The appellant was therefore declared liable to supervision pursuant to s 269O of the Act.
Although it is arguable that a further report was required under s 269Q of the Act, the Chief Magistrate considered that Dr Chin’s report contained all the information that was required under that provision. Neither party sought a further report.
Mr Hegarty submitted that the appellant should be released unconditionally. The prosecution did not oppose this submission.
Section 269T(2a) of the Act allows for the release of a person charged with a summary offence on the basis of a single report, where that report contains all the information required by the court. The Chief Magistrate was satisfied that Dr Chin’s report adequately covered all the matters upon which the Court needed expert advice.
The Chief Magistrate took into account the minor nature of the offending, the fact that the appellant had been detained immediately after the offending, the improvement of the appellant’s condition as noted by Dr Chin and that the appellant was currently under a CTO. Despite previous non-compliance with CTOs, the Chief Magistrate formed the view that an unconditional release was the appropriate course in the circumstances. The Chief Magistrate ordered that the appellant be declared liable to supervision and should be released unconditionally, pursuant to s 269O of the Act.
Arguments on Appeal
The appellant represented herself on the hearing of her appeal. It appears she drafted the notice of appeal and supporting affidavit. It is not clear to me that she appreciated that the outcome of the proceedings in the Magistrates Court was that she was acquitted of the charges. Nonetheless, it is clear that she seeks to challenge the substance of the charges of disorderly conduct in a public place, loitering, and using offensive language. The appellant complains that she was mistreated and assaulted by the police at a time when she was suffering a breakdown and was deeply distressed. She submits that her memory of the relevant events was impaired.
The orders of the Chief Magistrate were made pursuant to Part 8A of the Act. The respondent submits that an appeal against those orders requires the permission of the Magistrates Court or this Court pursuant to s 269Y(3) of the Act. I agree. The appellant sought permission on the hearing of the appeal. I indicated to the parties that I would consider and determine the application for permission after hearing the argument on the merits of the appeal.
Ms Redden, counsel for the respondent, submits that no error was made by the Chief Magistrate and that no proper basis exists to interfere with the orders she made. The respondent submits that it is implicit in what occurred in the Magistrates Court that the Chief Magistrate dealt with the matter pursuant to s 269F of the Act. Section 269F provides:
269F–What happens if trial judge decides to proceed first with trial of defendant's mental competence to commit offence
If the trial judge decides that the defendant's mental competence to commit the offence is to be tried first, the court proceeds as follows.
A–     Trial of defendant's mental competence
(1)     The court—
(a)must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental competence to commit the offence; and
(b) may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.
(2) The power to require an examination and report under subsection (1)(b) may be exercised—
(a) on the application of the prosecution or the defence; or
(b)if the judge considers the examination and report necessary to prevent a possible miscarriage of justice—on the judge's own initiative.
(3) At the conclusion of the trial of the defendant's mental competence, the court must decide whether it has been established, on the balance of probabilities, that the defendant was at the time of the alleged offence mentally incompetent to commit the offence and—
(a) if so—must record a finding to that effect;
(b) if not—must record a finding that the presumption of mental competence has not been displaced and proceed with the trial in the normal way.
(5)     The court may, if the prosecution and the defence agree—
(a) dispense with, or terminate, an investigation into a defendant's mental competence to commit an offence; and
(b) record a finding that the defendant was mentally incompetent to commit the offence.
B–Trial of objective elements of offence
(1) If the court records a finding that the defendant was mentally incompetent to commit the offence, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established.
(2) If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt, the court must record a finding that the objective elements of the offence are established.
(3) If the court finds that the objective elements of the offence are established, the court must find the defendant not guilty of the offence but declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
(4) On the trial of the objective elements of an offence, the court is to exclude from consideration any question of whether the defendant's conduct is defensible.
The respondent submits that the Chief Magistrate found the appellant not guilty of the charges by reason of mental incompetence. This issue was tried first and the finding made in the terms contemplated by s 269FA(3)(a). Accordingly, the Magistrates Court must have found that the objective elements of the offences with which the appellant was charged were established. It submits that it is apparent on the evidence that, before the Magistrates Court, the appellant’s counsel conceded this matter. The respondent contends that this must have occurred either on the appellant’s instructions or pursuant to the exercise of counsel’s independent discretion conferred pursuant to s 269W of the Act.
The appellant denies that this occurred on her instructions.
Consideration
The appeal to this Court pursuant to s 269Y of the Act is in the nature of a re-hearing. The Court must reconsider the materials before the trial judge along with such other materials as it may decide to admit and then make up its own mind. However, the Court is not to disregard the judgment appealed from, but must carefully weigh and consider it. If, on full consideration, the Court concludes that the judgment was wrong, then the Court must overrule it.[1]
[1] R v Stevens [2010] SASCFC 1 at [20], (2010) 107 SASR 456 at 460.
In my view, permission to appeal should be granted. However, the decision of the Chief Magistrate should be confirmed.
I am satisfied on the evidence of the prosecutor, Mr Athans, that counsel for the appellant expressly conceded before the Chief Magistrate that the objective elements of the offences with which the appellant was charged, were established.[2] This is implicitly confirmed by the affidavit of the appellant’s counsel who deposed that he submitted to the Magistrates Court that the appellant had a defence of mental impairment available to her.[3] It follows that her counsel must have been satisfied that the objective elements of the offences were established because the appellant did not need a defence if she had not committed the offences. Likewise, I am satisfied that the Chief Magistrate would not have proceeded as she did unless she was satisfied that the objective elements of the offences had been proved or conceded.
[2] Affidavit of Emmanuel Athans [10].
[3] Affidavit of Michael Sidney Hegarty [26].
In this regard, I note the contents of the report of Dr Chin, which was before the Chief Magistrate. Dr Chin records that she interviewed the appellant on 25 January 2013 for the purposes of preparing the report. Dr Chin discussed the contents of the police apprehension report with the appellant. Dr Chin records that the appellant agreed that events had taken place as stated in the report, although she disagreed with the charges brought against her.[4] Dr Chin concluded that the appellant appeared to have a mental impairment defence available to her with regard to the charges. She considered the appellant had suffered clear psychotic symptoms, and did not know the nature and quality of her conduct at the time of her apprehension at the Sturt Police Station. She did not recognise the consequences of her behaviour and did not know that her conduct was wrong by reason of her psychotic illness.
[4] Report of Dr Evangelina Chin dated 20 February 2013 p 6.
The affidavit of the appellant’s counsel provides that the appellant wanted to contest the charges in the Magistrates Court to highlight her inappropriate treatment by police. He says his instructions were that she was not mentally ill, and she was not behaving inappropriately at the time of her arrest.[5] He says that, with respect to the matter, he was able to act on his instructions consistent with the provisions of Part 8A of the Act.[6] Mr Hegarty’s evidence in this regard is somewhat opaque. His affidavit was admitted by consent. He was not called to give evidence. It is not entirely clear what he meant by this statement, however, counsel for the respondent submits that there are two possible explanations. Either he considered that the appellant accepted that, as she had apparently told Dr Chin, the objective elements of the offences had occurred but she wanted to take the opportunity at trial to expose what she considered to be the misconduct of the arresting officers, or he is alluding to the provisions of s 269W of the Act. Section 269W provides:
[5] Affidavit of Michael Sidney Hegarty [28].
[6] Affidavit of Michael Sidney Hegarty [29].
269W—Counsel to have independent discretion
(1)If the defendant is unable to instruct counsel on questions relevant to an investigation under this Part, the counsel may act, in the exercise of an independent discretion, in what he or she genuinely believes to be the defendant's best interests.
(2)If the counsel for the defendant in criminal proceedings (apart from proceedings under this Part) has reason to believe that the defendant is unable, because of mental impairment, to give rational instructions on questions relevant to the proceedings (including whether to be tried by judge alone), the counsel may act, in the exercise of an independent discretion, in what the counsel genuinely believes to be the defendant's best interests.
The appellant denies that she gave instructions to Mr Hegarty that she admitted the objective elements of the offences. That denial appears consistent with the terms of Mr Hegarty’s affidavit. I am not prepared to accept that this is the likely explanation for what occurred before the Chief Magistrate. I do consider, however, that it is likely that Mr Hegarty acted in accordance with the independent discretion conferred by s 269W in conceding the objective elements of the offence. In this regard, I note that Dr Chin considered that the appellant was able to give rational instructions about the exercise of procedural rights in the context of her assessment of her mental state relevant to the questions of her fitness to plead and stand trial. Nonetheless, I consider that, in these circumstances, Mr Hegarty was entitled to act as he did in conceding the objective elements of the offences, pursuant to s 269W. Dr Chin considered that at the time of her interview with the appellant on 25 January 2013, paranoid delusions were still evident in the background of her presentation. Further, Mr Hegarty must have known the contents of Dr Chin’s report and, in particular, the fact that the appellant had admitted to Dr Chin that events had taken place as stated in the police apprehension report. Instructions inconsistent with this admission, given the opinion of Dr Chin, were not rational. On her own admission, the appellant lost her memory of parts of what occurred at the Sturt Police Station.[7] I am satisfied that it was in the appellant’s best interests for Mr Hegarty to concede the establishment of the objective elements of the offences in the context of a submission that the appellant should be found not guilty on the basis of mental incompetence.
[7] Appellant’s affidavit of 14 March 2013.

In my view, there was no error in the orders made by the Chief Magistrate. Moreover, there is no basis to interfere with the orders. The approach of the Chief Magistrate was lawful and compassionate. One can only have sympathy for the position of the appellant. I am satisfied on the evidence before the Court that she has had a difficult life and struggled over a long period of time with mental illness. Plainly, she is distressed by the events that occurred at the Sturt Police Station on 12 August 2012, however, no good purpose would be served by interfering with the acquittal or the basis upon which it was entered.
Conclusion
I confirm the decision of the Chief Magistrate. The appeal is dismissed. I will hear the parties as to costs.