An Adelaide man has won a retrial on mental health grounds after spending more than three years in custody stemming from a 2017 incident where he threw a bottle at an elderly man and stole his backpack.
In delivering his reasons for allowing the appeal and setting aside his conviction, Supreme Court Justice Mark Livesey said there was a miscarriage of justice and that overturning the man's conviction was warranted despite him already finishing his sentence.
The man — who cannot be named for legal reasons — pleaded guilty in August 2018 to one count of aggravated committing theft using force and another count of theft over the incidents on December 12, 2017.
Police said he threw a bottle at an 81-year-old man using a computer outside a cafe on Rundle Street, in Adelaide's CBD, about 1:20am, before punching him and stealing his backpack.
He then stole a jacket from a security guard who confronted him in Rundle Mall six minutes later.
After police arrested him on North Terrace, he told officers he believed the bag had belonged to his girlfriend and that the victim was a paedophile "as a result of seeing his spirit".
Schizophrenia diagnosis and delusional beliefs
When he spoke to forensic psychologist Benjamin Stewart before sentencing, the accused man said the bag had belonged to a child.
He told a psychiatrist who diagnosed his schizophrenia that he was "on a mission from God to get Adelaide running the way it is supposed to and that his family had been landlords of Adelaide for the last 700 years", according to the judgement published last week.
He also said he owned and ran international businesses, including one that had diamond mines located beneath North Terrace and the Yatala Labour Prison.
He denied having any mental disorder and had used methamphetamine, cannabis, Valium, heroin, ecstasy and LSD prior to the offending.
In his report, Dr Stewart said it was possible that the man harboured a delusional belief but that "it was more likely that this was a fabricated justification given to minimise his offending", Justice Livesey summarised in his reasons.
The appellant, who has a long criminal history, was sentenced to at least two years in jail in November 2018.
He was later convicted of another crime while in jail, adding four months to his sentence.
Report after application for supervision order
Before he was meant to be released, former attorney-general Vickie Chapman applied for an extended supervision order on the man as a high-risk offender in February 2021.
The order allows conditions similar to being on parole to be imposed on a former prisoner, even after his or her sentence has ended.
A psychiatric report was ordered, which found he "appears to have little understanding of his legal status".
Justice Livesey summarised that "Dr Furst expressed the opinion that the appellant was not fit to instruct counsel, not fit to stand trial and, at the time of his offending, was mentally incompetent".
"In the opinion of Dr Furst, the appellant’s offending 'was most likely to have been driven by his florid and chronic psychosis that was at that time untreated'," Justice Livesey wrote, adding that "he did not believe that the appellant could 'truly give rational instructions'”.
Dr Furst's report also said the man believed he lived in a house with an underground Lamborghini shop that had tunnels from it that were full of paedophiles.
Questions about mental competence
Justice Livesey wrote that it was "open to contend that the appellant could not in law appreciate the nature of the charge and could not be taken to intend to admit his guilt".
"On the evidence, there are questions about his mental competence and capacity to instruct and his fitness to plead at the time of the pleas, as well as about his mental competence at the time of the alleged offending," he wrote.
"…Whilst it might be suggested that there is no need to address these issues where the appellant has already served his sentence, the history of this matter demonstrates that the existence of convictions for serious offending can have an important impact on a defendant long after, and regardless of, the time spent in custody. There is obvious utility in an appeal.
"The further evidence supports the conclusion, and the Director [of Public Prosecution]’s concession, that there has been a miscarriage of justice."
A spokeswoman for the DPP said it would be pursuing a new trial over whether the man was mentally competent to stand in a retrial.
He was released from custody in December but has been detained under the Mental Health Act until September this year.
