Alben Hyland by next friend Ajay Singh v Mitchell
[2022] WASC 300
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: ALBEN HYLAND by next friend AJAY SINGH -v- MITCHELL [2022] WASC 300
CORAM: FORRESTER J
HEARD: ON THE PAPERS
DELIVERED : 6 SEPTEMBER 2022
FILE NO/S: CIV 1576 of 2022
BETWEEN: ALBEN HYLAND by next friend AJAY SINGH
Plaintiff
AND
JAMIE MITCHELL
First Respondent
ADAM WIRINGI
Second Respondent
DEREK CANNING
Third Respondent
ROSS CUNNINGHAME
Fourth Respondent
STEPHEN SLISKOVIC
Fifth Respondent
LEANNA GREEN
Sixth Respondent
LARA TURNER
Seventh Respondent
TRACY AVELING
Eighth Respondent
MARK NELL
Ninth Respondent
LUKE KIRKHAM
Tenth Respondent
HAI DIN TAN
Eleventh Respondent
IAN MCCUTCHEON
Twelfth Respondent
HIS HONOUR MAGISTRATE STEVEN MALLEY
Thirteenth Respondent
Catchwords:
Administrative law - Review order pursuant to s 36 of the Magistrates Court Act 2004 (WA) - Jurisdictional error - Criminal Law (Mentally Impaired Accused) Act 1996 (WA) - Whether magistrate had the power to make a custody order
Legislation:
Criminal Code
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Magistrates Court Act 2004 (WA)
Sentencing Act 1995 (WA)
Result:
Custody orders set aside
Applicant remanded in custody to appear in Magistrates Court for matters to be dealt with according to law
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
| Fourth Respondent | : | No appearance |
| Fifth Respondent | : | No appearance |
| Sixth Respondent | : | No appearance |
| Seventh Respondent | : | No appearance |
| Eighth Respondent | : | No appearance |
| Ninth Respondent | : | No appearance |
| Tenth Respondent | : | No appearance |
| Eleventh Respondent | : | No appearance |
| Twelfth Respondent | : | No appearance |
| Thirteenth Respondent | : | No appearance |
Solicitors:
| Plaintiff | : | Legal Aid - Perth - Criminal Law Division |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
| Third Respondent | : | State Solicitor's Office |
| Fourth Respondent | : | State Solicitor's Office |
| Fifth Respondent | : | State Solicitor's Office |
| Sixth Respondent | : | State Solicitor's Office |
| Seventh Respondent | : | State Solicitor's Office |
| Eighth Respondent | : | State Solicitor's Office |
| Ninth Respondent | : | State Solicitor's Office |
| Tenth Respondent | : | State Solicitor's Office |
| Eleventh Respondent | : | State Solicitor's Office |
| Twelfth Respondent | : | State Solicitor's Office |
| Thirteenth Respondent | : | State Solicitor's Office |
Cases referred to in decision:
A v Corruption and Crime Commissioner [2013] WASCA 288
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986 HCA 40; (1986) 162 CLR 24
Pickett v The State of Western Australia [2004] WASCA 291
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Rayney v AW [2009] WASCA 203
Re an application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151
Re Magistrate R Bromfield; Ex parte Caratti [2016] WASC 147
Rundle v Innerd [2015] WASC 340
FORRESTER J:
Introduction
The applicant has applied for a review order pursuant to s 36(1)(c) of the Magistrates Court Act 2004 (WA) (the Magistrates Court Act) on the basis that he is aggrieved by:
(c) an act, order or direction done or made by a Court Officer –
(i) on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii) on any ground that might have justified an order of certiorari
The review order sought relates to two custody orders (the custody orders) made pursuant to s 16(6) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (CL(MIA) Act) by Magistrate Malley at the Armadale Magistrates Court on 17 September 2020 in relation to 19 charges after the applicant was found to be mentally unfit to stand trial.
The effect of a custody order is that, though the charge is dismissed, the person is detained indefinitely in an authorised hospital, detention centre, declared place or a prison, subject to periodic reviews by the Mentally Impaired Accused Review Board.[1]
[1] CL(MIA) Act s 24.
Between 30 September 2020 and 30 July 2021, and between 9 August 2021 and 24 August 2021, the applicant received inpatient treatment at medical facilities. Otherwise, he has been detained in a prison. Most recently, he has been in Casuarina Prison since 24 August 2021.
A review order made pursuant to s 36(1)(c) of the Magistrates Court Act relevantly requires the court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should not be set aside.
For the reasons which follow, I have come to the conclusion that there was jurisdictional error in respect of each of the custody orders. The errors fall into four categories:
(1) the applicant was not liable to a custody order in respect of the charge because he had pleaded guilty to the charge prior to a finding that he was mentally unfit to stand trial;
(2)the statutory penalty for the offence to which the custody order related was not, and did not include, imprisonment and thus a custody order was not open to the Magistrate;
(3)The charge did not disclose an offence known to the law; and
(4) there was a jurisdictional error on the basis that the court failed to take into account a relevant consideration which the statute required be taken into account as a precondition of the exercise of authority to make the decision.
I have determined that the orders of the magistrate should be set aside.
Background
The history of this matter is somewhat convoluted, and is complicated by issues which arose in the course of the proceedings. Accordingly, it is necessary to first set out a chronology of the relevant proceedings and outcomes.[2]
[2] A number of appearances and proceedings have been omitted as it is unnecessary to include them for the purposes of this matter.
Chronology
District Court proceedings - 11 December 2017 (IND 37 of 2017)
On 24 August 2017, the applicant was committed for sentence to the District Court at Karratha on the following charges:
(1)aggravated burglary, contrary to s 401(2)(a) of the Criminal Code (the Code) (KH 2433/16);
(2)stealing, contrary to s 378 of the Code (KH 2434/16);[3] and
(3)stealing a motor vehicle contrary to s 378A of the Code (KH 2435/16).
[3] From the committal summary report, it is apparent that an application pursuant to s 5 of the Criminal Code had been granted in relation to charge KH 2434/16. That application was necessary because the charge alleged a theft of car keys valued at $50.
On 11 December 2017, in the District Court at Karratha, the applicant was sentenced to an Intensive Supervision Order (ISO) of 8 months' duration on each of the charges of aggravated burglary and stealing of the motor vehicle. Pursuant to s 11 of the Sentencing Act 1995 (WA) (Sentencing Act), no penalty was ordered in respect of the charge of stealing the car keys.
Magistrates Court proceedings - 27 June 2018
On 27 June 2018, in the Karratha Magistrates Court, the applicant was sentenced for a number of offences, including an aggravated burglary for which he was sentenced to an ISO of 6 months' duration.
District Court proceedings – 27 August 2018 (reoffending while subject to ISO)
A number of the offences for which the applicant was sentenced on 27 June 2018 were committed while the applicant was subject to the ISO imposed by the District Court at Karratha on 11 December 2017.
As a result, on 27 August 2018, the applicant was dealt with in the District Court at South Hedland for reoffending while subject to the ISO and was sentenced to a further ISO of 12 months' duration.
The applicant's criminal history records the offences as 'Breach of ISO (order of 11.12.17)' but the charge numbers referred to are those relating to the aggravated burglary and stealing of the motor vehicle for which the ISO was originally imposed.[4]
[4] Affidavit of Emma Ruth Zillessen sworn 27 May 2022, Annexure 'L', 1 of 12.
Additionally, on the applicant's criminal history for the same date is an entry reading, 'Reoffended whilst subject to a community order; Sentencing Act 1995; 128(1)', in respect of which no further action was taken, pursuant to s 11 of the Sentencing Act.
Reoffending whilst subject to an ISO is not the same as a 'breach' of an ISO. Further, it does not constitute a separate criminal offence. I address this further below.
Magistrates Court proceedings – 19 February 2019
On 19 February 2019, in the Karratha Magistrates Court, the applicant pleaded guilty to two charges of assaulting a public officer (AR 10676/2018 and KH 2521/2018). Those offences were committed on 19 May 2018 and 30 May 2018 respectively, and thus were committed during the term of the ISO imposed by the District Court at Karratha on 11 December 2017. However, it does not appear that any action was taken as a result.
The applicant also pleaded guilty to two charges of breaching a bail undertaking (KH 248/2019 and KH 596/2019). These offences were committed on 9 January 2019 and 6 February 2019, and thus were committed during the term of the ISO imposed by the District Court at South Hedland on 27 August 2018.
Magistrates Court proceedings – 14 May 2019
On 14 May 2019, in the Karratha Magistrates Court, the applicant pleaded guilty to:
(1) unlawful wounding committed on 6 January 2019 (KH 30/2019);
(2)2 charges of breaching an ISO[5] by non-compliance (KH 635/2019 and KH 636/2019);
(3) assault public officer committed on 26 February 2019 (KH 742/2019).
[5] ISO imposed by the District Court at South Hedland on 27 August 2018.
The offences of unlawful wounding and assault public officer were committed during the term of the ISO imposed by the District Court on 27 August 2018.
The applicant was unrepresented by counsel at the time, but it appears the applicant's counsel had communicated with the court by email beforehand, indicating that pleas could be taken.[6]
[6] Book of Agreed Documents filed 23 August 2022, 164 (Book of Agreed Documents).
The matter was adjourned for a pre-sentence report to be obtained.
District Court proceedings – Reoffending during term of ISO imposed by the District Court at South Hedland on 27 August 2018
On 11 June 2019, an order was made by the Magistrates Court committing the applicant to be dealt with by the District Court for re‑offending during the ISO imposed by the District Court at South Hedland on 27 August 2018.
The committal summary report records that charge number KH 1661/2019 was created, alleging that the applicant:
Breached KH 2433/2016 and KH 2435/2016 imposed on 27 August 2018 by re-offending. On 19 February 2019 and 14 May 2019 the offender was convicted of 2 x Breach of Bail Undertaking KH 248/2019 and KH 596/2019, Unlawful Wounding KH 30/2019 and Assault Public Officer KH 742/2019 and was remanded for sentence to 9 July 2019.
The offence provision said to be breached was 'SENTA 128(1)(b)(ii) Breach of Superior Court Intensive Supervision Order.'Clearly, this is a reference to s 128(1)(b)(ii) of the Sentencing Act.[7]
[7] Book of Agreed Documents 15.
It appears this 'charge' was 'created' by the court because the magistrate understood it to be necessary in order to facilitate the applicant's committal.[8] There was not, and could not have been, a prosecution notice, because re‑offending while subject to a community order is not an offence; it simply renders an offender liable to be re-sentenced or otherwise dealt with pursuant to s 128 and s 130 of the Sentencing Act.
[8] Book of Agreed Documents 176.
On committal, the matter was assigned indictment number IND 1179 of 2019, but it appears that it ultimately was again dealt with under IND 37 of 2017, the number of the indictment on which the ISO was initially imposed.
It is apparent that the applicant appeared in the District Court on a number of occasions on that matter, and there were adjournments without resolution leading to an appearance before Chief Judge Sleight on 5 March 2020.[9]
[9] Book of Agreed Documents 213.
On that date, the applicant's counsel raised an issue as to the applicant's 'fitness to plead' and informed the Chief Judge that there was a report in existence which indicated that the applicant was 'not fit to plead'. However, the Chief Judge was properly concerned to first resolve the status of the matter and how the matter had come before the court.
The Chief Judge inquired whether the applicant had been formally charged with the offence of breaching the ISO and whether he had pleaded guilty to those charges.[10] The applicant's counsel indicated that he thought that was the case, but submitted that, having regard to the fact that the applicant was now 'not…in a position where…that plea could be maintained…', the matter could not proceed to sentence. The Chief Judge adjourned the matter to 23 March 2020 so that the position could be clarified.[11]
[10] Book of Agreed Documents 216.
[11] Book of Agreed Documents 217.
When the matter resumed before Troy DCJ on 23 March 2020, confusion continued as to what was to occur, apparently as a result of the fact that a fictional charge had been 'created' in in order to commit the matter. It appears that the parties and the court understood that there was actually a charge alleging reoffending whilst subject to the ISO, upon which the applicant had been committed to the District Court and to which the applicant was required to plead before he could be sentenced.[12]
[12] Book of Agreed Documents 227 - 236.
The prosecutor correctly submitted that, in a case of reoffending while subject to a community order, in order for the court to deal with the applicant under s 130 of the Sentencing Act, the court needed to be satisfied that the applicant had committed an offence while subject to the community order.
However, it was then submitted that the only way the court could be satisfied of that matter was to 'put the breach matters to the accused'. This was not correct. Section 128(2) and s 134(4) of the Sentencing Act set out the means by which the court could satisfy itself of the fact that the applicant had committed an offence while subject to the community order without that allegation needing to be 'put'.[13]
[13] Book of Agreed Documents 232 - 233.
A related issue is whether the proceedings before Troy DCJ were 'sentencing proceedings' such that the CL(MIA) Act did not apply, which is the matter to which the Chief Judge had been alluding on 5 March 2020.[14]
[14] CL(MIA) Act s 8, s 11.
Unfortunately, these provisions were not brought to the attention of Troy DCJ. Instead, Troy DCJ accepted that the 'breach matters' needed to be 'put' to the applicant and, in circumstances in which the applicant was apparently not fit to have the allegation put to him, the matter could not proceed.[15]
[15] Book of Agreed Documents 233.
It was then submitted that the matter should be remitted to the Magistrates Court so that the applicant could again be asked to enter a plea. It was apparently contemplated by both counsel for the State and counsel for the applicant that, on such an occasion, the applicant would be unfit to enter such a plea and that the matter would then be dealt with in accordance with the CL(MIA) Act.[16]
[16] Book of Agreed Documents 233 - 234.
Troy DCJ asked if the parties were satisfied that he had the power to remit the matter to the Magistrates Court, and both submitted he did, without identifying that power. As a result, the matter was remitted to the Armadale Magistrates Court on 27 March 2020.[17]
Magistrates Court proceedings – 11 June 2019 – 17 September 2020
[17] Book of Agreed Documents 234.
Meanwhile, in the Magistrates Court, following the appearance on 14 May 2019, the applicant's matters were adjourned on ten further occasions until 17 September 2020. From 27 March 2020, the pending matters included the allegation of reoffending during the ISO imposed by the District Court on 27 August 2018.
Between 14 May 2019 and 17 September 2020, the applicant was additionally charged with ten offences of assaulting a public officer, committed between 1 March 2019 and 25 February 2020.
Fitness to plead
Concerns as to the applicant's mental health were raised with the court on numerous occasions relating to the relevant charges, commencing on 7 September 2018.
However, the prosecution notices for all of the charges facing the applicant record that it was on 16 October 2019 that the matters were first adjourned by the Magistrates Court on the basis that the applicant was seeking a private report as to his fitness to stand trial.
At some point, however, a psychiatric report as to the applicant's fitness to stand trial was ordered by the court in relation to some of the offences. That report, by Dr Morton, dated 4 December 2019, has been produced in these proceedings.[18] Dr Morton's report refers to an earlier report as to the applicant's fitness to stand trial by Dr Wojnarowska, clearly completed after July 2017. It also refers to a psychiatric report of Dr Brett, and a Foetal Alcohol Spectrum Disorder Addendum Report dated 23 November 2017. However, those reports were not before me and it is not known what findings were made in them as to the applicant's fitness to stand trial.
[18] Book of Agreed Documents 253.
Dr Morton found the applicant was unfit to stand trial but considered that treatment may result in the applicant becoming fit.[19]
[19] Book of Agreed Documents.263.
On 27 March 2020, a further report was ordered by the court, seeking an update as to the applicant's fitness to stand trial.[20] On 4 September 2020, Professor Janca provided a report in which he opined that the applicant was not fit to stand trial.[21]
Magistrates Court proceedings - 17 September 2020
[20] Book of Agreed Documents 239.
[21] Book of Agreed Documents 265 - 272.
On 17 September 2020, the applicant appeared before Magistrate Malley in the Magistrates Court at Armadale on the following charges:
| Charge | Offence | Date of Offence | Date of plea of guilty |
| AR 10676/18 | Assault public officer | 19.05.2018 | 19.02.2019 |
| KH 2521/18 | Assault public officer | 30.05.2018 | 19.02.2019 |
| KH 248/19 | Breach of bail | 09.01.2019 | 19.02.2019 |
| KH 596/19 | Breach of bail | 06.02.2019 | 19.02.2019 |
| KH 30/19 | Unlawful wounding | 06.01.2019 | 14.05.2019 |
| KH 635/19 | Breach ISO (fail to report) | 06.02.2019 | 14.05.2019 |
| KH 636/19 | Breach ISO (fail to report) | 06.02.2019 | 14.05.2019 |
| KH 742/19 | Assault public officer | 26.02.2019 | 14.05.2019 |
| AR 9388/19 | Assault public officer | 01.03.2019 | |
| AR 11562/19 | Assault public officer | 04.04.2019 | |
| AR 11563/19 | Assault public officer | 04.04.2019 | |
| AR 11345/19 | Assault public officer | 16.05.2019 | |
| FR 7314/19 | Assault public officer | 12.06.2019 | |
| FR 7315/19 | Assault public officer | 12.06.2019 | |
| FR 7316/19 | Assault public officer | 12.06.2019 | |
| FR 7317/19 | Assault public officer | 13.06.2019 | |
| FR 7318/19 | Assault public officer | 13.06.2019 | |
| RO 2513/20 | Assault public officer | 25.02.2020 | |
| KH 1661/19 | Breach of District Court ISOs | 19.02.2019 14.05.2019 | |
| KH 2433/16 | Aggravated burglary | For re-sentence due to reoffending while on ISO imposed on 27 August 2018[22] | |
| KH 2435/16 | Steal motor vehicle | For re-sentence due to reoffending while on ISO imposed on 27 August 2018[23] | |
[22] Remitted from the District Court on 27 March 2020.
[23] Remitted from the District Court on 27 March 2020.
The transcript of the proceedings on 17 September 2020 reveals that his Honour had read two reports which indicated to him that not only was the applicant not then 'able to plead', but there was no prospect of him becoming fit in the next six months.[24]
[24] It appears these were the reports of Dr Morton dated 4 December 2019 and Prof. Janca dated 4 September 2020.
The applicant's counsel was not in attendance at the start of the hearing (although the applicant was). Before the applicant's counsel arrived, his Honour stated that he had a note from the applicant's counsel to the effect that he 'consents to a custody order.'[25] When the applicant's counsel did arrive, the magistrate confirmed with him that he had sent correspondence to the court which stated 'that the custody order is acknowledged as being the only appropriate…'.[26]
[25] Book of Agreed Documents 248.
[26] Book of Agreed Documents 250.
The magistrate then had the following exchange with the applicant's counsel:
HIS HONOUR: There is one charge of breach of intensive supervision order. That breach is by reoffending. I don't think that I have jurisdiction to deal with that matter. I think the Act only provides that only the District Court can do that unfortunately. I mean, if the parties agree otherwise I will just make it part of the custody order, but I have some qualms about it. I think the other court should have actually dealt with it. Judge Troy should have dealt with it personally back then, but I understand.
[COUNSEL]: Yes, your Honour.
HIS HONOUR: You know, maybe he just wanted everything to be put together.
[COUNSEL]: Yes, I understand the difficulty. In terms of that charge I don't have a particular proposal.
HIS HONOUR: It just seems to me a waste of time sending it all back up to the District Court. To have something like that
[COUNSEL]: Yes, your Honour. Agreed, sir, yes. I think - -
HIS HONOUR: Maybe if we just take a pragmatic view and if you're happy I will just – I will deal with it as part of the overall - -
[COUNSEL]: In my respectful submission, I think that is the best approach, your Honour. Thank you, sir.
HIS HONOUR: Right. Unfit to stand trial. Custody order made. Okay. So there will just be a custody order made. I don't have to set any time on that I think it's left to the hands of those who have responsibility for it.
…
Okay. So just strike those two, the charge numbers 2433 and 2435, off the list. They just go off into the ether I think and the rest of them are all custody order.[27]
[27] Book of Agreed Documents 250 - 251.
It is regrettable that the applicant's counsel, who had also appeared before Troy DCJ on 27 March 2020, did not inform the magistrate as to the basis on which the charges had been remitted to the Magistrates Court. The outcome was that the matters which the magistrate was obliged, by s 128(1)(b)(ii), to commit to the District Court, were disposed of without further order. However, that is not the subject of any challenge in these proceedings.
A disposition notice records that, in relation to charges KH 2433/16 and KH 2435/16, the outcome was 'No Order Made'.
However, that did not dispose of KH 1661/19. As stated above, that was a charge 'created' solely for the purpose of committing the matter to the District Court and alleging reoffending pursuant to s 128(1)(b)(ii) of the Sentencing Act. It did not disclose an offence known to law.
Regarding KH 1661/19, no outcome is listed. However, the committal summary report relating to KH 2433/16 and KH 2435/16 appears to be annexed to the committal summary report for KH 1661/19, and records the outcome on 17 September 2020 as:
Custody Order Unfit to Stand Trial KH 2433/16, KH 2435/16\par. [28]
[28] Book of Agreed Materials 11.
The affidavit of Emma Ruth Zillessen filed in support of the application for a review order sworn on 27 May 2022 annexes 'Annexure F', being a custody order which states that the sole offence to which it relates is KH 1661/19 with the description of the offence being 'SENTA 128(1)(b)(ii) Breach of Superior Court Intensive Supervision Order'.
The prosecution notices for the remaining charges record the outcome of the proceedings on 17 September 2020 as:
Custody Order Unfit to Stand Trial
Guilty plea entered[29]
[29] Book of Agreed Materials 1, 19, 25, 31, 38, 53, 59, 66 - 68, 78, 85.
Where the prosecution notice related to multiple charges, the word 'Guilty' was repeated for each charge.
Contrary to the entries on the prosecution notices, the transcript of the proceedings show that the applicant was not asked to plead to any charges on 17 September 2020. Indeed, it had been determined at that hearing that he was not fit to do so. While he had already pleaded guilty on earlier occasions to eight of the charges, there were ten charges pending, alleging assault public officer, which had not been put to the applicant.
The application for a review order
The applicant seeks orders pursuant to s 36 of the Magistrates Court Act 2004 (WA), setting aside the custody orders in respect of all of the offences on the basis that they were made without jurisdiction or power.
In the case of the charges to which the applicant had pleaded guilty on 19 February 2019 and 14 May 2019, the applicant submits that the magistrate did not have the power to make a custody order because the CL(MIA) Act did not apply.
In addition, the applicant submits that, as the maximum penalty for charges KH 635/19 and KH 636/19 did not include imprisonment, it was not open to the magistrate to impose a custody order.
As to the charge KH 1661/19, that charge did not disclose an offence known to law and could not have been the subject of a custody order.
Finally, as to the ten charges of assault public officer, the applicant submitted that there was a jurisdictional error on the basis that the court failed to take into account a relevant consideration which the statute required be taken into account as a precondition of the exercise of authority to make the decision.[30]
Legal framework - section 36 Magistrates Court Act 2004
[30] Applicant's submissions filed 12 August 2022 [13] (Applicant's Submissions).
Section 36 of the Magistrates Court Act reads:
(1)If a person is or would be aggrieved by one or more of the following -
(a)the failure of a Court officer to do any act or make any order or direction -
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make -
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
(2)The procedure for making, and in relation to, an application under subsection (1) is to be prescribed by rules of court of the Supreme Court.
(3)On an application made under subsection (1) and rules of court of the Supreme Court, the Supreme Court may make any review order that is just, whether it has been applied for or not.
(4)If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -
(a)order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c)make any necessary consequential orders.
(5)On an application made under subsection (1) in respect of an act, order or direction, the Supreme Court may -
(a)if it considers that an appeal lies under the Criminal Appeals Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and deal with the matter accordingly;
(b)if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and remit the matter to the District Court to be dealt with accordingly.
(6)When dealing with an appeal under the Criminal Appeals Act 2004 the Supreme Court may make a review order and, if it does, may also make an order under subsection (4).
(7) If, when dealing with an appeal under the Magistrates Court (Civil Proceedings) Act 2004, the District Court considers that a review order ought to be made it may -
(a)remit the appeal to the Supreme Court under the District Court of Western Australia Act 1969 section 77; or
(b)adjourn the appeal to enable an application to be made to the Supreme Court -
(i)under subsection (1); or
(ii)under the District Court of Western Australia Act 1969 section 76.
(8)A Court officer, on being served with an order made under subsection (4), must obey the order.
Order 56A of the Rules of the Supreme Court 1971 sets out the procedure in relation to making a review order. Those procedures have been complied with and notice of the application was served on all relevant persons.
The power in s 36 of the Magistrates Court Act is a judicial review power.[31] The power to grant relief under s 36(4) may only be exercised if one or more of the grounds in s 36(1)(a), (b) or (c) has been made out.
[31] Rayney v AW [2009] WASCA 203 [27].
In Re Magistrate R Bromfield; Ex parte Caratti,[32] Le Miere J said:
Section 36 provides for a two stage process. First, if the applicant makes out an arguable case that one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established the court may grant a review order requiring the court officer and affected person to satisfy the court at a hearing that the act, order or direction should or should not be done or made or set aside as the case requires. Secondly, at the hearing required by the review order the court may grant the relief set out in s 36(4)(a), (b) or (c) if it is satisfied that one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established.
[32] Re Magistrate R Bromfield; Ex parte Caratti [2016] WASC 147 [17].
In Rayney v AW,[33] McLure JA explained the operation of s 36 as follows:
Section 36(3), when read with s 36(1), provides the source and scope of the court's power to make a review order. The Supreme Court "may make any review order that is just, whether it has been applied for or not". The expression "that is just" is not intended to empower the court to make a review order requiring the decision-maker to show cause if the decision-maker has not made (at least) an arguable reviewable error. The expression "that is just", in context, means the court has the power to grant a review order whether or not there is an application for such an order and whether or not a specific ground of reviewable error has been relied on by the applicant. The expression also empowers the court in appropriate circumstances (such as the availability of an appeal) to decline to make a review order even if the threshold test of a reviewable error has been established. The power is, in that limited sense, discretionary.
[33] Rayney v AW [31].
Regarding s 36(4), her Honour continued:[34]
The expression that "the Supreme Court is not satisfied in accordance with the review order" in s 36(4) corresponds with the requirement in s 36(1) that the court officer (and any other affected person) satisfy the Supreme Court in relation to the alleged reviewable error the subject of the review order. The central question in this case is the meaning of the words "or if it is just to do so" in s 36(4). Those words are not intended to make the power to grant final relief at large. By analogy with the similar expression in s 36(3), the power in s 36(4) is conditioned upon establishing a reviewable error. The expression "just to do so" is intended to permit the court to grant final relief in relation to a reviewable error falling within s 36(1) even if it falls outside the scope of the reviewable errors identified in the review order.
[34] Rayney v AW [32].
The applicant for relief by way of review must persuade the court of the grounds upon which relief is said to be based. However, analogous to the approach taken by courts in the exercise of discretion to grant prerogative belief, once an applicant has demonstrated a jurisdictional error, the court will normally exercise its discretion in the applicant's favour. Thus, it will normally be for those opposing the grant of relief to point to factors which justify a departure from that approach.[35]
[35] Re an application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151 [51] ‑ [61].
Disposition
In this case the persons affected by the order of the magistrate, being the officers responsible for the prosecution in the case of each offence, and the magistrate who made the custody orders, were represented and made written submissions on the application. The applicant and solicitor for the respondents agreed that the application for a review order and for relief under s 36(4) should be heard together.
Further, having regard to the concessions made by the solicitor on behalf of the respondents, the parties consented to the application being dealt with on the basis of the written submissions of the parties, without oral submissions being required. I have proceeded accordingly.
Charges in respect of which a plea of guilty entered
As outlined above, the applicant entered pleas of guilty on 19 February 2019 and 14 May 2019 as follows:
| Charge | Offence | Date of Offence | Date of plea of guilty |
| AR 10676/2018 | Assault public officer | 19.05.2018 | 19.02.2019 |
| KH 2521/2018 | Assault public officer | 30.05.2018 | 19.02.2019 |
| KH 248/2019 | Breach of bail | 09.01.2019 | 19.02.2019 |
| KH 596/2019 | Breach of bail | 06.02.2019 | 19.02.2019 |
| KH 30/2019 | Unlawful wounding | 06.01.2019 | 14.05.2019 |
| KH 635/2019 | Breach ISO (fail to report) | 06.02.2019 | 14.05.2019 |
| KH 636/2019 | Breach ISO (fail to report) | 06.02.2019 | 14.05.2019 |
| KH 742/2019 | Assault public officer | 26.02.2019 | 14.05.2019 |
As such, the proceedings in relation to these charges were sentencing proceedings.
The provisions in pt 3 div 1 of the CL(MIA) Act deal with fitness to stand trial. For the purposes of pt 3, 'trial' is defined by s 8 to mean all court proceedings other than proceedings in relation to bail and sentencing proceedings.
Pursuant to s 11(1)(a) of the CL(MIA) Act, the question of whether an accused is not mentally fit to stand trial may be raised, in a court of summary jurisdiction, at any time before or during the trial of the accused.
Pt 3 div 2 of the CL(MIA) Act, which was the source of the magistrate's power to impose custody orders in this case, applies if an accused before a court of summary jurisdiction 'is found to be not mentally fit to stand trial.'[36]
[36] CL(MIA) Act s 15.
By 17 September 2020, the applicant had already pleaded guilty to the offences, and those matters were at a stage of the proceedings which could in no way be described as 'before or during the trial' of the applicant. Accordingly, it was not open to the court, the prosecution or the applicant to raise the question of whether the applicant was not mentally fit to stand trial.
The magistrate did not have the power under pt 3 div 2 to find the applicant not mentally fit to stand trial on these offences. It follows that the magistrate also did not have the power to make custody orders under pt 3 div 2 in relation to them.
Charges KH 635 ‑ 636 of 2019
In addition, charges KH 635 - KH636 of 2019 alleged breaches of a community order by non-compliance, contrary to s 131(1) of the Sentencing Act. The maximum penalty for those offences is a fine of not more than $1,000.[37]
[37] Sentencing Act s132(c)(i).
Section 16(6) of the CL(MIA) Act provides that a custody order must not be made unless the statutory penalty for the alleged offence is or includes imprisonment.
Accordingly, the magistrate did not have the power to make custody orders in relation to these offences.
Charge KH 1661/19
As has already set out above, KH 1661/19 did not disclose an offence known to the law. It was a fictitious charge 'created' to enable the allegation of reoffending while subject to an ISO to be committed to the District Court.
This charge was the sole basis of one of the custody orders imposed by the magistrate.
The magistrate did not have the power to impose a custody order on the basis of this charge.
Charges AR 9388/19, AR 11562 - 11563/19, AR 11345/19, FR 7314 ‑ 7318/19 and RO 2513/20
That leaves the following charges, which were also made the subject of a custody order on 17 September 2020:
| Charge | Offence | Date of Offence |
| AR 9388/19 | Assault public officer | 01.03.2019 |
| AR 11562/19 | Assault public officer | 04.04.2019 |
| AR 11563/19 | Assault public officer | 04.04.2019 |
| AR 11345/19 | Assault public officer | 16.05.2019 |
| FR 7314/19 | Assault public officer | 12.06.2019 |
| FR 7315/19 | Assault public officer | 12.06.2019 |
| FR 7316/19 | Assault public officer | 12.06.2019 |
| FR 7317/19 | Assault public officer | 13.06.2019 |
| FR 7318/19 | Assault public officer | 13.06.2019 |
| RO 2513/20 | Assault public officer | 25.02.2020 |
The applicant had not pleaded guilty to any of these offences. The statutory penalty for each of them included imprisonment. Accordingly, assuming the applicant was in fact not fit to stand trial, it was open to the magistrate to make custody orders in relation to these offences, provided the criteria in s 16(6) of the CL(MIA) Act were satisfied.
There is no dispute that the magistrate was entitled to find the applicant not mentally fit to stand trial, having regard to the information available to him.
Were the custody orders made without jurisdiction or power?
In the case of each of these charges, the applicant contends that there was a jurisdictional error on the basis that the court failed to take into account relevant considerations which the statute required be taken into account as a precondition of the exercise of authority to make the decision.[38]
[38] Applicant's submissions [13].
Where it is alleged that there has been a failure to take into account a relevant consideration, the decision will only be vitiated by jurisdictional error if, on the proper consideration of the act in question, the decision maker was bound to take the consideration into account, as a condition of the valid exercise of the power conferred.[39]
[39] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986 HCA 40; (1986) 162 CLR 24, 39; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 91 ‑ 93; A v Corruption and Crime Commissioner[2013] WASCA 288 [88].
The factors which a decision-maker is bound to consider are determined by construction of the statute in which the discretionary power is conferred. In some cases, it is necessary to determine those factors by implication from the subject matter, scope and purpose of the Act.[40] However, in this case, the factors which the magistrate is said to have failed to take account are expressly listed in s 16(6) of the CL(MIA) Act.
[40] A v Corruption and Crime Commissioner [89].
Section 16(6) of the CL(MIA) Act states that a custody order must not be made in respect of an accused unless the court is satisfied that a custody order is appropriate having regard to:
(a)the strength of the evidence against the accused; and
(b)the nature of the alleged offence and the alleged circumstances of its commission; and
(c)the accused's character, antecedents, age, health and mental condition; and
(d)the public interest.
At the proceedings on 17 September 2020, the applicant's then counsel conceded that a custody order in respect of all of the charges was appropriate.
However, even if that concession had been correct (which it was not, in relation to at least nine of the offences, for the reasons already outlined above), it did not absolve the magistrate of the obligation to satisfy himself, in accordance with s 16(6), whether a custody order was required to be imposed on the applicant.
In its written submissions, the respondents conceded that the magistrate wholly failed to consider at least some of the factors to which he was required to have regard before imposing custody orders, and that the magistrate therefore made the custody order without jurisdiction or power within the meaning of s 36(1)(c)(i) of the Magistrates Court Act.
That concession is properly made. The transcript of the proceedings reveals that the facts of the offences were not read, the applicant's criminal history was not before the magistrate, there was no reference to the maximum penalty for any of the offences, and the remaining factors set out in s 16(6) of the CL(MIA) Act were not the subject of any submissions by the parties, or findings by the magistrate. Further, the magistrate gave no reasons for his finding that a custody order was appropriate.
In some cases, the failure to refer to a relevant matter by a magistrate does not necessarily give rise to an inference that the matter was not considered.[41] This is not such a case. In the case of the factors set out at s 16(6)(a) and (b), the magistrate could not have considered them at all, for the simple fact that the information was not before him. Further, the applicant's criminal history was not before the magistrate, and the lack of any submissions regarding, or reference to, any of the matters required to be considered by s 16(6)(c) and (d) compels a conclusion in this case that the magistrate did not properly consider those factors, if at all.
[41] Pickett v The State of Western Australia [2004] WASCA 291 [10]; Rundle v Innerd [2015] WASC 340 [117].
Accordingly, I find that the custody order made by the magistrate in relation to these offences was made without jurisdiction or power, on the basis that the magistrate failed to take into account a relevant consideration, which he was bound to take into account as a condition of the valid exercise of the power to make a custody order under the CL(MIA) Act.
Further error - entry of pleas of guilty
Pursuant to s 36(3), the court may make any review order that is just, whether it has been applied for or not, provided that there is at least an arguable reviewable matter.[42]
[42] Rayney v AW [31].
The applicant has not made an application for a review order in relation to the entry of pleas of guilty in respect of the ten charges of assault public officer to which the applicant did not enter a plea, and in respect of which he submitted he was unfit to plead.
However, as the respondent properly points out,[43] the pleas of guilty should not have been entered by the magistrate. The magistrate had made a finding that the applicant was mentally unfit to stand trial, and would not become fit within six months. He was therefore required, by s 16(2)(a) of the CL(MIA) Act, to make an order pursuant to s 16(5) of the CL(MIA) Act, dismissing the charges without deciding the guilt of the applicant.[44]
[43] Respondents' outline of submissions filed 29 August 2022 [63] - [66].
[44] In addition, the applicant had not been asked to plead to the charges, and did not do so.
Accordingly, the magistrate did not have the power to enter the pleas of guilty on the record.
Discretion to grant relief - delay
As McLure JA observed in Rayney v AW,[45] the court has the discretion to refuse to grant relief even if the threshold test of reviewable error has been established.
[45] Rayney v AW [31].
The application for a review order was filed more than 20 months after the decision of the Magistrates Court.
While there is no time limit within which an application for a review order under s 36 of the Magistrates Court Act can be made, delay can be a ground for refusing to grant relief.[46] However, it is necessary to have regard to the reasons for the delay.
[46] Re Magistrate R Bromfield; Ex parte Caratti [34].
The applicant's solicitor indicated that, despite becoming aware of some anomalies in relation to the imposition of the custody orders in October 2020, there was an apparently valid custody order in relation to the offence of unlawful wounding (KH 30/2019). As a result, no action was taken at that time.[47]
[47] Applicant's submissions [3] - [9].
Then, on 18 March 2022, the Mentally Impaired Accused Review Board sent the applicant's solicitor a letter raising concerns about the charges attached to the applicant's custody order. At that point the applicant's solicitor reviewed the matter in more detail, including scrutinising the prosecution notices, which revealed a number of issues with the orders, resulting in the application for judicial review.[48]
[48] Applicant's submissions [10] - [11].
For at least part of the relevant period, if not all of it, the applicant was unfit to stand trial. Further, he was entitled to rely upon his legal representatives to pursue any matters which justified a review in this case. In my view, any unreasonable delay is not attributable to the applicant.
In any event, the effect of a custody order is potentially indefinite imprisonment. Such an order cannot be permitted to stand if it were imposed without jurisdiction, even if there has been significant delay.
Accordingly, I do not propose to exercise my discretion to refuse relief in this case.
Relief
Pursuant to s 36(4) of the Magistrates Court Act, if it is just to do so, the court may:
(a) order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c)make any necessary consequential orders.
It is appropriate in this case to make an order setting aside both of the custody orders made on 17 September 2020.
It is also appropriate to make an order setting aside the pleas of guilty recorded on the prosecution notices for each of the following charges:
| Charge | Offence | Date of Offence |
| AR 9388/19 | Assault public officer | 01.03.2019 |
| AR 11562/19 | Assault public officer | 04.04.2019 |
| AR 11563/19 | Assault public officer | 04.04.2019 |
| AR 11345/19 | Assault public officer | 16.05.2019 |
| FR 7314/19 | Assault public officer | 12.06.2019 |
| FR 7315/19 | Assault public officer | 12.06.2019 |
| FR 7316/19 | Assault public officer | 12.06.2019 |
| FR 7317/19 | Assault public officer | 13.06.2019 |
| FR 7318/19 | Assault public officer | 13.06.2019 |
| RO 2513/20 | Assault public officer | 25.02.2020 |
In my view, an order finally dealing with any of the charges is not a 'consequential order', in the sense that it is not necessarily consequential upon the orders setting aside the magistrate's orders.
The orders having been set aside, it is a matter for the Magistrates Court to now deal with the following matters according to law:
(1) whether a custody order should be imposed upon the applicant in respect of the charges where the applicant has not entered pleas of guilty;
(2) the dismissal of KH 1661/19; and
(3)sentencing of the applicant in relation to the charges to which the applicant has previously pleaded guilty.
I will make consequential orders which facilitate the appearance of the applicant in the Magistrates Court.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Forrester
6 SEPTEMBER 2022
2
9
0