Alben Hyland by next friend Ajay Singh v Mitchell

Alben Hyland, represented by his next friend Ajay Singh, applied for a review order pursuant to s 36(1)(c) of the Magistrates Court Act 2004 (WA) in relation to two custody orders made by Magistrate Malley on 17 September 2020. The applicant had been found to be mentally unfit to stand trial in relation to 19 charges and was detained indefinitely in an authorised hospital or prison. The applicant sought to set aside the custody orders on the basis that they were made without jurisdiction or power. The legal issues were whether the magistrate had the power to make custody orders in relation to the applicant and, if so, whether the magistrate had considered the relevant factors required by s 16(6) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). The court found that there was jurisdictional error in respect of each of the custody orders. The errors fell into four categories: 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; 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; the charge did not disclose an offence known to the law; and 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. The court determined that the orders of the magistrate should be set aside. The applicant was remanded in custody to appear in Magistrates Court for matters to be dealt with according to law.