Attorney General v WAW - [2025] WASC 324

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   ATTORNEY GENERAL -v- WAW [2025] WASC 324
CORAM:   LEMONIS J
HEARD:   29 MAY 2025
DELIVERED          :   14 AUGUST 2025
PUBLISHED           :   14 AUGUST 2025
FILE NO/S:   CLMI 6 of 2024
BETWEEN:   ATTORNEY GENERAL
Applicant
AND
WAW
Respondent

Catchwords:

Respondent is subject to a custody order made under the Criminal Law (Mental Impairment) Act 2023 (WA) - Custody order made for fixed period, which has now expired - Applicant obtained an interim custody order prior to the expiry of the custody order, and now seeks an extended custody order - Consideration of applicable principles - Consideration of interaction between the Criminal Law (Mental Impairment) Act 2023 (WA) and the High Risk Serious Offenders Act 2020 (WA)

Legislation:

Criminal Code (WA)
Criminal Law (Mental Impairment) Act 2023 (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)

Result:

Extended custody order made for a period of 2 years and 3 months

Category: B

Representation:

Counsel:

Applicant	:	Ms F Allen
Respondent	:	Ms E Zillessen

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid - Perth - Criminal Law Division

Case(s) referred to in decision(s):

Director of Public Prosecutions (WA) v GTR [2008] WASCA 187
Garlett v Western Australia [2022] HCA 30
State of Western Australia v Chokolich [2024] WASC 346
The State of Western Australia v Patrick [No 5] [2022] WASC 61
The State of Western Australia v Williams [No 2] [2024] WASC 215

LEMONIS J:

The applicant (the Minister) applies for an extended custody order (ECO) under s 105(1) of the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act) in respect of the respondent.
The Minister is currently responsible for the administration of the CLMI Act.
For introductory purposes, the background to the application can be briefly stated. I will expand on the background later in these reasons.
The respondent has a mental impairment. Self-evidently, given this is an application for an ECO, a custody order is already in place in respect of the respondent.
Her Honour, Magistrate Oliver, made the custody order on 22 November 2024 after conducting a 'special proceeding' under the CLMI Act. At the special proceeding, her Honour found the respondent not guilty of four offences on account of mental impairment under s 27 of the Criminal Code (WA) (the Code). Her Honour then made a custody order in respect of those four offences, with a limiting term of 8 months that commenced on 9 May 2024.
On 27 December 2024, the Minister filed the application for an ECO. On 31 December 2024, his Honour Justice Cobby made an interim custody order that remains in place until the Minister's application is determined.

Material provided for hearing

I received very helpful written submissions from Ms Allen, representing the Minister.
Ms Zillessen appeared for the respondent. Given the respondent's mental impairment, he was unable to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney General v WAW

Details

AGLC: Attorney General v WAW [2025] WASC 324
Case: [2025] WASC 324
Decision Date: 14 AUGUST 2025

CaseChat Overview and Summary

The respondent in this case was subject to a custody order made under the Criminal Law (Mental Impairment) Act 2023 (WA). The fixed period for which the custody order was in effect has now expired. The applicant, the Attorney General, obtained an interim custody order prior to the expiry of the existing order and now seeks an extended custody order. The court was tasked with determining the principles applicable to such cases, and also considering the interaction between the Criminal Law (Mental Impairment) Act 2023 (WA) and the High Risk Serious Offenders Act 2020 (WA).

The court was required to consider the relevant legislative framework and the principles that govern the granting of extended custody orders under the Criminal Law (Mental Impairment) Act 2023 (WA). It also needed to address the interplay between this Act and the High Risk Serious Offenders Act 2020 (WA), and how these two Acts should be interpreted and applied in this context. Specifically, the court needed to determine whether the principles and provisions of the two Acts could be reconciled, and if so, how.

The court found that the principles governing the granting of extended custody orders under the Criminal Law (Mental Impairment) Act 2023 (WA) required a careful balancing of the interests of the respondent and the community. It concluded that the High Risk Serious Offenders Act 2020 (WA) did not preclude the application of the principles set out in the Criminal Law (Mental Impairment) Act 2023 (WA). Instead, the two Acts should be read in a way that allowed for their harmonious operation. The court determined that the principles of the Criminal Law (Mental Impairment) Act 2023 (WA) could be applied in this case, and granted the application for an extended custody order.

The court ordered that the respondent be subject to an extended custody order under the Criminal Law (Mental Impairment) Act 2023 (WA), reflecting the principles and provisions of that Act, as well as the relevant considerations arising from the High Risk Serious Offenders Act 2020 (WA). The court's decision provides important guidance on the interaction between these two Acts and the principles that should guide the granting of extended custody orders in cases involving mentally impaired offenders.

Orders