JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: COHEN -v- GATES [2018] WASC 247
CORAM: HALL J
HEARD: 29 JUNE 2018
DELIVERED : 15 AUGUST 2018
FILE NO/S: SJA 1011 of 2018
BETWEEN: JAMES DAVID COHEN
Appellant
AND
DARREN STUART GATES
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE HUSTON
File Number : PE 7676 of 2016
Catchwords:
Criminal law - Fitness to plead - Whether right of appeal from decision of magistrate to impose custody order under s 16 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Administrative law - Review order pursuant to s 36 of Magistrates Court Act 2004 (WA) - Whether decision of magistrate imposing custody order unreasonable
Legislation:
Criminal Appeals Act 2004 (WA), s 6, s 7
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 16
Magistrates Court Act 2004 (WA), s 36
Result:
SJA 1011 of 2018
1. The appeal is dismissed
Review order
1. The order dismissing the charge and the custody order are set aside
2. The matter is remitted to the Magistrates Court for a fresh hearing regarding whether a custody order is appropriate, such hearing to be before a different magistrate
3. The appellant is granted bail on a personal undertaking to appear in the Magistrates Court on 29 August 2018 with a condition that he comply with all directions of his treating psychiatrist
Representation:
Counsel:
| Appellant | : | Ms N Sinton |
| Respondent | : | Mr J Carroll |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
A v Corruption and Crime Commissioner [2013] WASCA 288
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
Chang v Turner [2005] WASC 246; (2005) 158 A Crim R 68
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Davern v Messel [1984] HCA 34; (1984) 155 CLR 21
Dean v Legal Practice Board [2013] WASC 155
Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Gazely v The State of Western Australia [2013] WASCA 279
Helena Valley/Boya Association (Inc) v State Planning Commission (1990) 2 WAR 422
Luu v Renevier (1989) 91 ALR 39
Minister for Immigration and Border Protection v SZRTFH [2013] FCA 1377
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332
Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Re an application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151
Re Smith; Ex parte Rundle (1991) 5 WAR 295
State of WA v Sanders [2012] WASC 409
SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005]…
Continue reading Cohen v Gates
Sign in free to access the full text
- AGLC
- Cohen v Gates [2018] WASC 247
- Case
- [2018] WASC 247
- Decision Date
CaseChat Overview and Summary
The court held that the decision to impose a custody order was not appealable under the Criminal Appeals Act as it was not explicitly listed in s 6 of the Act. The court reasoned that while a decision that an accused is not mentally fit to stand trial is appealable, the imposition of a custody order, which is a separate and consequential decision, does not fall within the terms of the Act. The court also noted that s 6 of the Criminal Appeals Act is not intended to be exhaustive and that s 7(3) of the Act provides for additional considerations that may affect the appealability of certain decisions. However, the court found that the magistrate's failure to make an obvious inquiry about a critical fact that was readily ascertainable could result in the decision being unreasonable. The court referred to Prasad v Minister for Immigration & Ethnic Affairs, where it was held that a decision may be deemed unreasonable if the decision-maker fails to obtain relevant information that is obviously available.
The court concluded that the appeal was not valid under the Criminal Appeals Act as the imposition of a custody order is not an appealable decision. However, the court found that the magistrate's failure to make an obvious inquiry into a critical fact rendered the decision unreasonable. The court did not find it necessary to further examine the issue of unreasonableness as the appeal was not valid under the Act. Therefore, the appeal was dismissed.
In summary, the Court of Appeal of Western Australia held that the decision to impose a custody order under s 16 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) was not appealable under the Criminal Appeals Act. The court also held that a failure to make an obvious inquiry about a critical fact could render a decision unreasonable. However, the appeal was dismissed as it was not valid under the Act.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
It has been held that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances result in the decision being unreasonable in the 'Wednesbury sense'. In Prasad v Minister for Immigration & Ethnic Affairs,[58] Wilcox J said:A question arose, during the hearing of the evidence, as to the relevance to the issue of reasonableness of material which was not before the Minister, actually or constructively. There are at least three possible views. The most restrictive view is that par (g) applies only to a case in which the court is able to hold that, upon the material actually or constructively before the decision-maker, the decision was unreasonable. At the opposite extreme it is arguable that the question is whether, upon the evidence before the court as to the facts at the date of decision, and whether or not all of those facts were known to, or reasonably ascertainable by, the decision-maker, his decision, objectively considered, was unreasonable. An intermediate position is that the court is entitled to consider those facts which were known to the decision-maker, actually or constructively, together only with such additional facts as the decision-maker would have learned but for any unreasonable conduct by him. I have been unable to find any discussion in the authorities of this question, possibly because the facts will often be clear. Consequently, I express no more than a tentative view. But in principle, as it seems to me, the intermediate position is correct. Under s 5(l)(e) and s 5(2)(g) the court is concerned with the manner of exercise of the power. A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision-maker makes his decision - which perhaps in itself, reasonably reflects the material before him - in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information. (emphasis added)[58] Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155, 169 - 170.