Cohen v Gates

Case [2018] WASC 247

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

Rayney v AW [2009] WASCA 203

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

Details
AGLC
Cohen v Gates [2018] WASC 247
Case
[2018] WASC 247
Decision Date

CaseChat Overview and Summary

Cohen was the appellant and Gates was the respondent in this case, which was heard in the Court of Appeal of Western Australia. Cohen was appealing a decision made by Gates, a magistrate, to impose a custody order on him under s 16 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). Cohen argued that the magistrate's decision was unreasonable, and sought review under s 36 of the Magistrates Court Act 2004 (WA). The central legal issue was whether the decision of the magistrate to impose a custody order was appealable under the Criminal Appeals Act and whether it was unreasonable. The court examined the definitions and scope of 'decision' in the Criminal Appeals Act and whether the imposition of a custody order fell within the purview of the Act.

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

Section 6 of the Criminal Appeals Act defines 'decision':In this Part, unless the contrary intention appears -decision, of a court of summary jurisdiction, means any of the following -(a)a judgment entered under the Criminal Procedure Act 2004 section 128(2) or (3);(b)a decision ordering a permanent stay of a prosecution;(c) a decision to convict an accused of a charge, whether after a plea of guilty or after a trial;(d)a decision to acquit an accused of a charge;(e)a decision to acquit an accused of a charge on account of unsoundness of mind;(f)a sentence imposed, or order made, as a result of a conviction or acquittal;(g)a refusal to make an order that might be made as a result of a conviction or acquittal; (h)a decision as to costs;(i)a decision made under the Criminal Investigation Act 2006 section 151; It should be noted that the appellant does not challenge the magistrate's decision that he was not mentally fit to stand trial. A decision of that type is clearly appealable, either by the prosecution or the accused, by virtue of s 12(4) of the Act, which is a provision in 'any other written law' as referred to in s 7(5) of the Criminal Appeals Act. The decision to make a custody order is consequential upon a finding that a person is not fit to plead, but involves distinct and separate considerations. There is no other provision in the Act (or any other Act) that makes the imposition of a custody order appealable. Accordingly, such an order can only be the subject of an appeal if it falls within the terms of the Criminal Appeals Act. A decision to impose a custody order under s 16(5)(b) of the Act is not one of the items listed in s 6 of the Criminal Appeals Act. An order under s 16(5) is an order dismissing the charge without deciding the guilt or otherwise of the accused. Therefore, it is not an order made 'as a result of conviction or acquittal'. In these circumstances a decision to make a custody order is not a decision that can be the subject of an appeal under pt 2 of the Criminal Appeals Act. It was submitted by the appellant that s 6 is not intended to be an exhaustive list of what constitutes a 'decision' for the purposes of s 7(1) of the Criminal Appeals Act. The appellant says that this is demonstrated by the express exclusion of some types of decisions in s 7(3). The appellant submits that if s 6 was an exhaustive list of appellable decisions s 7(3) would be unnecessary. The appellant further says that the items listed in s 6 reflect decisions of a final character while those listed in s 7(3) are not of a final character.[34] [34] Appeal ts 4, 29 June 2018. The respondent submitted that s 7(3) would still have work to do even if s 6 was an exhaustive list and referred the court to several illustrations. It was submitted that s 7(3)(a) would operate where parliament may wish to remove some of the appeal powers under s 6, without amending a whole paragraph within s 6. Section 7(3)(b) would operate in relation to a decision to commit an accused for trial or sentence to a superior court, and s 7(3)(c) would operate in relation to a grant of bail following adjournment of sentencing proceedings.[35] Decisions of this nature could raise questions as to their character and susceptibility to appeal. In these circumstances s 7(3) may have been included for the sake of clarity.[35] Appeal ts 22 - 23, 29 June 2018.

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.