Kirkland v Tippett
[2000] TASSC 94
•19 July 2000
[2000] TASSC 94
CITATION: Kirkland v Tippett [2000] TASSC 94
PARTIES: KIRKLAND, Tony Lance
v
TIPPETT, Samantha Jane
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 46/1998
DELIVERED ON: 19 July 2000
DELIVERED AT: Launceston
HEARING DATE/S: 16 May 2000
JUDGMENT OF: Crawford J
CATCHWORDS:
Magistrates - Jurisdiction and procedure generally - Procedure - The hearing - General matters - Matters of procedural fairness and propriety - Disqualification of magistrate for bias - By reason of earlier having made an order under Criminal Process (Identification and Search Procedures) Act 1976, s7, and issued a warrant under Listening Devices Act 1991, s17, both concerning the respondent in subsequent proceedings for a restraint order - Communications concerning respondent made by police officers to magistrate in secret circumstances.
Livesey v New South Wales Bar Association (1983) 151 CLR 288; Schreuder v Australian Securities Commission (1996) 6 Tas R 223, followed.
Aust Dig Magistrates [79]
Procedure - Courts and judges generally - Judges - Disqualification for interest or bias - In general - Reasonable suspicion of bias - Magistrate having earlier made an order under Criminal Process (Identification and Search Procedures) Act 1976, s7 and issued warrant under Listening Devices Act 1991, s17, both concerning the respondent in subsequent proceedings for a restraint order - Communications concerning respondent made by police officers to magistrate in secret circumstances.
Livesey v New South Wales Bar Association (1983) 151 CLR 288; Schreuder v Australian Securities Commission (1996) 6 Tas R 223, followed.
Aust Dig Procedure [5]
REPRESENTATION:
Counsel:
Applicant: S J N Brown
Respondent: J W Avery
Solicitors:
Applicant: Clarke & Gee
Respondent: Avery Keal
Judgment ID Number: [2000] TASSC 94
Number of paragraphs: 28
Serial No 94/2000
File No LCA 46/1998
TONY LANCE KIRKLAND v SAMANTHA JANE TIPPETT
REASONS FOR JUDGMENT CRAWFORD J
19 July 2000
An application was made against the applicant for a restraint order under the Justices Act 1959, for the protection of the respondent. Following a defended hearing, the magistrate, Mr P H Wilson, was satisfied that such an order should be made. Reasons for being so satisfied were published on 4 November 1998. Following a discussion with counsel that day, the learned magistrate adjourned the proceedings, continued in force interim restraint orders which had been made earlier and ordered that the applicant attend such appointment that be made for a psychiatric assessment and cooperate in the assessment process.
The notice to review purports to seek the review of a restraint order made on 4 November 1998 pursuant to the Justices Act 1959, s106B(1). I think it is erroneous because a restraint order has not yet been made under that provision. My understanding is that presently the applicant is restrained by interim orders, which have been continued in force by the learned magistrate, pending disposal of the motion to review. I will treat the notice as if it seeks to review the finding of the learned magistrate that he was satisfied that a restraint order should be made. The notice also seeks to review the order that the applicant attend for a psychiatric assessment.
Originally there were 17 grounds of review, but at the hearing they were reduced to four, the first three of which attack the finding that a restraint order should be made and the fourth attacks the order that the applicant attend for psychiatric assessment. The grounds are:
"1 The Learned Magistrate was biased against the Appellant [sic].
2The Learned Magistrate erred in law in failing to disqualify himself from hearing the Respondent's Application.
3A miscarriage of justice occurred in the hearing of the Respondent's Application in that Counsel for the Appellant [sic] before the Learned Magistrate failed to make application that the Learned Magistrate should disqualify himself from hearing the Respondent's Application upon the grounds of perceived bias, when he should properly have done so in all the circumstances.
4The Learned Magistrate had no jurisdiction to make an order whereby the Appellant [sic] was ordered to attend as directed for psychological assessments and further to attend at the Court of Petty Sessions at St Helens on the 4th March 1999."
Ground 1 asserts actual bias against the applicant, on the part of the learned magistrate. Ground 2 does not specify whether actual or perceived bias is asserted, but the applicant's counsel said that it raises perceived bias. Ground 3 asserts no error on the part of the learned magistrate. Instead error on the part of the applicant's counsel is asserted, in failing to apply to the learned magistrate that his Worship disqualify himself upon the ground of perceived bias.
The following facts were stated in an affidavit sworn by the applicant which was read on his behalf at the hearing of the motion. In or about early 1998 he was served with a warrant by police. As a result of it, the police took a cast of his foot and had a doctor examine his foot and leg and his gait. The applicant believed that the warrant related to the investigation into the murder of Victoria Cafasso. In early 1998 the applicant was charged with stalking Hilder Jackson on the East Coast of Tasmania. He instructed a legal practitioner, Mr G R Stephenson, to act for him in relation to that matter. He appeared on numerous occasions in relation to that matter of complaint before a court of petty sessions, constituted by Mr Wilson, at St Helens. However, the matter of complaint was dismissed prior to committal proceedings taking place. The applicant believes that in the course of instructing Mr Stephenson about the charge of stalking Hilder Jackson, Mr Stephenson told him that Mr Wilson had issued the warrant just referred to. "In the course of" the Jackson matter, the application seeking a restraint order on behalf of the respondent was made. I presume that what was meant was that after the complaint relating to Hilder Jackson was made but before it was dismissed, the application seeking the restraint order for the respondent was made. The applicant instructed Mr Stephenson in that matter as well. The applicant appeared before Mr Wilson, sitting as a court of petty sessions at St Helens, on several occasions in relation to that application prior to its eventual hearing on 23 September 1998. The applicant does not recall discussing the warrant with Mr Stephenson again prior to that hearing. However, the applicant said in his affidavit that he was worried about Mr Wilson hearing the case on that day because Mr Wilson had issued the warrant. The applicant said that it was his understanding that Mr Stephenson was aware that Mr Wilson had issued the warrant. No advice was given by Mr Stephenson that Mr Wilson could be asked to stand down from the hearing of the case. The applicant left the defence in Mr Stephenson's hands.
Also read into evidence was an affidavit by Mr Stephenson. He said that he was aware that the applicant claimed that prior to the hearing of the application for the restraint order on 23 September 1998, the applicant advised him that the magistrate, Mr Wilson, had issued several warrants directed at him in relation to the investigation into the death of Victoria Cafasso. Mr Stephenson said that he recalled the applicant advised him of one warrant issued for the purpose of identification, Mr Stephenson believed under the Criminal Process (Identification and Search) Act 1976.
The following agreed facts were put before me on the hearing of the motion to review:
· the learned magistrate was the coroner inquiring into the death of Victoria Cafasso.
· the learned magistrate issued a warrant pursuant to the Criminal Process (Identification and Search Procedures) Act 1976, s7, in February 1998, directed at the applicant in relation to investigations into the death of Victoria Cafasso.
· the learned magistrate issued a warrant pursuant to the Listening Devices Act 1991, s17, in February 1998, directed at the applicant in relation to investigations into the death of Victoria Cafasso.
The Criminal Process (Identification and Search Procedures) Act 1976, s7, provides for the making of an order but not for the issue of a warrant. I will presume that the reference in the agreed facts to a warrant under that section was intended to be a reference to an order under it. I have no evidence of the contents of the order made under the Criminal Process (Identification and Search Procedures) Act 1976, s7, or of the warrant issued pursuant to the Listening Devices Act 1991, s17. There is no evidence of the factual basis upon which either the order was made or the warrant was issued. The Criminal Process (Identification and Search Procedures) Act 1976, s7(1), required that the application for the order be made by a police officer. Subsection (2) required that the learned magistrate not make an order under the section unless he was satisfied that the police officer had reasonable grounds for believing that such an examination might afford evidence of the commission of some offence punishable by imprisonment. Subsection (3) provided that the effect of an order made under the section is that "it is lawful for a medical practitioner acting at the request and in the presence of a police officer, and any person acting in good faith in aid of and under the direction of the medical practitioner, to make such an examination of the clothing and the body of the person … as is reasonably necessary to discover any facts which may afford evidence of an offence, and to take possession of and retain any matter or thing that may afford such evidence and a police officer may take prints of any part of the body of a person who is so examined".
The Listening Devices Act 1991, s17, provided for the issue of warrants authorising the use of listening devices. Subsection (1) provided that upon complaint made by a police officer of or above the rank of sergeant that the officer suspected or believed that an offence punishable on indictment had been committed and that, for the purpose of an investigation into that offence or of enabling evidence to be obtained of the commission of the offence or the identify of the offender, the use of a listening device was necessary, a magistrate might, if satisfied that there were reasonable grounds for that suspicion or belief, authorise, by a warrant, the use of the listening device. In determining whether a warrant should be granted under the section, subs(2) provided that a magistrate should have regard to the nature of the offence in respect of which the warrant was sought, the extent to which the privacy of any person was likely to be affected, alternative means of obtaining the evidence or information sought to be obtained, the evidentiary value of any evidence sought to be obtained and any previous warrant sought or granted under the Act, Pt 4, in connection with the same offence. If the warrant granted by the magistrate under the section authorised the installation of a listening device on any premises, the magistrate was required by subs(3), by the warrant, to authorise and require the retrieval of the listening device and authorise entry onto the premises for the purpose of the installation and retrieval.
Counsel for the applicant, Mr Brown, pointed out that in the course of determining whether to make the order under the Criminal Process (Identification and Search Procedures) Act 1976, s7, the learned magistrate must have been satisfied in February 1998, upon the basis of information provided to him in the absence of the applicant, that a police officer had reasonable grounds for believing that an examination of the applicant might afford evidence of the commission of some offence concerning the death of Victoria Cafasso. Counsel for the applicant also pointed out that in the course of determining whether to authorise, by warrant, the use of a listening device under the Listening Devices Act 1991, s17, the learned magistrate must have been satisfied in February 1998, upon the basis of information provided to him in the absence of the applicant, that a police officer of or above the rank of sergeant had reasonable grounds for suspecting or believing that an offence had been committed by the applicant in relation to the death of Victoria Cafasso and that, for the purpose of an investigation into that offence or of enabling evidence to be obtained of its commission or of the identity of the offender, the use of a listening device was necessary. Counsel submitted that it may therefore be presumed that on one or perhaps two occasions the learned magistrate had been spoken to by a police officer or officers in the absence of the applicant and without his knowledge, concerning his possible involvement in the death of Victoria Cafasso, and the learned magistrate must have been provided with some information concerning the applicant which may have engendered in his Worship's mind a belief or suspicion on reasonable grounds that the applicant was involved in or responsible for Victoria Cafasso's death. Counsel submitted that the learned magistrate's view of the applicant might have been affected as a result of the private communications he had received from the police officer or officers.
It was accepted by counsel for the applicant that the making of the order and the issuing of the warrant did not show that the learned magistrate was biased against the applicant. However, it was submitted that statements made by the learned magistrate, in the course of the reasons for his decision, should lead this Court to conclude, having regard to the background of the making of the order and the issuing of the warrant, that his Worship was actually biased against the applicant when he heard and determined the case. The statements, which I have italicised, are contained in the opening three paragraphs of his Worship's reasons:
"Samantha Jane Tippett, a 17 year old school-girl, seeks a Restraint Order against Tony Lance Kirkland, a 35 year old married fisherman.
By way of general introduction, he acknowledged his belief to be that she was interested in him. His first answer under cross-examination was that his interest in this 17 year old girl was a result of her encouranging [sic] him. He thought she probably wanted a fling, and he wanted a sexual relationship with her. He also believed that her mother was encouraging her in this, and in an extraordinary statement said this might be due to a desire to 'get on the bandwagon with this murder episode', a reference to a community rumour that he is the person responsible for the unsolved murder of Victoria Cafasso. He showed no sign of distress regarding this, indeed he seemed to relish the notoriety. While this could be explicable on the basis of the glee of a guilty man outwitting the authorities, there are, of course, other possible bases for such a peculiar attitude.
Those might include some perverse joy at being thrust into the limelight, excitement or stimulation at being so marked, or taking pleasure in unnerving those he might perceive as vulnerable, all of which seem to me to require a level of immaturity. Whatever the reason, he is exposed as possessed of a character which relishes a reputation which most would find odious. When that aspect of his nature is aligned with his unhealthy and absurd sexual interest in this patently naïve, inexperienced and retiring young girl, it is something I find seriously disturbing."
It is my determination that those passages do not demonstrate bias against the applicant. I agree with the submission of the respondent's counsel that the italicised passages might be categorised as florid and unrestrained, and might be partly based on a wrong finding of fact, but actual bias against the applicant is not revealed by them.
The learned magistrate had the opportunity of observing both the applicant and the respondent when they gave evidence. The content of some of the evidence given by the respondent and her mother, together with the impression of her which was gained by the learned magistrate when she was giving evidence, may well have justified a conclusion that she was a "patently naïve, inexperienced and retiring young girl".
The statements of the learned magistrate concerning the applicant, must be considered in the light of the evidence, giving allowance for impressions his Worship may have gained as a result of observing and listening to the applicant in the witness box. I will refer to some of the evidence. However, it should first be observed that the evidence of the respondent, her mother and her brother, if accepted, established a strong case for believing that the applicant had been stalking her with behaviour such as following her and loitering outside her home, thereby causing her apprehension and fear. His explanation for a number of the events referred to in the evidence was on the other hand unlikely to be true. It was his evidence that, with her mother's encouragement, the respondent was watching and following him. Although he admitted that he deliberately drove down her street where she lived, he said that he only did so because he was "curious" and "thought I'd just go down for a drive and have a look". Being "a bit curious" was also his explanation for following the respondent on another occasion.
In cross-examination he agreed with the proposition that his interest in the respondent was as a result of her encouraging him. He said that "she obviously liked me" and was "showing all the interest". "She was genuinely interested in me", he said. On at least two of the occasions to which he was referring, she was in the company of her mother. It was his evidence that she had egged him on, that "her and her mother have got together and schemed it all". On being asked why, having regard to his claim that he was a happily married man, he had not simply rebuffed her, he said "well, I did a bit but she was being persistent and well, I thought she might have wanted a fling probably". He accepted that it was possible that he wanted a sexual relationship with her and supposed that was what he wanted.
The respondent accepted that over a long period of time there had been rumour and innuendo in the community involving him in the murder of Victoria Cafasso and the stalking of another woman and that the police had accused him of the former and charged him with the latter. He agreed that on an occasion about two weeks before the hearing, he had probably asked the respondent's mother something like "what do you want out of this, money?" His explanation for probably doing so was:
"I was trying to work out why they were doing it. Whether it was the money or the attention or getting on the bandwagon of this murder episode."
The learned magistrate misstated the applicant's evidence when he said that the applicant believed that the explanation for the respondent's mother encouraging her daughter to have a fling with him might have been due to a desire to "get on the bandwagon with this murder episode". That was expressed by the applicant in the context of a possible explanation for the proceedings for the restraint order. A mistake of that kind by the learned magistrate is more easily understood when regard is had to the likelihood that a verbatim transcript of the evidence was not prepared until after the filing of the notice to review his Worship's decision. In any event, an error of fact of that kind does not demonstrate bias on the part of the learned magistrate.
Counsel for the respondent placed great weight on the learned magistrate's statement of the "possible bases" for the applicant's apparent relishment of his notoriety concerning the unsolved murder of Victoria Cafasso. Having gained the impression that the applicant relished that notoriety, the learned magistrate advanced some possible explanations but he did not state them as findings of fact and did not suggest that they were supported by the evidence. I agree with his Worship that a reputation as a murderer would be found by most people to be odious, and I am unable to conclude that he was not justified in concluding, having observed the applicant give evidence, that he appeared to relish it.
In support of the second ground of the motion to review it was argued for the applicant that the learned magistrate ought to have declined to hear the application for the restraint order, in view of his involvement in the making of the order under the Criminal Process (Identification and Search Procedures) Act 1976, s7, and the issuing of the warrant under the Listening Devices Act 1991, s17. Counsel submitted that salient features are that on two occasions the learned magistrate must have received information from police officers concerning their suspicions of the applicant's involvement in the death of a woman, Victoria Cafasso; that the basis of the officers holding those suspicions would also have been communicated to the learned magistrate; that the applicant was not present when those communications were made with the learned magistrate and he had no means of knowing what those communications were; and that while information received by a judicial officer by way of evidence in court proceedings can be gauged, the applicant has no way of knowing what information was imparted to the magistrate or of gauging it. It is my understanding that counsel for the applicant submitted that this is a case of perceived bias because of the making of the order and the issuing of the warrant by the learned magistrate and his failing to advise the applicant that he had done so before proceeding to hear the application for the restraint order. A difficulty I have with that submission is that the processes under the Criminal Process (Identification and Search Procedures) Act 1976 and the Listening Devices Act 1991 necessarily had to be kept secret from the applicant, particularly in the case of the application for the warrant under the Listening Devices Act 1991. It would have been inappropriate for the learned magistrate to have disclosed to the applicant what he had done on the application of police officers who were investigating the death of Victoria Cafasso and what information had been provided to him by those officers.
It is a cardinal principle of the law that a judicial officer tries a case on the evidence and arguments presented to the officer in open court by the parties or their legal representatives and by reference to those matters alone. Re J R L;ex parte C J L (1986) 161 CLR 342 per Mason J at 350. It is a further principle that a judicial officer should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293 - 294. If a judicial officer at first instance considers that there is any real possibility that his earlier participation in a case (or in this case, his earlier participation in the applications under the two statutes) might lead to a reasonable apprehension of pre-judgment or bias, he should refrain from sitting. The reasonable observer is to be presumed to approach the question on the basis that ordinarily a judicial officer will so act as to ensure both the appearance and the substance of fairness and impartiality. But the reasonable observer is not presumed to reject the possibility of pre-judgment or bias; nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the members of the relevant court. Livesey at 299. A denial of natural justice by way of apparent bias is an error of law within the meaning of the Justices Act 1959, s107(4). Schreuder v Australian Securities Commission (1996) 6 Tas R 223 at 233.
Mr Avery, counsel for the respondent, conceded that for the purpose of applying the appropriate test for perceived bias, the question is whether an informed and fair-minded observer, armed with knowledge that the magistrate was the coroner enquiring into the death of Victoria Cafasso and had made the order and issued the warrant under the two statutes, would reasonably apprehend that the learned magistrate might not bring an impartial and unprejudiced mind to bear on the determination of the application against the applicant for the restraint order for the protection of the respondent. Mr Avery pointed out that in the course of determining whether to make the order and issue the warrant under the two statutes his Worship was not required to form his own independent judgment of the applicant. He had merely been required to determine whether one or more police officers had reasonable grounds for suspecting or believing that the applicant had committed an offence in relation to the death of Victoria Cafasso, so as to justify the making of the order or the issuing of the warrant for the purpose of facilitating the further investigation of the matter and the collection of evidence with respect to it. It was further submitted that the question of whether police officers had reasonable grounds for suspecting or believing that the applicant had an involvement in the death of Victoria Cafasso was of no relevance to his Worship's consideration of the application for the restraint order in favour of Miss Tippett. The learned magistrate, so it was submitted, had merely exercised powers under the two statutes, acting judicially, hearing only from the police concerning their suspicions and the basis for them. Lawyers, particularly magistrates and other judicial officers, perform such functions regularly and a fair-minded observer, so it was submitted, would not thereby hold a reasonable apprehension of bias.
It may well be the case that if the hypothetical fair-minded observer was fully appraised of the communications which occurred between the police and the learned magistrate in private in the February before the hearing of this case, there would not have arisen in that observer's mind a reasonable apprehension that his Worship might not bring an impartial and unprejudiced mind to bear on the determination of the application against the applicant for the restraint order. But the difficulty I have with this motion, and it has caused me much concern, is that no-one knows what those communications were, except for the magistrate and the police. The applicant and his legal adviser have no idea, nor do I. The hypothetical fair-minded observer would have no idea. That observer, it seems to me, would have little choice but to reasonably apprehend that the learned magistrate might not bring an impartial and unprejudiced mind to bear. It is the secretive nature of the processes under the Criminal Process (Identification and Search Procedures) Act 1976 and the Listening Devices Act 1991 which bring to mind the requirement that not only should justice be done, but it should also be seen to be done.
I have gained some assistance, when determining this ground of the motion, from Lang v Warner (1975) 10 SASR 289. In that case, the complaint of perceived bias arose because one of the justices who heard and determined charges contained in a complaint, was the Justice of the Peace before whom the complaint had been laid although, because the defendant was then in custody, the justice had not been required to consider whether to issue a summons directed to the defendant. The complaint of perceived bias was rejected by the Full Court but relevantly, Bray CJ, with whom the other members of the court agreed, stated at 293:
"It may, of course, well be that the justice taking the complaint, if he has mixed himself up in the investigation, if he has acquired knowledge of the facts for himself, if he has been given information about the case beyond the mere allegations of the charge, if he is a friend or a partisan of the complainant, will be disqualified from sitting on the hearing. But all this must be made to appear by evidence. The mere bare identity of the justice taking the complaint or issuing the summons with one of the justices on the bench at the hearing cannot by itself be a disqualifying factor."
In this case it is known that the learned magistrate was the coroner enquiring into the death of Victoria Cafasso. I take judicial notice that Miss Cafasso's body was found with multiple stab wounds lying on a beach in the vicinity of where the applicant lives. Her death has received much publicity in the media. I also take judicial notice that there has been speculation that her death can be linked to a missing German female tourist, who was last seen in the same general area. It is clear that the police at least suspected that the applicant was responsible for Miss Cafasso's death. It is possible that the learned magistrate, in his capacity as the coroner enquiring into her death, had a considerable amount of information concerning the matter and the applicant's connection with it. It is obvious that a police officer or officers must have imparted information to him to persuade him that they had reasonable grounds for their suspicions concerning the applicant. It may well be that a considerable body of evidence against the applicant was communicated to the magistrate for the purpose of obtaining the order and the warrant. To adopt the words of Bray CJ, it would seem that the learned magistrate "has mixed himself up in the investigation" of Miss Cafasso's death. He must not be criticised for having done so, of course. It is conceivable that the learned magistrate was informed by the police that they had reports from more than one woman of having been stalked in some way by the applicant. That can only be expressed as a possibility, but it is put forward by me to demonstrate the concern that an independent and fair-minded observer would well have arising out of the circumstances of this case. There may well have been a "similarity of the allegations" against the applicant and the learned magistrate "may unconsciously have been affected by the similarity in deciding questions of fact which were largely determined by his view of the credibility of the various witnesses" including the applicant. Rendulic v Bevan [1971] SASR 340 at 343. All of this is, of course, speculation on my part, but in the interests of justice it is clear, at least to me, that having regard to the secrecy of the communications between the learned magistrate and the police, the learned magistrate ought to have declined to hear the application for the restraint order. In the circumstances it would not have been appropriate for him to explain in detail why he was doing so.
I emphasise that there is no reason for subjecting the learned magistrate to personal criticism arising out of the fact that he heard and determined the application. As was observed in Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294:
"It is inevitable that appellate courts, removed from the pressure of a possible need for immediate decision and enjoying the advantages both of hindsight and, conceivably, further material and information, will on occasion conclude that a decision of a judge at first instance that he should sit was mistaken and has resulted in a situation where one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or pre-judgment. Such a conclusion does not involve any personal criticism of the judge at first instance or any assessment of his qualities or of his ability to have dealt with the case before him fairly and without pre-judgment or bias. It is simply an instance of the ordinary working of the appellate process".
I have considered whether the failure of the applicant to request the learned magistrate to disqualify himself should prevent the motion from succeeding on this ground. I do not consider that there was any waiver by the applicant of his rights. See Schreuder v Australian Securities Commission (1996) 6 Tas R 223 at 233 - 234. The applicant claims that he was worried about Mr Wilson hearing the application, but there is no evidence to suggest that he was aware that he could object and it is clear from the evidence that he received no advice about the matter from his counsel. Also it is probable that at the time of the hearing he was only aware of the order (he referred to it in his affidavit as a warrant) which had been made under the Criminal Process (Identification and Search Procedures) Act 1976, s7, and he knew nothing about the warrant which had been issued by the magistrate under the Listening Devices Act 1991, s17.
For these reasons I am of the opinion that ground 2 of the motion succeeds and that the finding of the learned magistrate, that he was satisfied that a restraint order should be made, should be set aside. The application for a restraint order will be remitted to another magistrate for re-hearing. In the circumstances it is unnecessary to consider ground 3.
I will briefly deal with ground 4. Having found that he was satisfied that a restraint order should be made, the learned magistrate discussed with counsel what should occur and then adjourned the proceedings, continued in force interim restraint orders which had been made earlier and ordered that the applicant attend an appointment for a psychiatric assessment and cooperate in the assessment process. There was no dispute between the parties at the hearing of the motion to review that the learned magistrate had no power to make an order that the applicant be psychiatrically assessed. The application for the restraint order was made under the Justices Act 1959, Pt XA, which contained no authority for an order of that kind. The powers of a court under the Sentencing Act 1997, s82(3), to direct that a person submit to a medical, psychological or psychiatric assessment apply only to cases where an offender has been found guilty of an offence and not to applications under Pt XA.
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