Re Magistrate McIntyre;
[2008] WASC 268
•29 OCTOBER 2008
RE MAGISTRATE McINTYRE; EX PARTE HOWARD [2008] WASC 268
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 268 | |
| Case No: | CIV:1931/2008 | 29 OCTOBER 2008 | |
| Coram: | HASLUCK J | 28/10/08 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application for review order refused | ||
| B | |||
| PDF Version |
| Parties: | MARK KENNETH HOWARD |
Catchwords: | Criminal law Administrative law Power of Supreme Court to make a review order Validity of conditions purportedly imposed upon accused remanded in custody when bail was refused Availability of review when remand warrants the subject of the contentious order have expired Held that relief by way of review is not available where the subject order has ceased to have any legal effect |
Legislation: | Bail Act 1992 (WA), s 17, s 21, s 26(2) Criminal Procedure Act 2004 (WA), s 75 Magistrates Court Act 2004 (WA), s 35, s 36 |
Case References: | Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Carcione Nominees Pty Ltd v Western Australian Planning Commission (2005) 30 WAR 97 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 R v Greenham [1940] VLR 236 Re Ex Parte Batholomew [2008] WASC 52 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
MARK KENNETH HOWARD
Applicant
Catchwords:
Criminal law - Administrative law - Power of Supreme Court to make a review order - Validity of conditions purportedly imposed upon accused remanded in custody when bail was refused - Availability of review when remand warrants the subject of the contentious order have expired - Held that relief by way of review is not available where the subject order has ceased to have any legal effect
Legislation:
Bail Act 1992 (WA), s 17, s 21, s 26(2)
Criminal Procedure Act 2004 (WA), s 75
Magistrates Court Act 2004 (WA), s 35, s 36
(Page 2)
Result:
Application for review order refused
Category: B
Representation:
Counsel:
Applicant : Ms K J Farley
Amicus Curiae : Mr H D Leith
Solicitors:
Applicant : Legal Aid (WA)
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Carcione Nominees Pty Ltd v Western Australian Planning Commission (2005) 30 WAR 97
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
R v Greenham [1940] VLR 236
Re Ex Parte Batholomew [2008] WASC 52
(Page 3)
- HASLUCK J:
Introduction
1 By an originating motion dated 24 July 2008 the applicant, Mark Kenneth Howard, applied for a review order directed to a magistrate. An order for review was then made by Johnson J on 20 August 2008 in these terms:
(1) Pursuant to section 36 of the Magistrates Court Act 2004 Terrance John McIntyre satisfy this Honourable Court that his order of 14 December 2007 consequent upon a refusal of bail that the applicant have no contact directly or indirectly with [D] should not be set aside on the basis that he had no jurisdiction to impose conditions upon a remand in custody;
(2) The review be heard by a Judge in Chambers;
(3) This review order be served on the Registrar of the Mandurah Magistrates Court at least seven clear days before the hearing date set for review.
2 The circumstances giving rise to the application for relief are referred to in the affidavit of the applicant sworn 23 July 2008.
Background
3 It appears from the applicant's affidavit that he was charged with causing grievous bodily harm in circumstances of aggravation. He was charged also with deprivation of liberty and aggravated assault occasioning bodily harm.
4 It is apparent from the prosecution notices exhibited to the affidavit that the victim of the assault complained of in each case was a certain Ms D who was a partner of the applicant.
5 On 14 December 2007 the applicant appeared in the Mandurah Magistrates Court before Mr McIntyre SM and was committed to appear in the District Court in March 2008. The applicant was remanded in custody.
6 On that occasion, as appears from an endorsement on the relevant prosecution notice, the learned magistrate ordered that whilst in custody the applicant was to have no contact, directly or indirectly, with the complainant, Ms D. An endorsement to this effect appears on the relevant remand warrant dated 14 December 2007.
(Page 4)
7 The circumstances giving rise to the endorsement are reflected in the transcript of the hearing on 14 December 2007. The learned magistrate noted that bail had been refused previously. Counsel made a fresh application for bail upon the basis of changed circumstances in that the applicant had allegedly been recently assaulted while in custody.
The bail application
8 The application for bail gave rise to a discussion about a proposed surety. In that context the prosecutor indicated that bail was opposed, referring to the fact that the female complainant was the principal prosecution witness and there would be a need for a protective condition.
9 His Honour refused bail, having regard to the possibility of an interference with the principal witness. He then added that there was a need for a no contact provision to avert the possibility of the trial process being corrupted.
10 It is not entirely clear from the transcript whether his Honour's comments concerning the need to prevent contact were expressed essentially as a basis for refusing bail. However, the fact is, as I have indicated, that these comments led to endorsements being made on the papers of the kind mentioned earlier; that is, the magistrate purported to impose a no contact condition which was to apply to the applicant while he was in custody.
Other matters
11 It appears from the affidavit that Ms D has custody of the two children of the relationship. It is said in the affidavit that the order made by the magistrate was enforced by the superintendant of the prison. It is said that Ms D would be willing to bring the two children to visit the applicant while in custody were it not for the order of the learned magistrate.
12 It appears from the affidavit that in due course the applicant pleaded guilty to the subject offences in the District Court in Perth. He was sentenced to a five-year term of imprisonment in respect of the same on 18 August 2008. I am informed and will accept that he is in the process of appealing against that decision.
13 It was common ground at the hearing before me that the remand warrants associated with the original refusal of bail have, in all practical terms, now been replaced with the sentence warrant in relation to which the applicant is now being held in custody.
(Page 5)
14 That follows from s 75 of the Criminal Procedure Act 2004 (WA) whereby remand warrants made by the Magistrates Court remain in force until the date that an accused person is next dealt with by a court on a charge. Thus, when the applicant was sentenced on 18 August 2008 for the three charges, any remand warrant applying to him in respect of those charges ceased to have any legal or practical effect.
15 To complete the narrative I note in passing that a notice of intention to abide by the Supreme Court's decision in respect of the application for an order to review has been filed on behalf of the learned magistrate.
The matter in contention
16 It is against this background that the applicant now contends that in circumstances where an application for bail was refused with the result that the applicant was to remain in custody, it was not open to the learned magistrate to impose or to purport to impose a condition of the kind referred to earlier; that is, that while in custody he should have no contact with Ms D.
17 It is important to understand that the order nisi or order to review which was made on 20 August 2008, as I indicated earlier, was made in response to an affidavit sworn on 23 July 2008 at a time when the remand was still in force and the applicant was arguably disadvantaged or inconvenienced by the terms of the purported no contact order. However, as I have indicated, the remand warrant has now been displaced by the sentencing process that took place on 18 August 2008. Since that time the applicant has been in custody pursuant to the order made by the sentencing judge that he was to serve a five-year term of imprisonment.
18 Let me now turn to the relevant statutory provisions and principles.
Statutory provisions and principles
19 Section 35 of the Magistrates Court Act 2004 (WA) provides that a writ of mandamus, prohibition or certiorari may not be issued in respect of or directed to a court officer. However, by s 36 if a person is aggrieved by a failure of a court officer to do any act or make any order or direction on any ground that might have justified an order of mandamus or certiorari the person may apply to the Supreme Court for a review order.
20 Section 36(3) of the Act provides that on an application for a review order a Supreme Court may make any order that is just whether it has been applied for or not. The Supreme Court may grant any relief or
(Page 6)
- remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari or make any necessary consequential orders.
21 The principles bearing upon the making of a review order were addressed by Murray J in Re Ex Parte Batholomew [2008] WASC 52. I will not traverse what his Honour said on that occasion in its entirety. His Honour's observations suggest that the principles to be derived from the cases concerning prerogative writs will be of assistance in determining whether discretionary relief should be afforded by way of a s 36 review order, albeit that a review order can be regarded as wider in its scope because it refers to the grant of an order where that would be 'just'.
22 The provisions concerning a grant of bail are set out in the Bail Act 1982 (WA). It is apparent that an accused who is awaiting trial is entitled to have his case for bail considered in accordance with the procedural steps and criteria prescribed by the Act.
23 By s 21 of the Act the parties to proceedings on a case for bail are the prosecutor and the accused. By s 17 a judicial officer may impose conditions on a grant of bail only to the extent that he is authorised to do so. In such a case conditions shall not be any more onerous on the accused than the judicial officer considers is required in the public interest, having regard to the nature of the offence for which the accused is in custody and the circumstances of the accused.
24 It emerges from a consideration of these provisions and the decided cases that essentially the jurisdiction of the court is to grant or refuse bail. If bail is granted it is open to the court to provide for personal undertakings or surety arrangements and to impose conditions which are designed to secure the appearance of the accused at a forthcoming court hearing and to secure the public interest.
25 By s 26(2) of the Act it is said that where a judicial officer refuses to grant bail to an accused a record of the decision and of the reasons therefore shall be made.
26 I note in passing that there is no provision bearing upon the refusal of bail which states expressly that conditions can be attached relevant to a refusal of bail or the continuance or presence of the accused in custody.
27 I note in passing also that in R v Greenham [1940] VLR 236 it was said that the discretion of a court to refuse bail can never be used by way of punishment or by way of putting coercion on a prisoner to do
(Page 7)
- something that he is not bound by law to do. That would be an abuse of the discretion.
28 These provisions and the decided cases therefore indicate that in dealing with an application for bail by a person who is in custody the jurisdiction is essentially to grant or refuse bail and it is only in the case of a decision being made to grant bail that conditions can be imposed.
29 It seems that in the present case, in the course of refusing to grant bail, the magistrate purported to impose a condition bearing upon the circumstances of the accused while in custody. As I have indicated there does not appear to be any statutory provision which justifies expressly the imposition of such a condition and the decided cases suggest that it is beyond jurisdiction.
30 Accordingly it can be argued persuasively that in the circumstances of the present case there is a basis for saying that it would be 'just' that an order for review be granted so as to set aside and quash the condition endorsed upon the remand warrant mentioned earlier; that is, because the learned magistrate lacked the power to impose such a condition.
31 However, various considerations weigh against the availability of relief in the present case. In the end, these considerations make it unnecessary for me to determine whether it is open to a magistrate to impose conditions at the moment of refusing or purporting to refuse an application for bail.
The issue in the present case
32 The considerations which weigh against the availability of relief in the present case are directly referable to the statutory provisions I touched on in my earlier overview.
33 The ordinary meaning of the words in s 36 appear to limit the availability of review by the Supreme Court to magistrate's orders that have a legal effect at the time of the review. Section 36(1) provides for the making of the initial review order. It states that the effect of such an order is to require the Supreme Court to be satisfied that a magistrate's order should or should not be done or made or set aside as the case requires.
34 This formulation encompasses orders that will be done or that are capable of being set aside. In my view, it follows from this that it is a necessary prerequisite to an order being set aside that it has some existing
(Page 8)
- legal effect and that there is a person aggrieved or affected as a consequence of the order having been made and having a continuing legal effect.
35 This same meaning is implicit in the wording of s 36(4)(a) which allows the Supreme Court to order that the order be or not be done or made or set aside as the case requires.
36 It therefore seems to follow from a careful reading of the provisions I have just mentioned that relief is not available to the applicant in the circumstances of the present case because the order in question, as I noted in earlier discussion, has ceased to have a legal effect. It was displaced by the later sentencing order.
37 For the sake of completeness I remind myself, as I reminded myself earlier, that s 36(4)(b) refers also to the grant of any relief that would have been available under a writ of certiorari prohibition or mandamus.
38 It is well established that certiorari is only available to quash a decision having legal effect. The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review: see Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. A decision or action is only susceptible to certiorari where it has a discernible legal effect upon the rights of an applicant: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149.
39 These cases support my conclusion that, as the remand warrant has ceased to have effect, no relief is available of the kind sought by the applicant in the present case.
Further observations
40 The cases concerning prerogative review, including Bartholomew's case, are also relevant to another matter which weighs against a grant of relief of the kind sought in the present case.
41 As I have indicated, relief under s 36 of the Magistrates Court Act is discretionary. Where an applicant under section 36 identifies jurisdictional error by a magistrate, relief under s 36 by way of a review order would ordinarily follow unless there is a reason for the court to exercise its discretion not to do so. However, again the observations made by Murray J in Bartholomew's case are instructive.
42 The discretion to withhold relief may be exercised if the proceedings do not relate to an order having legal effect. It is a general rule that a
(Page 9)
- decision on review must not be advisory. To set aside a decision under s 36, it is therefore necessary that the magistrate's order has a current legal effect. I refer again to Bartholomew's case and also to Carcione Nominees Pty Ltd v Western Australian Planning Commission (2005) 30 WAR 97.
Conclusion
43 It emerges, then, that the ordinary meaning of s 36 of the Magistrates Court Act limits review proceedings to those concerning orders of a magistrate that have current and existing legal effect. Moreover, even if jurisdiction to exercise powers of review does exist in this case, and it be found that the learned magistrate erred, the fact that the remand warrant has ceased to have effect justifies the exercise of discretion against setting aside the order under s 36.
44 In my view, it follows from this analysis that, in the circumstances of the case before me, it is not necessary to make a final determination as to whether the learned magistrate erred in purporting to attach a condition to a refusal of bail. There is much to be said against the supposed presence of such a power but, in the end, it is not material to the conclusion I have come to for a determination to be made with respect to that issue. Such a determination must await some future application.
45 For present purposes, for the reasons I have given, I am of the view that the application for relief before me should not be granted because the order in question and the remand warrant to which it is directed have ceased to have legal effect. There is therefore not power in this court, as I perceive it, to make a review order setting aside or quashing the order previously made.
46 Further, and in any event, I am of the view that in the exercise of the discretion allowed to the Supreme Court, it would not be appropriate or just for such an order to be made in circumstances where the order complained of has ceased to have legal effect.
47 It follows from all of this that the application for a review order will be refused, and the preliminary order made by Johnson J, which is in the nature of an order nisi, will not be made absolute and will have no further effect.
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