Re Magistrate T R Watt;

[2015] WASC 435

RE MAGISTRATE T R WATT; EX PARTE KEARNEY [2015] WASC 435

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 435
Case No:	CIV:2533/2015	Heard:	25 SEPTEMBER 2015
Coram:	TOTTLE J	Delivered:	25/09/15
No of pages:	5	Judgment Part:	1 of 1
Result:	Application granted
Category:	B
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Parties:	CLAYTON EDWARD KEARNEY
Catchwords:	Judicial review Application for review order Power of magistrate to issue arrest warrant Arguable ground of jurisdictional error identified
Legislation:	Magistrates Court Act 2004 (WA), s 15, s 16, s 36 Criminal Procedure Act 2004 (WA), s 165 Rules of the Supreme Court 1971 (WA), O 56A
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE MAGISTRATE T R WATT; EX PARTE KEARNEY [2015] WASC 435 CORAM : TOTTLE J HEARD : 25 SEPTEMBER 2015 DELIVERED : 25 SEPTEMBER 2015 FILE NO/S : CIV 2533 of 2015 MATTER : In the matter of an application under the Magistrates Court Act 2004 (WA), s 36, for a review order against Magistrate T R Watt of the Magistrates Court of Western Australia at Albany. EX PARTE

CLAYTON EDWARD KEARNEY
Applicant

Catchwords:

Judicial review - Application for review order - Power of magistrate to issue arrest warrant - Arguable ground of jurisdictional error identified

Legislation:

Magistrates Court Act 2004 (WA), s 15, s 16, s 36

Criminal Procedure Act 2004 (WA), s 165
Rules of the Supreme Court 1971 (WA), O 56A

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant : Mr D D Brunello

Solicitors:

Applicant : Aboriginal Legal Service (WA)

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

Nil

TOTTLE J:

(This judgment was delivered extemporaneously on 25 September 2015 and has been edited from the transcript.)

1 This is an application for a review order made pursuant to s 36 of the Magistrates Court Act2004 (WA), together with O 56A of the Rules of the Supreme Court1971 (WA). The order sought by the application requires her Honour, Magistrate Watt, of the Magistrates Court of Western Australia, to satisfy this court as to why an order made by her on 22 September 2015 for the issue of an arrest warrant in respect of the applicant should not be set aside.

2 The factual background to the application emerges from an affidavit sworn by Ms Wendy Stewart on 25 September 2015 (a legal practitioner employed by Legal Aid Western Australia). A Mr Dowsen Remaj was charged with an offence of stealing. That charge was due to be heard by the learned magistrate in Albany on 22 September 2015. The applicant was a prospective witness for the prosecution in those criminal proceedings and had been served with a witness summons to attend and give evidence at the hearing. For whatever reason, the applicant did not attend court as required by the summons. The prosecution applied for an adjournment of the hearing. Her Honour dismissed the adjournment application in the face of opposition from Ms Stewart (who was appearing as counsel for Mr Remaj), and the charge against Mr Remaj was dismissed. The learned magistrate then ordered that a warrant for the arrest of the applicant be issued. Ms Stewart's recollection is that the arrest warrant was issued on the initiative of the learned magistrate and not as a result of an application by the prosecution.

3 The power of a court to issue a warrant for the arrest of a witness in criminal proceedings can be found in s 165 of the Criminal Procedure Act2004 (WA), which reads:

165. Witness not attending, procedure on

If a witness who is an individual does not attend to give oral evidence, or does not attend and produce a record or thing, in accordance with -


(a) a witness summons that has been served on the witness in accordance with section 162; or

(b) a witness undertaking entered into by the witness,


and the court before which the witness was required to attend is satisfied that -

(c) the summons was so served or that the undertaking was entered into, as the case requires; and

(d) the witness is likely to be able to give oral evidence, or to produce a record or thing, that is relevant to the case,


the court may issue an arrest warrant for the witness.

4 It is apparent, however, from the terms of s 165, that the purpose of issuing an arrest warrant pursuant to that section is to bring the witness to court in order to enable evidence to be given in the proceedings before the court. Clearly, in this case, that rationale for issuing an arrest warrant did not exist, as the proceedings had been completed.

5 There is, potentially, a second source of power: the power to issue an arrest warrant or, more precisely, a warrant to bring a person before a Magistrates Court, to be dealt with for contempt. That power is to be found in s 16 of the Magistrates Court Act. It is possible that the learned magistrate may have formed the view that the applicant, having not complied with a witness summons that had apparently been served upon him, may have been guilty of a contempt of court. That possible view may have been informed by the provisions of s 15(2) of the Magistrates Court Act, which read:

(2) A person who -

(a) having been served with a summons to attend as a witness, without reasonable excuse, does not attend as required by the summons; or

(b) having been required by the Court to produce a record or thing to the Court, without reasonable excuse, does not do so,


is guilty of a contempt of court unless the omission is an offence.

6 Section 16 of the Magistrates Court Act confers powers upon the Magistrates Court to deal with persons who commit contempt. There is power in the case of a contempt not committed in the face of a court for a magistrate to issue a warrant to have the alleged contemptor brought before the court or, alternatively, to issue a summons that requires the alleged contemptor to appear before the court, to be dealt with for the contempt.

7 Counsel for the applicant urged me to accept that the learned magistrate was purporting to exercise the power conferred on the court under s 165 of the Criminal Procedure Act, as distinct from exercising the powers conferred by s 16 of the Magistrates Court Act. That is an issue about which there may be argument.

8 This is the first return of the application for a review order brought on urgently and on short notice. As I have noted, there may be arguments which ultimately defeat the applicant's case. It does appear to me, however, that it is arguable that the learned magistrate exercised the power to issue the warrant for the applicant's arrest without a basis; that is that the power that the magistrate purported to exercise was that conferred by s 165 of the Criminal Procedure Act and that, in so doing, the learned magistrate may have committed a jurisdictional error. The test for obtaining a review order is that the applicant has an arguable case; that is, a case which has a reasonable prospect of success. For the reasons outlined above, there is an arguable case that the learned magistrate erred in the manner to which I have referred. In those circumstances, I am prepared to make a review order and to stay the order made by the learned magistrate for the arrest of the applicant dated 22 September 2015.