Walker v The State of Western Australia
[2011] WASC 218
•26 AUGUST 2011
WALKER -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 218
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 218 | |
| 26/08/2011 | |||
| Case No: | CIV:2094/2011 | 13 JULY 2011 | |
| Coram: | KENNETH MARTIN J | 13/07/11 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | CHAD WALKER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Application for review order against magistrate Orders in terms of mandamus Statutory construction No jurisdictional error |
Legislation: | Criminal Procedure Act 2004 (WA), s 41, s 42, s 44 Magistrates Court Act 2004 (WA), s 36 |
Case References: | Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Rayney v AW [2009] WASCA 203 Re Graham Anstee-Brook; Ex Parte Mount Gibson Mining Ltd [2011] WASC 172 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Application for review order against magistrate - Orders in terms of mandamus - Statutory construction - No jurisdictional error
Legislation:
Criminal Procedure Act 2004 (WA), s 41, s 42, s 44
Magistrates Court Act 2004 (WA), s 36
Result:
Application refused
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Ms Megan In De Braekt
Defendant : No appearance
Solicitors:
Plaintiff : Megan In De Braekt
Defendant : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Rayney v AW [2009] WASCA 203
Re Graham Anstee-Brook; Ex Parte Mount Gibson Mining Ltd [2011] WASC 172
(Page 3)
- KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 13 July 2011 and has been edited from the transcript.)
1 This is an ex parte application by notice of originating motion dated 21 June 2011 seeking an order pursuant to s 36 of the Magistrates Court Act 2004 (WA). The particular aspect of s 36 relied upon is the component under s 36(1) which allows the Supreme Court to grant review orders essentially akin to relief that might otherwise be granted by way of mandamus. Section 36(1) provides:
If a person is or would be aggrieved by one or more of the following -
(a) the failure of a Court officer to do any act or make any order or direction -
(i) on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii) on any ground that might have justified an order of mandamus;
the person may apply to the Supreme Court for an order (a review order) that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
3 Preceding s 36, I note that s 35 of the Magistrates Court Act says that the prerogative writs are not available against the Magistrates Court. Nevertheless, the s 36 regime essentially replicates prerogative relief, albeit under a different name and albeit augmented as regards s 36(1)(a)(i) and its replicants in s 36(1)(b)(i) and s 36(1)(c)(i) by analogies to prohibition and certiorari. Section 35 was enacted prior to Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531.
4 As to s 36, I refer generally to observations made by McLure JA (as she then was) in Rayney v AW [2009] WASCA 203. Her Honour's reasons were joined in by Buss and Newnes JJA and she said this at [27]:
There can be no doubt that the power in s 36 of the Magistrates Court Act is a judicial review power. The purpose of s 36 is to replace, and provide a
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- statutory alternative to, the common law relating to judicial review of the acts or omissions of officers of the Court … A review order, like an order nisi, is an order to show cause why the relief in s 36(4) should not be granted.
5 Paragraph [28] says:
The language and purpose of s 36 in its broader statutory context compels the conclusion that the power in s 36(4) to grant relief is only enlivened if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established.
6 Her Honour in Rayney also discussed the nature of an order nisi-like process by reference to s 36, on a first return, as regulated by O 56A of the Rules of the Supreme Court 1971 (WA). What is under consideration at this time is the identification of an arguable case on the merits to support the grant of the initial order.
7 This is an ex parte application, although notice has actually been served. The matter came on urgently in the winter recess and I directed that notice be given to the prosecuting authority. Notwithstanding that, there has been no appearance today.
8 I will also mention McLure JA's observations in Rayney at [25] where her Honour said:
Judicial review is a supervisory function that is distinct from an appeal or other review on the merits. Judicial review concerns itself solely with the legality of decisions. The focus is on jurisdictional errors.
9 With those observations as to s 36(1) from Rayney in mind, I now move to the decision by the decision-maker that is under challenge and the subject of the relief sought on the present application. This was a decision of 15 June 2011 by Magistrate Heaney in the Magistrates Court.
10 I have been provided with a transcript of what occurred before Magistrate Heaney that day. Counsel who appeared today, Ms In De Braekt, had also appeared on 15 June 2011 before the learned Magistrate. At the time his Honour was conducting what appears to be the second 'disclosure/committal hearing', by reference to Part 3 Division 4 of the Criminal Procedure Act 2004 (WA).
11 The term 'disclosure/committal hearing' is defined in s 36 of Division 4 of the Criminal Procedure Act in these terms:
disclosure/committal hearing means a hearing under section 44
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12 Section 44 of the Criminal Procedure Act provides for what is to occur at a disclosure/committal hearing, in a situation where an accused is charged in a court of summary jurisdiction with an indictable offence. That is the position at present concerning Mr Walker, regarding a charge of grievous bodily harm presently preferred against him.
13 I note that s 41, within Division 4, provides:
(2) The court must -
(a) tell the accused that he or she is not required to plead to the charge; and
(b) give the accused the opportunity to plead to the charge.
15 There followed a subsequent hearing in the Magistrates Court, which looks to be the first disclosure/committal hearing, on 11 May 2011. I draw that conclusion by reference to s 41(4), which provides:
If the accused enters any plea other than a plea of guilty or does not plead to the charge, the court must adjourn the charge to a disclosure/committal hearing on a new court date that allows a reasonable time for the prosecutor to comply with section 42.
16 I note within s 41(4) reference to the new court date which the court sets for a first disclosure/committal hearing as expressly embodying the notion of a reasonable time for s 42 compliance by the prosecutor. An allowance of time by reference only to the prosecutor seems to envisage a factually grounded inquiry by the judicial officer, or at least a factually based temporal assessment as to what is reasonable in prevailing circumstances as regards s 42 compliance. And obviously, circumstances applicable to an assessment of 'a reasonable time', must differ from case to case.
17 It would appear to be uncontroversial that on 11 May 2011, the first disclosure/committal hearing, the charge was simply adjourned by the learned Magistrate further until 15 June 2011. That date in mid June would be the second disclosure/committal hearing.
(Page 6)
18 According to a transcript of proceedings which has been provided to me, at the second disclosure/committal hearing the prosecutor indicated to the learned Magistrate:
Your Honour, the State is seeking a further adjournment of six weeks. The reason for the adjournment is the State is waiting for a supplementary medical report that needs to be obtained and obviously disclosed to defence counsel, but the file manager also is having to locate the complainant in this matter and she has had some difficulty in doing this. Prior to committing the matter the complainant needs to be spoken to and interviewed and the State anticipates this will happen in the next six weeks. That is the application.
19 The application by the prosecutor for a six week adjournment was in response to his Honour's inquiry, by these words, 'Ready to go?'
20 Ms In De Braekt for Mr Walker then pressed his Honour to act, as she put it, in accordance with s 44(1)(a)(ii) of the Criminal Procedure Act, so that the accused would then immediately be committed for a trial in the District Court.
21 An argument that was apparently put at the time by counsel to the learned Magistrate, as it is now, was that the disclosure requirements under s 42 of the Criminal Procedure Act do not require and, more logically, cannot require a disclosure of materials by the prosecution that do not yet exist. So, to the extent that materials not yet in existence could come into existence in future, that scenario would be covered by other ongoing disclosure requirements that are applicable once the matter reaches a superior court. Accordingly, the learned Magistrate was pressed to apply s 44(1)(a)(ii) and so, to immediately commit Mr Walker for trial in the District Court as it was put he was now bound.
22 Magistrate Heaney did not do that. His reasons are brief. They are found at page 2 of the transcript and are expressed this way, after counsel for Mr Walker had completed her submissions to him. His Honour said:
27/7/2011 for committal mention; bail renewed on similar terms.
23 I do not set out all of what his Honour is recorded to have said. But there was a comment directed to counsel, indicating that he was not persuaded that he was obliged then to act under s 44(1)(a)(ii) at that time. He continued:
I'm not going to go through it all again. If you don't like it, go to the Supreme Court.
(Page 7)
24 The invitation has now been accepted under the originating motion of 21 June 2011, seeking relief for all intents and purposes in the nature of what would have been an order nisi for a prerogative writ of mandamus, but which now, by reference to s 36 of the Magistrates Court Act, must no longer be so called.
25 By reference to Mr Walker's notice of originating motion, it is obvious that the types of alternative relief sought under pars 1 and 2 are not appropriate. It is not for the Supreme Court to itself commit people to the District Court for trial. However, the alternative relief sought under par 3 of the notice of originating motion is more conceptually appropriate, and so, requires consideration. Paragraph 3 seeks:
This matter [be] remitted to Magistrate Heaney of the Perth Magistrates' Court, to be listed before his Honour Magistrate Heaney, (taking into account counsel's availability), at the earliest possible date, whereupon Magistrate Heaney will commit the Accused, Mr Chad Walker, for trial in the Perth District Court, without further adjournment or delay, as required by sec 44(1)(a) of the Criminal Procedure Act 2004.
26 Further incidental relief as regards costs is sought, as to which I am not presently concerned.
27 The grounds for the application expressed under the notice of motion, can be summarised as:
1. that the learned Magistrate failed to act as he was legally required under s 44(1)(a) of the Criminal Procedure Act, in failing to commit the accused for trial in the District Court; and
2. that his Honour took into account an irrelevant consideration - namely the DPP's desire to speak with the alleged victim and the DPP's desire to obtain further materials from police (that, I infer, being the reason for the learned Magistrate's refusal to then commit Mr Walker and for his adjournment of the charge until 27 July 2011, to what then would be a third disclosure/committal hearing).
28 The application has been brought on urgently and ex parte during the court's winter recess, on the basis that 27 July 2011 is now fast approaching. Therefore, there may be no practical utility in the present application at all if it is not dealt with as a matter of urgency. Having said that, this is only the order nisi application to show cause as to some potential arguability, rather than an occasion to evaluate the substantive merits of the application. That is the basis upon which I approach my
(Page 8)
- present analysis of the arguments raised on behalf of Mr Walker: see Re Graham Anstee-Brook; Ex Parte Mount Gibson Mining Ltd [2011] WASC 172 [28].
29 It is necessary to say something about s 42 of the Criminal Procedure Act, since the adjournment of the matter for the further period to a third disclosure/committal hearing arises in that context.
30 Section 42 recognises and gives statutory force to the fundamental importance of proper disclosure by the prosecution in a criminal matter, before trial. In doing so, s 42 also defines 'confessional material' and 'evidentiary material', by subsection (1).
31 In situations where material is not available, the definition of 'evidentiary material' according to s 42(1)(b), is:
if there is no statement or recording referred to in paragraph (a) of a person who the prosecutor intends to call as a witness, a written summary of the evidence to be given by the person
- As I assess this provision, basic fairness dictates that an indication as to the likely trial evidence from a witness, albeit on the basis of something less than a full witness statement, needs to be given in order to provide appropriate evidentiary material under this disclosure provision. This suggests that a non-existence of a completed witness statement at the relevant time will not relieve against the disclosure obligation. The obligation subsists and must still be met, in substance.
32 I also note s 42(5):
As soon as practicable after a charge is adjourned under section 41(4), [to which I have referred] the prosecutor must serve the accused with the following -
(a) any confessional material of the accused that is relevant to the charge and that the accused has not already received from the prosecutor;
(b) any evidentiary material that is relevant to the charge;
(c) any other document that is prescribed.
33 Significantly, out of s 42(5) may be observed a basis for the provision of material by the prosecutor, conditioned by a phrase '[a]s soon as practicable after a charge is adjourned'. So s 42(5) reinforces again,
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- the need for a factual assessment to be made (this time by the prosecutor) as to what is, or is not, practicable on a case-by-case basis.
34 It is easy to accept that criminal cases must necessarily vary in their complexity. Depending upon the degree of complexity of any case, there may be either a great deal of disclosable material, or conversely a relatively modest level of material, requiring prosecutorial disclosure. In the former case, the practicability of disclosure for a large volume of material by a prosecutor will present as another factually based assessment.
35 When judicial officers themselves deliberate over factually grounded considerations in rendering case by case assessments, particularly over the practicability of making disclosure by the prosecutor, that involves in my view an exercise in opinion and judgment, rather than the ascertainment of a definitive fact to be assessed as either present or absent, or right or wrong, in the black and white sense. But there are usually no bright line delineations when considerations as to practicability need to be evaluated in an exercise of judgment.
36 I mention all that because it seems that s 44 of the Criminal Procedure Act, as the relevant provision here, itself requires a proper understanding of the workings of s 42 in order for s 44 to be properly applied.
37 I turn finally to s 44, particularly s 44(1) which reads:
At a disclosure/committal hearing in relation to a charge, the court must -
(a) if satisfied that the prosecutor has complied with section 42 -
(i) require the accused to plead to the charge;
- (I would interpolate as to a(i) already having been accomplished, here)
(ii) commit the accused for sentence or trial, as the plea requires, to a superior court with jurisdiction to deal with the charge; and
(iii) comply with subsection (2).
(b) if not so satisfied -
- (i) adjourn the charge to another disclosure/committal hearing on a new court date that allows a reasonable time for the prosecutor to comply with section 42;
(ii) order the prosecutor to comply with section 42 before that new court date; and
(iii) if the prosecutor does not obey the order, adjourn the charge again or dismiss it for want of prosecution.
39 The overall structure of s 44(1) as regards its subcomponents (a) and (b), is mandatory. They are proceeded by the words 'the court must'. But s 44(1)(a) is clearly premised upon the court's satisfaction as to prosecutorial compliance, under s 42.
40 Absent the required satisfaction in the court as to prosecutorial compliance, the alternate pathway by s 44(1)(b) is clear. Section 44(1)(b) has components which envisage (another) adjournment to a further disclosure/committal hearing on a new court date, allowing a 'reasonable time' for the prosecutor to comply with s 42.
41 I interpolate by reference to the brief reasons of the learned Magistrate here, that this must have been the path he had in mind in adjourning the matter, effectively, for another six weeks until 27 July 2011, as requested by the prosecutor in order for a supplementary medical report to be obtained, as well as for the complainant to be located and spoken to.
42 At that time, the learned Magistrate might well have been asked by counsel for Mr Walker to also make an order under s 44(1)(b)(ii), to the effect that the prosecutor be ordered to comply with s 42 by a fixed time - namely, by the new court date. From the transcript that course was not requested or ordered. If the Magistrate had been asked to make such an order, then the provisions of s 44(1)(b)(iii) could have come into play, had the order not been met.
43 Disobedience to an order might then have given rise either to an adjournment or to the sanction of dismissal for want of prosecution under s 44(1)(b)(iii). On the face of it, neither of the potentialities seems to have been enlivened under s 44(1)(b)(ii) or (iii) of the Criminal Procedure Act on 15 June 2011.
44 As was observed in the Court of Appeal by McLure JA in Rayney v AW, relief in the nature of an order compelling a statutory official to comply with a statute and to do an act is in the nature of an order for
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- mandamus. Such orders are granted by reference to a need to first establish (arguable) jurisdictional error. Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 establishes clearly a distinction between what will be regarded in a wider sense as a jurisdictional error by a tribunal, in contrast to what will be regarded as a jurisdictional error by an inferior court, where scope for showing error is narrower. As to all that, see Craig v South Australia (177 - 180).
45 In the present case, the real question is whether there is an argument as to jurisdictional error by the learned Magistrate in failing, on 15 June 2011, to commit Mr Walker for trial in the District Court, pursuant to s 44(1)(a)(ii). The answer seems to lie in an anterior question which is: was the Magistrate satisfied that prosecutorial compliance with s 42 had taken place? If he was, then his path was clear under s 44(1)(a). On the other hand, if he was not so satisfied, his path was equally clear under s 44(1)(b).
46 Questions over the learned Magistrate's satisfaction as to the prosecutor's s 42 disclosure compliance need to be evaluated in the face of what the prosecutor had said on the day about a supplementary medical report and the need to locate the complainant. These questions also arise in the context of s 42(5), which requires prosecutorial disclosure as regards confessional material and evidentiary material 'as soon as practicable', after a charge is adjourned under s 41(4).
47 In my overall assessment a question as to whether a magistrate has been satisfied or not, as to s 42 prosecutorial compliance essentially is a decision to be reached within the jurisdiction of the decision-maker. So, I do not assess such a decision to fall within the potential ambit of jurisdictional error, for which prerogative relief (or relief akin thereto under s 36) can lie.
48 I reach that conclusion because it seems to me that the way the Criminal Procedure Act is structured in Part 3 Division 4 between s 42 and s 44, clearly indicates that satisfaction about s 42 is inherently an opinion, grounded in facts, to be reached on a case specific basis.
49 Moreover, the facts upon which the judicial opinion has to be grounded are themselves conditioned within s 42(5), as regards the key element of practicability for the prosecution in making disclosure. The practicability of providing s 42 material by the prosecution needs to be assessed in the context of the unique facts presented under the circumstances of each particular case.
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50 These evaluations, made on a case by case basis, are the sort of matters that busy magistrates are inherently well-qualified to assess. They do so daily by reference to whether, applying all their experience and judgment, they reasonably assess that s 42 prosecutorial disclosure has been given or not, for the purposes of their satisfaction under s 44(1)(a) or (b).
51 In this case it seems clear that his Honour was not satisfied in this regard. Therefore he took the s 44(1)(b)(i) path. On my analysis of the Magistrates Court Act, that is clearly a path that was open to him.
52 I am alive to the fact that 27 July 2011 will be the third disclosure/committal hearing. There must obviously be a pragmatic limit to the number of disclosure/committal hearings that are permissible before the potential issue of an order under s 44(1)(b)(ii), requiring prosecutorial compliance by a specified date, arises. Then, conjunctively under s 44(1)(b)(iii), it may become necessary to decide if yet a further adjournment is warranted, or whether the case should be dismissed for want of prosecution. However, those all seem to me to be factually grounded considerations, to be reached within jurisdiction.
53 I do not have anything before me to indicate that it is arguable that this learned Magistrate erred outside jurisdiction, in terms of the conclusion he reached as appropriate on 15 June 2011, to adjourn the matter again, to 27 July 2011.
54 On that basis the required threshold of arguability to obtain an order nisi has not been met. Therefore this application, made by reference to the decision to adjourn on 15 June 2011, cannot be so impugned.
55 Accordingly I refuse the application. I do observe that this decision would not inhibit further application being made at a subsequent time, dependent upon reasons given at that time. That would be a fresh decision and would require fresh evaluation in the overall context of s 44(1)(a) or s 44(1)(b).
56 For these reasons this notice of originating motion will be dismissed.
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