COHEN -v- GATES [2018] WASC 247 (15 August 2018)

Last Updated: 20 August 2018

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):

HALL J:

1. On 28 February 2017, in the Magistrates Court, the appellant was found to be unfit to plead to a charge due to his mental illness. He was then made the subject of a custody order pursuant to s 16 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act). The effect of a custody order is that, though the charge is dismissed, the person is detained indefinitely in an authorised hospital, detention centre, declared place or a prison, subject to periodic reviews by the Mentally Impaired Accused Review Board. Since the custody order was made the appellant has been detained in an authorised mental health hospital.
2. On 23 February 2018 the appellant filed a notice of appeal against the custody order pursuant to pt 2 of the Criminal Appeals Act 2004 (WA). That appeal was well out of time and an extension of time is sought. An affidavit in support of the application to extend time has been sworn by the appellant's solicitor.
3. The respondent raised a preliminary issue as to whether the appeal is competent. The issue is whether the making of a custody order is a decision of a type which can be the subject of an appeal under the Criminal Appeals Act. In response to that contention the appellant filed an application seeking a review order under s 36 of the Magistrates Court Act 2004 (WA). The respondent agreed that it was appropriate for the appeal and the review order proceedings to be heard and determined together.
4. For the reasons that follow, I have come to the following conclusions:
   1. The making of a custody order does not fall within the categories of decision that can be the subject of an appeal under pt 2 of the Criminal Appeals Act. This is arguably a hiatus in that Act. The appeal brought under the Criminal Appeals Act is therefore incompetent and must be dismissed.
   2. A custody order can be the subject of a review order under s 36 of the Magistrates Court Act, though the circumstances in which an order can be set aside under that provision are significantly more limited than on an appeal. Essentially they are confined to jurisdictional errors.
   3. There was jurisdictional error in this case because the decision by the magistrate to make a custody order was unreasonable. This is because necessary inquiries were not made as to what would occur if a custody order was not made. An assumption that the appellant would be immediately released into the community was unsupported by any evidence. A finding that the appellant was a high risk of reoffending in a relevant manner was also unsupported by evidence.
   4. The custody order must be set aside and the matter remitted to the Magistrates Court for a hearing to be held according to law.

Proceedings before the Magistrates Court

5. The appellant was charged on a prosecution notice that between 27 January 2016 and 9 February 2016 he pursued another person in a manner that could reasonably be expected to intimidate, and that did in fact intimidate that person, contrary to s 338E(2) of the Criminal Code (WA). That offence is commonly referred to as stalking. The maximum penalty for this offence is 12 months' imprisonment and a fine of $12,000.
6. The appellant first appeared in the Magistrates Court on 10 February 2016 when a hospital order was made. Such an order is made where a judicial officer reasonably suspects that an accused person has a mental illness for which treatment is needed, that because of that mental illness there is a significant risk to the health or safety of the accused or another person, and that the accused does not have the capacity to consent to treatment. A hospital order is an order that the accused is to be taken to, and detained in, an authorised hospital and examined by a psychiatrist. After examination, the accused will either be detained in an authorised hospital as an involuntary patient or kept in custody until a date set by the judicial officer, being not more than seven days after the date on which the hospital order was made.[1]
7. On 17 February 2016, the appellant again appeared in the Magistrates Court. The outcome of the examination by a psychiatrist at that time is not available. However, an order was made that the appellant be remanded in custody. It would appear that that order was made because the appellant had a mental illness, and since that time he has been detained at Graylands Hospital. There were a further four mentions in the Magistrates Court on 16 March, 13 April, 4 May and 1 June 2016. On 15 June 2016 the matter was again mentioned and the prosecution notice has an annotation that the appellant was 'currently deemed unfit to plead due a mental illness requiring treatment as an inpatient for 4 weeks'. There were further mentions on 13 July and 10 August 2016.
8. On 8 September 2016 a report was requested on the appellant's fitness to plead. The prosecution notice has an annotation that the appellant had by that time appeared in the Magistrates Court eight times and that on each occasion a report had said that he was unfit to plead. A further mention occurred on 24 October 2016. An annotation on that date notes that there were conflicting reports before the court as to the appellant's fitness to plead. At a further mention on 28 November 2016 the matter was set down for a hearing to ascertain whether the appellant was fit to plead. That hearing was listed to be held on 21 February 2017.
9. On 21 February 2017 a fitness to plead hearing was held before his Honour Magistrate Huston. A lawyer who had previously represented the appellant appeared at the hearing as amicus curiae. This was presumably because of the appellant's impaired capacity to instruct counsel. At the hearing a written report from a psychiatrist was received and that psychiatrist also gave oral evidence. That evidence will be summarised later in these reasons. At the conclusion of the hearing the magistrate reserved his decision and adjourned the matter to 28 February 2017.
10. At the resumed hearing on 28 February 2017 the magistrate referred to some additional information that he had received and concluded that the appellant was not fit to plead, would not become fit within six months and that a custody order was appropriate. He gave extensive oral reasons for those conclusions.

Relevant legislation

11. An accused person is presumed to be mentally fit to stand trial until the contrary is found.[2] The question of whether an accused is not mentally fit to stand trial may be raised in the Magistrates Court at any time before or during the trial of an accused.[3] The question of whether an accused is not mentally fit to stand trial may be raised by the prosecution or the defence or the presiding judicial officer.[4]
12. The question of whether an accused is not mentally fit to stand trial is to be decided by the court on the balance of probabilities. The judicial officer is not bound by the rules of evidence or limited only to information provided by the parties. Section 12 of the Act provides as follows:

(1) The question of whether an accused is not mentally fit to stand trial is to be decided by the presiding judicial officer on the balance of probabilities after inquiring into the question and informing himself or herself in any way the judicial officer thinks fit.

(2) For the purpose of the inquiry the judicial officer may -

(a) order the accused to be examined by a psychiatrist or other appropriate expert;

(b) order a report by a psychiatrist or other appropriate expert about the accused to be submitted to the court;

(c) adjourn the proceedings and, if there is a jury, discharge it;

(d) make any other order the judicial officer thinks fit.

(3) The judicial officer may make a report about the accused available to the prosecutor and to the accused, on such conditions as the officer thinks fit.

(4) The prosecution or an accused may appeal against a judicial officer's decision that the accused is not mentally fit to stand trial.

13. Section 9 of the Act defines the circumstances in which an accused person is not mentally fit to stand trial. That section provides as follows:

An accused is not mentally fit to stand trial for an offence if the accused, because of mental impairment, is -

(a) unable to understand the nature of the charge; or

(b) unable to understand the requirement to plead to the charge or the effect of a plea; or

(c) unable to understand the purpose of a trial; or

(d) unable to understand or exercise the right to challenge jurors; or

(e) unable to follow the course of the trial; or

(f) unable to understand the substantial effect of evidence presented by the prosecution in the trial; or

(g) unable to properly defend the charge.

14. The term 'mental impairment' is defined in s 8 to mean intellectual disability, mental illness, brain damage or senility. The term 'mental illness' is defined to mean an underlying pathological infirmity of the mind, whether or short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.
15. Section 16 of the Act sets out the procedure to be followed in the Magistrates Court where the issue of fitness to be tried is raised. That section provides as follows:

(1) This section applies if the accused -

(a) is charged with a simple offence; or

(b) is charged with an indictable offence that can be tried summarily and that is to be tried by the court of summary jurisdiction.

(2) If the court that decides that the accused is not mentally fit to stand trial -

(a) is satisfied that the accused will not become mentally fit to stand trial within 6 months after the finding that the accused is not mentally fit, the court must make an order under subsection (5); or

(b) is not so satisfied, the court must adjourn the proceedings in order to see whether the accused will become mentally fit to stand trial.

(3) Proceedings may be adjourned under subsection (2)(b) for any period or periods the court thinks fit but the proceedings must not be adjourned for longer than a total period of 6 months after the finding that the accused is not mentally fit to stand trial.

(4) If proceedings are adjourned under subsection (2)(b), the court must make an order under subsection (5) -

(a) if at any time the court is satisfied that the accused will not become mentally fit to stand trial within 6 months after the finding that the accused is not mentally fit; or

(b) if at the end of 6 months after the finding that the accused is not mentally fit to stand trial the accused has not become mentally fit.

(5) An order under this subsection is an order dismissing the charge without deciding the guilt or otherwise of the accused and either -

(a) releasing the accused; or

(b) subject to subsection (6), making a custody order in respect of the accused.

(6) A custody order must not be made in respect of an accused unless the statutory penalty for the alleged offence is or includes imprisonment and the court is satisfied that a custody order is appropriate having regard to -

(a) the strength of the evidence against the accused; and

(b) the nature of the alleged offence and the alleged circumstances of its commission; and

(c) the accused's character, antecedents, age, health and mental condition; and

(d) the public interest.

(7) The court may require a prosecutor to provide copies of documents relevant to the factors to be considered under subsection (6).

(8) If an order is made under subsection (5), the accused cannot again be charged with or tried for the offence.

16. The effect of s 16 is that where a magistrate decides that an accused person is not mentally fit to stand trial, it is then necessary to consider whether the accused may become fit within six months. If satisfied that the accused will not become mentally fit within six months, the magistrate must make an order dismissing the charge without deciding the guilt or otherwise of the accused and either releasing the accused or making a custody order. A custody order must not be made unless the alleged offence is punishable by imprisonment and the magistrate is satisfied that such an order is appropriate having regard to the considerations referred to in s 16(6).
17. If a custody order is made, the accused person must be detained in an authorised hospital, a declared place, a detention centre or a prison, as determined by the Mentally Impaired Accused Review Board established under pt 6 of the Act. Any such detention continues until the accused is released by order of the Governor.[5]
18. A mentally impaired accused person who is subject to a custody order cannot be detained in an authorised hospital unless the accused has a mental illness that is capable of being treated.[6] A mentally impaired accused person should only be detained at an authorised hospital if the Board is satisfied that the accused has a mental illness requiring treatment, that because of the mental illness there is a significant risk to the health or safety of the accused or another person, that the accused does not have the capacity to consent to treatment and that the treatment can only be provided satisfactorily in an authorised hospital.[7] Thus there is a real possibility that a person detained on a custody order may be placed in a prison for an indeterminate period.
19. The only options available to a magistrate under s 16(5) of the Act are unconditional release or a custody order. The court is not empowered to make an order conditionally releasing an accused person. This deficiency in the Act also applies in the case of offences dealt with in higher courts under s 19 and has been the subject of comment in other cases: The State of Western Australia v Tax;[8] The State of Western Australia v Lowick[9] and The State of Western Australia v Huggins.[10]
20. A mentally impaired accused person in respect of whom a custody order has been made remains subject to that order until discharged from it. Discharge will occur when the Governor makes a release order under s 35 of the Act. Release can be either unconditional or on conditions.[11] That, however, is entirely an act of the executive and does not have to occur after any particular period (or at all).
21. The Act and the Mental Health Act 2014 (WA) operate independently of each other. The fact that a person is made an involuntary patient under the Mental Health Act does not affect the operation of the Act or the operation of the criminal law in respect of that person.[12] However, equally, there is nothing to suggest that an order made under s 16(5)(a) of the Act releasing the accused has any effect other than in relation to the Act. Thus, if an accused person has been made an involuntary patient under the Mental Health Act they would remain detained under that Act.

The fitness to plead hearing

22. At the hearing the prosecutor briefly outlined the factual allegations. It was alleged that on 27 January 2016 the appellant was walking past the complainant's home in Cottesloe. The appellant was 48 years old at the time and the complainant was a 14yearold girl. The complainant and her mother were walking to their car, which was parked in front of their home. The appellant stopped and stared at them. The complainant went inside the house and came out again a short time later. The appellant continued staring at the complainant until she and her mother left. He then slowly walked away. This incident lasted about 20 minutes.
23. It was alleged that at around 6.30 pm on the following day the complainant and her mother again saw the appellant standing across the road from their house, staring at them. He stood there for two hours until a neighbour confronted him. He then left the area.
24. It was alleged that on 2 February 2016 the appellant again attended the complainant's house. On this occasion he left a flannelette shirt, a Bonds singlet, a pair of long socks and a 13-page handwritten letter in the complainant's letterbox. The letter contained sexual content referring to the complainant, including delusional beliefs that the complainant had initiated a sexual relationship with him.
25. No witness statements were tendered at the hearing. However, it was not disputed, either at the hearing or on the appeal, that the appellant had done the things that were alleged. It was accepted that the prosecution case was a strong one.
26. The only witness called at the hearing was Dr Gosia Wojnarowska. Dr Wojnarowska is a consultant forensic psychiatrist and had been the appellant's treating psychiatrist since May 2016. She had had the opportunity to assess the appellant on 'numerous occasions'.[13]
27. Dr Wojnarowska gave evidence that the appellant had a welldocumented history of schizophrenia, which appeared to be treatment resistant. He had had admissions to psychiatric hospitals in Queensland prior to relocating to Western Australia. He first came to the attention of mental health services in Western Australia following the alleged offences. During his time on remand he had received the strongest antipsychotic medication available. There was some improvement in his condition but his core delusional beliefs that the complainant had provoked him through her presentation and clothing remained.[14]
28. Dr Wojnarowska was of the opinion that the appellant was unable to defend the charge or properly instruct a lawyer as a result of his delusional interpretation of what had occurred. She was of the view that the appellant was unfit to stand trial and would remain so indefinitely.[15]
29. In relation to the appellant's risk of reoffending Dr Wojnarowska was asked:[16]

[D]o you think that his condition would improve and that he would be able to properly defend this charge? --- I - I believe that he is unfortunately his illness has not been treated prior to him coming to Franklin [sic - Frankland] for a long time, and has become treatment resistant. We have not noted any shift in his delusional beliefs, and therefore I am of the opinion that he is not going to be fit to stand trial, for the same reason that I have already explained, indefinitely. I don't believe that he will regain fitness in - in six month or 12 months either.

Do you think that, if [the appellant] was released into the community, he would reoffend in this same way? --- I have not conducted the formal risk assessment in terms of sexual reoffending, but based on his mental state, and in my opinion, his preoccupation with the alleged victim and with the sexual matters, I would say, yes, there is a risk of further sexual reoffending.

Do you have the necessary qualifications and experience to conduct a risk assessment? --- Yes. I have been trained and involved in - I have been trained in risk assessment of sexual offenders, and I have been involved in assessing dangerous sex offenders since 2007.

Okay. And if you were to do a formal risk assessment, what would that entail? --- I would require to have, firstly, all the police records from different states, specifically from Queensland, to make sure that there were no previous offending in other states, and I would need to apply - I would need to include psychopathy assessment, so they are basically the special tools that you use when you want to provide the court with the opinion with relation to the risk of reoffending, and, most importantly, how to manage that risk.

Okay. How long do you think that would take? --- It wouldn't take long. It would take me half a day if I had all the materials, but I would require to have police records from different states - from other states.

You did say that your preliminary assessment - your opinion is that he would reoffend in a sexual way; you did say that? --- Yes. I did.

Yes. And you also said that he has a preoccupation with the victim of this matter? --- Yes.

Yes. And can you just explain that in a bit more detail? --- Well, on each and every occasion when this matter is raised with [the appellant], he becomes physically aroused. I am not suggesting sexually aroused, but he is - his emotions go up. He - he is - I would say he is quite angry with the victim - with the alleged victim, and he certainly - she is not far away from - from his thinking. It's - it's very obvious when he is questioned in relation to this matter.

So it would be your opinion that if he was released back into the community, he may go back to this - the house of the victim and continue a similar vein of? --- Yes. This is - - -

- - - behaviour? --- - - - my concern. Yes.

Okay. Thank you (indistinct).

HIS HONOUR: There's a question that I have, Mr Rafferty. I don't know whether - I know that section 12 gives me fair latitude, but I might just ask that question now because it seems quite relevant.

RAFFERTY, MR: Sir, and then I will go after that. Certainly, sir.

HIS HONOUR: So, doctor, you've mentioned that your assessment, without having undertaken the formal risk assessment, but your assessment from your knowledge of having treated [the appellant] over the past 12 months is that he is likely to reoffend - - -? --- Yes.

- - - without having undertaken a formal process to inform yourself of that. Do you mean only in terms of this complainant or generally? --- Your Honour, I - I do believe that he is still emotionally involved with the - with the complainant, and - but, at the same time, I do believe that there is some level of sexual preoccupation, which combined with [the appellant's] perhaps difficulty in establishing intimate relationships, which is secondary to the presence of schizophrenia, constitutes a risk factor.

So could I characterise that response as being that you do have concerns more broadly than just this complainant? --- That's correct, your Honour.

30. Dr Wojnarowska was asked what would happen if the appellant was placed on a custody order. She said that he would first remain in a secure ward at Graylands Hospital and would then be moved to an open ward with attempts to rehabilitate him into the community, depending on recommendations from the Mentally Impaired Accused Review Board.[17]
31. When asked what would happen if the appellant was released, Dr Wojnarowska said:[18]

So [the appellant] expressed a wish to be reunited with his family in Queensland, and we would support that, and if he were to be released today, we would be hoping that we would be able to organise a plane for him to relocate to Queensland. We also will - would be liaising with the mental health services in Queensland to ensure that he receives a psychiatric follow-up there.

Now, you - there is a social worker who works within the Franklin [sic - Frankland] Centre called Ms Janet Hicks; correct? --- Yes. That's correct.

Have you had a discussion with Ms Hicks in relation to what would happen as far as the booking of flights and matters of that nature? --- Yes. I have.

And is that something that she has undertaken that she would attend to if [the appellant] were released from custody? --- Yes. That's - that's my belief.

Would there be an interim period, though, where he would be allowed to simply roam about within the community before he was to be placed on a flight to Brisbane? --- No. [The appellant] is still under the Mental Health Act, and I would not relax his access to the community while he is awaiting the trip. So he would only be removed from the Mental Health Act when he is on a plane to Queensland.

So the plan that would be put in place if his Honour were not minded to make a custody order would be, first of all, [the appellant] would stay in the care of the Graylands Hospital? --- Franklin [sic - Frankland] Centre.

Franklin [sic - Frankland] Centre, more specifically? --- Yes.

So he would be in a locked - effectively a locked ward? --- Yes.

Arrangements would be made to obtain a ticket - - -? --- Yes.

- - - to Brisbane, an airline ticket. He would then be taken to - - -? --- Escorted.

- - - Perth Airport - escorted - - -? --- Yes.

- - - and placed on the plane? --- Yes.

And then there would be follow-up with the mental health services in Queensland for his ongoing treatment? --- That's correct.

HIS HONOUR: But not as a result of anything I would have ordered, as a result of decisions you've made under the Mental Health Act?

RAFFERTY, MR: Correct? --- That's correct, your Honour.

So to put it in very clear terms, the absence of a custody order will not result in [the appellant] being allowed to roam about the community freely in any way? --- Not in Western Australia.

32. At the conclusion of her evidence, Dr Wojnarowska was asked by the magistrate some questions regarding schizophrenia generally and the severity of the appellant's condition. When asked to assess the severity of the appellant's illness on a scale of 0 10, she said that the appellant was at 7 and had stayed much the same during the period of his remand. She expected him to remain stable at this level if he was consistently treated, had no access to illicit drugs and was in a relatively stress free environment. She said that if the appellant was not taking his medication 'he would get much worse'.[19]
33. A written report by Dr Wojnarowska was also tendered.[20] That report states that the appellant was believed to have had three admissions to psychiatric hospitals in Brisbane between 1995 and 1998 at which time he was diagnosed with schizophrenia. He moved to Western Australia in 2006 and since that time has been on no medications and living an itinerant lifestyle. The report states that after being admitted to the Frankland Centre the appellant was assessed by a psychiatrist on 3 March 2017 and was made an involuntary patient under the Mental Health Act. Dr Wojnarowska confirmed the appellant's involuntary status when she took over his care in May 2016. Despite appropriate treatment with antipsychotic medications over a 12month period, the appellant had continued to express delusional beliefs in relation to the alleged offence. There had been an improvement noted in his ability to express himself in a coherent manner and his irritability had diminished. However, he remained isolated, difficult to engage, lacking insight into his illness and lacking motivation to participate in activities or attend to his personal hygiene.
34. The appellant's Western Australian and Queensland criminal records were tendered.[21] The appellant has one prior conviction of a sexual nature, namely an offence of wilful exposure committed in Queensland on 20 April 2005. His Queensland record also included reference to a charge of behaving in an indecent manner, of which he was found not guilty. Despite residing in Western Australia for approximately 10 years the appellant had no convictions for offences of a sexual nature in this State, the only conviction being for a minor traffic offence.
35. The handwritten letter alleged to have been written by the appellant and left in the complainant's letterbox was also tendered.[22]
36. At the conclusion of the hearing counsel who appeared as amicus curiae accepted that there was uncontradicted evidence that the appellant was unfit to be tried and would remain so indefinitely. The real issue was whether a custody order or release under s 16(5) of the Act was appropriate. Counsel submitted that any risk to the complainant of the appellant being released would be lessened by the fact that the appellant remained subject to the Mental Health Act. He noted that the appellant would remain at the Frankland Centre until his return to Queensland could be arranged, and that the authorities in this State would liaise with mental health services in Queensland.[23]
37. The prosecution submitted that a custody order was appropriate because, based on Dr Wojnarowska's opinion, the appellant was 'at risk' of reoffending, both in respect of the complainant and more generally. The prosecutor expressed concern that if the appellant was sent to Queensland as proposed, his status as an involuntary patient under the Mental Health Act 'would be removed and he would be a free person'. It was submitted that there would be nothing to stop the appellant from coming back to Western Australia and 'doing the same thing'. The prosecutor concluded by saying that a custody order should be made 'for the safety of the community'.[24]
38. The magistrate said that it was clear that the issue of the appellant's fitness had been validly raised. He said that the more pressing question was whether to release the appellant or make a custody order. He acknowledged that the appellant had already been in custody for a longer period than any possible sentence if he had been convicted of the offence.[25] He then said:[26]

The difficulty that I'm having in making a decision today is the circumstances surrounding the proposed relocation of [the appellant] to Queensland ... I want to be informed about the arrangements, not so much the air travel and the fact that [the appellant] will remain at Franklin [sic - Frankland], or at least the Graylands Centre, until he caught the flight. But what's going to happen at the Queensland end?

39. His Honour referred to obtaining further information from a social worker at Graylands Hospital. The proceedings were then adjourned to 28 February 2017 for that information to be obtained.
40. On 28 February 2017, the magistrate referred to further written material. He confirmed that counsel was aware of the material, but it was not tendered or described in any detail. His Honour mentioned that the author of the material wished to remain anonymous. The material did not form part of the documents provided to this court by the Magistrates Court. On the hearing of the appeal the parties agreed that the material in question was a letter dated 23 February 2017 from a member of the appellant's family in Queensland. In general terms, the letter stated that for personal reasons the appellant's return to Queensland was not supported. There does not appear to have been a report from the social worker at Graylands.

Magistrate's reasons

41. On 28 February 2017 the magistrate found that the appellant was unfit to stand trial and would not become fit within the next six months, and imposed a custody order. He gave oral reasons for doing so.
42. After summarising the procedural history and the relevant statutory provisions, his Honour summarised Dr Wojnarowska's evidence. He accepted her evidence that the appellant had treatmentresistant schizophrenia and that he was unfit to stand trial.[27]
43. In relation to the question of whether to release the appellant or impose a custody order, and specifically the matters set out in s 16(6) of the Act, his Honour said that the prosecution case against the appellant was overwhelming. His Honour said:[28]

And the more pressing matter for the court is to decide whether or not to release [the appellant], and the decision of the court would be there's no further conditions attached to that release. He's simply released, although it may be - and Dr Wojnarowska indicated that various decisions may be made under the Mental Health Act, but from the court's point of view, if I dismiss the charge and release the accused, that's the end of the matter from the court's point of view.

44. His Honour said that the public interest consideration required him to balance the fact that the appellant had served longer in custody than the maximum statutory penalty for the offence against any risk to the community and to the complainant specifically. His Honour then said:[29]

[W]hen the court enquired of Dr Wojnarowska in terms of the risk of [the appellant's] offending, the views expressed by Dr Wojnarowska was that in the event that [the appellant] was to cease taking his medication - and there have been relapses in the past previously when he wasn't under a regime imposed by the Graylands Centre - there was a considerable elevated risk of reoffending.

But in a general sense, even taking his medication, the views of Dr Wojnarowska was that there was a high risk of offending in a general sense but also in a specific sense for this complainant. Although a formal risk assessment had not been undertaken, that was Dr Wojnarowska's professional view, and I accept that it's a wellinformed view, given that she had been the treating psychiatrist for [the appellant] since May of 2016.

45. His Honour then considered what the practical effect of releasing the appellant under s 16(5)(a) of the Act would be. He referred to the proposal for arrangements to be made for the appellant to return to Queensland and to the additional material provided to the court. He referred to the prosecution's submission that if the appellant went to Queensland there would be nothing to prevent him from returning. He also said that the appellant had 'a record of like offending in Queensland'.[30]
46. His Honour returned to the balancing exercise he was required to undertake. He again referred to Dr Wojnarowska's evidence, and repeated that 'the assessment was one of high risk'.[31]
47. His Honour summarised the issue in the following terms:[32]

If it was the case that the court could be satisfied that the arrangements that were in place for [the appellant] to travel to Queensland and to remain there and that he would have the required support from a family and community setting point of view, indeed, from the mental health authorities in Queensland, then it might be that the court could have been satisfied that to release [the appellant] would have been the appropriate outcome.

However, given the written material the court has received since the hearing last week, which includes concerns from a family - sorry - from a community setting point of view that the views expressed by Dr Wojnarowska persist, namely, that there is a risk of reoffending, the decision of the court today, having taken into account the careful requirement of balancing the public interest exercise, is that a custody order should be made today ... Having balanced the competing interest, as I must, I am satisfied that the appropriate outcome today, because of the high risk of reoffending and the absence of the support that I would have required to have made an order releasing [the appellant] - the decision of the court in respect of [the appellant] is that the charge is dismissed; however, he is subject to a custody order going forward.

Preliminary question - is the appeal under the Criminal Appeals Act competent

48. This matter was commenced as a single judge appeal under pt 2 of the Criminal Appeals Act. Following a submission from the respondent that the appeal was not competent because the Criminal Appeals Act does not provide for an appeal from a magistrate's decision to impose a custody order under s 16 of the Act, the appellant applied for an order for review pursuant to s 36 Magistrates Court Act.
49. On 26 June 2018, I gave leave for an application for review to be filed, made an order that the requirement in O 56A r 2(1) that an application for a review order be made ex parte be dispensed with, and an order for the review order to be listed for hearing at the same time as the appeal.
50. I must now determine whether the matter should be determined as an appeal or as a review pursuant to s 36 of the Magistrates Court Act.
51. Appeals are a creature of statute. As such, no right of appeal exists from the magistrate's decision to impose a custody order unless provided for by statute.[33] Section 7 of the Criminal Appeals Act provides:

Right of appeal

(1) A person who is aggrieved by a decision of a court of summary jurisdiction may appeal to the Supreme Court against the decision.

(2) The Attorney General may appeal to the Supreme Court against a decision of a court of summary jurisdiction.

(3) The following decisions of a court of summary jurisdiction cannot be the subject of an appeal under this Part -

(a) a decision that is declared by an Act to be final or not appealable;

(b) a decision to commit or not to commit an accused for trial or sentence;

(c) a decision as to bail.

(4) Except as provided by this section, no appeal lies against a decision of a court of summary jurisdiction.

(5) Subsections (1), (2) and (4) are subject to any other written law and in particular to the Children's Court of Western Australia Act 1988 Part 5.

(6) This section does not affect the operation of the Bail Act 1982.

52. 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;

53. 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.
54. 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.
55. 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]
56. 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.
57. I accept that it is the case that s 7(3) would still have work to do even if s 6 were an exhaustive list. A decision of a type listed in s 6 could become a 'decision that is declared by an Act to be final or not appealable' if another piece of legislation provided so. Section 7(3) would then serve the purpose of providing clarity as to whether the decision was appealable. Section 7(3)(b) provides clarity in relation to decisions to commit an accused for sentence under s 46 and s 47 of the Criminal Procedure Act 2004 (WA), as it may have otherwise been uncertain whether such decisions could be considered to be an order made as a result of a conviction. Further, s 7(3)(c) provides clarity in relation to decisions as to bail, in particular where a decision as to bail could follow a conviction pending a sentence being imposed at a later date.
58. The appellant also refers to the decision of Hasluck J in Chang v Turner.[36] In that matter the court heard an appeal from a custody order decision made under s 16 of the Act. However, it was not raised in that appeal that the court may not have jurisdiction to hear it, and that was not an issue considered by the court. I do not consider that Chang is authority for the proposition that a custody order is a decision that is covered by the terms of s 6 or s 7 of the Criminal Appeals Act.
59. The appellant further submits that to interpret s 6 of the Criminal Appeals Act as excluding an order made under s 16 of the Act would be inconsistent with 'the fundamental right to seek appellate review', in the context where the order made was one of indefinite detention. However, even if no appeal is available to the appellant, he is still able to seek judicial review of the decision pursuant to s 36 of the Magistrates Court Act. As such, a strict interpretation of s 6 and 7 of the Criminal Appeals Act does not result in persons subjected to indefinite detention without avenue to seek review of that decision. Having said that, I recognise that the grounds for seeking a review are more limited than those that can be raised on an appeal. In particular, errors of fact are not generally capable of being raised in review proceedings. Nonetheless, public policy considerations that may favour a broader availability of appeal rights cannot prevail over the clear words of s 6 and s 7 of the Criminal Appeals Act. Whether this is a matter that would justify an amendment to the relevant legislation is a matter for Parliament.
60. I am satisfied that s 6 of the Criminal Appeals Act is intended to be an exhaustive list.[37] The appeal brought under pt 2 Criminal Appeals Act is, therefore, not competent. I will proceed to determine matter as an application for review pursuant to s 36 of the Magistrates Court Act.

Grounds of review

61. The appellant seeks review of the magistrate's decision on three grounds. It was accepted at the hearing that the grounds for review were to be the same as the grounds of appeal filed in the appeal. Ground 3 was added following the hearing with leave of the court. The grounds are as follows:
    1. The learned Magistrate erred in imposing a custody order pursuant to s 16(5) of the [Act] when such an order was not appropriate having regard to the nature of the alleged offence, the accused character, antecedents and mental condition, and the public interest.
    2. The learned Magistrate erred in fact in finding that Dr Wojnarowska had assessed the appellant's risk of reoffending as being high.
    3. The learned Magistrate erred in failing to take into account a relevant consideration, namely what plans could have been put into place for the appellant were he released pursuant to s 16(5)(a) of the [Act] but to remain in Western Australia rather than return to Queensland.
62. It was accepted during the appeal hearing that there was doubt that ground 2 could constitute a jurisdictional error.[38] That does not, however, mean that the evidence as to risk assessment is not relevant to ground 1. It was also accepted that though ground 1 uses the phrase 'not appropriate' the relevant question was whether the decision was unreasonable.

Review proceedings - s 36 Magistrates Court Act

63. Section 36 of the Magistrates Court Act provides:
    36. Supreme Court's powers to control Court

(1) 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;

(b) an act, order or direction that a Court officer proposes to do or make -

(i) on the ground that it would be without jurisdiction or power or would be an abuse of process; or

(ii) on any ground that might have justified an order of prohibition;

(c) an act, order or direction done or made by a Court officer -

(i) on the ground that it was done or made without jurisdiction or power or is an abuse of process; or

(ii) on any ground that might have justified an order of certiorari,

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.

(2) The procedure for making, and in relation to, an application under subsection (1) is to be prescribed by rules of court of the Supreme Court.

(3) On an application made under subsection (1) and rules of court of the Supreme Court, the Supreme Court may make any review order that is just, whether it has been applied for or not.

(4) If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -

(a) order that the act, order or direction be or not be done or made or set aside, as the case requires;

(b) grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;

(c) make any necessary consequential orders.

(5) On an application made under subsection (1) in respect of an act, order or direction, the Supreme Court may -

(a) if it considers that an appeal lies under the Criminal Appeals Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and deal with the matter accordingly;

(b) if it considers that an appeal lies under the Magistrates Court (Civil Proceedings) Act 2004 in respect of the act, order or direction, order the application to be treated as if it were such an appeal and remit the matter to the District Court to be dealt with accordingly.

(6) When dealing with an appeal under the Criminal Appeals Act 2004 the Supreme Court may make a review order and, if it does, may also make an order under subsection (4).

(7) If, when dealing with an appeal under the Magistrates Court (Civil Proceedings) Act 2004, the District Court considers that a review order ought to be made it may -

(a) remit the appeal to the Supreme Court under the District Court of Western Australia Act 1969 section 77; or

(b) adjourn the appeal to enable an application to be made to the Supreme Court -

(i) under subsection (1); or

(ii) under the District Court of Western Australia Act 1969 section 76.

(8) A Court officer, on being served with an order made under subsection (4), must obey the order.

64. The power in s 36 of the Magistrates Court Act is a judicial review power.[39] The power to grant relief under s 36(4) is only enlivened if one or more of the grounds in s 36(1)(a), (b) or (c) has been established. The purpose of s 36 was to replace common law prerogative writs in respect of magistrates with a statutory alternative that is free of some of the technical requirements of prerogative writs.
65. An inferior court will not generally fall into jurisdictional error if it makes an error of fact. Nor is it a jurisdictional error to fail to take into account a relevant consideration unless the statute conferring jurisdiction requires that a particular matter be taken into account as a precondition of the exercise of authority to make the decision.[40]

Appellant's submissions

66. In relation to ground 1, in written submissions the appellant says that the restriction on the appellant's movement which the custody order imposes was not appropriate or necessary in order to protect the community. No risk assessment was performed and the evidence did not go higher than to say the appellant was 'a risk' of reoffending. The level of risk was not quantified and the appellant's antecedents did not disclose a history of recent offending, and no history of violent offending.[41]
67. At the hearing of the appeal it was submitted that risk assessments are the best evidence of risk, and absent a risk assessment the evidence did not support the finding that the appellant was a high risk of reoffending. Further, the appellant submitted that if that finding was available on the evidence, a distinction needs to be drawn between a risk of reoffending and a risk of reoffending in a violent manner. Reoffending in a similar manner, it is submitted, does not make the appellant a danger to the community.[42]
68. It is submitted that support for the proposition that s 16(6) is directed at protecting the community from, primarily physical risk, can be drawn from the list of offences in sch 1 of the Act (which are offences for which a custody order must be imposed following a finding of not guilty by reason of unsoundness of mind in a superior court).[43]
69. In relation to s 16(6)(d) of the Act, the appellant says that a component of the public interest is ensuring that people with a mental illness are provided with the best possible treatment and care, with the least restriction on their freedom and the least interference with their rights and dignity.[44]
70. The appellant also says that the amount of time spent in custody is relevant in determining whether a custody order is appropriate, referring to State of Western Australia v Sanders.[45] It is submitted that, given that the alleged offence was of lesser seriousness, a term of imprisonment would not have been imposed if the appellant had been convicted. At the hearing of the appeal, it was submitted that the time spent in custody would be relevant under s 16(5)(c) of the Act as part of the appellant's antecedents, or alternatively as part of the public interest because the practical effect of the order is that the appellant has been punished beyond the sentence he would have received had he been convicted. It is submitted that the prohibition in s 16(6) of the Act on the imposition of a custody order for offences that do not carry a sentence of imprisonment suggests that risk is not the only factor that is relevant, and that proportionality is also relevant.[46]
71. At the hearing of the appeal it was submitted that the fact that the common law does not sanction preventative detention should inform the interpretation and application of a statute providing for preventative detention, particularly given the indefinite nature of a custody order.[47]
72. In relation to ground 3 the appellant says the magistrate's reasons quoted above at [47] show that his Honour failed to consider a mandatory consideration, namely, the support from mental health services which the appellant would receive in Queensland or the support which he would receive from mental health services in Western Australia if released. The appellant points to the evidence of Dr Wojnarowska that the appellant would not have been released from hospital but held under the Mental Health Act if a custody order were not made.
73. The appellant further says that the outcome of the decision is not consistent with proper regard being had to the support offered by mental health services, demonstrating that his Honour did not take it into account rather than simply failing to mention it in his reasons.

Respondent's submissions

74. The respondent submits that the period of time spent in custody is not a relevant consideration for the purposes of determining whether it is appropriate to impose a custody order. It is said that this is because the object of a custody order is not punitive, rather its primary purpose is community protection, with a secondary purpose of ensuring that mentally impaired accused receive appropriate care.[48]
75. The respondent says that risk of physical harm is not a 'precondition' to the imposition of a custody order, because there are non-physical harms from which it is appropriate to protect the community.[49]
76. In written submissions, the respondent also notes that the length of time spent in custody or on a custody order is not something which the Mentally Impaired Accused Review Board is to take into account under s 33(5) of the Act when recommending whether a person on a custody order should be released. It is said that the length of time in custody does not bear a logical connection to the risk posed by the accused or their treatment needs.
77. In relation to ground 3, the respondent concedes that the magistrate made the error alleged by the appellant but submits that the error was one made within jurisdiction and therefore one which does not provide a basis for relief.
78. It is submitted that consideration of what support the appellant would receive if released was not a mandatory consideration, and that the statute does not require every matter which may bear upon the public interest to be considered. It is said that if the legislature had intended that other factors (even factors which otherwise fall within the concept of the 'public interest') were required to be considered, then such factors would have been expressly articulated within s 16(6). This is particularly so given that the nature of 'the public interest' is multifaceted, a discretionary value judgment and requires the evaluation of competing considerations.
79. It is submitted that the magistrate's error was either a material error of fact or an error of law by finding as a fact that there was no support for the appellant if a custody order was not made, when the evidence suggested otherwise. It is submitted that such errors are not jurisdictional errors.

Ground 1 - relevant law

80. In essence, ground 1 asserts that the magistrate's decision was so unreasonable that no reasonable decision maker could have made it.
81. The principles applicable to determining questions of jurisdictional error were recently outlined by the Court of Appeal.[50] The only question is whether what was done was authorised by the empowering legislation. The answer to that question will turn on the identification of the limits of the authority conferred by the relevant statutory provision. That is, identifying the conditions for the valid exercise of the statutory power. This is entirely a question of statutory construction.
82. A decisionmaker may fall into jurisdictional error by making an unreasonable decision in the exercise of a statutory discretion. This is because it is presumed that the legislature intends that the power be exercised reasonably.[51] In such a case, the decision maker does not make the decision in the manner contemplated by the statute and consequently acts beyond jurisdiction.[52]
83. The standard of reasonableness required is a question of statutory construction, because 'the question to which the standard of reasonableness is addressed is whether the statutory power has been abused'.[53]
84. The statement of principle made by Greene MR in Associated Provincial Picture Houses v Wednesbury Corporation,[54] that 'if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere', is not the starting point nor the end point for determining whether a decision is unreasonable, the legal standard of unreasonableness not being limited to cases falling within this principle.[55]
85. The reasoning applied in appeals from discretionary decisions following the decision in House v King is analogous to the review of the exercise of a statutory discretion under this ground.[56] It has been stressed that courts must take care not to stray into a merits review of the impugned decision, and that a decision will not be unreasonable simply because the court undertaking the task of review may disagree with it.[57]
86. 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)

87. His Honour was of the view that for evidence to be adduced of facts available to the decision maker, though not necessarily before him or her at the time of the decision, was consistent with the course of proceedings in Pestell, where the plaintiff was allowed to prove that the basis upon which the council had acted in selecting the land to be rated was erroneous in fact.[59]
88. Wilcox J's approach in Prasad was discussed by the majority of the High Court in SZIAI:[60]

Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a 'duty to inquire', that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. (citations omitted)

89. While Wilcox J based his reasoning on provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the High Court's statements in SZIAI were not limited to applications for review under that Act and the Prasad decision has been applied in cases not founded upon that Act.[61]
90. The Prasad decision was obviously considered in SZIAI in the context of the inquisitorial nature of the Tribunal's role. However, s 12(1) of the Act provides that the question of whether an accused is not mentally fit to stand trial is to be decided by the presiding judicial officer on the balance of probabilities after inquiring into the question and informing himself or herself in any way the judicial officer thinks fit. This has two relevant consequences. First, the magistrate is not bound by the ordinary rules of evidence. Secondly, the magistrate is not limited to the information that the parties choose to advance. Subject to the rules of procedural fairness, the magistrate may seek reports or ask witnesses questions on any matters relevant to the decision to be made. This has particular relevance in the context of a person labouring under a disability, such as a mental illness, who may be unable to give instructions to a lawyer or to obtain relevant information.
91. A decision may also be so unreasonable that no reasonable decision maker could have made it if there is no evidence to support a finding, and the finding is critical to the ultimate decision.[62]
92. In Luu v Renevier,[63] the Full Court of the Federal Court considered an appeal from a judge of the Federal Court setting aside two decisions of the delegate of the Minister refusing Mr Renevier's application for a permanent entry permit and determining that he should be deported. Mr Renevier suffered from a disorder which resulted in him having abnormally high testosterone levels. He had a criminal record consisting of multiple sex offences including indecent assault and sexual penetration without consent. During his sentence of imprisonment, he elected to have his testicles surgically removed. He was released on parole in 1988 on conditions requiring supervision by parole authorities and a psychiatrist. In a report before the primary judge but not the delegate, the psychiatrist stated that since his release Mr Renevier was also placed on medication suppressing sexual hormones, which had been effective, that Mr Renevier had a strong motivation to keep his sexual urges under control, and that there was little likelihood of reoffending.[64]
93. The delegate of the Minister said in making his decision that the 'risk [of recidivism] had not been completely eliminated and a real risk of recidivism remains'. This was at the heart of the decision to refuse the permit.[65] The Full Court found that this finding was unsupported by the evidence, as the two medical reports before the delegate did not go further than saying that recidivism could not be predicted.[66]
94. The Full Court also held that the decision was unreasonable on the basis that information from the supervising psychiatrist as to Mr Renevier's progress was plainly relevant as to risk of recidivism but no effort was made to contact the psychiatrist. Nor was effort made to obtain further expert material as to the risk of recidivism, such as the evidence of an endocrinologist tendered before the primary judge, in the face of inadequate expert material before the delegate. Had the material before the primary judge been before the delegate, the conclusion could not have rationally been reached that there was a real risk of recidivism.[67]
95. The decision in Luu has not been considered by the High Court.

Ground 1 - the merits

96. The purpose to which s 16(5)(b) is directed is providing a mechanism through which the community can be protected from criminal behaviour in situations where the alleged offender cannot be tried and sentenced due to their mental impairment. In enacting this provision, the legislature has recognised that community protection may require the detention of mentally impaired accused who are unfit to plead. Provisions providing for treatment rather than detention in prison (such as s 5 and s 24) show that the Act is also concerned with placing mentally impaired accused in institutions where they can be treated. The purpose of s 16(6) in requiring that the court be satisfied that a custody order is appropriate is to ensure that the right to liberty of mentally impaired persons who have not been convicted of an offence not be unnecessarily infringed. A construction that would promote this purpose will be preferred to a construction that would not.
97. Section s 16(6) of the Act directs the decision-maker's attention to factors relevant to the risk the mentally impaired accused would pose if released into the community. The fact that s 16(6) preconditions the exercise of the power to make a custody order on whether the offence is punishable by imprisonment suggests that an element of proportionality between the imposition of detention through a custody order and the alleged offence is envisaged by the legislation. In this respect, the matters set out in s 16(6) are relevant to both the risk to the community and to whether detention in the form of a custody order is warranted. For example, if the case against the accused is strong it is more likely that the offence did in fact occur and the community needs to be protected (and vice versa). The nature and circumstances of the alleged offence, and the accused's character, antecedents, age, health and mental condition, inform the danger which is posed to the community. In relation to whether detention is warranted, if the case against the accused is weak, or if the nature or circumstances of the alleged offence mean that it is trivial, it is less likely that detention would be warranted. The accused's character, antecedents, age, health and mental condition could all also be relevant.
98. In order to consider the question of whether a custody order is appropriate, the decisionmaker necessarily needs to balance the competing considerations of community protection and the right to liberty of an alleged offender not convicted of any offence. This exercise necessitates consideration of the risk posed to the community if a custody order were not made. What would occur if the alleged offender was not made subject to a custody order, is integral to the question of risk.
99. At the initial hearing on 21 February 2017 the options under consideration were a custody order or release of the appellant to return to Queensland. The second option involved some uncertainty as to what community support and mental health treatment the appellant would have in Queensland. There was also a concern that on leaving Western Australia the appellant would no longer be subject to any control under the Mental Health Act and would be free to return at some future time and be at liberty without any controls or conditions regarding treatment. Understandably, in these circumstances, the magistrate sought more information regarding the Queensland option.
100. At the resumed hearing on 28 February 2017 there was further information which indicated that the Queensland option was no longer viable. That led the magistrate to the conclusion that a custody order was appropriate. In coming to that conclusion his Honour assumed that without a custody order the appellant would be 'simply released' into the Western Australian community. Though he referred to 'various decisions' under the Mental Health Act, he did not seek any further information from Dr Wojnarowska as to what would occur if a release was ordered and the appellant was not returned to Queensland.
101. The fact was that at all material times the appellant had been an involuntary patient and the likelihood was that this would have continued for at least some period if release was ordered. That position could have been readily determined by asking Dr Wojnarowska for a further report. Whether the appellant would remain detained as an involuntary patient, the likely duration of any such detention and whether the appellant when fit for release would be required to undergo treatment in the community were essential facts bearing on whether a custody order was appropriate.
102. The assumption that the appellant would be 'simply released' if a custody order was not made had no basis in the evidence. The evidence of Dr Wojnarowska that if the Queensland option had been viable the appellant would have been held under the Mental Health Act until being placed on a plane, suggests that there were other impediments to release in Western Australia. However, this was not a matter about which any evidence was sought when the Queensland option fell away.
     103. By failing to obtain this information, and proceeding on the assumption that the appellant would be released into the community if a custody order was not made, the magistrate failed to engage in the exercise required by s 16 of the Act, and fell into jurisdictional error. Alternatively, proceeding on this assumption resulted in jurisdictional error on the same basis as in Luu.
104. On three occasions in his reasons for decision the magistrate referred to a 'high risk' of reoffending. There was in fact no evidence as to the degree of risk. Dr Wojnarowska specifically stated that she had not undertaken a risk assessment. She said she was qualified to do such an assessment and it could be done quickly, but this was not pursued. She expressed concern about the likelihood of reoffending but never referred to the risk as high.
105. The degree of risk of reoffending and the nature of any offence that may be committed was critical to the decision. It is not any risk that can justify a custody order. Nor could a high risk of committing an offence of lesser seriousness do so. It was essential in circumstances where risk was seen as a justification for indefinite detention to have a proper basis for any quantification of the risk. There was no such basis here.
106. The decision of the magistrate that a custody order was appropriate was unreasonable on two, and possibly three, bases:
     1. his Honour failed to make an obvious inquiry as to what would occur if a custody order was not made and the appellant was not able to return to Queensland, that information being information which could easily have been obtained from Dr Wojnarowska;
     2. his Honour proceeded on the assumption that, if the appellant could not return to Queensland and a custody order was not made, he would be immediately released into the community in Perth, an assumption for which there was no basis in the evidence, this assumption being critical to the magistrate's decision; and
     3. his Honour made a finding that there was a 'high risk' of reoffending, for which there was no basis in the evidence, that finding being critical to the decision.

Merits - grounds 2 and 3

107. Given the success of ground 1 it is unnecessary to determine grounds 2 and 3. However, out of respect for the submissions made by the parties, I will briefly explain why I consider that those grounds cannot succeed.
108. In respect of ground 2, an error as to the degree of risk of reoffending was an error of fact. Such an error, without more, is not an error going to the jurisdiction of the court. Accordingly, this is not an error that in itself can be the basis of review under s 36 of the Magistrates Court Act. For the reasons I have given in relation to ground 1 it is, however, an error that is relevant to that ground.
109. In respect of ground 3, the failure to take into account a relevant consideration will only amount to jurisdictional error if that consideration is mandatory. To determine what considerations are mandatory relevant ones, it is necessary to consider the terms of the statutory provisions under which the decision is made. The public interest is a relevant mandatory consideration but what an assessment of the public interest will involve will vary from case to case. In this case it necessarily involved an assessment of the risk of reoffending which, in turn, required consideration of what plans could have been put in place for the appellant if he was released but remained in Western Australia rather than returning to Queensland. However, to say that such a factor was necessary in the context of a particular case does not mean it is a mandatory relevant consideration in every case. It cannot, therefore, be a condition on the exercise of the power conferred by the statute.[68]

Delay

110. The application for a review order was filed almost 16 months after the decision of the Magistrates Court.
111. There is no time limit within which an application for a review order under s 36 of the Magistrates Court Act can be brought. However, because delay in bringing an application for judicial review can be a discretionary ground for refusal of certiorari, delay can similarly be a ground for declining relief under s 36 of the Magistrates Court Act.[69]
112. The delay was a result of the appellant being reluctant to instruct his legal advisors to appeal against the imposition of a custody order. It appears that due to his mental condition he had limited capacity to understand the difference between an appeal and applications to the Mentally Impaired Accused Review Board for a leave of absence from the custody order, and feared that an appeal may result in him being moved to a prison.
113. The delay has been explained and it has caused no prejudice to the respondent. To refuse the review on the grounds of delay would allow a miscarriage of justice to stand uncorrected.
114. In these circumstances it is not appropriate to refuse to grant relief by reason of the delay.

Conclusion

115. For the reasons I have given, ground 1 must be allowed and the custody order set aside. Bearing in mind the absence of necessary information at the first hearing and the lapse of time that has now occurred, it is necessary for a fresh hearing to be ordered in regard to whether a custody order is appropriate. This will require that the matter be remitted to the Magistrates Court for a new hearing before a different magistrate.
116. In determining what orders should be made, I note the length of time that the appellant has spent in custody and the maximum penalty for the offence with which he was charged. Whilst a fresh hearing has been ordered, it is for the prosecution to decide whether any further proceedings in this case are necessary.
117. The regime applicable to custody orders is different to, and potentially much more onerous than, that applicable to involuntary patients under the Mental Health Act. A custody order is not merely a different gateway to involuntary treatment. It should only be used if the circumstances require it. If the person concerned has already spent longer in custody than any sentence that could have been imposed this would strongly suggest that any relevant concern from a criminal law perspective has passed.
     118. If s 16 of the Act was simply a doorway to preventative detention, it would not have been limited to imprisonable offences. The fact it has been so limited shows that the nature of the offence and the risk it reveals are relevant in considering whether a custody order is appropriate. The current absence of a power to make a conditional release order under the Act does not mean that any risk of reoffending must result in a custody order. It is not any risk that can justify a custody order. It is relevant to consider not only the degree of risk, but also whether the risk is one of serious offending or offending of lesser seriousness and the surrounding circumstances including whether the risk can be reduced through treatment or other means.

Postscript

119. On the delivery of these reasons counsel for the appellant advised that the Board had recently approved the release of the appellant. That may well mean that further proceedings are pointless. In these circumstances it was submitted that the appellant should be granted bail, to ensure that his release plans were not impeded. Counsel for the respondent did not object to bail, but pointed out that the finding by the magistrate that the appellant was not fit to plead had not been challenged and that, consequential on that finding, the charge had been dismissed and the custody order made. There may be a question as to the court's power to grant bail (or remand in custody) if only the custody order was set aside and the dismissal of the charge remained. In the circumstances, and without objection from the parties, I decided that the appropriate course was to set aside both the order dismissing the charge and the custody order, to then grant bail on that charge and remit the matter to the Magistrates Court.

Orders: SJA 1011 of 2018

1. The appeal is dismissed.

Orders: 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.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AM
ASSOCIATE TO THE HONOURABLE JUSTICE HALL

15 AUGUST 2018

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[1] Section 5 of the Act.
[2] Section 10 of the Act.
[3] Section 11(1)(a) of the Act.
[4] Section 11(2) of the Act.
[5] Section 24(1) of the Act.
[6] Section 24(2) of the Act.
[7] Section 24(3) of the Act.
[8] The State of Western Australia v Tax [2010] WASC 208.
[9] The State of Western Australia v Lowick [2016] WASC 339.
[10] The State of Western Australia v Huggins [2017] WASC 243.
[11] Section 38 of the Act.
[12] Section 6 of the Act.
[13] Magistrates Court ts 11, 21 February 2017.
[14] Magistrates Court ts 12 - 13, 21 February 2017.
[15] Magistrates Court ts 14 - 15, 21 February 2017.
[16] Magistrates Court ts 15 - 16, 21 February 2017.
[17] Magistrates Court ts 19, 21 February 2017.
[18] Magistrates Court ts 20 - 22, 21 February 2017.
[19] Magistrates Court ts 23, 21 February 2017.
[20] Exhibit 1.
[21] Exhibits 3 and 4.
[22] Exhibit 2.
[23] Magistrates Court ts 25 - 27, 21 February 2017.
[24] Magistrates Court ts 32, 21 February 2017.
[25] Magistrates Court ts 38 - 39, 21 February 2017.
[26] Magistrates Court ts 39, 21 February 2017.
[27] Magistrates Court ts 11 - 13, 28 February 2017.
[28] Magistrates Court ts 14, 28 February 2017.
[29] Magistrates Court ts 14 - 15, 28 February 2017.
[30] Magistrates Court ts 16, 28 February 2017.
[31] Magistrates Court ts 17, 28 February 2017.
[32] Magistrates Court ts 17 - 18, 28 February 2017.
[33] Davern v Messel [1984] HCA 34; (1984) 155 CLR 21, 47; Dean v Legal Practice Board [2013] WASC 155 and Gazeley v The State of Western Australia [2013] WASCA 279.
[34] Appeal ts 4, 29 June 2018.
[35] Appeal ts 22 - 23, 29 June 2018.
[36] Chang v Turner [2005] WASC 246; (2005) 158 A Crim R 68.
[37] Subject to any provision in any other written law allowing a decision to be appealed: s 7(5) Criminal Appeals Act.
[38] Appeal ts 5, 29 June 2018.

[39] Rayney v AW [2009] WASCA 203.
[40] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163.
[41] Appeal ts 20, 29 June 2018.
[42] Appeal ts 18, 29 June 2018.
[43] Appeal ts 18, 29 June 2018.
[44] Appeal ts 21, 29 June 2018.
[45] State of Western Australia v Sanders [2012] WASC 409.
[46] Appeal ts 19, 29 June 2018.
[47] Appeal ts 17 - 18, 29 June 2018.
[48] Appeal ts 27, 30 - 31, 29 June 2018.
[49] Appeal ts 32, 29 June 2018.

[50] Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [85] - [94].

[51] Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 [23] - [29] (French CJ), [64] - [66] (Hayne, Kiefel and Bell JJ), [88] - [90] (Gageler J).
[52] Li [85] (Hayne, Kiefel & Bell JJ).
[53] Li [67] (Hayne, Kiefel & Bell JJ).
[54] Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 230.
[55] Li [68] (Hayne, Kiefel & Bell JJ).
[56] Li [76] (Hayne, Kiefel & Bell JJ), [110] (Gageler J). This aspect of the Li decision was recently discussed in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 [86] - [87] (Nettle and Gordon JJ), [18] (Kiefel CJ).
[57] See, eg, SZVFW; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 [131], [135] (Crennan & Bell JJ); Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305, 323, 327.
[58] Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155, 169 - 170.
[59] Prasad (170).
[60] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 [25] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
[61] See, eg, SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514; Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377; Yang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 258; (2003) 132 FCR 571. Prasad has also been referred to by this court in Viva Energy Australia Pty Ltd v Contaminated Sites Committee [2018] WASC 89 [141] (Smith AJ) and in the Court of Appeal in Helena Valley/Boya Association (Inc) v State Planning Commission (1990) 2 WAR 422, 445 Ipp J (Pigeon J agreeing).
[62] Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39, 47. While worded similarly to s 5(3)(b) of the ADJR Act, the decision was founded upon s 5(2)(g) of the Act, which restates 'Wednesbury unreasonableness'.
[63] Luu.
[64] Luu (40 - 42), (49).
[65] Luu (43 - 44).
[66] Luu (47).
[67] Luu (48 - 50).
[68] A v Corruption and Crime Commissioner [2013] WASCA 288.
[69] Re an application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151 [72] (Beech J) citing Re Smith; Ex parte Rundle (1991) 5 WAR 295, 307, 315.