DAVID LOCKYER HARMAN by his next friend PORTIA DE GUZMAN -v- HALL [2024] WASC 197 (29 May 2024)

(1) the Magistrates Court has the power to set aside a judgment of conviction and a guilty plea at any time before sentence in the exercise of its implied power to regulate its proceedings so as to avoid a miscarriage of justice; and

(2) in this case, the Magistrate erred in exercising that power because there was no basis upon which His Honour could have been satisfied that a miscarriage of justice would have been occasioned had he not done so. That is, I find the Magistrate made an error as to the existence of a jurisdictional fact.

Principles for grant of review under s 36 of the Magistrates Court Act

1. Section 36 of the Magistrates Court Act provides as follows:
   1. 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 -

(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.

7 The power in s 36 of the Magistrates Court Act is a judicial review power.[4] Section 36 of the Magistrates Court Act was enacted to replace the common law prerogative writs in respect of magistrates with a statutory alternative free from some of the technical requirements of the common law prerogative writs.[5]

1. The power to grant relief under s 36(4) of the Magistrates Court Act is only enlivened if one or more of the grounds in s 36(1)(a), (b) or (c) has been established.
2. For a review order to be made, an applicant must demonstrate that they have an arguable case, or in other words, a case with reasonable prospects of success.[6]
3. In this case, the review order was heard at the same time as the substantive application pursuant to an order made on 8 March 2024 permitting the matter to proceed in in that way.
4. It is alleged that the decision which the Applicant seeks to have set aside was made without jurisdiction or power. That is an error of the type identified in s 36(1)(c) of the Magistrates Court Act.
5. In Bajaj, the Court of Appeal described the concept of jurisdictional error by referring with approval to the following description given to the concept by Hayne J in Re Refugee Review Tribunal; Ex parte Aala:[7]

There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.

1. In Bajaj, the Court of Appeal also identified six categories of jurisdictional error, but also noted that the categories were not closed. The six identified categories are:[8]

(1) the tribunal or court mistakenly asserts or denies the existence of jurisdiction;

(2) where the tribunal or court misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction exists;

(3) where the court tribunal purports to act in circumstances where an essential condition to its exercise of jurisdiction has not been met (a jurisdictional fact);

(4) where it disregards or takes account of some matter in circumstances where the statute establishing it and conferring jurisdiction requires that a particular matter be taken into account or ignored as a precondition to the exercise of any authority to make an order or decision in the circumstances of the case;

(5) where it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the case; and

(6) where the decision is made in breach of natural justice.

1. The Applicant seeks review of a decision made in 2017. While there is no time limit on the making of an application for review under s 36 of the Magistrates Court Act, in cases of exceptional delay a refusal to make a review order may be justified on discretionary grounds.[9]
2. There was no affidavit filed in the proceeding addressing the delay. However, counsel for the Applicant addressed the issue of delay in her oral submissions saying that:

(1) it was after a recent report prepared for the Mentally Impaired Accused Review Board had found that the Applicant is now fit to plead and following the decision of Hyland by his next friend Singh v Mitchell,[10] that the Mental Health Law Centre (who were representing the Applicant in the Review Board proceeding) briefed Legal Aid to consider whether there was a basis upon which the Applicant could seek a review order under s 36 of the Magistrates Court Act; and

(2) given his medical condition, the Applicant should be given some leeway in relation to the delay and should not be penalised for failing to instruct solicitors to seek a review order between 2017 and 2024.

1. The Second Respondent submits that, while the court must be satisfied that the delay does not disentitle the Applicant to relief to which he may otherwise be entitled, he does not wish to make anything of the Applicant's delay in this case.
2. The Applicant has now been in custody for a period of time which, it is accepted, well exceeds the maximum sentence which the court may imposed for the offence with which the Applicant was charged. Given the Applicant's circumstances and the explanation offered by his counsel for the delay in bringing the application for review, it is my view that Applicant should not be denied any relief to which he would otherwise be entitled by reason simply of delay in bringing these proceedings.

1. The following factual matters were not in dispute. They are, for the most part, taken from the affidavit of Natalie Sinton, sworn on 20 February 2024, which was filed in this proceeding (Sinton Affidavit) and the Applicant's written submissions dated 27 March 2024.[11]
2. The Applicant was charged on prosecution notice PE 21946 of 2017, with the offence of assault occasioning bodily harm. It was alleged that the offence occurred in Northbridge on 6 April 2017 (the Charge).[12]
3. The Applicant appeared in the Magistrates Court at Perth on 7 April 2017 in relation to the Charge, and was remanded in custody and the matter was adjourned to allow him to obtain legal advice.
4. On 28 April 2017, represented by a lawyer from the Aboriginal Legal Service, the Applicant pleaded guilty to the Charge.
5. The matter was then adjourned to 9 June 2017 for sentencing and orders were made for the preparation of a written pre‑sentence report and a psychiatric report. No audio or transcript of that hearing is available.[13]
6. On 9 June 2017, the Applicant's sentencing was adjourned to 22 August 2017 because the pre‑sentence and psychiatric report were not yet available.
7. On 22 August 2017, a hospital order was made pursuant to s 5 of the CL(MIA Act) and the Applicant's sentencing was adjourned to 29 August 2017.
8. On 29 August 2017, the sentencing was again adjourned. This time, to 12 September 2017 for mention only.
9. On 12 September 2017, the pre‑sentence and psychiatric reports which had been ordered were still not available. They were ordered again and the sentencing was adjourned to 10 October 2017. It is noted on the prosecution notice for the Charge that a report dated 18 August 2017 suggested that the Applicant may be unfit to plead.[14]
10. On 3 November 2017, the Magistrate made a finding that the Applicant was 'not fit to plead'. The matter was then adjourned to 29 November 2017 to allow the parties to file written submissions.
11. The Applicant submits that on 29 November 2017, the Magistrate set aside the Applicant's conviction and adjourned the Charge to 29 January 2018 for the preparation of a report into his fitness to plead.[15] In fact, the Prosecution Notice contains no record of the conviction or of it being set aside. It is therefore not entirely clear that a conviction was ever entered. The Respondent submits that the fact that the Prosecution Notice does not contain a record of either the conviction being entered or set aside is probably because of the way the computer system functions. That is, it is thought that once it was set aside, the record of a conviction was simply deleted from the computing system. The Respondent says that I can find that a conviction was entered and subsequently both it and the guilty plea were set aside because the transcript of the hearing on 29 November 2017 records the prosecutor informing the Magistrate that a guilty plea had been entered and a conviction recorded and referring the Magistrate to the competing authorities about whether a magistrate can set aside a conviction after it had been entered.[16]
12. The transcript of 29 November 2017 records his Honour saying:

... I am going to set aside the judgment. So the plea of guilty is set aside. As I have said, in my view, the two psychiatric reports indicate instructions inconsistent - firstly, inconsistent with a plea of guilty. And secondly, both psychiatric reports indicate he is not fit to plead and, in my view, the inference - there is a strong inference from the contents of those reports that, given his psychiatric history and the major psychiatric conditions that he suffers from, he was likely unfit to plead when the plea was entered.

So in my view, it is not in the interest of justice to accept the plea, despite the serious consequences that it now has, that it is not sentenced under the Sentencing Act, but will be dealt with under the Criminal Law (Mentally Impaired Accused) Act. So I'm setting aside the judgment of conviction and, as indicated I'm going to adjourn this to a future date to obtain a further psychiatric report from Dr Pascu.

1. In my view, the 'judgment' to which the Magistrate was referring in the opening sentence of the passage of his reasons quoted above can only have been a judgment of conviction.
2. In the circumstances, I am prepared to accept as a fact, that a judgment of conviction had been entered following the Applicant's plea of guilty and that it was set aside at the same time the plea of guilty was set aside on 29 November 2017.
3. The transcript for 21 May 2018, records the Magistrate stating that on 29 November 2017, the Applicant was found 'not fit to stand trial' and that the court was, on that date, also satisfied that he would not become fit to stand trial within the following six months.[17]
4. On 29 January 2018, the matter was adjourned to 23 February 2018 for 'sentence'. That is obviously incorrect. What was then left to be decided was whether a custody order should be made.
5. On 23 February 2018, the Charge was adjourned to 21 May 2018 for the preparation of a neuropsychological report addressing if and, if so, the extent to which the Applicant suffered from foetal alcohol spectrum disorder and information about treatment services available to the Applicant in the community and in custody.
6. On 21 May 2018, a custody order was made under s 22 of the CL(MIA) Act.

1. The Applicant submits that the application raises the following three issues:

(1) whether the Magistrate had the power to set aside the Applicant's plea in circumstances where a conviction had been recorded;

(2) whether the CL(MIA) Act had any application where the Applicant had pleaded guilty, a conviction had been entered and the matter was listed for sentencing; and

(3) whether the fitness provisions in CL(MIA) Act were enlivened given the absence of any evidence as to the Applicant being unfit to stand trial at the time he entered his plea of guilty.

1. The Second Respondent submits that there is a fourth issue raised by the application. It says that the fourth issue is whether the Magistrate was correct to set aside the conviction on the basis that the psychiatric reports indicated instructions inconsistent with the plea of guilty.
2. The Second Respondent submits that, if the answer to each of the four questions is no, the Magistrate will have made a jurisdictional error in setting aside the Applicant's conviction on 29 November 2017.
3. The Applicant accepted that if:[18]

(1) the Magistrate had power to set aside a conviction and a guilty plea; and

(2) there was an evidentiary basis upon which he did so,

then the CL(MIA) Act provisions would have been operative on 21 May 2018 and it was then open to the Magistrate to find, on the basis of psychiatric reports before him, that the Applicant was not then fit to stand trial and would not have become fit within the following six months. While not conceding that a custody order would then have been the appropriate order to be made, the Applicant accepted that it would then have been open on the evidence for the Magistrate then to have made a custody order as he did.

1. Given that I am satisfied that the Applicant's conviction was also set aside, I consider the issues that need to be determined are:

(1) did the Magistrate have the power to set aside the Applicant's conviction and guilty plea?

(2) if so, was there any basis upon which the Magistrate could have been satisfied that it was appropriate to do so in the Applicant's particular circumstances? That is, did the Magistrate do so in the absence of an essential condition for the exercise of his jurisdiction?

1. Before turning to the resolution of the issues, I next deal with the relevant provisions of the CL(MIA) Act.
2. Pursuant to s 130 of the Criminal Procedure Act 2004 (WA) (CP Act), questions of an accused person's fitness to stand trial must be dealt with under the CL(MIA) Act.
3. Part 3 div 1 of the CL(MIA) Act deals with how the issue of an accused person's fitness to stand trial are to be resolved.
4. The expression 'trial' for the purposes of Pt 3 div 1 of the CL(MIA) Act is defined in s 8 of that Act to mean:

all court proceedings for an offence other than -

(a) proceedings in relation to bail; and

(b) sentencing proceedings.

1. Section 11(1)(a) of the CL(MIA) Act provides that, the question of whether an accused is not mentally fit to stand trial may be raised in a court of summary jurisdiction, at any time before or during the trial of the accused. The issue may be raised by the prosecution, the defence or the presiding judicial officer. Because it must be raised either before or during the accused person's trial, the issue can no longer be raised when the trial is complete.
2. In this case, the Applicant's trial was at an end when the conviction was recorded on 28 April 2017.
3. The Applicant's submission that, after conviction, the CL(MIA) Act had no application and did not provide a basis for the Magistrate to 'set aside the plea' is correct. Of course, as the transcript of the hearing on 29 November 2017 reveals, the conviction and plea were not set aside in the purported exercise of powers under the CL(MIA) Act. They were set aside because the Magistrate considered that he had the power to do so to prevent a miscarriage of justice.
4. With a plea (and a conviction) on the record the CL(MIA) Act had no work to do. I agree with the decision of Forrester J in Hyland and the reasons which her Honour gave for coming to the conclusion in that case that the Magistrate did not have the power to find that the applicant was not mentally fit to stand trial on charges in respect of which he had already pleaded guilty.
5. However, the facts in this case are distinguishable from those in Hyland.[19] The difference in Hyland's case was that the guilty plea had not been set aside.
6. In circumstances where a conviction is validly set aside, the accused is once again 'on trial' for the purposes of s 8 of the CL(MIA) Act and the question of whether the accused is not fit to stand trial can be assessed under the CL(MIA) Act. The parties accept that would be the case.
7. It is necessary, therefore, to next consider whether the learned Magistrate had the power to set aside the conviction and the guilty plea.

Issue 1: Was there a power to set aside the conviction and the plea of guilty?

1. Section 129 of the CP Act permits a court to not accept an accused's plea of guilty unless:

(a) the accused is represented by a legal practitioner; or

(b) where the accused is not represented, the court is satisfied that the accused understands the plea and its consequence.

1. Section 129 did not apply to authorise the setting aside of the plea because the Applicant was legally represented when the plea was entered. It was not suggested by the Second Respondent that it did provide any such basis.
2. Section 148 of the CP Act provides as follows:
   1. Conviction, consequences of

If a court convicts an accused of an offence, then, subject to the Criminal Code section 5, the Sentencing Act 1995 and the Young Offenders Act 1994, the court must sentence the accused for the offence and may make other orders in respect of the accused under those Acts or any other relevant written law, as the case requires.

1. The Applicant submits that because of the use of the word 'must' in s 148, s 129 of the CP Act can only apply before a conviction is entered. I accept that submission. However, it overlooks the fact that the conviction entered on 28 April 2017 following the guilty plea, which was then aside.
2. The Second Respondent submits that the Magistrate had the power to set aside the conviction in the exercise of the court's implied power to regulate its own procedure in the interests of justice.
3. In making that submission, the Second Respondent relies on the authorities of Birch v The State of Western Australia,[20] Corica v Jonathan Throssell,[21] and The State of Western Australia v Williams.[22]
4. The Applicant submits that, if any common law power were to continue to exist, there would be no need for the provisions in the CP Act and that if any implied power ever did exist, it was ousted upon the passing of the CP Act, which then specified all of the circumstances in which guilty pleas could be set aside.
5. It is well understood that as a creature of statute the Magistrates Court, unlike the Supreme Court and other superior courts, does not have inherent powers derived from the common law. As McKechnie J said in Corica:[23]

The Magistrates Court is created by statute and cannot enlarge its jurisdiction by reference to inherent jurisdiction. However, a Magistrates Court does have an inherent power to regulate its procedures in the interests of justice.

1. While McKechnie J referred to the existence of an inherent power to regulate its proceedings, it may be better to refer to it as an implied power to do those things that are necessary to give effect to the Magistrates Court's statutory powers.[24] As Hasluck J put it in Perrin v Jackson,[25] (a case about whether a magistrate had the power to stay a proceedings as an abuse of process) referring to Grassby:[26]
   1. It is apparent from the reasoning of Dawson J at 16 that it is the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. A grant of power to a court of limited jurisdiction carries with it everything necessary for its exercise, and implied powers may in many instances share a function similar to that served by the inherent power exercised by a superior court.
   2. Nonetheless, the reasoning of Dawson J suggests that a Magistrates Court does not possess an inherent power of the same kind as a court of unlimited jurisdiction. Thus, it will be difficult to assume that a Magistrates Court has implied powers corresponding to inherent powers of a superior court in circumstances where a statute controlling the functions of the court of summary jurisdiction, such as the Criminal Procedure Act, makes express provision for a power of the kind which is said to exist by implication (being in this case the power to order a permanent stay for abuse of process).
2. The question to be answered then is: does the Magistrates Court's power to regulate its procedures in the interest of justice extend to setting aside a conviction and plea of guilty in a case where doing so will avoid a miscarriage of justice in circumstances where the CP Act has provisions dealing with a change of plea?
3. Corica involved an appellant who had been charged with offences under the Planning and Development Act 2005 (WA). The appellant in that case had pleaded guilty to the charge and no conviction had yet been entered when he subsequently sought to have his plea set aside. The magistrate refused to set aside the plea on the basis that there was no jurisdiction in the Magistrates Court to accept a change of plea under either the Magistrates Court Act or the CP Act.
4. McKechnie J held that, the magistrate had made an error of law in so finding because, although being a creature of statute, the Magistrates Court had no inherent jurisdiction, it did have an inherent power to regulate its own processes in the interest of justice.[27] McKechnie J found that inherent power included the power to allow the withdrawal of a plea of guilty in appropriate circumstances.[28]
5. In coming to that conclusion, McKechnie J referred to the decision of the House of Lords in S (an infant) v Manchester City Recorder,[29] in which the House of Lords held that a magistrate was not functus officio upon recording a conviction following a plea of guilty and, therefore, was not prevented from setting aside a plea of guilty and entering a plea of not guilty. McKechnie J cited with approval, the following statement of Lord Morris of Borth-y-Gest from S (an infant):[30]

I consider that a court of summary jurisdiction which had accepted a plea of guilty to the offence charged is not in law debarred from permitting (at any time before passing sentence) a plea of not guilty to be substituted.

1. The Applicant submits that the decision in Corica is distinguishable from his case because no judgment of conviction had been entered in the Corica case.
2. Williams is a case which did involve the setting aside of a conviction and a plea of guilty prior to sentence, although it involved the question of whether the District Court had an implied power to do so. In that case, the accused was charged with the offence of possessing a prohibited drug with intent to sell or supply. The accused pleaded guilty after he had received incorrect advice about whether the drug in question was a prohibited drug and a judgment of conviction was entered. After coming to appreciate that error the accused applied to set aside the plea of guilty in reliance on both s 99(5)(b) of the CP Act and the inherent jurisdiction of the District Court. The State submitted that s 99(5)(b) did not permit the change of plea, but conceded that the Court had the inherent power to set aside the judgment of conviction and allow the change of plea to not guilty and did not oppose an order to that effect being made.
3. Sleight CJDC held that, on the facts of the case, s 99 of the CP Act provided no basis to permit the court to set aside the conviction and plea.
4. His Honour then identified the existence of conflicting lines of authority on the question of whether statutory courts have a common law power to regulate their procedures in the interest of justice which permits them to set aside a guilty plea after a judgment of conviction has been entered, but before a sentence has been imposed.
5. His Honour referred to the judgment of Lord Reid in S (an infant), in which Lord Reid had explained that the different views had arisen from what he regarded to be confusion as to the meaning of the word conviction. Lord Reid identified that in some cases 'conviction' had been used to refer to the final disposal of the case and in others, merely to a finding of guilt. Sleight CJDC referred to Lord Reid's opinion that the word 'conviction' was used in the Magistrates' Court Act 1952,[31] and in a number of other statutes in the sense of a finding of guilt and to Lord Reid's statement that he could not find any intention in the legislature by that use:[32]

... [t]o alter, as regards summary jurisdiction the old rule that a plea can be changed at any time before the final disposal of the case.

1. Sleight CJDC then referred to the statement by Lord Morris of Borth‑y‑Gest at page 501, in S (an infant) that it would be 'lamentable' if a court were to be powerless to accede to an application to withdraw a plea made for reasons which the court deemed valid (and perhaps which it had previously had no opportunity to consider) before it has completed its task in relation to the case. His Honour found that the proposition which the decision in S (an infant) supports is that a judgment of conviction does not make a court functus until sentencing is complete and that if, during sentencing, it becomes clear that the plea is not unequivocal, the District Court has the power to set aside a conviction and a plea of guilty in order to avoid a miscarriage of justice.[33]
2. His Honour then noted that the existence of such a common law power had been recognised in Australia and specifically accepted in Western Australia by McKechnie J in Corica and by Mitchell JA in Birch.
3. Sleight CJDC then went on the consider whether the CP Act had altered the common law position and what appeared to be differences of view taken by different judges in the Supreme Court of Western Australia as to that issue.
4. His Honour referred to the case of The State of Western Australia v Wongawol,[34] in which Murray J refused to permit a change of plea which he had described as 'unequivocal' on the basis that, pursuant to s 148 of the CP Act, the court was committed to sentencing the offender. Sleight CJDC expressed the view that Murray J's judgment in that case was unclear as to what the position would have been in the event that the plea which had been entered had been equivocal.
5. His Honour next referred to Hall J's decision in Webster v The Queen [No 2],[35] in which Hall J had not felt, to use Sleight CJCD's words, 'constrained to consider an application for a change of plea because a judgment of conviction had been entered'. His Honour referred to the passage of the decision in which Hall J (as his Honour then was) had said:

As to the law, there is no provision in the Criminal Procedure Act 2004 (WA) dealing with a change of plea other than where an accused pleads guilty to an indictable offence before a summary court and is committed for sentence: s 99 of the Criminal Procedure Act. However, there can be no implication drawn form this that jurisdiction to allow a change of plea in other circumstances does not exist.

There are obvious reasons why it is necessary to make special provision for a change of plea where the accused pleaded guilty in another court. Where the plea was entered in the same court, there is ample authority that the court has jurisdiction to deal with an application to change a plea (citations omitted).

1. His Honour took the view that, given the conflicting authorities on the point in Western Australia, there was no authority binding him, and that he was therefore free to reach his own view.
2. Sleight CJDC ultimately held that the CP Act was an Act primarily providing procedures which are to be followed rather than an Act which created or took away fundamental rights. His Honour stated:[36]

In my opinion, the correct interpretation of ss 99(5), 147 and 148 of the CPA is not that they obstruct the doing of justice by creating barriers against revisiting a conviction that is plainly unjust, but they are procedural provisions which prescribe the flow of procedure after a plea of guilty is entered. Based upon this construction, the word 'must' in s 148 simply emphasises the next step after a judgment of conviction is sentencing.

A court could not, for example, simply adjourn a matter permanently without proceeding to sentencing. Being procedural in nature, I do not believe the provisions remove common law inherent powers which enable a court to revisit the entry of the judgment and set aside a plea of guilty if in the sentencing process it become clear that the accused should not have pleaded guilty.

1. In Birch, both Mazza JA and Mitchell JA held that s 99(5) of the CP Act did not exclude the court's inherent jurisdiction to set aside a plea of guilty on the basis of a miscarriage of justice. Mazza JA said:[37]

The existence of a superior court's inherent jurisdiction to set aside a plea of guilty on the basis of a miscarriage of justice is clear and well-established under common law. In my opinion, it is a common law principle which is of such strength as to require clear and unambiguous language in order to abrogate its operation. See Roe v D'Costa [2014] WASCA 118; (2014) 47 WAR 434 [22] - [24]. Although there is some overlap between s 99(5)(b) and the common law principles, I see nothing in the statutory language of s 99(5) which has that effect. Thus, s 99(5) does not prevent an accused, who fails to come within the ambit of the subsection and who is then convicted of the offence charged, from seeking to involve the court's jurisdiction.

1. Mitchell JA, when referring to the existence of the court's common law power to permit a change of plea to avoid a miscarriage of justice said:[38]

By s 99(7) of the CPA, a plea entered by the court under s 99 has the same effect as if it had actually been pleaded. This gives the plea entered under s 99(4) or s 99(5) of the CPA the same status as a plea entered by an accused person. In the case of both pleas, the court retains its common law power to grant an accused leave to change his or her plea at a time prior to sentence or other final disposition of the matter in order to avoid a miscarriage of justice.

Neither party submitted that s 99 was a code which operated to exclude the court's common law power to granted leave to an accused to withdraw his or her plea. That position must be correct, given the legislative history. Although there are material differences in the terms in which the provisions are expressed, s 99 of the CPA is based on s 618 of the Criminal Code 1913 (WA), which was repealed in 2004.

The common law power of a court to permit a change of plea prior to sentence or final disposition of a charge extends to cases where it is necessary to do so in order to avoid a miscarriage of justice. In this regard, in Windie v The State of Western Australia,[39] Mazza JA with whom McLure P and Newnes JA agreed, observed:

Turning to the question of miscarriage of justice, it is not easy to persuade a court to set aside a plea on this basis. There must be a strong case to do so. Although cases of miscarriage of justice cannot be exhaustively identified, there are three well recognised circumstances which will justify, by themselves or in combination, the setting aside of a plea of guilty. They are:

1. where the appellant did not understand the nature of the charge or did not intend to admit guilt; or
2. if upon the admitted facts the appellant could not, in law, have been guilty of (sic) the offence; or
3. where the plea of guilty was obtained by improper inducement, fraud, intimidation and the like (citation omitted) [31].

...

The significance of this discussion is that there is no imperative to read the provisions of s 99(5) expansively so as to preserve a court's capacity to prevent miscarriages of justice. That power exists independently of s 99(5) of the CPA and continues even after a court enters a plea of guilty to a charge on behalf of an accused.

1. Birch concerned the power of the District Court to set aside a plea of guilty entered under s 99(5) of the CP Act, and no member of the court expressed any view about whether the Magistrates Court possessed any analogous implied common law power to set aside a guilty plea and conviction to prevent a miscarriage of justice.
2. In my view, support for the view that the Magistrates Court does have such an implied power can be found in the use of the general term 'a court' used by Mitchell JA in the passage quoted above, from Birch. That is, he did not confine his comments by using the expression 'the Supreme Court' or 'superior courts'.
3. None of the authorities to which I have referred are binding on me in this case. However, the Applicant accepted that I would have to find that the reasoning of Sleight CJDC was wrong in order for his case to succeed. It stands, in the Applicant's words, as a 'significant impediment' to it succeeding in the application.
4. I can see no reason to construe the CP Act any differently from the way that his Honour the Chief Judge did in Williams.
5. In my view, if the provisions in the CP Act dealing with the circumstances in which a court may set aside a conviction and a plea of guilty do not prevent the District Court or the Supreme Court from exercising an implied common law power in order to prevent a miscarriage of justice, then neither can it be said to prevent the Magistrates Court from doing so. If the statutory provisions altered the common law, they would do so in every jurisdiction in which those provisions apply.
6. I therefore respectfully endorse and adopt the reasoning of Sleight CJDC in relation to the issue.
7. It follows then that I find that the Magistrates Court does have an implied power to regulate its own proceedings in the interest of justice so as to avoid miscarriages of justice which permits it, before sentence, to set aside a conviction and a guilty plea in appropriate circumstances.
8. I turn next to consider whether there was any basis for the exercise of the power in this particular case.

Issue 2: was there a proper basis upon which the Magistrate could have exercised the implied power to set aside the plea and conviction so as to avoid a miscarriage of justice?

1. The Applicant submits that if the Magistrate had the power to set aside the conviction and the plea in order to avoid a miscarriage of justice, the Magistrate nevertheless erred in doing so because the precondition to its exercise did not exist. The Applicant submits that the consequence is that the Magistrate made a jurisdictional error which was reviewable under s 36(1)(c) of the Magistrates Court Act.
2. The Second Respondent submits that, there was sufficient evidence before his Honour to allow him to be satisfied, by way of inferential reasoning, that at the time the plea was entered the Applicant did not accept the facts and understand the consequences of the plea such that he could be satisfied that sentencing the Applicant on the basis of the conviction following the guilty plea would have amounted to a miscarriage of justice. The Second Respondent submits that I should therefore find that the Magistrate did not make a jurisdictional error.
3. From the Magistrate's reasons, which I have set out at [29], the Magistrate set aside the conviction and the guilty plea on the basis that:

(1) it could be inferred from the Applicant's psychiatric history, as set out in the psychiatric reports, that he would not have been fit to stand trial at the time the plea was entered; and

(2) the psychiatric report of Dr Patchett identified that the Applicant did not accept all of the elements of the offence, because he had given an account to Dr Patchett which was inconsistent with a guilty plea.

1. Dr Patchett, a consultant forensic psychiatrist, wrote a report dated 18 August 2017, which was provided to the Magistrates Court and to which the learned Magistrate had regard.
2. Dr Patchett's report states that the Applicant has a long-standing diagnoses of chronic paranoid schizophrenia, chronic substance abuse and antisocial personality disorder.[40]
3. Dr Patchett indicated that the offence which is the subject of the Charge had been committed at a time when the Applicant was on a period of trial leave from Graylands Hospital, where he was then an involuntary patient.[41]
4. Dr Patchett expressed the view that, the Applicant was 'currently' unfit to stand trial and that he anticipated that the Applicant would need to be treated in a hospital setting for a period of three to six months on Clozapine in order to manage his physical pathologies.[42]
5. Dr Patchett reported that the Applicant had explained to him why he had pleaded guilty to the offence. Dr Patchett reported:[43]

He explained to me he is 'innocent' of assault but pleaded guilty 'so I can get out of here, on a good behaviour bond, so I can protect my family, please don't let them lock me up Dr Patchett, I need a house, need to get out of here and avenge my family, the bikies have killed my family'.

1. Dr Pascu, who is also a consultant forensic psychiatrist, provided a report to the court dated 16 October 2017. In her report, Dr Pascu outlined the Applicant's history of chronic paranoid schizophrenia, antisocial personality disorder and polysubstance abuse.[44] She too referred to the fact that the offence which was the subject of the Charge had been committed on the day the Applicant had been 'released' from Graylands.
2. Dr Pascu also referred to the fact that the Applicant had been transferred to the Frankland Centre on 22 August 2017, as a result of concerns about deterioration in his mental state at that time.[45]

1. Dr Pascu also expressed the view that at the time of her assessment the Applicant was not fit to stand trial.[46]
2. In finding that the Applicant's conviction and guilty pleas should be set aside in order to avoid a miscarriage of justice, the Magistrate placed significant reliance on the Applicant's statement to Dr Patchett that he was innocent but had pleaded guilty so that he could get out and protect his family which I have quoted above. The Magistrate found that the account to Dr Patchett was inconsistent with the guilty plea.[47]
3. I have already referred to the fact that it has been held that the power to set aside a plea and conviction is to be exercised with circumspection, and only in the clearest of cases. But on judicial review, the court is not concerned with the merits of the Magistrate's decision and whether it would have reached the same result. Rather, an error as to the existence of a jurisdictional fact will only be found to arise if the precondition to the exercise of the power did not exist, that is, where there was no evidence upon which the decision‑maker could have reached the necessary state of satisfaction which was the precondition to the exercise of the power. Where that is the case, there will have been a purported exercise of the power in the absence of the necessary jurisdictional fact.[48]
4. In my view, the fact that in August 2017, four months after the guilty plea was entered, the Applicant, who by then had experienced a significant decline in his mental health from the position he had been in at the time of the offending and from the time the plea was entered, gave an explanation to Dr Patchett which could be seen to amount to him resiling from the acceptance of guilt, does not amount to evidence from which it could be inferred that at the time the plea was entered the Applicant did not accept the facts or the consequences of a guilty plea.
5. In my view, given:

(1) the presumption of fitness to plead;

(2) that the Applicant was legally represented at the time the plea was entered; and

(3) the contents of the psychiatric reports and, specifically, the absence in those reports of any expression of opinion about the Applicants actual mental state or capacity to understand the charge and the consequences of a guilty plea at the time of the plea,

there was no basis upon which the Magistrate could have been satisfied that sentencing the Applicant on the basis of the plea and conviction would have amounted to a miscarriage of justice.

1. The decision of the Magistrate to set aside the Applicant's guilty plea and the judgment of conviction involved a jurisdictional error.
2. I will hear from the parties as to the orders which ought to be made as a consequence of these reasons.

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

[1] On 2 May 2024, I ordered that the Applicant have leave to amend his application to properly name him as 'David Lockyer Harman by his next friend Portia De Guzman'.

[2] The Notice of Intention to Abide was filed on 1 March 2024.

[4] Rayney v AW [2009] WASCA 203 [27] (McLure JA) (Rayney).

[6] Bajaj v Magistrate Trevor Darge [2021] WASCA 218 [48] (Bajaj).

[7] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 [163]. The Court of Appeal then noted that that passage had been quoted with approval by the plurality in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, 571 [66] and applied by the Court of Appeal in Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [86] ‑ [87].

[9] Hemmet v Market Direct Group Pty Ltd [2018] WASC 214 [41] (Vaughan J). Vaughan JA recently restated his view of this proposition in Bajaj v Pekin [2024] WASCA 55 [3]. In that case, Vandongen JA expressly declined to decide this issue (see [13]) and Lundberg J referred to the fact that the primary judge had considered it possible to refuse relief on discretionary grounds, without expressing any disapproval of that proposition, but did not need to address the question because it did not arise in this case (see [63] ‑ [66]).

[10] Hyland by next friend Singh v Mitchell [2022] WASC 300 (Hyland).

[11] At par 6 of the Second Respondent's written submissions the Second Respondent accepts the factual background as set out at paragraphs [1] - [15] (incl) of the Applicant's written submissions.

[12] Prosecution Notice dated 7 April 2017 at Annexure NS1 to Sinton Affidavit.

[14] Prosecution Notice dated 7 April 2017 at Annexure NS1 to Sinton Affidavit.

[16] ts 13, 29 November 2017 at Annexure NS2 to Sinton Affidavit.

[17] ts 18 and 25, 21 May 2018 at Annexure NS6 to Sinton Affidavit.

[20] Birch v The State of Western Australia [2017] WASCA 19 (Birch).

[21] Corica v Throssell [2012] WASC 393 (Corica).

[22] The State of Western Australia v Williams [2018] WADC 68 (Williams).

[24] See for example Grassby v R (1989) 168 CLR 1 (Grassby).

[25] Perrin v Jackson [2008] WASC 77 [66] ‑ [67].

[29] S (an infant) v Manchester City Recorder [1971] AC 481, 501 (S (an infant)).

[31] Magistrates' Court Act 1952 (15 & 16 Geo 6 & 1 Eliz 2, c 55).

[32] Williams [26] (Sleight CJDC), citing S (an infant) (489 ‑ 490) (Lord Reid).

[34] The State of Western Australia v Wongawol [2010] WASC 324.

[35] Webster v The Queen [No 2] [2013] WASC 73 [23] ‑ [24].

[39] Windie v The State of Western Australia [2012] WASCA 61.

[40] Psychiatric Report of Dr S Patchett dated 18 August 2017, page 3 (Dr Patchett's Report) at Annexure NS3 to Sinton Affidavit.

[41] Dr Patchett's Report, page 4 at Annexure NS3 to Sinton Affidavit.

[42] Dr Patchett's Report, page 6, Annexure NS3 to Sinton Affidavit.

[43] Dr Patchett's Report, page 2, Annexure NS3 to Sinton Affidavit.

[44] Psychiatric Report of Dr V Pascu dated 16 October 2017 [15] - [16] (Dr Pascu's Report) filed on 26 March 2024. An incomplete copy of Dr Pascu's Report was included at Annexure NS4 to Sinton Affidavit. A complete copy was filed prior to the hearing on 26 March 2024.

[48] Re Magistrate Johnson; Ex parte Jones [2020] WASC 107 (Tottle J), citing Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 [23] ‑ [24] (Gummow ACJ & Kiefel J).