Supreme Court of WA|2007-07-19|Before: Beech J

RE AN APPLICATION UNDER THE MAGISTRATES COURT ACT 2004; EX PARTE BRECKER [2007] WASC 151 (19 July 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : RE AN APPLICATION UNDER THE MAGISTRATES COURT ACT 2004; EX PARTE BRECKER

MATTER : An Application under the Magistrates Court Act 2004, s 36 for a Review Order against Mr R K Black, Stipendiary Magistrate of the Magistrates Court of Western Australia at Perth

Criminal law and procedure - Expedited committal - "Fast Track" committal - Failure of Magistrate to tell accused he is not required to plead - Criminal Procedure Act 2004 (WA) s 41(2) - Whether committal for sentence should be set aside

Administrative law - Whether committal for sentence was in excess of jurisdiction - Whether committal should be set aside - Whether power to set aside under Magistrates Court Act 2004 (WA) s 36(4) discretionary in character - How discretion to be exercised when act done in excess of jurisdiction - Whether relief should be refused on grounds of undue delay

Magistrates - Appeals from and control over Magistrates - Western Australia - Magistrates Court Act 2004 (WA) s 36

Order of Magistrate committing applicant for sentence set aside

1 Section 36 of the Magistrates Court Act 2004 provides as follows:

"(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.

3 On 26 March 2007 Johnson J made a review order under s 36(3) that Mr Black SM and the State of Western Australia do satisfy the Supreme Court, at a hearing before a Judge, why the order of Mr Black SM made in the Magistrates Court at Perth on 17 February 2006, whereby the applicant was committed to the District Court Perth for sentence, should not be set aside and the applicant be permitted to plead "not guilty" to the charges.

4 The background to the hearing before me required by that review order, and the issues raised by that hearing, may be summarised as follows.

5 On 17 February 2006, the applicant appeared in the Magistrates Court on 45 charges of stealing by direction, contrary to s 371 and s 378 of the Criminal Code. On that day he entered pleas of guilty to all of the charges and was committed to the District Court for sentence.

6 Section 41(2) of the Criminal Procedure Act 2004 (WA) provides that (at the stage at which the section operates, as to which, see below) the Court must:

(a) tell the accused that he or she is not required to plead to the charge; and

(b) give the accused the opportunity to plead to the charge.

7 The applicant's case is that the requirement of s 42(2)(a) was not complied with; that that requirement is essential and goes to the jurisdiction of the Magistrate to commit the accused for sentence; and that, accordingly, the order of committal should be set aside in exercise of the Court's powers under s 36(4) of the Magistrates Court Act 2004 (WA).

8 The State opposes the making of any such orders. While accepting that there had not been "strict compliance" with s 41(2)(a), the State submitted that there had been substantial compliance. Further, the State submitted that, in any event, the power under s 36(4) of the Magistrates Court Act is discretionary in character and that the discretion ought not be exercised in favour of the applicant.

9 Thus, the issues raised in this matter are as follows:

(1) Was s 41(2)(a) complied with?

(2) What are the consequences of non-compliance with s 41(2)(a)?

(3) Is there a discretion in the exercise of power under s 36(4) of the Magistrates Court Act?

(4) If so, how is the exercise of such discretion to be approached?

(5) In this case, how should the discretion be exercised?

10 In support of its submissions the State points to a number of features of events both before and after the day on which the plea of guilty was entered. In that light it is convenient to outline the chronology of events.

The course of the criminal proceedings against the applicant

11 On 16 November 2005 an investigator with the Corruption and Crime Commission ("CCC") served on the applicant a prosecution notice for one count of corruption, a summons and a statement of material facts.

12 On 23 November 2005 the applicant consulted a lawyer at Legal Aid. After taking instructions she wrote to the CCC requesting certain information. Her letter indicated that her initial advice to the applicant was that once the requested material was examined it would be appropriate for him to enter a plea of guilty.

13 The next day the applicant appeared for the first time in the Magistrates Court. The matter was adjourned to 27 January 2006. Also on 24 November the applicant's then solicitor wrote to him confirming the matter had been adjourned. The letter referred to the fact that it was expected there would be a further interview, following which it was anticipated that it would be appropriate for there to be an application to have charges under a different section of the Criminal Code substituted for the charge of official corruption.

14 On 9 December 2005 the CCC wrote to the applicant's solicitor providing her with the information she had requested in her letter of 23 November 2005. The letter advised that further charges against the applicant for individual counts of stealing were currently being prepared.

15 On 23 January 2006 a solicitor from the CCC telephoned the applicant's solicitor to discuss the further charges. The applicant's solicitor said, in the course of that conversation, that her advice to the applicant was that he plead guilty.

16 On 25 January 2006 the applicant's solicitor spoke by telephone with the applicant. The applicant's solicitor's evidence is that, to the best of her memory and recollection, the discussion she had with the applicant included information that she had received from the CCC indicating that they would consider substituting charges and requesting that the matter be adjourned to February 2006 for that purpose.

17 On 27 January 2006 the matter came back before the Magistrates Court. The applicant was not required to appear personally and did not do so. The matter was adjourned to 17 February 2006 at the request of the prosecution who stated that they were considering the appropriate charges.

18 On 8 February 2006 a CCC investigator served on the applicant a summons, prosecution notice and statement of material facts for 45 counts of stealing contrary to a direction.

19 On 16 February 2006 a solicitor from the CCC telephoned the applicant's solicitor to advise that the CCC would be withdrawing the corruption charge and proceeding on the stealing charges only.

20 On 17 February 2006 the matter came before the Magistrates Court. There is affidavit evidence from each of the applicant and his then solicitor as to the discussions between them, and as to the applicant's understanding of proceedings at that time. I will return to that evidence later in these reasons. When the matter came before the Magistrate, the transcript records the withdrawal of the charge of official corruption and then the following occurred:

"[Counsel for the Applicant]: There are new charges before the court to which Mr Brecker intends to enter pleas of guilty. They are before the court for the first time today. However, they arise directly out of the matters that related to the charge that has now been dismissed. He is familiar with the content - - with all of the material that has been provided over many weeks by the Official Corruption Commission and he would wish to enter a plea of guilty and be committed to the District Court for sentence.

HIS HONOUR: Well, some of the matters I suppose must be dealt with in another court, but - - all right.

Is there any application pursuant to section 5 in respect of the other matters then?

[Counsel for the Prosecution]: Sir, in relation to all of the other matters, they are all pleaded in respect of section 371, together with 378(9)(b).

HIS HONOUR: 378(9). Yeah.

[Counsel for the Prosecution]: It would be my submission, sir, in that case, all offences would need to be dealt with on indictment.

HIS HONOUR: All right.

You are charged, firstly, that on the 1st of April 2004 at Perth you stole $10,000, the property of Moira Welland. That money was received pursuant to a direction. You wish to enter a plea, do you?

MR BRECKER: Guilty."

Following that, the applicant proceeded to plead guilty to the other 44 counts of stealing.

21 In March and April the applicant had interviews with a psychiatrist and psychologist and a pre-sentence report was compiled.

22 In early May the applicant's solicitor wrote to the DPP seeking a copy of statements from the complainants.

23 On 12 May 2006 the matter came before the District Court. No indictment was presented, the State not being in a position to do so, and the matter was adjourned to September 2006.

24 On 16 May 2006 the applicant's solicitor wrote to the DPP's office seeking clarification as to a question of repayments to various complainants and advising of their instructions in that regard.

25 In July and August statements from various complainants were served, as was an indictment.

26 On 7 September 2006 the matter came before the District Court. The applicant's then solicitor advised that her instructions were that the applicant wished to change his plea to a plea of not guilty. The applicant's solicitor stated that her position was that she could no longer act for the applicant and she was given leave to withdraw from acting.

27 After an appearance in October 2006, the applicant's application under s 99(5) of the Criminal Procedure Act to be permitted to plead not guilty was heard and determined in December. His Honour Judge Wisbey DCJ rejected the application, finding that he was not satisfied that the pleas were made under a material misunderstanding as to the nature of the charges, the effect of the plea or the purpose of the proceedings, as is required to succeed in an application under s 99(5).

28 During the hearing before Wisbey DCJ in December, a complaint of non-compliance with s 41(2)(a) was made. However, ultimately it was accepted by all parties and by the Court that any question of invalidity arising from such non-compliance was not a matter for the District Court in the context of the application under s 99(5). Rather, such complaint was required to be the subject of a separate application, leading to the commencement of these proceedings.

29 I turn to the first issue, whether there was compliance with s 41(2)(a).

Was s 41(2)(a) complied with?

30 Section 41 applies when an indictable offence first comes before a court of summary jurisdiction, or at the first such occasion after the requirements of s 39 of the Criminal Procedure Act have been satisfied.

31 It is common cause that the prosecution was within s 41(1) and that s 41 applied. Section 41(2) provides that "the court must:

(a) tell the accused that he or she is not required to plead to the charge; and

(b) give the accused the opportunity to plead to the charge."

32 Examination of the transcript of proceedings before the Magistrate, set out in par [20] of these reasons, reveals that the court did not tell the accused that he was not required to plead to the charge. Thus, it would appear, the requirement of s 41(2)(a) was not complied with.

33 However, while accepting that the requirement of s 41(2)(a) was not "strictly complied with", counsel for the State contended that there was "substantial compliance" with the requirement of the section. In support of that contention he referred to three matters.

34 First, prior to the pleas of guilty being made, the then counsel for the applicant foreshadowed the pleas of guilty, in the comments set out earlier in these reasons.

35 Secondly, prior to taking the pleas, the Magistrate asked the applicant: "You wish to enter a plea do you?". The applicant responded with the word "Guilty".

36 Thirdly, the then solicitor for the applicant has said, in par 17 of her affidavit, that when she spoke to the applicant on 17 February 2006 at the Central Law Courts prior to the matter coming on before court: "To the best of my memory and belief I advised him in regard to the expedited committal or 'fast track' procedure".

37 In my opinion only the second of those matters is capable of amounting to compliance with s 41(2)(a). That paragraph requires the court to tell the accused something. So it is only a statement by the court which is capable of satisfying the requirement of s 41(2)(a). (See, in this regard, Western Australia v Landers [2000] WASCA 125; (2000) 22 WAR 278 at 283, quoting Templeman J at first instance.)

38 In my opinion, the Magistrate's question "You wish to enter a plea do you?", does not amount to compliance with the requirement of s 41(2)(a). Satisfaction of that requirement will occur only where the court makes it clear to the accused that he is not required to plead. Asking whether the accused "wishes" to plead does not seem to me to make the position sufficiently plain in the critical respect.

39 The State invites the conclusion, from the three matters set out above, that the applicant knew, on 17 February 2006 when he entered his pleas, that he had a choice whether to do so. For the reason just given, a conclusion that the applicant had such knowledge would be insufficient to amount to satisfaction of the requirement of s 41(2)(a). However, such a conclusion would bear significantly on the exercise of discretion whether to grant relief, to which I will return later in these reasons.

40 I am not satisfied that the accused knew, on 17 February 2006, when he entered his pleas, that he had a choice whether or not to do so. The applicant's evidence is that he was not informed by the presiding Magistrate or anyone else that he was not required to plead to the charges on 17 February 2006.

41 The evidence of his solicitor is not inconsistent with the applicant's evidence in this respect. Her evidence is, in this respect, very general. The whole of the material part of her evidence is what is in par 17 of her affidavit and is set out above. There is nothing in her evidence to suggest that there was a long or detailed discussion. Her evidence does not specify what aspects of the expedited committal (or fast track as it is often known) procedure were the subject of advice. The advice may have been to the effect that a plea of guilty at that early stage produces the best discount. The evidence does not deal with whether any advice was given to the effect that the applicant could, at that stage, choose not to plead, and would thereafter receive witness statements, confessional material and other evidentiary material before being required to decide what plea to enter.

42 The comments made by the applicant's lawyer, recorded on the transcript and set out earlier in these reasons, reveal an expectation or understanding on her part that the applicant would be pleading guilty. The comments do not demonstrate an awareness, on the part of the applicant, that he did not have to enter a plea at that stage if he chose not to do so.

43 For the reasons already stated, in my opinion the requirement in s 41(2)(a) was not complied with in this case.

The consequences of non-compliance with s 41(2)(a)

44 In Western Australia v Landers (supra) the Full Court held that the requirement in s 101(1) of the Justices Act for the court to tell the accused that he was not required to plead was an essential requirement of the jurisdiction of the Magistrate to commit the accused to a superior court.

45 The provisions of s 41 of the Criminal Procedure Act are materially indistinguishable from the provisions of the Justices Act under consideration in Landers. The State accepted that that was so. The State conceded, correctly in my opinion, that if s 41(2) was not complied with, the Magistrate had exceeded his jurisdiction in committing the applicant to the District Court for sentence.

46 It was argued on behalf of the applicant that once it was concluded that the Magistrate had acted beyond jurisdiction, an order under s 36 of the Magistrates Court Act would follow. In particular, it was argued that, in the circumstance that the decision or act had been in excess of jurisdiction, no discretion arose in the exercise of the power to set aside the decision or act.

48 Section 36(1) sets out six categories of case in which a review order may be made, so engaging the power in s 36(4). Counsel for the applicant accepted that in some of the categories of cases in s 36(1), the court would have a discretion in exercising the power under s 36(4). However, he contended that no discretion arose in the context of one of those categories, namely, where the act was done without jurisdiction or power. A differential operation of s 36(4), in different categories of situation in which the power is engaged is, it seems to me, difficult to accommodate with the singular expression "may" in the power-creating provision in s 36(4). However, as I will develop later in these reasons, the fact that an act is found to be in excess of jurisdiction is relevant to the exercise of jurisdiction.

49 The expression "may" in s 36(4) is, of course, apt to convey a discretion rather than a duty. See, for example, Interpretation Act 1984 (WA) s 56. In my opinion, there is nothing in the language or evident purpose of s 36 to warrant a departure from the ordinary interpretation of the word "may" as connoting a power rather than a duty. To the contrary, those matters support the view that there is a discretion.

50 For these reasons, I find that the court has a discretion in exercising its power under s 36(4).

The proper approach to the exercise of discretion

51 The parties made competing submissions as to the proper approach to be taken to the exercise of discretion under s 36(4). In particular, the applicant contended that (assuming, as I have found, that there is a discretion) it was for the respondent to establish grounds justifying the exercise of discretion to refuse relief. By contrast, the respondent argued that it was for any applicant for relief under s 36(4) to persuade the court that the circumstances justified an exercise of discretion in favour of the grant of relief.

52 Counsel did not refer to any authorities respecting the manner of exercise of discretion under s 36. While my research has identified cases in which the power under s 36 is exercised, the question of whether there is any discretion under s 36 does not appear to have arisen.

53 I have examined the secondary materials relating to the Magistrates Court Act, namely the Second Reading Speech, the explanatory memorandum and Report No 22 of the Standing Committee on Legislation. None of these materials seems to me to throw any light on the way in which the power under s 36(4) is to be exercised.

54 Counsel for the applicant submitted that an onus of persuasion fell upon the respondent, to demonstrate why discretion ought not be exercised in favour of the grant of the application, from the fact that the matter came before the court by way of the review order under s 36(3). Such an order requires the respondent to satisfy the court that the act should not be set aside. Logically, that submission, if accepted, would apply equally to the demonstrating of error by the decision maker as to the discretion to grant relief once jurisdictional error was established.

55 I do not accept that submission. As counsel for the respondent argued, a "show cause procedure" (whether by way of order nisi, or otherwise) is a long established procedure for judicial review, or, in earlier times, some appeals from courts of summary jurisdiction. Such procedure does not seem to me to alter, or to be intended to alter, the general position that an applicant for relief by way of review or appeal must persuade the court of the grounds upon which relief is said to be based.

56 Counsel for the respondent argued that assistance could be gained as to the proper exercise of discretion under s 36 from a consideration of the exercise of discretion in the context of an application for prerogative relief such as a writ of certiorari or mandamus. It was argued that in both contexts an applicant for relief must positively satisfy the court that the circumstances called for a favourable exercise of discretion to grant relief.

57 I accept that consideration of the approach taken by courts in relation to the exercise of discretion to grant prerogative relief may be of assistance in considering the exercise of power under s 36(4) in circumstances where the ground upon which an act is sought to be set aside is that it was done without jurisdiction.

58 However, I do not accept the respondent's submission that an applicant for prerogative relief who has demonstrated a jurisdictional error must then satisfy the court that the circumstances call for a favourable exercise of discretion. In my opinion, the position is to the contrary. In the setting of an application for prerogative relief, the discretion may be said to be a discretion to withhold relief, rather than a discretion to grant it. So, for example, in Re Carey; ex parte Exclude Holding Pty Ltd [2006] WASCA 219 at [129]; [2006] WASCA 219; (2006) 32 WAR 501 at 527, Martin CJ observed (citing Gudgeon v Black; ex parte Gudgeon (1994) 14 WAR 158 at 178 - 179) that an appropriate starting point in the consideration of the exercise of the discretion to grant prerogative relief is that once it is found that the Tribunal exceeded its jurisdiction the court will normally exercise its discretion in the applicant's favour. Thus, it will normally be for those opposing the grant of relief to point to factors which justify a departure from that approach.

59 Underlying this approach to the exercise of discretion may be the fundamental significance of a finding of excess of jurisdiction. As Hayne J observed in Re McBain; ex parte Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at 473 [284] (Gummow and Gaudron JJ agreeing at [80]), leaving aside the decisions of superior courts of record, the act of a public authority that is beyond power is as a general rule of no legal effect. Thus it is that a finding of excess of jurisdiction will, absent facts or circumstances justifying the contrary, lead to a setting aside of the act or decision by way of certiorari.

60 I am mindful that a power created by a statute should not be constrained by the approach previously taken in an analogous common law framework. The general words of a statute are not to be read as if the pre-existing common law were engrained upon it.

61 Nonetheless, bearing in mind the considerations just mentioned, I approach the exercise of power under s 36(4) in this case on the following basis. It having been shown that the order of committal for sentence was beyond jurisdiction, I am inclined in favour of making an order setting it aside unless the facts and circumstances mean that it is not just to do so.

How should the discretion be exercised in this case?

62 Consideration of the question of how the discretion in this case is to be exercised must take account of the nature of the jurisdictional error in the decision sought to be set aside. Here, there was non-compliance with a specific statutory requirement which is jurisdictional in character. In considering whether the discretion should be exercised to grant relief it is relevant to have regard to the object of the jurisdictional requirement which was not satisfied and whether that object has, as the State contends, anyway been achieved.

63 Division 4 of Pt 3 of the Criminal Procedure Act governs procedure in the Magistrates Court when an accused is charged with an indictable offence.

64 If an accused person so chooses, the prosecution must provide full disclosure as detailed in s 42. Only after receiving the material required by s 42, which includes witness statements, video record of interview and other evidentiary material, is an accused person required to enter a plea. However, if an accused person so elects, a plea of guilty may be entered before such disclosure occurs. A person who pleads guilty in this way, known as a fast track plea of guilty, will receive a substantial benefit by way of mitigation (see, for example Cameron v The Queen (2002) 209 CLR 339).

65 The two requirements of s 41(2) reflect what is intended to be achieved. By s 41(2)(b), an accused is to be given an opportunity to plead guilty at this early stage, without receiving prosecution disclosure under s 42, thereby obtaining a benefit by way of mitigation of sentence. The object of the requirement in par (a) of s 41(2) is to ensure that the accused knows that there is a choice to be made and is exercising that choice in electing to plead at the early stage. The importance of that being an informed choice, and the significant consequences of the exercise of that choice, are part of why the requirement goes to the Magistrate's jurisdiction to commit; see Western Australia v Landers (supra) at 280 [8] and 288 - 289 [30].

66 In this context, the findings I have already made as regards the applicant's knowledge when he entered his plea on 17 February 2006, are of significance. For the reasons already given, I am satisfied that the applicant did not know, when he entered his pleas on 17 February, that he had a choice whether or not to do so at that stage of the proceedings. In other words, I am not satisfied by virtue of the matters raised by the State that it can be said that the object of the requirement in s 41(2) was achieved. This is not a case where the accused "has received and considered carefully legal advice on the ramifications of entering a plea in accord with ... the fast track system" cf Landers (supra) at 290 [34].

67 The State also points to the fact that there is no evidence in the applicant's affidavit that had he known that he had a choice on 17 February he would have exercised a different choice.

68 In response, counsel for the applicant argued that any such direct evidence in the applicant's affidavit would have been met with considerable scepticism, being, necessarily, a hypothetical assessment made with the benefit of hindsight within the setting of the litigation. He referred, in that regard, by analogy, to the cautious treatment of subjective evidence concerning the question of reliance in negligence cases (see, by way of example, discussion of such evidence in Chappell v Hart (1998) 195 CLR 232 at 246 and 272).

69 There is some force in the point made by counsel for the applicant. In any event, the absence of evidence to the effect that had the applicant known he had a choice he would have exercised it differently does not seem to me to be a matter which of itself calls for the refusal of relief. The object of the statutory provision is that the accused know that he or she has a choice whether or not to plead at an early stage or to await the provision of prosecution disclosure under s 42. That object is sought to be achieved by the requirement that the court tell an accused that he or she is not required to plead. At least where, as here, it is shown that an accused did not know of the existence of such choice it is not, in my opinion, necessary for an applicant to go further and prove that had he known he had a choice he would have exercised it differently.

70 The State also submitted that relief should be refused on grounds of acquiescence or delay.

71 It does not seem to me that acquiescence has any real role to play in the exercise of discretion whether to grant relief in this case. Acquiescence arises in circumstances where a person is aware of a defect in proceedings, is content to allow the proceedings to proceed notwithstanding the defect, but later wishes to complain of such defect. Here, there is nothing to suggest that the applicant was aware of the defect in proceedings before the Magistrate of which he now complains until some time after September 2006.

72 It is well established that delay can be a discretionary ground for the refusal of certiorari. See, for example Re Smith; ex parte Rundle (1991) 5 WAR 295 at 307 and 315. Similarly, in my opinion, delay may be a ground for declining relief under s 36(4) of the Magistrates Court Act.

73 In considering whether delay ought be a ground for declining relief it is, of course, necessary to have regard to the reasons for the delay. See Re Smith (supra) at 319 - 320; see also R v City of Tea Tree Gully; ex parte Concrete Systems Pty Ltd (No 2) (1986) 65 LGRA 67.

74 The extent of the delay in this case can be seen from the chronology of events set out earlier in these reasons. It was not until September 2006 that the applicant indicated to the District Court that he wished to change his plea. By then, statements from a number of complainants had been served on his solicitors.

75 In the months following that, in the course of the application to change his plea, the point that s 41(2a) had not been complied with was first taken by the applicant.

76 While there is not direct evidence to this effect, it can be inferred that no attention was given to whether the applicant had been required to plead in February when he did so until he decided that he wished to plead not guilty in September 2006. Only then was there any reason to give attention to the course of proceedings before the Magistrate in February when he had pleaded guilty.

77 Counsel for the applicant argued that the delay on the part of the applicant did not give rise to any advantage to him or detriment to the prosecution. Counsel pointed out that the applicant was not now seeking to put himself in a position any better than he would have been had he pleaded not guilty, or not pleaded at all, when he first appeared in February 2006.

78 While that latter proposition may be accepted, it does not seem to me to involve the appropriate comparison. Rather, the relevant comparison, in considering whether to refuse relief on grounds of delay, is to compare the position had the application been brought promptly with the position in the events that happened.

79 It can, I think, fairly be said that the applicant has been advantaged, in one respect at least, as a result of his delay in bringing these proceedings. By the time he commenced these proceedings, the applicant had already received numerous witness statements. Indeed, it was the receipt of those statements which was the catalyst for his seeking to change his plea.

80 By contrast, had the applicant commenced these proceedings promptly, say within two months of being committed to the District Court, he would not, by then, have received any witness statements. In accordance with the scheme of Div 4 Pt 3 of the Criminal Procedure Act, if he had wished to seek to change his plea he would have needed to make that decision without the benefit of prosecution disclosure of the witness statements. As a consequence of the delay, the applicant received numerous witness statements before determining that he wished to change the fast track plea of guilty which he had entered.

81 The fact that that advantage resulted from the delay in commencement of these proceedings does seem to me to be a factor of some weight in the exercise of discretion whether or not to set aside the Magistrate's decision to commit for sentence. However, in all the circumstances of the case, I do not consider that that circumstance, alone or in combination with the other matters already referred to, calls for the declining of relief to set aside the decision to commit made in excess of jurisdiction by the Magistrate.

82 In the end I am not satisfied that there is any sufficient basis to depart from the starting point explained earlier in these reasons: that the committal should be set aside because it was done without jurisdiction.

83 Accordingly, for the reasons already given I would exercise my discretion in favour of the grant of relief.

84 I will hear counsel as to the appropriate orders to give effect to these reasons.

RE AN APPLICATION UNDER THE MAGISTRATES COURT ACT 2004; EX PARTE BRECKER [2007] WASC 151 (19 July 2007)

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RE AN APPLICATION UNDER THE MAGISTRATES COURT ACT 2004; EX PARTE BRECKER [2007] WASC 151 (19 July 2007)

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