Re an Application Under the Magistrates Court ACT 2004 ; Ex Parte Brecker

[2007] WASC 151

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Criminal Law and Procedure
2. › Committal proceedings
3. › Expedited committal
4. › Fast track committal
5. › Failure of Magistrate to tell accused not required to plead
6. › Whether committal for sentence should be set aside
7. › Criminal Procedure Act 2004 (WA), s 41(2)
1. Administrative Law
2. › Judicial review
3. › Excess of jurisdiction
4. › Magistrates Court
5. › Whether committal for sentence was in excess of jurisdiction
6. › Whether power to set aside under Magistrates Court Act 2004 (WA), s 36(4) discretionary in character
7. › How discretion to be exercised when act done in excess of jurisdiction
8. › Whether relief should be refused on grounds of undue delay
1. Administrative Law
2. › Prerogative relief
3. › Certiorari
4. › Discretion to withhold relief
5. › Starting point where jurisdictional error established
6. › Delay as discretionary ground for refusal

Quick Take

The power under s 36(4) of the Magistrates Court Act 2004 (WA) is discretionary even where jurisdictional error is established, but the starting point is that the act should be set aside unless it is not just to do so. Only a statement by the court itself can satisfy the requirement in s 41(2)(a) of the Criminal Procedure Act 2004 (WA) to tell the accused he is not required to plead; asking whether the accused 'wishes' to plead is insufficient. Where the accused did not know of the choice, it is unnecessary to prove that a different choice would have been made.