Bar v Director of Public Prosecutions (WA) - [2023] WASC 240

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   BAR -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2023] WASC 240
CORAM:   MCGRATH J
HEARD:   23 JUNE 2023
DELIVERED          :   30 JUNE 2023
FILE NO/S:   SJA 1041 of 2023
BETWEEN:   BAR
Appellant
AND
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent

ON APPEAL FROM:
For File No:   SJA 1041 of 2023
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE DE VRIES
File Number            :   CC PE 4465 - 4471 OF 2022

Catchwords:

Criminal law - Children's Court of Western Australia - Bail - Application for bail pending appeal after conviction - Magistrate of Children's Court - Indictable offence - Whether exceptional reasons for grant of bail required - Turns on own facts

Legislation:

Bail Act 1983 (WA)
Children and Community Services Act 2004 (WA)
Children's Court of Western Australia Act 1998 (WA)
Criminal Appeals Act 2004 (WA)

Result:

Bail granted

Representation:

Counsel:

Appellant	:	Ms S H King
Respondent	:	Mr R G Wilson

Solicitors:

Appellant	:	Legal Aid Commission
Respondent	:	Director of Public Prosecutions (WA)

Cases referred to in decision:

C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905
Harding v Coburn [1976] NZLR 577
KWLD v The State of Western Australia [No 3] [2013] WASCA 127
Milenkovski v The State of Western Australia [2011] 99; (2011) 42 WAR 99
Morrison v Chiera [2020] WASC 42
Phillips v Wroe [2022] WASC 9
Scolaro v Shepherd [2010] WASC 77
Waters v Wigger [No 2] [2017] WASCA 32

MCGRATH J:

This is an application for bail pending appeal against conviction and sentence.
The issue that arises on this application for bail is whether exceptional circumstances must exist in order for the appellant to be granted bail. The respondent submits that the appellant was convicted of an indictable offence before a magistrate of the Children's Court and therefore, cl 4A of pt C of sch 1 to the Bail Act 1983 (WA) applies. Therefore, it is necessary that the Court be satisfied that exceptional circumstances exist and second, it is proper to grant bail having regard to the provisions of cl 1 and cl 3 of pt C of sch 1 of the Bail Act.
The appellant contends that cl 5 of pt C of sch 1 applies, rather than cl 4A of pt C of sch 1 to the Bail Act. Therefore, the appellant is a person who is awaiting the disposal of appeal proceedings under pt 2 of the Criminal Appeals Act and he is be treated as if awaiting an appearance in court before conviction for an offence. Accordingly, it is not necessary that the Court be satisfied that exceptional circumstances exist.
For the following reasons, I have determined that cl 5 pt C of sch 1 to the Bail Act applies and therefore, it is not necessary that the Court be satisfied that exceptional circumstances exist.

Procedural history

On 9 March 2023, the appellant was convicted before his Honour Magistrate De Vries in the Perth Children's Court after trial of the following offences:
(1)Between 18 August 2006 and 18 August 2007 indecently dealt with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (Charge No. CC PE 4465/2022);
(2)Between 1 February 2010 and 31 December 2010 indecently dealt with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (Charge No. CC PE 4466/2022);
(3)Between 1 February 2010 and 31 December 2010 indecently dealt with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (Charge No. CC PE 4467/2022);
(4)Between 1 February 2010 and 31 December 2010 indecently dealt with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (Charge No. CC PE 4468/2022);
(5)Between 1 February 2010 and 27 October 2011 sexually penetrated a child under the age of 13 years by penetrating her vagina with his finger contrary to s 320(2) of the Criminal Code (Charge No. CC PE 4469/2022);
(6)Between 1 February 2010 and 27 October 2011 sexually penetrated a child under the age of 13 years by penetrating her anus with his finger contrary to s 320(2) of the Criminal Code (Charge No. CC PE 4470/2022);
(7)Between 31 January 2011 and 27 October 2011 sexually penetrated a child under the age of 13 years, by penetrating her vagina with his finger contrary to s 320(2) of the Criminal Code (Charge No. CC PE 4471/2022).
On 8 May 2023, the learned Magistrate imposed a term of imprisonment in respect to each of charges CC PE 4466/2022 to CC PE 4471/2022 inclusive, with the total the effective sentence being 11 months' immediate imprisonment with eligibility for parole. His Honour imposed a fine in the amount of $600 relation to the first indecent dealing offence (charge number CC PER 22/4465).[1]
[1] ts 2 (8/5/2023).
Accordingly, the appellant's earliest eligibility date, if parole is granted, is 22 October 2023. In the event that parole is not granted, the appellant's earliest release date is at the completion of the immediate term of imprisonment, being 7 April 2024.
The learned Magistrate gave detailed reasons in convicting the appellant.[2] The offending concerned two different complainants. The first complainant, who was the victim in the first charge (CC PE 4465/2022), is now 24 years of age and was seven or eight years of age at the time of the offending. The appellant, who is presently 29 years of age, was either 13 or 14 years of age at the time of the offending. The appellant indecently dealt with the first complainant by placing the complainant on his lap facing him whilst her bottom was touching his groin.
[2] ts 231 (9/3/2023).
The second complainant, who was the victim of the further six charges, is now 21 years of age and was between eight and nine years of age at the time of offending. The appellant was between 16 and 17 years of age at the time of offending.
The appellant was the first cousin of the second complainant.[3] The three sexual penetration charges involved digital penetration.
[3] ts 3 (8/5/2023).
The learned Magistrate found that the offending in respect to the second complainant were representative charges of continual conduct over a period of approximately two years. The learned Magistrate stated that the appellant engaged in a persistent course of conduct.[4]
[4] ts 3 (8/5/2023).

Notice of appeal

The appellant appeals against both his conviction and sentence in a Notice of Appeal that pleads the following:[5]
(1)The verdicts were unreasonable and unsupported by the evidence.
(2)The learned sentencing magistrate erred in failing to suspend the sentence of imprisonment imposed.
[5] Notice of appeal filed 15 May 2023.
I will now turn and outline the relevant legislative provisions arising on this application for bail.

Statutory regime

In respect of the criminal jurisdiction of the Children's Court of Western Australia, s 19 of the Children's Court of Western Australia Act 1998 (WA) provides:
19.Criminal jurisdiction as regards children
(1)The Court has exclusive jurisdiction to hear and determine a charge of an offence alleged to have been committed by a child.
(1a)Subsection (1) is subject to this Part and these enactments -
(a)the Young Offenders Act 1994 Part 5 Division 2;
(b)the Sentencing Act 1995 sections 78, 84D, 128 and 132.
(2)Notwithstanding that a person has attained the age of 18 years, the jurisdiction of the Court extends, and the provisions of this Act apply, to proceedings in respect of an offence committed, or allegedly committed, by the person before attaining the age of 18 years.
(2AA)Despite any uncertainty as to the age of the person charged at the time the offence is alleged to have been committed, the Court has jurisdiction for the purposes of subsection (1) if the charge alleges that the offence was committed by a person who might have been a child.
(2AB)The Court retains the jurisdiction referred to in subsection (2AA) despite any evidence produced in proceedings in respect of the offence that the person had reached 18 years of age at the time the offence is alleged to have been committed.
(2a)In subsection (2) and (2AB), the reference to proceedings in respect of an offence includes proceedings relating to an order that the Court made when it dealt with the offender upon finding the offender guilty of the offence.
(3)In exercising the jurisdiction conferred by this section, the Court when constituted so as not to consist of or include a judge is a court of summary jurisdiction, subject to section 19B(4)(d).
(4)Where it is provided by any other written law that a person instead of being prosecuted for a simple offence in a court may elect to suffer a prescribed monetary penalty in respect of that offence, then, notwithstanding anything in this Act, a child may so elect.
[(5)-(8) deleted]
(9)Where a child is before the Supreme Court or the District Court, that court has all the powers of the Children's Court of Western Australia in all respects as if the child had been before that Court.
Accordingly, pursuant to s 19(3), in exercising the criminal jurisdiction conferred, subject to s 19B(4)(d), if the court hearing and determining a charge is not constituted to consist of or include a judge, then the court is a court of summary jurisdiction.
Section 19A of the Children's Court Act provides that when a child is charged with an indictable offence, s 19B to s 19E apply and references in those sections to a child are, unless the contrary intention appears, to be taken as including a person who is charged with an indictable offence that is alleged to have been committed when that person was a child.
The jurisdiction and procedure that applies in respect of charges of indictable offences in the Children's Court of Western Australia are outlined in s 19B of the Children's Court Act which relevantly provides:
(1) If a child is charged with an indictable offence and -
(a)the offence is such that, if an adult were charged with it, it must be tried on indictment; or
(b)the circumstances of the alleged offence are such that -
(i)if an adult were charged with it, it could, by virtue of section 5 of The Criminal Code, or another written law, be tried either on indictment or summarily; and
(ii) the Court, having complied with section 40(2) of the Criminal Procedure Act 2004, decides that it is to be tried on indictment,
the child may elect to be tried on indictment by the Supreme Court or the District Court (as the case requires), and the Court shall so inform the child.
(2)If a child is charged with an indictable offence and the circumstances of the alleged offence are such that the child is not entitled to make an election under subsection (1), the Court shall, subject to the provisions referred to in section 19(1), hear and determine the charge summarily.
(3)If the child makes an election under subsection (1) the Court shall proceed under Part 3 Division 4 of the Criminal Procedure Act 2004 as if the charge were one that must be tried on indictment.
(4)If a child does not make an election under subsection (1) -
(a)the Court, on its own motion or on the application of the child, may direct the prosecutor -
(i)to serve or cause to be served on the child (or the child's solicitor or counsel) and to lodge with the Court, within such time as is specified, any document that is required to be disclosed under section 95 of the Criminal Procedure Act 2004; and
(ii)to afford the child (or the child's solicitor or counsel) reasonable opportunity to inspect any material exhibits that the prosecution proposes to tender at the hearing of the charge;
and
(b)on the making of a direction under paragraph (a), the State acting by the Attorney General or some other duly appointed person shall assume the conduct of the prosecution and shall be taken to be the prosecutor; and
(c)the Court shall, subject to the provisions referred to in section 19(1), hear and determine the charge, and may exercise any power in Part 4 or 5 of the Criminal Procedure Act 2004, as if the prosecution notice were an indictment, and the hearing were a trial on indictment and the Criminal Procedure Act 2004 shall apply with such modifications as circumstances require; but the child is not thereby entitled to have any issue tried by a jury; and
(d)subject to Part 5, the child, if convicted, shall, for the purposes of punishment and orders, procedures, and proceedings consequential on conviction, be taken to have been convicted on indictment, notwithstanding that the child may have been convicted by the Court when constituted other than by a judge.
Accordingly, the procedure of the Children's Court provides that if a child is charged with an indictable offence and the child is not entitled to make an election under s 19B(1), then the Court, subject to the provisions in s 19, will hear and determine the charge summarily. The appellant was charged with indictable offences and was not entitled to make an election under s 19B.
However, s 19B(4)(d) provides whilst the child has been convicted in a court of summary jurisdiction, when convicted the child will, for the purposes of punishment and orders, procedures, and proceedings consequential on conviction, be taken to have been convicted on indictment, notwithstanding that the child may have been convicted by the Court when constituted other than by a judge. Section 19B(4) is subject to pt 5 of the Children's Court Act.
Part 5 of the Children's Court Act deals with reviews and appeals. Section 40 deals with reviews by the President of the Children's Court of certain sentences.
Part 5 provides for appeals against a decision or judgment of a judge of the Children's Court to the Court of Appeal. Section 42A provides that appeals against a decision or judgment of the Court, when constituted so as to consist of or include a judge, may be made under pt 3 of the Criminal Appeals Act. Section 43 provides that appeals against a decision under pt 4 and pt 5 of the Children and Community Services Act2004 (WA), when made by the Court when constituted by or including a judge, may be made to the Court of Criminal Appeal.
Part 5 provides for appeals against a decision or judgment of the Children's Court when not constituted by a judge. Section 41 of the Children's Court Act applies in respect to appeals against decisions of magistrates and is in the following terms:
41.Appeals against decisions of magistrates etc.
Subject to this Part, an appeal against a decision of the Court when constituted so as not to consist of or include a judge may be made under and subject to Part 2 of the Criminal Appeals Act 2004.
Section 42 of the Children's Court Act provides that appeals against a decision under pt 4 and pt 5 of the Children and Community Services Act2004 (WA) when made by the Court, when constituted so as not to consist of or include a judge, may be made in accordance with pt 2 of the Criminal Appeals Act.
Accordingly, an appeal against a decision of a magistrate of the Children's Court is made under and subject to pt 2 of the Criminal Appeals Act.

Criminal Appeals Act provisions

Appeals from decisions of courts of summary jurisdiction are made to a single judge of the Supreme Court under pt 2 of the Criminal Appeals Act.[6] Section 4 of the Criminal Appeals Act provides that a 'court of summary jurisdiction' means a court, or a person, that is acting in circumstances in which it is a court of summary jurisdiction by virtue of another written law.
[6] Criminal Appeals Act2004 (WA), s 7.
There is a further right of appeal from a decision of a single Judge to the Court of Appeal pursuant to pt 2 of div 3 of the Criminal Appeals Act.
Appeals from superior courts are made to the Court of Appeal under pt 3 of the Criminal Appeals Act.

Bail Act statutory provisions

Clause 4A of sch 1 of pt C to the Bail Act provides:
4A. Bail after conviction for accused awaiting disposal of appeal
In deciding whether or not to grant bail to an accused who is in custody waiting for the disposal of appeal proceedings, the judicial officer shall consider whether there are exceptional reasons why the accused should not be kept in custody, and shall only grant bail to the accused if satisfied that -
(a)exceptional reasons exist; and
(b)it is proper to do so having regard to the provisions of clauses 1 and 3 or, in the case of a child, clauses 2 and 3.
Clause 5 of sch 1 of pt C to the Bail Act provides:
5. Exception to cl. 4A for bail in appeal under Criminal Appeals Act 2004 Part 2
Clause 4A does not apply to the bail of a person who is awaiting the disposal of appeal proceedings under Part 2 of the Criminal Appeals Act 2004; such a person shall be deemed for the purposes of this Part to be awaiting an appearance in court before conviction for an offence.

Submissions of appellant and respondent

The appellant's submissions

Counsel for the appellant submitted that the Court before which the appellant appeared in the Children's Court did not consist of or include a judge. The Court was required to hear and determine the charges summarily. Therefore, the appellant was convicted in a court of summary jurisdiction. Section 19B(4)(d) provides that subject to pt 5, the appellant, for the purposes of punishment and orders, procedures, and proceedings consequential on conviction, is to be taken to have been convicted on indictment, notwithstanding that he was convicted by the Court when constituted other than by a judge.
Section 41 in pt 5 of the Children's Court Act provides that subject to that Part, an appeal against a decision of the Court when constituted so as not to consist of or include a judge may be made under and subject to pt 2 of the Criminal Appeals Act. Accordingly, the appellant contends that his appeal is under pt 2 of the Criminal Appeals Act. Clause 5 of pt C of sch 1 of the Bail Act provides that cl 4 of the Bail Act does apply to the bail of a person appealing under pt 2 of the Criminal Appeals Act. Rather, the person is deemed to be awaiting an appearance in court before conviction for an offence.
Therefore, counsel for the appellant submitted that it is not necessary that the court be satisfied that exceptional reasons exist.

The respondent's submissions

Counsel for the respondent relied upon KWLD v The State of Western Australia [No 3] ('KWLD'), where her Honour McLure P stated:[7]
11.When the Children's Court is constituted by a judge, it is not a court of summary jurisdiction: Children's Court of Western Australia Act 1988 (WA) (the Children's Court Act), s 19(3). In any event, where a young person is convicted of an indictable offence by any judicial officer of the Children's Court, the conviction is to be treated as if it were a conviction upon indictment for any proceedings consequential on the conviction: s 19B(4)(d) of the Children's Court Act. Accordingly, cl 4A of pt C of sch 1 of the Bail Act 1982 (WA) applies.
[7] KWLD v The State of Western Australia [No 3] [2013] WASCA 127, [11] (McLure P; Buss JA and Murphy JA agreeing).
The respondent contends that KWLD is binding authority and if merely obiter, it is 'heavily persuasive'.
The respondent further submitted that the words 'subject to pt 5' in s 19B(4)(d) has the effect of permitting an appeal being commenced under pt 2 of the Criminal Appeals Act. However, the condition does not make the status of the conviction entered, as described in s 19B(4)(d) subject to any provision of the Bail Act. Rather, s 19B(4)(d) 'is within the fundamental Part of the Children's Court Act setting out the 'Jurisdiction of the Court''.[8] Therefore, the respondent submits 'the more specific provision s 19B(4)(d), being a provision dealing with a child before the Children's Court, should prevail over any seemingly inconsistent and yet more general provision within the Criminal Appeals Act and Bail Act'.[9]
[8] Respondent's Written submissions filed 16 June 2023, [9].
[9] Respondent's Written submissions filed 16 June 2023, [10].

Assessment

Application of KWLD

In KWLD, the Court of Appeal was reviewing a decision of a single judge of the Court of Appeal to dismiss the appellant's bail pending appeal against his conviction before a District Court Judge sitting as a judge of the Children's Court of Western Australia. Therefore, the Court of Appeal was only considering the relevant legislative provisions that apply in respect to the grant of bail on an appeal from a judge of the Children's Court. The Court of Appeal was not considering an application for bail in respect to a decision of the Children's Court when not constituted by a judge.
McLure P stated in KWLD that when the Children's Court is constituted by a judge, it is not a court of summary jurisdiction pursuant to s 19(3) of Children's Court Act. The Court of Appeal in KWLD was not required to consider the applicable provisions for a grant of bail concerning a conviction before a magistrate sitting in the summary jurisdiction of the Children's Court of Western Australia. Accordingly, McLure P did not consider the specific legislative provisions relevant to this case because it was not necessary to do so.
I do not accept the respondent's submission that KWLD is authority for the proposition for which the respondent contends. Nor do I accept that it is heavily persuasive. The case is not on all fours with the present case.

Application of relevant provisions

The seven offences were offences which 'such that, if an adult were charged with it, it must be tried on indictment'.[10] The appellant did not have the right to make an election that the charges be dealt with summarily.
[10] Children's Court of Western Australia Act, s 19B(1)(a).
The Court that dealt with the seven charges against the appellant was constituted so as not to consist of or include a judge and therefore, was a court of summary jurisdiction.[11]
[11] Children's Court of Western Australia Act, s 19(3).
The appellant upon being convicted was, 'subject to pt 5 of the Children's Court Act', for the purposes of punishment and orders, procedures, and proceedings consequential on conviction, to be taken to have been convicted on indictment, notwithstanding that he was convicted by the Court when constituted other than by a judge.
The phrase 'subject to' in statutes is a 'standard way of making clear which provision is to govern in the event of conflict' and further,[12] 'if there is collision, the phrase shows what is to prevail'.[13] Accordingly, s 19B(4)(d) is subordinate to pt 5.
[12] Harding v Coburn [1976] NZLR 577, 582.
[13] C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905, 911.
Part 5 deals with the procedure in respect to reviews and appeals. Section 41 expressly provides that 'subject to this Part' an appeal against a decision of the Court when constituted so as not to consist of or include a judge may be made under pt 2 of the Criminal Appeals Act. There are no provisions in pt 5 that limit the application of s 41. To the contrary, s 42A of the Children's Court Act expressly provides that an appeal against a decision or judgment of the Court when constituted so as to consist of or include a judge may be made under and subject to pt 3 of the Criminal Appeals Act. Part 3 of the Criminal Appeals Act concerns appeals from superior courts.
Clause 5 of pt C of sch 1 to the Bail Act provides that a person who is awaiting the disposal of appeal proceedings from the Magistrates Court under pt 2 of the Criminal Appeals Act shall be deemed to be awaiting an appearance in court before conviction for an offence. The effect of this provision is that the Court, when considering an application for bail pending an appeal from the decision of a magistrate, is required by law to treat the applicant for bail as if they had not been convicted. Similarly, cl 5 of pt C of sch 1 applies in respect of an application for bail pending appeal from a single judge of the Supreme Court to the Court of Appeal.[14] In that case, the Court is obliged to treat the appellant as if he has merely been charged with the alleged offences, notwithstanding that he has been convicted of the offences after trial. The result is that in determining the bail application, the Court is required to have regard to the questions specified in cl 1 of pt C of sch 1 to the Bail Act and to any other matters that the court considers to be relevant.[15]
[14] Waters v Wigger[No 2] [2017] WASCA 32, [11].
[15] Scolaro v Shepherd [2010] WASC 77, [11]; Morrison v Chiera [2020] WASC 42, [20]; Phillips v Wroe [2022] WASC 9.
I do not accept the respondent's submission that s 19B(4) of the Children's Court Act, being a provision dealing with a child before the Children's Court, should 'prevail over the seemingly inconsistent and yet more general provisions' within the Criminal Appeals Act and Bail Act. That submission with respect, is misconceived. The effect of the words 'subject to pt 5' in s 19B(4)(d) is simply to make clear that despite the terms of s 19B(4)(d), pt 5 will apply to the child insofar as appeals are concerned. That says nothing about whether provisions in the Bail Act which may be inconsistent with s 19B(4)(d), apply.[16]
[16] Respondent's Written Submissions filed 16 June 2023, [10].
Furthermore, there is no inconsistency between s 19B(4)(d) and cl 4A or cl 5 of sch 1 of pt C to the Bail Act. The latter provisions simply apply according to their terms, depending on whether the appeal is made under pt 2 or pt 3 of the Criminal Appeals Act.
Parliament has expressly provided that appeals from a decision of the Children's Court, not constituted by or including a judge, will be made under pt 2 of the Criminal Appeals Act. That being the case, cl 5 of sch 1 of pt C applies so that cl 4A of sch 1 of pt C does not apply.

Conclusion

Accordingly, I am not required to consider whether exceptional reasons exist. The appellant is deemed, pursuant to cl 5 of pt c of sch 1, to be awaiting an appearance in court before conviction for an offence. I am satisfied that bail may be granted having regard to cl 2 and cl 3 of pt C of sch 1 to the Bail Act. In so doing, I apply the relevant statements of principle outlined by the Court of Appeal in Milenkovski v The State of Western Australia.[17] It was not suggested by the respondent that it would not be proper to grant bail having regard to cl 1 and cl 3 of pt C of sch 1. I am satisfied that conditions may be imposed that sufficiently remove the possibility of the appellant committing an offence or failing to appear in accordance with his bail undertaking. Therefore, the appellant is granted bail on the same terms as were imposed prior to conviction.
[17] Milenkovski v The State of Western Australia [2011] 99; (2011) 42 WAR 99, [39]-[44].

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to the Honourable Justice McGrath
30 JUNE 2023