Commissioner of Police v WCH
[2010] WADC 154
•11 OCTOBER 2010
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: COMMISSIONER OF POLICE -v- WCH [2010] WADC 154
CORAM: MARTINO CJDC
HEARD: 11 OCTOBER 2010
DELIVERED : 11 OCTOBER 2010
FILE NO/S: CIVO 75 of 2010
BETWEEN: COMMISSIONER OF POLICE
AND
WCH
Catchwords:
Application for Interim Child Protection Order - Application without notice - Circumstances in which interim order should be granted
Legislation:
Community Protection (Offender Reporting) Act 2004
Result:
Application dismissed
Representation:
Counsel:
Applicant: Mr B Nelson
Respondent: Not applicable
Solicitors:
Applicant: State Solicitor for Western Australia
Respondent: Not applicable
Case(s) referred to in judgment(s):
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679
MARTINO CJDC: (Delivered extemporaneously and edited from transcript).
By an application dated 23 September 2010 the applicant Commissioner of Police applies for an interim child protection order against the respondent WCH, pursuant to s 92 of the Community Protection (Offender Reporting) Act 2004. WCH is a reportable offender under that Act, having been convicted on 17 December 2009 of indecently dealing with a child of or over the age of 13 years but under the age of 16 years. Notice of the application has not been given to WCH and the Commissioner requests that the application be heard ex parte.
Section 92(1) of the Act provides that a court may make an interim child protection order if it appears to the court that it is necessary to do so to prevent an immediate risk to the lives or the sexual safety of one or more children, or children generally. Section 92(4) provides that such an interim prohibition order may be made by a court whether or not –
(a)the reportable offender is present at the proceedings; or
(b)the reportable offender has been notified of the proceedings.
Once such an order is made s 92(5) requires the court to –
(a)fix a day, time and place for a further hearing of the application as soon as is practicable after the order is made; and
(b)issue a summons requiring the reportable offender to attend the court for the further hearing.
The procedure provided for in s 92 is different to the procedure provided for in s 87 and s 88, where the Commissioner applies for a child protection prohibition order. If such an application is made the court registrar is to fix a day, time and place for the hearing and cause a summons to be served on the reportable offender.
The scheme of the legislation is therefore that the Commissioner of Police may apply for a prohibition order and, if he does, that application is to be served on the reportable offender. The Commissioner may apply for an interim prohibition order. If he does that the application need not be served on the reportable offender. If it appears to the court that it is necessary to make an interim prohibition order to prevent an immediate risk to the lives or the sexual safety of a child or children the court may make an interim protection order. If it does make that order an appointment for the further hearing of the application is to be fixed as soon as possible and the reportable offender is to be given notice of that appointment.
If a person subject to a prohibition order fails to comply with the order that person commits an offence punishable by a fine of $12,000 and imprisonment for 2 years: s 101.
There is a well established principle of long standing that a person is not to be condemned unheard and therefore, as a general rule, no order should be made to the prejudice of a party unless that person has had the opportunity of being heard. Nevertheless an order can be made against a person without that person having been given the opportunity to be heard where there is a risk of irremediable or serious damage unless the order is made immediately: Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681.
I conclude therefore that, as a general rule, applications for child protection orders should be made under s 87. However where it is necessary to make an interim protection order to prevent an immediate risk to the lives or the sexual safety of one or more children it is appropriate for the Commissioner to apply for an interim order.
The interim order that the Commissioner seeks is in the following terms:
1.The Respondent is prohibited from:
(a)without reasonable excuse, associating or having contact with any child, unless the relevant parent or guardian of that child is present and able to view the child at all times
(b)travelling on public transport, including buses, trains and ferries, at all times, and
(c)entering, or approaching within 200 metres of, any of the following:
(i)Esplanade Busport;
(ii)Wellington Street Bus Station; and
(iii)Any train station on the Armadale/Thornlie, Fremantle, Joondalup, Mandurah or Midland lines, including but not limited to the Perth Underground Train Station and Esplanade Train Station.
2.This order remains in force until the further hearing of the application.
There is evidence that WCH commits offences against boys or young men at or near train stations. The offences he commits include touching the victims, often in the groin area, and placing the victim's hand on his groin. The offence of which he was convicted on 17 December 2009 occurred on 7 September 2007 at Subiaco Train Station. He was also convicted on 21 October 2008 of an offence of indecent assault. That offence occurred on 7 February 2008 at the Perth Train Station.
WCH has been charged with an offence of indecent dealing with a child on 16 March 2010. He has pleaded guilty to that charge and been committed for sentence to the District Court. He is due to appear in the sentence mention list next Friday 15 October 2010. He has been granted bail to that hearing. That offence occurred near a train station.
WCH has also been charged with an offence of indecent assault. That offence occurred on 13 July 2010 as the victim was walking away from the Daglish Train Station. He has requested, pursuant to s 32 of the Sentencing Act 1995, that the District Court deal with that charge when it sentences him for the offence of indecent dealing with a child.
There also appear to have been an occasion on 29 May 2009 and on 23 October 2009 when he committed offences at train stations.
Another matter of note is that WCH appears to have an intellectual disability. The police officer who investigated the offence which occurred on 7 February 2008 has sworn an affidavit in which he has deposed that WCH was not formally interviewed as he appeared to have an intellectual disability and he and his father refused the interview.
I have mentioned that WCH is currently on bail. The terms of that bail are:
Personal Undertaking $0. To obey all lawful directions of IDD Co‑ordinator; Protective Bail Condition (Being a condition imposed for a purpose mentioned in clause 2(2)(c) or (d) of Part D of Schedule 1 of the Bail Act). Daily curfew between 5.15pm – 7.00am. Not to leave home without company of his father or a responsible adult. To reside at [……………….]. Not to attend train stations.
These bail terms are very restrictive and, it seems to me, reduce the risk of WCH re-offending. Counsel for the Commissioner of Police submits that further restrictions are required to prevent WCH having contact with children, prevent him from travelling on public transport and to prevent him from being within 200 metres of train stations. However because this application is made on an ex parte basis I do not know whether there are any practical difficulties with the orders that the Commissioner seeks.
I enquired of counsel for the Commissioner of Police why the application dated 23 September 2010 was not made on notice to WCH and was informed that the reason was urgency, but that the matter was not listed earlier because of unavailability of counsel and due to personal matters concerning a police officer investigating WCH's offending behaviour.
The application is being heard today, four days before WCH is due to appear in the District Court. If it were to be necessary for further restrictive bail conditions to be imposed then an application for those conditions could be made on notice to WCH and determined at that hearing. Then WCH would be able to make submissions as to whether or not the conditions were appropriate.
Further, if the application before me had been made on notice to him then I would have the benefit of being able to hear submissions from WCH or his counsel or his father or guardian as to the orders that are sought today.
In view of the restrictive bail conditions that are in place I am not satisfied that it is necessary to make an interim protection order to prevent an immediate risk to the lives or the sexual safety of one or more children, or children generally. I have decided to dismiss the application for the interim protection order.
There is a further matter that I wish to raise. As I have mentioned it appears that WCH suffers an intellectual disability. The fact that an offender suffers an intellectual disability would not preclude an interim order being made without notice to the offender if the circumstances warranted it. However I would be cautious before doing so. I would need to consider matters such as whether the offender would understand the order and whether the offender has a guardian who should be heard before the order is made.
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