PQR (a child) v The State of Western Australia

[2009] WASC 327

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   PQR (a child) -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 327

CORAM:   MARTIN CJ

HEARD:   31 MARCH 2009

DELIVERED          :   31 MARCH 2009

PUBLISHED           :  13 NOVEMBER 2009

FILE NO/S:   INS 116 of 2008

BETWEEN:   PQR (a child)

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law and procedure - Bail - Application for bail pending trial - Accused was a child at time of alleged offence - Charge of murder - Adjournment of trial due to delays in completion of pathology reports

Legislation:

Bail Act 1982 (WA), s 3, s 7B(6) sch 1 pt C
Young Offenders Act 1994 (WA), s 4

Result:

Application refused

Category:    B

Representation:

Counsel:

Applicant:     Mr M Saupin

Respondent:     Mr R G Wilson

Solicitors:

Applicant:     J D Hawkins & Associates

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Tyson v The State of Western Australia [2009] WASC 328

MARTIN CJ:  (This judgment was delivered extemporaneously on 31 March 2009 and has been edited from the transcript.)

1. PQR (a child) applies for bail.  He is currently in custody awaiting trial on a charge of murder and a charge of doing grievous bodily harm with intent to do grievous bodily harm.  Because of the charge of murder, it is of course the case that the decision with respect to bail can only be made by a judge of this court or a judge of the Children's Court.  In this instance, this is the first occasion upon which a judge of this court or any other judge has considered the question of bail since the charge of murder was brought against PQR.

2. PQR was born in 1990. The offences with which he is charged were allegedly committed on 6 November 2007, and he was arrested on or about 8 November 2007 and has been in custody since then. It follows from those dates that PQR was 17 years of age at the time of the alleged offences, and is now 18 years of age. Section 3 of the Bail Act 1982 (WA) defines the expression 'child' for the purposes of that Act to have the same meaning as the expression 'young person' has for the purposes of the Young Offenders Act 1994 (WA).

3. Under that Act, the expression 'young person' is defined to mean a person who has not reached the age of 18 years or a person to whom the Young Offenders Act applies because of s 4 of that Act. Section 4 of the Young Offenders Act provides that if a person commits or allegedly commits an offence before reaching the age of 18 years, that Act applies to the person as a young person for purposes connected with that offence or any order that was made in dealing with the person for that offence.

4. Because the offences alleged to have been committed by PQR were allegedly committed before he turned 18, it follows that in respect of those offences the Young Offenders Act would apply to him as a young person. It therefore follows that by virtue of s 3 of the Bail Act, PQR is to be regarded as a child for the purposes of that Act notwithstanding that he is now 18 years of age.

5. Nevertheless, cl 3C of pt C of sch 1 of the Bail Act applies to PQR as it applies to all persons charged with murder, whether they are adults or not.  As I have indicated in the case of Tyson v The State of Western Australia [2009] WASC 328, who is one of PQR's co‑accused, the criteria that are required to be met by an applicant for bail to whom cl 3C applies have two components. The first is the establishment of exceptional reasons why the accused should not be kept in custody and, secondly, the proposition that bail may properly be granted having regard to the provisions of cls 2 and 3 of pt C of sch 1 of the Act in the case of a child such as PQR.

6. For the reasons that I have given in the matter of Tyson, it seems to me that the circumstances of the adjournment of the trial which PQR was due to face on 16 February 2009 do give rise to facts that could come within the scope of the description 'exceptional reasons' within cl 3C of pt C. However, that then leaves for consideration the question of whether or not bail may nevertheless be properly granted pursuant to the provisions of cls 2 and 3 of pt C of sch 1 to the Bail Act, they being the clauses particularly applicable to the grant of bail in respect of children.

7. The views that I am about to express in relation to the application of those criteria to PQR depend significantly upon the assumption that I am making to the effect that this case will be tried, commencing about mid‑August 2009. That is a very significant assumption for the purposes of my decision. It follows, therefore, that if that assumption proves not to be correct for some reason or another, it would be my firm view that this case would fall within s 7B(6) of the Bail Act, that being a case in which there would be a new circumstance which would enliven the opportunity for bail to again be considered.  In other words, if it transpires for one reason or another that the trial is not going to commence in mid‑August, it is my view that there would be a new circumstance within the meaning of the subsection which would enable PQR to come back to the court.

8. Under cl 2 of pt C of sch 1 of the Bail Act, because PQR is a child, he has a qualified right to bail.  It is qualified in the sense that he has a right to be granted bail unless in the opinion of the judicial officer in whom the jurisdiction with respect to grant of bail is vested, one or more of the questions set out in cls 1(a), (b), (d) and (g) of pt C must be answered in the affirmative and there is no condition which could be reasonably imposed under pt D which would satisfy the relevant provision of cl 1(e).

9. There are also provisions relating to the giving of an undertaking by a responsible person in the case of a grant of bail to a child.  However, other provisions of cl 2 of pt C provide that those provisions are inapplicable if the child is over the age of 17 years and has sufficient maturity to live independently.  Those would appear to be the circumstances applying to PQR and so the question of giving of an undertaking by a responsible person does not arise, especially now that he has in fact turned 18.

10. Turning then to the question of whether PQR has a qualified right to bail, that question turns upon whether one or more of the questions set out in cls 1(a), (b), (d) and (g) of pt C must be answered in the affirmative.  It is only necessary for me to go to cl 1(g), which is whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make the grant of bail inappropriate.

11. It is obvious that where the accused faces a charge of murder, that question will almost always be answered in the affirmative.  The circumstances that gave rise to the charge in the present case reinforce that conclusion in this case.  It therefore seems to me that the question posed by cl 1(g) concerning the seriousness of the alleged offence must be answered in the affirmative.  It follows that PQR has no qualified right to bail in this case notwithstanding the provisions of cl 2 of pt C.

12. That of course does not mean that when all the other factors are weighed in the case, PQR could not be granted bail notwithstanding the seriousness of the offence.  Those factors include consideration of the likelihood of risk of flight, the likelihood of committing an offence, the likelihood of interference with witnesses and the factors required to be taken into account by cl 3 of pt C which include again the nature and seriousness of the offence for which he is awaiting trial, character, previous convictions, antecedents, associations and the like, the history of any previous grants of bail, and the strength of the evidence against him.

13. Running through those factors, it cannot be said that this is a case in which the domestic and other family circumstances of PQR are such that it could be confidently concluded that he is at a very low risk of flight.  I have heard little about those circumstances, but they do not appear to be the basis upon which the application is pressed, although it is suggested in the affidavit filed in support of the application that he has a child, he has been in a relationship for three years and could be required to live with his partner and his mother with conditions requiring him to report to police.

14. As against those considerations, which are factors which point in favour of the grant of bail, the offences with which PQR has been charged are very serious.  Notwithstanding his youth, significant sentences of immediate imprisonment could be expected in the event of his conviction of one or more of those offences.  That of itself must create some risk of flight.  There is also an issue with respect to possible interference with witnesses in this case, because some of the witnesses of the State are relatives of PQR.

15. The risk of that interference could be diminished by the imposition of appropriate conditions and if PQR is to live outside of Perth, the risk of physical contact may be reduced because, as I understand it, the witnesses to whom the State refers live in Perth.  However, notwithstanding the conditions that could be imposed in relation to geographical separation, the possibility of interference could not be entirely eliminated.

16. Turning to the previous antecedents of PQR, he does have a criminal record.  It is not insignificant, but on the other hand it is a record committed entirely whilst a juvenile.  He has not previously been sentenced to any period of imprisonment.  There is no adverse history of any previous grants of bail made to him, and so there is no factor that counts against him in that regard.

17. The final factor listed by cl 3 of pt C is the strength of the evidence against him.  It seems to me that that is a significant factor in this case.  It is always dangerous to attempt to weigh the strength of a case before the evidence is given, but nevertheless it is one of the requirements of the Bail Act that consideration be given to that matter.  In this case the evidence in the State's brief does suggest that there is a body of evidence that will suggest that PQR was heavily involved in the incidents that gave rise to the death and the serious assault referred to in those depositions.

18. PQR seems to have been a central character in the events giving rise to these charges, having been involved in the incident earlier in the day that seems to have played a significant part in the events that took place in the evening.  That is not to say that the case against him is overwhelming, and I do not find that it is overwhelming; but it could not be said that the state case is weak.  Of course there is also the prospect that the strength of the case may change when the DNA reports which necessitated the adjournment of the trial in February come to hand.

19. Doing the best I can to balance these circumstances and notwithstanding the very significant weight that I give to the age of PQR, and the very significant weight that I give to the fact that a person of his age will have been in custody for a period a little short of two years when the trial against him commences, I nevertheless conclude on the basis of the assumption that I have made as to the likely trial date, that this is not an appropriate case for the grant of bail.

20. The trial is a little over four months away. On that assumption it seems to me to be appropriate to maintain the status quo and to refuse the application for bail. If that assumption changes, as I have indicated, I am firmly of the view that s 7B(6) of the Bail Act would be enlivened and the court should then reconsider the question of the grant of bail to PQR.

21. For those various reasons, I have concluded that bail should be refused on this occasion; but should the assumption that I have made with respect to a trial date not come to pass, the application for bail should be renewed.  I have given directions in the Tyson case that will enable a process to be put in place that will enable defence counsel to be approached shortly with regard to their availability for a trial commencing in mid‑August.