PRM (a child) v The State of Western Australia
[2017] WASC 139
•19 MAY 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PRM (a child) -v- THE STATE OF WESTERN AUSTRALIA [2017] WASC 139
CORAM: MARTINO J
HEARD: 19 MAY 2017
DELIVERED : 19 MAY 2017
FILE NO/S: INS 306 of 2016
BETWEEN: PRM (a child)
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Child charged with same indictable offence as adults - Whether it has become inexpedient or undesirable to conduct trial of adults with child
Legislation:
Children's Court of Western Australia Act 1998, s 19C
Criminal Code (WA), s 29
Result:
Prosecution of PRM transferred to Children's Court
Category: B
Representation:
Counsel:
Applicant: Ms H E Prince
Respondent: Ms C Barbagallo SC & Ms Z M Burgess
Solicitors:
Applicant: H E Prince
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
R v F; ex parte Attorney General [1999] 2 Qd R 157
MARTINO J: The applicant, PRM, was born in April 2004 and is aged 13. He is charged on an indictment dated 19 January 2017 that on 27 January 2016 he murdered Patrick Steven Slater. Seven other accused are charged on the same indictment. On 27 January 2016 PRM was 11 years old.
The prosecution is listed for trial to commence on 29 May 2017.
On 18 November 2016 the President of the Children's Court ordered pursuant to s 19C(1) of the Children's Court Act of Western Australia 1998 (WA) that PRM be committed to this court for trial on indictment.
PRM applies pursuant to s 19C(3)(b) of the Children's Court Act for the transfer of the prosecution to the Children's Court. Two of the other accused were under the age of 18 on 27 January 2016. The accused TSM was aged 17 and is now aged 18. The accused JWW was aged 14 and is now aged 15. Neither TSM nor JMW apply for the transfer of their prosecution to the Children’s Court.
Summary of the facts of the State Case
The facts that the State alleges, in summary, are that in the early hours of 27 January 2016 there were three violent incidents between a group of people which included the deceased man and a group of people which included PRM and other accused persons. The composition of the groups changed from time to time, but the State's case is that PRM was a member of the group that included the accused persons in all three incidents. The State's case is that the deceased was murdered in the third incident.
The first incident is alleged to have occurred at approximately 2.45 am on the corner of William Street and St Georges Terrace.
The second incident is alleged to have occurred at approximately 3.00 am on the corner of The Esplanade and William Street.
The third incident is alleged to have occurred at approximately 3.30 am on the forecourt outside of the Ernst & Young Building.
The State's case is that all eight of the accused ran up the stairs and escalators outside The Esplanade Train Station towards a group of people, which included the deceased, on the forecourt outside the Ernst & Young Building. The State's case is that the accused persons were carrying objects. Some members of the deceased's group ran away.
The deceased remained at the top of the stairs and escalators until some of the accused persons had travelled up the stairs and escalators.
The deceased ran away from the accused persons. The State's case is that the accused persons ran after the deceased, caught up with him, fatally assaulted him and then ran back down the stairs and escalators. The State is unable to point to which of the accused persons inflicted the fatal injury.
The State's case as to the criminal responsibility of the accused persons
The State's case is that the eight accused were acting together and that one of the accused was the principal offender who did an act that caused the deceased's death with an intention to cause his death or an intention to cause the deceased a bodily injury of such a nature as to endanger or be likely to endanger his life.
The State's case is that if an accused was not the principal offender then that accused is guilty because he either did an act or omitted to do an act for the purpose of enabling or aiding the principal offender to murder the deceased or he aided the principal offender to murder the deceased.
It is also the State's case that each of the accused is guilty of murder because they formed a common intention to prosecute an unlawful purpose between them to seriously assault the deceased with weapons, that the offence of murder was committed in the course of carrying out that common purpose and that the commission of the offence of murder was a probable consequence of the prosecution of that common purpose.
The State's case as to the capacity of PRM to know that he ought not to do the acts or make the omissions he is alleged to have done or made
As PRM was under the age of 14 years when he is alleged to have committed the offence with which he has been charged he is not criminally responsible for an act or omission unless the State proves that at the time of doing the act or making the omission he had the capacity to know that he ought not to do the act or make the omission – s 29 Criminal Code (WA). The State can seek to prove that PRM had that capacity by evidence of conduct closely associated with the alleged offence and also by evidence of previous conduct by him for which it was drawn to his attention that such conduct was serious misconduct which he ought not do: R v F; ex parte Attorney General [1999] 2 Qd R 157.
The evidence that the State proposes to seek to prove that PRM had capacity to have that knowledge includes:
•Evidence of his behaviour on the night that the deceased died;
•Evidence of his telephone conversations from detention after he was arrested;
•Evidence of violent conduct and threatening conduct by him at school for which he was given detention or suspension;
•Evidence of violent and dishonest conduct for which he had contact with police but was not charged;
•Evidence of his prior offending; and
•Evidence of prior electronically recorded interviews in which he participated when he was being investigated for offending.
Some of that evidence will show criminal activity not only of PRM but also of at least one other of the accused.
The decision of the President of the Children's Court that PRM be committed to this court for trial on indictment.
In the Children's Court the State applied for PRM to be committed to this court on the charge. PRM opposed the application. The learned President gave detailed reasons for his decision to commit PRM to this court.
His Honour referred to the desirability in the criminal jurisdiction for children to be dealt with separately from adults and to the recognition in this State, nationally and internationally of the objectives and principles of juvenile justice, which principles are incorporated in the Young Offenders Act 1994 (WA).
His Honour then considered the express words of s 19C(1) of the Children's Court Act. His Honour said that it was his view that it was desirable for a number of reasons for the young accused persons to be tried in one trial with the adult accused, those reasons included the reduction of the risk of inconsistent verdicts, the removal of the need for witnesses to give evidence at more than one trial and the stress to the accused and the family and friends of the deceased and of the accused if there were more than one trial.
His Honour then referred to the fact that the State would be leading evidence seeking to prove that PRM had the capacity that is required by s 29 of the Code to be proved for him to be criminally responsible. His Honour acknowledged that the evidence would be prejudicial, but said that juries are frequently directed as to what use they can make of evidence and juries are capable of following and applying such directions.
His Honour then referred to practical matters involved in a trial of a child in a superior court and expressed confidence that appropriate arrangements could be made.
His Honour said that having regard to all those matters it was his view that PRM and another accused in respect of whom the application was made should be committed for trial to the Supreme Court.
Section 19C(3) of the Children's Court Act
Section 19C(3) of the Children's Court Act provides:
(3)Where a child is committed for trial on indictment under subsection (1) and it becomes inexpedient or undesirable to conduct the trial of the adult jointly with that of the child, the court to which the child has been committed for trial may -
(a)nevertheless try the child; or
(b)on the application of the child, order the transfer of the prosecution notice on which the child was committed to the Court to be heard and determined in accordance with section 19B(2) or (4).
There is no definition in the Act of the words 'inexpedient' or 'undesirable'. The task of statutory construction involves the consideration of the statutory text in its context. Ordinarily the legal meaning corresponds with the grammatical meaning, although that is not always the case, for example if the consequences of the grammatical meaning were to conflict with the purpose of the statute or canons of construction: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, [23] ‑ [26].
It is clear that the words 'inexpedient' or 'undesirable' are used in s 19C(3) in their ordinary and natural meaning. They are common words and there is no need to refer to dictionary definitions or synonyms. It is not just the words 'inexpedient' or 'undesirable' that limit the ability of this court to make an order under s 19C(3). The section uses the word 'becomes'. That word, in the context where the subsection follows s 19C(1), which provides for the committal to another court of a child, makes clear that this court is not reviewing the decision that has been made under s 19C(1). The issue in this application is whether it has become inexpedient or undesirable to conduct the trial of the adults with PRM.
Whether it has become inexpedient or undesirable to conduct the trial of the adult accused with PRM
There have been three related developments which have led me to conclude that it has become inexpedient or undesirable to conduct the trial of the adult accused jointly with PRM. One is that the State is now able to identify the evidence that it proposes to adduce to seek to prove that PRM had the capacity required by s 29 of the Code with greater precision than was available to it at the time of the application to the President of the Children's Court. The evidence is prejudicial. It would not be admissible apart from the issue that arises under s 29 of the Code. If this evidence is lead it will not only be prejudicial to PRM it will also be prejudicial to at least one other accused. While I bear in mind that it would be possible to give an appropriate direction to the jury and that juries are presumed to follow directions given to them it is my assessment that there is a significant risk that there may be a miscarriage of justice if all of that evidence were before the jury.
A second development is that some of the additional material relied upon by the State to prove that PRM had the capacity required by s 29 of the Code has been provided less than 28 days before trial. The State expects that further statements will need to be obtained if this evidence is to be led at trial.
A third development is the response of the State to PRM's application. As I have said the State applied in the Children's Court for PRM to be committed to this court. The State's position today is, that it does not oppose PRM's application. The State submits that on an objective appraisal of the evidence to be led to prove PRM's capacity there is a real risk that PRM may not receive a fair trial and that the evidence to prove PRM's capacity will also be prejudicial to the other accused to whom I have referred. I have reached the same conclusion.
By reason of these developments I am satisfied that it has become inexpedient or undesirable to conduct the trial of the adult accused with PRM.
Consequence of the conclusion that it has become inexpedient or undesirable to conduct the trial of the adults with PRM
Having reached that conclusion I can nevertheless try PRM or grant his application. Having regard to his age it is clearly desirable that a trial of PRM alone should take place in the Children's Court. I will order the transfer to the Children's Court of the prosecution notice on which PRM was committed to this court.