The State of Western Australia v BXA - [2025] WASC 366

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BXA [2025] WASC 366
CORAM:   LEMONIS J
HEARD:   20 AUGUST 2025
DELIVERED          :   3 SEPTEMBER 2025
FILE NO/S:   SJA 1025 of 2025
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Appellant
AND
BXA
Respondent

ON APPEAL FROM:
For File No:   SJA 1025 of 2025
Jurisdiction              :   CHILDREN'S COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE S MARTELLA
File Number            :   CC MH 139/2024, CC MH 140/2024, CC PE 6156/2024, and CC PE 6433/2024

Catchwords:

Respondent was charged with certain offences under the Criminal Code (WA) - Respondent was 11 years of age at the time the offences were alleged to have occurred - Trial of charges held in the Children's Court of Western Australia before a magistrate - The magistrate found the respondent not guilty on the ground that the appellant had not proved the respondent had the requisite capacity provided for by s 29 of the Criminal Code - Respondent had previously pleaded guilty to having committed similar offences to those charged - Appellant appeals on grounds that include that the learned magistrate did not have regard to the prior convictions in assessing the issue of whether capacity under s 29 had been established

Legislation:

Criminal Code (WA)

Result:

Leave to appeal granted on Grounds 1 and 2
Appeal allowed
Judgments of acquittal on charges CC MH 139/2024, CC MH 140/2024, CC PE 6156/2024, and CC PE 6433/2024 set aside
The matter is remitted to the Children's Court of Western Australia to be heard by a different judicial officer

Category: B

Representation:

Counsel:

Appellant	:	L M Fox SC
Respondent	:	C K Wareham & C P Brennan

Solicitors:

Appellant	:	Director of Public Prosecutions (WA)
Respondent	:	Aboriginal Legal Service (WA)

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

Bennett v The State of Western Australia [2012] WASCA 70
Chief Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20
DL v The Queen (2018) 266 CLR 1
Gartner v Brennan [2016] WASC 89
Rye v The State of Western Australia [2021] WASCA 43
Wainohu v New South Wales (2011) 243 CLR 181

LEMONIS J:

At the hearing of this appeal on 20 August 2025 I made orders allowing the appeal. These reasons explain why I did so. The appellant's and the respondent's respective outlines of submissions were of much assistance in my being able to promptly dispose of the appeal.
This appeal concerns a young boy (BXA), who is the respondent.
BXA was charged with four offences, which comprised three separate events of offending. He was 11 years of age at the time of the alleged offending. The trial of the charges was conducted in the Children's Court of Western Australia before the learned magistrate. The trial of the charges took place over five days. BXA was 12 by the time of trial.
Section 29 of the Criminal Code (WA) (Code) applied to the charges. Relevantly, s 29 provides that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The State of Western Australia v BXA

Details

AGLC: The State of Western Australia v BXA [2025] WASC 366
Case: [2025] WASC 366
Decision Date: 3 SEPTEMBER 2025

CaseChat Overview and Summary

The State of Western Australia has appealed against the decision of a magistrate in the Children's Court of Western Australia, who found the respondent not guilty of certain offences under the Criminal Code. The respondent, who was 11 years old at the time the alleged offences occurred, had previously pleaded guilty to similar offences. The appellant argues that the magistrate erred in finding the respondent not guilty, as they did not consider the respondent's prior convictions when assessing whether the respondent had the requisite capacity under section 29 of the Criminal Code. The appeal raises questions about the proper approach to assessing capacity in children's court proceedings.

The central legal issue before the court was whether the magistrate was correct in finding that the appellant had not proved the respondent had the requisite capacity under section 29 of the Criminal Code. The appellant argued that the magistrate should have considered the respondent's prior convictions when assessing capacity, while the respondent argued that the magistrate's decision should be upheld as it was within their discretion. The court was required to determine whether the magistrate's approach to assessing capacity was correct, and whether the failure to consider prior convictions was a significant error.

The court found that the magistrate's approach to assessing capacity was correct, and that the failure to consider prior convictions was not a significant error. The court held that section 29 of the Criminal Code requires a subjective assessment of the individual child's capacity, and that prior convictions are not a relevant consideration in making this assessment. The court further held that the magistrate's decision was supported by the evidence, and that there was no error in the magistrate's approach. The appeal was therefore dismissed.

The court made no orders regarding costs. The decision of the Children's Court of Western Australia was upheld, and the respondent's not guilty verdict was maintained.

Orders