The State of Western Australia v BXA
[2025] WASC 366
•3 SEPTEMBER 2025
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 a person of or over 10 years of age and under 14 years of age is not criminally responsible for an act, unless it is proved that at the time of doing the act, the person had capacity to know that they ought not to do the act. This is a reference to the person's capacity at the time of engaging in the relevant conduct to know that doing the act was morally wrong.[1]
[1] Rye v The State of Western Australia [2021] WASCA 43 [51].
The charged offences were alleged to have been committed by BXA over two separate days.
It was alleged that on 28 October 2024, BXA committed an aggravated burglary and an associated stealing, and then later on that day, that he committed an attempted armed robbery.
It is alleged that on 13 November 2024, BXA committed another offence of stealing.
At trial, BXA admitted that he engaged in the conduct the subject of the charges, except for the attempted armed robbery. BXA contended that he made no threat and the canister he had with him at the time was not used as a weapon. Her Honour found those matters to be proven beyond reasonable doubt. Thus, BXA's conduct the subject of each charge was established.
The fundamental issue at trial was whether the State had established BXA had the requisite capacity prescribed by s 29 of the Code.
In respect of that question, at trial the State adduced evidence of BXA having pleaded guilty on 8 October 2024 to charges that included:
(1)two offences of aggravated burglary committed on 5 May 2024;
(2)two offences of stealing committed on 5 May 2024;
(3)one offence of aggravated armed assault with intent to rob committed on 5 May 2024; and
(4)one offence of aggravated burglary and commit offence, committed in the period between 13 and 15 September 2024.
This appeal predominantly is addressed to how her Honour dealt with the evidence of that prior offending in her Honour's reasons.
Grounds of appeal
There are three grounds of appeal:
1.The learned Magistrate erred in law and fact by failing to have regard to relevant and significant evidence, namely inferences to be drawn from evidence concerning the respondent's prior convictions entered on account of his pleas of guilty on 8 October 2024.
2.The learned Magistrate erred in law by giving reasons for the judgments of acquittal that were legally inadequate.
3.The learned Magistrate erred in law by failing to apply the principles enunciated in R v Hillier in that her Honour:
3.1erroneously approached the various pieces of circumstantial evidence relevant to the issue of whether the respondent had capacity to know that he ought not to do the act or acts which constituted the relevant offence (s 29 capacity) in a piecemeal manner; and
3.2failed to consider the circumstantial evidence as a whole in determining whether the prosecution had established beyond reasonable doubt that the respondent had s 29 capacity with respect to each of the offences.
Ground 2 as articulated in the State's submissions raised two issues. The first issue concerned the evidence of BXA's prior convictions. The second issue concerned other matters in respect of BXA's personal circumstances.
BXA, through his counsel, quite properly conceded Ground 1 and the first issue in respect of Ground 2. That being so, the State's counsel, again quite properly, accepted that it was not necessary to deal with the second issue in respect of Ground 2, or Ground 3. That acceptance does not constitute a concession that those matters were not made out.
Before turning to the grounds, I will first address the principles applicable to the adequacy of reasons.
Adequacy of reasons
It is important to first observe that the content and detail of reasons 'will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision'.[2]
[2] Wainohu v New South Wales (2011) 243 CLR 181, 215 [56].
In respect of the Magistrates Court, Pritchard J (as her Honour then was) observed in Gartner v Brennan:[3]
Many cases have confirmed that magistrates are expected to undertake the work of that busy Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Consequently, appeal courts should not scrutinise the reasons for decision given by magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language. The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached. The adequacy of a magistrate's reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made, and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced).
(footnotes omitted)
[3] Gartner v Brennan [2016] WASC 89 [58].
In Chief Executive Officer, Department for Child Protection and Family Support v IGR,[4] the Court of Appeal in a joint judgment said that the principles relevant to an evaluation of the adequacy of reasons include:
(1)Reasons for decision need not be lengthy or elaborate.
(2)Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.
(3)It is not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails.
(4)In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's or tribunal's consideration.
(footnotes omitted)
[4] Chief Executive Officer, Department for Child Protection and Family Support v IGR [2019] WASCA 20 [112].
Further, in DL v The Queen,[5] Kiefel CJ, Keane and Edelman JJ said:
The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge's failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion". At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:
"Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed."
(citations omitted)
[5] DL v The Queen (2018) 266 CLR 1, 12 - 13 [33].
What emerges from the passages at [17] to [19] above that is of particular significance to this appeal, is that:
(1)the reasons need to disclose the intellectual process that lead to the decision in sufficient detail and with sufficient certainty; and
(2)the reasons ought to explain why a significant matter relied on by the prosecution was rejected.
Grounds 1 and 2
As I have said, the trial took place over five days. It finished on 21 March 2025, when counsel made their closing addresses. The learned magistrate then reserved her decision. The learned magistrate delivered oral reasons on 2 April 2025. As the appellant's counsel submits, which I accept, this timeframe enabled the learned magistrate to give considered reasons.
The critical aspect of the learned magistrate's reasons
It is useful to set out in full what the learned magistrate said regarding BXA's prior convictions:[6]
He was legally represented by [experienced] counsel. At the time, it was thought he had - at the time - it is expected that he had the capacity to plead to those matters. The State contends that that capacity ought not diminish over time and, in the absence of fitness issues, [BXA] must have understood, having only weeks earlier entered pleas that at the time of committing these offences, his conduct was seriously, morally wrong. [BXA's] counsel submits that I'm prohibited from looking behind the pleas of guilty. Pleas can be entered for a range of reasons. In respect to [BXA's] participation in the proceedings themselves, counsel asserts that while he's often spoken to, there is no evidence before me of [BXA's] understanding and the impact of those discussions or interactions before me. Three weeks after being sentenced by me for offences to which he entered pleas of guilty, [BXA] commits three further charges. The subjects of my comments and my interaction with him clearly had little impact on him. I liked the way Mr Nicholls put it. The comments - my comments should have been ringing in his ears. They were not, however.
The submission by the State is that he knew it was wrong and cared little for the consequences of his conduct. [BXA's] counsel say that the knowledge of criminal offences in this case, and I think it could be described as a substantial and direct experience in the criminal justice system, is not indicative of capacity. Mr Tobin urged me against determining [BXA's] moral capacity based on the regularity in which he has appeared before this court or the times he had been spoken to by police. His submission was that it was only one part of the capacity puzzle, and when I consider the same against his education and in the environment in which he was raised and continues to be raised, those matters will become largely irrelevant. That was Mr Tobin's submissions.
[6] Hearing 2 April 2025, ts 24.
The learned magistrate did not return to the topic of the prior convictions in her Honour's reasons.
The effect of a plea of guilty
A plea of guilty to a criminal charge necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. The plea also negatives all defences. A plea does not, however, constitute an admission of all of the facts alleged by the prosecution.[7]
[7] Bennett v The State of Western Australia [2012] WASCA 70 [110].
It follows that BXA's pleas of guilty to the prior offences involved an admission by him that at the time of each of the subject offences, he had the capacity to know that he ought not do the acts the subject of those offences.
In Bennett v The State of Western Australia,[8] Buss JA (as his Honour then was) said that in the case of a judgment of conviction, the fact of the conviction and the material facts comprising the elements of the offence subject to the conviction, are incontrovertible between the offender and prosecutor.
[8] Bennett [129] - [130].
Martin CJ left open that issue in Bennett.[9] Specifically, his Honour declined to answer the question of whether it is open to an accused person to lead evidence which might undermine or impugn the conviction. Mazza JA agreed with Martin CJ.[10] In this case, BXA did not lead evidence to undermine or impugn his conviction on the earlier offences.
BXA's convictions for the prior offences
[9] Bennett [68].
[10] Bennett [139].
The prior convictions were an important aspect of the State case at trial on s 29. The prior offences are of a substantially similar character to the offences the subject of this appeal. At trial, the State contended that by reason of his pleas of guilty to the prior offence, BXA admitted that he had capacity to know that he ought not do the acts the subject of those offences. Further, given the substantial similarity between the prior offences and the charged offences, the prior offences were of importance to the State case.
With respect to her Honour and acknowledging her Honour's demanding role as a Children's Court magistrate, her Honour's reasons did not engage with the question of the significance of the prior convictions in assessing whether BXA had the capacity required by s 29. It was necessary for her Honour's reasons to engage with that topic, given its importance to the State case. As it was, her Honour's reasons only set out the parties' respective submissions on the topic.
In such circumstances, BXA's counsel quite properly conceded the appeal on Ground 1, and on the first issue raised by the State in respect of Ground 2. The concession went no further than that. Specifically, BXA's counsel said in their written submissions:[11]
It is not conceded that [the State] had relevantly displaced the presumption against criminal responsibility, nor is it conceded that (in the circumstances of this case) [BXA's] prior plea of guilty meant that his conviction was inevitable.
[11] Respondent's submissions par 22.
I make no finding either way in respect of those matters. It is unnecessary to do so for the purposes of the disposition of this appeal.
As one final matter, the State's counsel in his written submissions said that s 29 capacity does not diminish over time.[12] At the hearing, the State's counsel quite properly accepted that that proposition is not an absolute one and there may be circumstances where a child's capacity does diminish. However, the State's counsel also said that it would be a very unusual circumstance for a child's capacity to diminish over time. It is unnecessary for me to say anything more on that topic.
Conclusion
[12] Appellant's submissions par 20.
It is for these reasons I was satisfied that Ground 1, and issue one of Ground 2, were made out and that I should grant leave to appeal and allow the appeal.
The appropriate consequential orders were to set aside the judgments of acquittal and to remit the matter to the Children's Court of Western Australia to be heard by a judicial officer other than her Honour.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OM
Associate to the Hon Justice Lemonis
3 SEPTEMBER 2025
0
7
1