WBJ v Police No. Scciv-00-1176
[2001] SASC 53
•3 April 2001
WBJ v POLICE
[2001] SASC 53Reservation of Questions of Law
1................ Gray J Questions of law have been reserved pursuant to s 23 of the Youth Court Act 1993 (SA).
Background
2 On 28 February 1999 baseball bats and archery bows were stolen from the Heights High School. The police had reason to suspect that WBJ was involved. They approached him. At the request of the police WBJ attended the Holden Hill police station with his family. He was interviewed. WBJ admitted the offence. The police notified a youth justice co-ordinator who convened a family conference.
3 The family conference was held at the Holden Hill Magistrates Court on 21 July 1999. Ms Johnson was the presiding youth justice co-ordinator. WBJ was present together with his mother, the principal of the Heights School and a police officer. During the family conference, WBJ again admitted the offence. The written outcome of the conference records the following:
"As a result of a family conference, you [WBJ] have agreed to enter into an undertaking the details of which appear below.
Details of the Undertaking
That you are -
1...... To apologise in writing to the principal, staff and students of the Heights High School. Apology to be sent to Christine Johnson of the family conference team GPO Box 278 Adelaide SA 5001 within 1 week. To be completed by 28/7/99.
2.To complete 10 hours of community service which is to be arranged by the youth justice co-ordinator and notified to [WBJ]. You are to complete this community service within the next 6 months. You are to report to the placement on the days and times as arranged and attend the placement until you are released to do so by the supervisor of the placement. To be completed by 21 January 2000.
3. .... To visit the principal of the Heights High school Mr Steven Measday with a letter containing information about what you have done or found out about your future career. Appointment to be made and visit completed within 8 weeks. To be completed by 15 September 1999”.
4 Ms Johnson detailed the community service arrangements in a letter which was sent to WBJ dated 2 August 1999.
5 Mr Kerkin, another youth justice co-ordinator sent a further letter dated 20 August 1999. It explained that WBJ’s apology letter was yet to be received. It reminded WBJ of his obligation to send the letter. An envelope was enclosed for this purpose. The letter specified that the apology letter was to be received by 27 August 1999.
The Circumstances Giving Rise to the Reserved Questions
6 Section 12(8) of the Young Offenders Act 1993 (SA) ("the Act") provides:
“If a youth -
...
(b) does not comply with a requirement of the family conference; or
(c).... does not comply with an undertaking under this section, a police officer may lay a charge before the Court for the offence in relation to which the conference was convened."
7 The Crown alleged that WBJ breached the Act by failing to satisfactorily comply with the undertakings agreed at the family conference. On 28 September 1999 Mr Kerkin notified the Commissioner of Police of this failure. A charge was then laid.[1]
[1] See [15] for the terms of the Information.
8 On 28 August 2000, WBJ pleaded not guilty to the charge. Defence counsel raised a number of preliminary applications.
9 Defence counsel rejected the allegation of WBJ's non-compliance. He did not elaborate, other than to suggest that arguments would be put that WBJ had complied with the undertakings or alternatively had used his best endeavours to comply. He said that WBJ attempted to arrange to meet with the principal to apologise but availability problems prevented him from doing so. The period in which the community service order could be undertaken had not yet expired and therefore, compliance was still possible.
10 Other submissions were to be advanced, namely that:
- the information was invalid
......... - WBJ was not liable to prosecution and the proceedings constituted double jeopardy
.........
......... - the decision to lay the charge was contrary to the Act and unfair and unreasonable
......... - the undertakings were contrary to the Act and unenforceable or in the alternative had been rendered ineffective
......... - the youth justice co-ordinators failed to conduct their duties in accordance with the Act
......... - relevant sections of the Act and the Rules were ultra vires and invalid
......... - the procedures relating to service, filing and issuing of notices had not been followed
11 The Crown’s decision to charge WBJ was challenged. A stay of proceedings was sought in the exercise of the court's general discretion to prevent unfairness.
12 The Crown had not opened its case. However in answer to the defence applications, the Crown proposed to call members of the family conference team involved in convening the conference and following up compliance with the undertakings. The Crown sought to adduce evidence to show that the correct procedures had been followed and to establish details of the WBJ’s non-compliance.
13 The learned magistrate, Mr Clark SM ("the magistrate") directed that the family conference file be subpoenaed. Neither party disputed that evidence of the family conference could be adduced. They differed only on what use could be made of the evidence.
Magistrate's Rulings
14 On 15 September 2000 the magistrate reviewed the Act and considered the submissions of counsel. He concluded:
"I therefore have reservations about the Youth Court assuming the power to review procedures and outcomes from a Family conference as part of a prosecution case ..."
He requested further submissions from the parties.
15 On 9 October 2000, the magistrate considered reserving questions of law to be the appropriate way to resolve his concerns. On 6 November 2000, he reserved questions of law to the Supreme Court:
"Pursuant to section 23 of the Youth Court Act 1993 I, Gregory Ronald Alfred Clark S.M., reserve questions of law arising in these proceedings for determination by the Supreme Court.
The following facts are agreed, namely that:-
-....... On 28 August 2000 [W] (hereinafter called the youth) entered a plea of 'Not Guilty' to that:-
'On the 28th day of February 1999 at Modbury Heights in the said State broke and entered a high school sports shed and committed therein an offence to which this section applies namely larceny of 2 baseball bats and 8 archery bows together of the value of $600.00 the property of The Heights High School.
......... Section 170(1)(a) of the Criminal Law Consolidation Act, 1935.
This is a minor indictable offence.'
-At the family conference convened pursuant to Part 2, Division 3, of the Young Offender's Act, 1993, held on 21 July 1999, the youth admitted this offence and the youth entered into a written undertaking, and I annex that undertaking.
-The charge for the offence referred to in paragraph 1, has been laid before the Youth Court pursuant to s.12(8) of the Young Offender's Act, 1993.
-For the purposes of the charge laid pursuant to s.12(8) of the young Offender's Act, 1993, the prosecution and the defence intend to adduce evidence in the trial about the conduct of the Family conference, its outcomes and compliance with undertakings.
-....... Neither party disputes that the evidence referred to in paragraph 4 may be adduced.
-....... After submissions from the parties I gave written reasons for my Rulings on the 15th day of September 2000 and the 9th day of October 2000.
-....... The questions reserved for determination are:-
1... In relation to the charge laid pursuant to s.12(8) of the Young Offender's Act. 1993, is the judicial officer presiding at the trial of [W] for the offence referred to in paragraph 1 permitted by the Young Offenders Act, 1993, to receive evidence from the prosecution and the defendant about the family conference procedures, outcomes and undertakings and the extent to which those undertakings have been complied with by the defendant and the youth justice co-ordinator.
2... If yes to question 1, at what stage of the trial should the evidence be adduced?"
The Scheme of the Act
16 In August 1991, the government of South Australia appointed a Parliamentary Select Committee to enquire into all aspects of its juvenile justice system. Following a twelve month enquiry, recommendations were made. The Act implemented the principal recommendations. A fundamental change to the administration of juvenile justice in South Australia was effected through the introduction of a new diversionary system - family conferencing.
17 Family conferencing has been described as being based on the paradigm of restorative justice which holds:
"... that criminal behaviour is primarily a violation of one individual by another. When a crime is committed, it is the victim who is harmed, not the state; instead of the offender owing a 'debt to society' which must be expunged by experiencing some form of state-imposed punishment, the offender owes a specific debt to the victim which can only be repaid by making good the damage caused. ... ."[2]
[2] J Wundersitz and S Hetzel 'Family Conferencing for Young Offenders: The South Australian
Experience' J Hudson, A Morris, G Maxwell & B Galaway Eds Family Group Conferences: Perspectives on Policy and Practice, Annandal: Federation, 1996 111-139
18 The family conference system was designed to deal with minor offences. Section 4 of the Act defines minor offence:
“ ‘minor offence’ means an offence to which this Act applies that should, in the opinion of the police officer in charge of the investigation of the offence, be dealt with as a minor offence because of-
(a) the limited extent of the harm caused through the commission of the
offence; and
(b) the character and antecedents of the alleged offender; and
(c) the improbability of the youth re-offending; and
(d) where relevant-the attitude of the youth’s parents or guardians”
19 The new system was based on the New Zealand model of family conferencing. Family conferences are a diversionary sentencing option positioned between two structures - police cautioning and the Youth Court. Family conferences have now been in place in South Australia since 1994.
20 Family conferences are convened by an independent mediator - a youth justice co-ordinator. Conferences bring together those people most directly affected by a young person's offending behaviour in an informal, non-threatening setting. Victims play a key role in the process. The system enables victims to confront offenders and explain the effect of the crime. Members of the youth's extended family may also attend. This allows parents to participate in the decision making process. The aim of the conference is to enable all parties to agree upon an appropriate outcome through discussion and mediation. Acknowledgment of unacceptable behaviour and acceptance of responsibility underly the entire process. Apologies, restitution and community service orders are possible outcomes. However the conference must also have regard to the sentencing policies of the Youth Court. Accountability is another key concept and youths who fail to undertake their family conference obligations may be re-sentenced by the Youth Court.
The Relevant Provisions
21 The admission of the commission of a minor offence to a police officer is the initiating mechanism for a family conference.
22 Section 7 provides:
"(1) If a youth admits the commission of a minor offence, a police officer may deal with the matter as follows:
(a) the officer may deal with matter under Division 2; or
......... (b) the officer may notify a Youth Justice Co-ordinator of the admission so that a family conference may be convened to deal with the matter; or
......... (c) the officer may lay a charge for the offence before the Court.
(4)A charge may only be laid -
......... (a) if the youth requires the matter to be dealt with by the Court; or
......... (b) if, in the opinion of the police officer, the matter cannot be adequately dealt with by the officer or a family conference because of the youth's repeated offending or some other circumstance of aggravation."
23 Section 9 provides for youth justice co-ordinators. It is in the following terms:
"9. (1) The following are to be Youth Justice Co-ordinators:
(a) the Magistrates who are members of the Youth Court's principal or ancillary judiciary; and
(b) the persons who are appointed as Youth Justice Co-ordinators
(1a) Youth Justice Co-ordinators (who are not Magistrates) will be appointed under the Courts Administration Act 1993.
...
(3) A person cannot be appointed as a Youth Justice Co-ordinator unless the Senior Judge of the Youth Court has been consulted in relation to the proposed appointment.
(4) A person appointed as a Youth Justice Co-ordinator is responsible to the Senior Judge of the Youth Court (through any properly constituted administrative superior) for the proper and efficient discharge of his or her duties."
24 Section 10 details the procedure for convening a family conference. The youth justice co-ordinator is required to arrange a time and a place, issue notices requiring the youth’s attendance, and otherwise invite the victim and other appropriate persons to attend.[3]
[3] Section 10
25 Section 11 provides that a youth justice co-ordinator is to chair the conference. The youth and a representative of the Commissioner of Police are required to attend. Other invited persons may attend. Section 11 continues:
"(2) A family conference should act if possible by consensus of the youth and such of the persons invited to attend the conference as attend in response to that invitation.
(3) A decision by a family conference is not however to be regarded as validly made unless the youth and the representative of the Commissioner of Police concur in the decision.
(4) A youth is entitled to be advised by a legal practitioner at a family conference.”
26 Section 12(1) specifies the powers of a family conference:
"(1) The family conference has the following powers:
(a) the conference may administer a formal caution against further offending;
...
(d) the conference may require the youth to enter into an undertaking to apologise to the victim of the offence or to do anything else that may be appropriate in the circumstances of the case.
Subsection 8 further provides:
"12. (8) If a youth-
(a) fails to attend at the time appointed for a family conference; or
(b) does not comply with a requirement of the family conference; or
(c) does not comply with an undertaking under this section,
a police officer may lay a charge before the Court for the offence in relation to which the conference was convened.”
27 Section 12(10) addresses compliance and provides:
“If-
(a).. a youth is cautioned, and no further requirements are made of the youth, under this section; or
(b)all requirements made of the youth under this section (including obligations arising from an undertaking given by the youth) are complied with,
the youth is not liable to be prosecuted for the offence.”
28 It is important to record two further provisions. Section 17(2) deals with the power of the Youth Court following the laying of charges:
"The Court may, even though a charge has been laid, refer the subject matter of the charge (after the youth's guilt has been established either by admission or by the Court's findings) to be dealt with by a police officer or by a family conference."
29 Section 13 addresses publicity and provides:
"(1) A person must not publish, by radio, television, newspaper or in any other way, a report of any action or proceeding taken against a youth by a police officer or family conference under this Part if the report -
(a).... identifies the youth or contains information tending to identify the youth; or
(b) reveals the name, address or school, or includes any particulars, picture or film that may lead to the identification, of any youth who is in any way concerned in the action or proceeding; or
(c).... identifies the victim or any other person involved in the action or proceeding (other than a person involved in an official capacity) without the consent of that person."
...
"(4) This section does not prevent the disclosure of information under any other provision of this Act."
30 Section 13 does not address the admissibility of evidence. This can be contrasted with the express provisions in other diversionary legislation which provide that evidence is 'not admissible'[4]. Section 40 of the Controlled Substances Act 1984 (SA) is in the following terms:
"Evidence of anything said or done in proceedings before an assessment panel is not admissible in any criminal or civil proceedings (other than proceedings for an offence under this Division)."
Section 19 N(2) of the Family Law Act 1975 (Cth) provides:
"Evidence of anything said, or any admission made, at a meeting or conference conducted by a person to whom this section applies while the person is acting as such a person is not admissible:
(a) in any court (whether exercising federal jurisdiction or not); or
(b)... in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence."
[4] R v PML [2001] SASC 79 20 March 2001 at [4-5]
The Hearing
31 As earlier observed, counsel challenged the Crown’s decision to charge WBJ and sought a stay of proceedings. The Crown opposed the applications. Both parties wished to adduce evidence about what had happened at the family conference.
The Defence Submission
32 Defence counsel submitted that the evidence was relevant to the court’s determination of the applications to dismiss the charge and stay proceedings on the grounds of immunity, abuse and unfairness. It was said that the evidence was necessary for a consideration of the application for a family conference pursuant to s 17(2).
33 It was further submitted that if the court declined to order a stay and found WBJ guilty then the evidence was relevant to sentence.
The Crown Submission
34 The Crown submitted that the Youth Court has a duty to fairly determine the defendant’s applications. This required the court to be informed about what had occurred at the family conference. It was further submitted that the court should only exclude such evidence if irrelevant.
35 The Crown also submitted that although diversionary in nature, the process of family conferencing is not entirely removed from the operation of the Youth Court. It forms an integral part of the administration of justice for young offenders.
Conclusions
36 On appeal both parties submitted that evidence of what occurred at a family conference was admissible if relevant to any proper enquiry before the court. I agree.
37 There is no legislative bar to the Youth Court being informed about family conference procedures, outcomes and undertakings and the extent to which those undertakings have been complied with. Section 13 does not prevent disclosure of information under any other provision of the Act.
38 In this matter, WBJ seeks a stay of the trial and the dismissal of the charge. Submissions are to be made that in the particular circumstances, WBJ did not breach any undertaking and is entitled to immunity from suit. An order will be sought that the charge be dismissed. Alternatively, it will be submitted that irregularities, unfairness and abuses of process have occurred during the family conference process which are sufficient to enliven the court's discretionary jurisdiction to stay proceedings. It will be further submitted that section 17(2) of the Act permits the Youth Court to refer the case to a family conference.
39 These applications require the Youth Court to be informed about what occurred at the family conference. The proposed evidence is relevant and admissible, subject to the conventional evidentiary rules.
The Questions Reserved
40 I consider that the reserved questions should be answered as follows:
Question Answer
1
In relation to the charge laid pursuant to s.12(8) of the Young Offenders Act. 1993, is the judicial officer presiding at the trial of [WBJ] for the offence referred to in paragraph 1 permitted by the Young Offenders Act, 1993, to receive evidence from the prosecution and the defendant about the family conference procedures, outcomes and undertakings and the extent to which those undertakings have been complied with by the defendant and the youth justice co-ordinator. Yes. 2 If yes to question 1, at what stage of the trial should the evidence be adduced? The evidence should be adduced prior to the trial commencing. .........
JUDGMENT CITATIONS LISTED AS THEY APPEAR IN THE JUDGMENT
1.................................................................................. See [15] for the terms of the Information.
2...... J Wundersitz and S Hetzel 'Family Conferencing for Young Offenders: The South Australian Experience' J Hudson, A Morris, G Maxwell & B Galaway Eds Family Group Conferences: Perspectives on Policy and Practice, Annandal: Federation, 1996 111-139
3...... Section 10
4...... R v PML [2001] SASC 79 20 March 2001 at [4-5]
0