X (A Child) v The State of Western Australia
[2008] WASC 300
•17 DECEMBER 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: X (A Child) -v- THE STATE OF WESTERN AUSTRALIA [2008] WASC 300
CORAM: MURRAY J
HEARD: 17 DECEMBER 2008
DELIVERED : 17 DECEMBER 2008
PUBLISHED : 18 DECEMBER 2008
FILE NO/S: MCS 37 of 2008
BETWEEN: X (A Child)
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law and procedure - Bail - Child charged with murder - Whether bail should be refused for protection of child - Whether offence so serious that bail inappropriate - Whether application should be heard in camera
Legislation:
Bail Act 1982 (WA), s 14, s 15, s 20, Sch 1 Pt C, cl 1, cl 2, cl 3
Young Offenders Act 1994, s 7(h)
Result:
Order that applicant be admitted to bail on conditions
Suppression order made
Category: B
Representation:
Counsel:
Applicant: Mr R W Richardson
Respondent: Mr J C Whalley
Solicitors:
Applicant: Lavan Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
'P' (A Child) v State of Western Australia [2006] WASC 174
MURRAY J:
The charge
The applicant is charged with murder. He was born on 30 October 1991 and he is therefore 17 years of age. The matter is before the Children's Court, which has remanded the applicant in custody to his next appearance in that court on 22 December. Counsel for the applicant informed me that, when appropriate, the applicant will plead not guilty and will elect a trial by judge and jury in this court. The committal process may be somewhat delayed because the investigation by the police continues and, I was told by counsel for the respondent, that on 22 December an adjournment would probably be sought to enable the prosecution to completely fulfil its disclosure obligations.
However that may be, the applicant has been in custody since his arrest on 1 November 2008. If the matter comes to this court and is to go to trial, it would seem unlikely that the trial could be held before May 2009, but I am told by the responsible court officer that in all likelihood dates could be made available in May, 2009, if the parties can be ready for trial by then.
The applications
There are two applications before the court. The principal application is for bail, but there is also an application that the hearing of the bail application be in camera.
The evidence before the court in relation to both applications was in affidavit form. There was an affidavit sworn by a Ms Mukund, a solicitor in the firm acting for the applicant. She annexed, and I received in evidence, an affidavit and various witness statements, all of which constituted substantially the prosecution brief. There are over 200 pages of that material, all of which I read.
In addition, Ms Mukund annexed to her affidavit, an application made for bail to the Children's Court. It was heard on 14 November, and the application was refused for reasons published by the President of the Children's Court, Reynolds DCJ. The applicant gave evidence in those proceedings in relation to a threat made towards him at the court. The transcript of those proceedings is 78 pages long. I have familiarised myself with that document and with the judgment of his Honour published on 18 November 2008, when his Honour refused the grant of bail, for the reasons he gave, on the ground that to grant bail would be 'inappropriate' within the meaning of the Bail Act 1982 (WA). I shall return to that issue in due course, but it is convenient at the outset to make the point that the proceedings before me were, in no sense, an appeal from the decision of his Honour, but were original proceedings imposing upon me the responsibility of determining the application for bail made to this court.
Informally during the Children's Court proceedings, it seems that counsel appeared for unidentified clients having an interest in the publication of material by way of a report of the proceedings. This debate occurred after the substantive hearing of the application for bail was conducted in camera, at least to some extent. It seems that representatives of media organisations may have been present, and certainly the court permitted, 'the representatives of the parties, the accused and the police and court staff' (ts 9) to be present.
Ultimately, there appears to have been general agreement to a suppression order made by the Children's Court on 18 November, when his Honour finally decided the application. That order, operative until further order of the court, precludes publication of particular matters identified in the order, concerning statements made in materials before the court or in the course of the proceedings.
In addition to the materials discussed above, there was in evidence before me an affidavit by the applicant's mother concerned with certain threats which had come to her attention, and concerned with her occupation, residence and other matters relating to the question whether she might be a 'responsible person' within the meaning of the Bail Act, again an issue to which I shall return.
Further, counsel for the respondent made an affidavit which was received in evidence. Its importance was in the material annexed, an affidavit and statements concerned with threats said to have been made against the applicant which had come to the attention of investigating police officers, and a transcript of a videoed interview conducted by investigating police officers with the applicant on 1 November 2008. The interview was apparently conducted in two parts, the first in the presence of the applicant's older brother and the second in the presence of his mother. The applicant makes certain admissions. The transcript comprises 39 pages of material which I have read.
Finally, to complete the picture, both the applicant and the respondent not only presented oral argument by counsel, but written outlines of submissions.
The application that the proceedings for bail be in camera
This application relied upon s 20 of the Bail Act 1982 (WA) which, so far as material, is in the following terms:
Power to consider bail in camera and to prohibit publication
(1)On the consideration by a judicial officer of a case for bail of an accused who is charged with an offence triable by jury, the judicial officer may, to avoid prejudice to either party, exercise the powers described in subsection (2), but shall only exercise the power in paragraph (b) thereof if he considers that the exercise of the power in paragraph (a) is not, on its own, likely to be sufficient to avoid prejudice.
(2)The powers referred to in subsection (1) are to order -
(a)that no report, or summary, of any statement, or of any specified statement, made or furnished at the hearing shall be published by any means;
(b)that the bail application be heard in camera.
Section 20(3) provides that, in a case such as this, a prohibition of publication will apply, if the matter ultimately goes to trial, until the trial is ended.
The section operates as a detraction from the ordinary principle that the business of the court is conducted in open court and subject to the wider scrutiny which is available when proceedings in the court are published in any form by the media to the world at large, or at least to a section of the community in which a particular publication may circulate. The power conferred is discretionary in character, but the section operates upon the basis that the general principle of open proceedings may have to give way in the face of prejudice which would arise from publication, to the interests of either the prosecution or the defence. The word 'prejudice' is not defined by the Act. It bears its ordinary meaning that in the circumstances of the case the position of one party or the other, or perhaps both, is adversely affected or may potentially be harmed in the context of the proceedings before the court.
In relation to the prohibition of publication, I note that s 20(2)(a) refers to the publication of a report or summary, 'of any statement, or of any specified statement, made or furnished at the hearing'. All or any of such statements may be prohibited from publication. As has been seen, the response of the Children's Court was to make an order prohibiting publication of specified statements. A 'statement' in this context simply refers to anything said, either in writing or orally at the hearing. A statement is 'furnished' at the hearing if it is provided and accepted into evidence or accepted as material to which the judge may have recourse in the context of the proceedings. I have set out above all the materials that were so furnished to me. All of that material constitutes statements made or furnished at the hearing within the meaning of the section.
In support of this application, the applicant particularly relied upon the prejudice which might be occasioned in the context of a jury trial by the publication of statements made in the videoed interview because, I was told, it was likely that the applicant would object to the admission of that material in evidence at the trial. In this regard, the prejudice relied upon was of the ordinary kind, that a fair report of the bail proceedings might involve the publication of material in a case which has already attracted public interest which might not, in the end, be admissible in evidence. There is material in the statements of witnesses to which objection might be taken, and it is by no means clear to what extent those statements may be adduced in evidence.
Further, there is material before me which bears upon where the accused or his family might be found and, as I have intimated, there is evidence, without commenting upon its cogency, that some in the community have expressed an interest in exacting retribution upon the applicant for what he is presumed to have done. A vigilante mood has been at large in the immediate community from which the applicant comes. Here, the prejudice relied upon is not prejudice to the position of the applicant upon his trial for the offence of murder, but direct prejudice to the person and property of the applicant and other members of his family.
I accepted those arguments and I thought it desirable that there be no publication to the community at large which would prejudice, in the sense that it would potentially harm, either the position of the applicant as the accused person in his trial, or the safety of the applicant and members of his family or their property.
The sort of prejudice in issue did not, however, to my mind, mean that interested persons should be prevented from being present at the proceedings on the bail application. I declined to order that the application be heard in camera. A number of people were present as spectators. I was told that those persons included members of the immediate family of the applicant, his mother and brother, as well as persons identified with the deceased. A few representatives of the media were present in court for all or part of the hearing.
I considered that there was a danger that publication generally to the community in advance of a trial by jury which might, if the parties were ready, be conducted relatively quickly, would have the potential to harm and therefore would cause prejudice to the position of the applicant as the accused at trial as well as presenting a danger of harm to his person, to members of his family and to their property. I found it impossible to effectively distinguish between those statements which would have that tendency and those statements which may not.
I therefore made an order precluding until further order, but of course not beyond the times given in s 20(3), the publication of any statement made or furnished at the hearing, except statements made by me in the course of my delivery of ex tempore reasons upon the bail application and except in these reasons formally published as a judgment of the court. I was able to permit that publication because in those ex tempore reasons and in this judgment I have taken care to avoid any identification of the applicant, anything which might inflame members of the community, and anything which might cause prejudice to the applicant at his trial.
The law governing the application for bail
Subject to exceptions which, for present purposes, need not be mentioned, s 15 of the Bail Act confers exclusive jurisdiction to determine an application for bail by an accused who is in custody charged with murder upon a judge of the Supreme Court or, as in this case, if the accused is a child, upon a judge of the Children's Court. As we have seen the jurisdiction was exercised by the President of the Children's Court, Reynolds DCJ.
The matter now comes before this court pursuant to s 14 of the Bail Act, which gives to a judge of this court the power to grant bail in a case where the jurisdiction is conferred upon any other judicial officer. That power may be exercised whether or not there has been a previous grant or refusal of bail by another judicial officer, but, except in changed circumstances or where there has been a failure to adequately present a case for bail, a judge of the Supreme Court may only be approached to exercise the jurisdiction once.
The jurisdiction to determine an application for bail, in the case of a child, is primarily governed by the Bail Act, Sch 1 Pt C cl 2. The material portion of cl 2 is as follows:
Child to have qualified right to bail
(1)In this clause -
responsible person means a parent, relative, employer or other person who, in the opinion of the judicial officer or authorised officer, is in a position to both influence the conduct of the child and provide the child with support and direction.
(2)Subject to subclause (3), a child accused who is in custody awaiting an appearance in court before conviction for an offence has a right to be granted bail unless -
(a)in the opinion of the judicial officer or authorised officer in whom jurisdiction is vested -
(i)one or more of the questions set out in clause 1(a), (b), (d) and (g) must be answered in the affirmative; and
(ii)there is no condition which he could reasonably impose under Part D which would satisfy the relevant provision of clause 1(e);
or
(b)there is no responsible person willing to enter into an undertaking of the kind described in subclause (3)(c),
and if the child is refused bail he shall be dealt with in accordance with section 19(2) of the Young Offenders Act 1994.
(3)The right of a child accused under subclause (2) is subject to -
(a)clause 3A; and
[(b)deleted]
(c)there being imposed as a condition on the grant of bail a requirement that before the release of the child on bail a responsible person undertakes in writing in the prescribed form to ensure that the child complies with any requirement of his bail undertaking mentioned in section 28(2)(a), (b), (c) and (d).
The qualified right to bail conferred upon a child is not restricted by the offence with which the child has been charged. In my view also, the onus to persuade the judge to hold the opinion to which cl 2(2)(a) refers rests upon the respondent to the application for bail. By that provision, the court is referred back to relevant provisions of cl 1 which ordinarily control the exercise of a discretion to grant or refuse bail.
Relative to this case, the material parts of cl 1 are as follows:
Subject to clause 3A, the grant or refusal of bail to an accused, other than a child, who is in custody awaiting an appearance in court before conviction for an offence shall be at the discretion of the judicial officer or authorised officer in whom jurisdiction is vested, and that discretion shall be exercised having regard to the following questions as well as to any others which he considers relevant -
(a)whether, if the accused is not kept in custody, he may -
(i)fail to appear in court in accordance with his bail undertaking;
(ii)commit an offence;
(iii)endanger the safety, welfare, or property of any person; or
(iv)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
(b)whether the accused needs to be held in custody for his own protection;
…
(e)whether there is any condition which could reasonably be imposed under Part D which would -
(i)sufficiently remove the possibility referred to in paragraphs (a) and (d);
(ii)obviate the need referred to in paragraph (b); or
(iii)remove the grounds for opposition referred to in paragraph (c);
…
(g)whether the alleged circumstances of the offence or offences amount to wrongdoing of such a serious nature as to make a grant of bail inappropriate.
It will be observed that the matters referred to in cl 1(a), subject to the imposition of any condition as described in cl 1(e), are matters concerned with the judgment about the likelihood of the accused, if admitted to bail, duly answering to the bail, interfering with the course of justice in relation to the offence with which the accused is charged and the extent to which, by further offending or otherwise, the accused may, if at liberty, be a danger to any person or their property. Clause 3A is not presently relevant, but cl 3 is. It provides:
In considering whether an accused may do any of the things mentioned in clause 1(a), the judicial officer or authorised officer shall have regard to the following matters, as well as to any others which he considers relevant -
(a)the nature and seriousness of the offence or offences (including any other offence or offences for which he is awaiting trial) and the probable method of dealing with the accused for it or them, if he is convicted;
(b)the character, previous convictions, antecedents, associations, home environment, background, place of residence, and financial position of the accused;
(c)the history of any previous grants of bail to him; and
(d)the strength of the evidence against him.
Clause 1(b) speaks for itself. It is relied upon by the respondent, as is cl 1(g), which I have found difficult to interpret. Although there have been one or two cases when cl 1(g) has been applied and bail refused, there is no authority which illuminates the meaning of this subclause. I refer particularly to the decision of Blaxell J in 'P' (A Child) v State of Western Australia [2006] WASC 174. The case concerned a child charged with a series of offences arising out of a sexual assault. Factually the case was quite different from this, and although the offences were found to be so serious that bail was inappropriate, the case has no precedent value for present purposes.
Subclause 1(g) was introduced into the Act as part of a wide‑ranging process of amendment in 1998. In introducing the Bill in the Legislative Council, in his second reading speech, the Hon Peter Foss MLC, the Attorney General of the day, said:
Refusal of bail on grounds of seriousness of alleged offence: Another important aspect of the Bill is that it has provisions which will make the granting of bail inappropriate where the alleged circumstances of the offence amount to wrongdoing of a serious nature. While it may be that a person charged with a particularly vicious crime is likely to appear in court in accordance with his or her undertaking, and is unlikely to commit further offences or endanger witnesses or any other person or otherwise obstruct the course of justice, there are clearly times when the sheer seriousness of the circumstances of the crime itself make it inappropriate to release the person on bail (Hansard, 10 September 1998, p 1170).
I think those remarks assist to make it clear that when cl 1(g) refers to the alleged circumstances of the offence amounting to wrongdoing of a serious nature, it is not referring to the nature of the offence as such, with which the accused is charged, but the particular circumstances of its commission. The Hon Attorney General referred to the commission of 'a particularly vicious crime'. This seems to me to be a reference to a matter different from the nature and seriousness of the offence to which cl 3(a) refers.
Clause 1(g), it seems to me, requires an inquiry, in this case not merely as to the fact that the applicant is charged with murder, but as to whether there is evidence apparently available to support the view that the alleged circumstances of the commission of the offence, if established at trial, would make this an example of the crime of murder so serious as to take it out of cases of murder generally and elevate it to a degree of seriousness sufficient to persuade the court that on that ground alone bail should be refused because it would be 'inappropriate' to grant bail.
The difficulty of an inquiry of that kind and the subjective nature of the judgment at which the court is asked to arrive is manifest. Particularly is that so when the charge is one of murder, a crime which, putting to one side cases of felony murder, is defined in s 279 of the Criminal Code to be an offence committed when, not only has the accused unlawfully killed another, but he has done so intending to kill or to cause bodily injury of such a nature as to endanger or be likely to endanger life. Further, the judgment to be made is difficult when the exercise of discretionary judgment would otherwise cause the court to conclude that bail, properly conditioned, should be granted, and the difficulty is further exacerbated, in a case such as this, when the court is dealing with a child who may, on ordinary considerations, establish a right to bail.
The alleged circumstances of the commission of the offence
It is very difficult, on the papers in this case, to gauge with any accuracy the strength of the prosecution case. The incident which caused the death of the victim occurred, apparently, in a park, at night, and in darkness, although it is clear that some things could be seen. Unsurprisingly, in those circumstances, there is some confusion in the accounts given in the statements which are available. In the end, I think, no more can be said at this juncture than that the deceased was, in all probability, killed by a blow to the head. As I understand it, the forensic evidence will establish injuries consistent with one blow delivered with some force.
The prosecution alleges that the blow was delivered using a piece of timber some 60 ‑ 80 centimetres in length and about 4 centimetres square. The force of the blow was sufficient to break the piece of timber. The applicant made admissions in the videoed interview, subject, of course, to the possibility that there may be an objection to their admissibility. The applicant admitted, however, that he held the timber and delivered one blow with some force. He made no admission as to the intention with which the blow was delivered. There is no evidence that the deceased or the person with him were armed.
The evidence which might emerge from the account given by the applicant might also suggest that the applicant, who already had the timber, was in company with another who was being set upon or assaulted by the person who was killed, and he would not stop the assault. The applicant is said to have panicked and struck the blow which caused the death, in defence of his friend.
Clearly at trial, on the basis that death was caused by a blow with the piece of wood and that the blow was deliberately struck, questions will arise, to be determined by the jury, as to the intention, if any, with which the blow was struck. As I understand it, as at present advised, the prosecution would not suggest that there was an intention to kill, but, it seems, the argument will be that there is an inference which the jury may draw from the circumstances that the applicant struck the blow with the intention to do serious harm of the kind to which s 279 of the Code refers. Alternatively, it would be put, there was a clear unlawful killing, so that if a verdict of murder was not to be returned, the proper verdict would be one of manslaughter.
On the other hand, for the applicant it is put that, whether or not the blow might be regarded as a proportionate response to the nature of the assault upon the applicant's friend, issues of self‑defence or aiding in self‑defence arise in circumstances which may negate the applicant's criminal responsibility, particularly in circumstances where, it is submitted, there is no evidence that the applicant's conduct was of a sustained nature and no evidence that he acted other than in panic on the spur of the moment.
I accept that the issues to which I have referred above are live and, so far as cl 1(g) is concerned, I can, I think, say no more than that, having regard to the circumstances alleged, I am not prepared to take the view that a grant of bail would be 'inappropriate' having regard to the nature of the wrongdoing alleged in the circumstances of the case. However, having said that, I repeat the point that I do not overlook, in relation to the consideration of the grant or refusal of bail, that there is evidence of some strength capable of establishing the crime of murder to the requisite standard of proof, and that the nature of the offence charged is among the most serious, if not the most serious known to the law. If convicted of murder, under s 279(5) of the Code, the applicant would be punished by a sentence of life imprisonment, or indefinite detention until released by order of the Governor in Executive Council.
Other considerations relating to the grant of bail
I have given the applicant's age. Ordinarily he resides at the home of his mother, with her and his elder brother. His mother is employed for four days a week in steady employment. The applicant has not completed year 12 of his secondary schooling, but having left school to enter the workforce, has been in casual employment at a fast food outlet. The applicant's behaviour as a child and his antecedents generally are unremarkable. There is no prior adverse bail history and nothing of any consequence by way of a previous record. The applicant has no passport and no financial capacity of any substance.
I am satisfied that I may not find that the applicant, released on bail, presents a risk of flight of any significance. Nor is it established to be likely that, at liberty in the community, he would commit any offence or endanger the safety, welfare or property of any person. To the extent that there may be a risk that he may interfere with witnesses, that and the other considerations to which I have referred are clearly amenable to control by appropriately worded conditioning of a bail undertaking. I will return to that matter shortly.
Whether the applicant should be kept in custody for his own protection
There is evidence that persons who may be connected in various ways with the deceased, so sadly killed in the circumstances described above, have threatened to take the law into their own hands and exact their own retribution for the crime of which, they suppose, the applicant is guilty. He was subjected to threatening behaviour by persons present in the Children's Court when he came into court on 14 November. The affidavit of Mr Whalley puts before the court an affidavit and statements by investigating police officers who have had brought to their intention, and properly bring to the attention of the court, that there has been talk in the community during the investigation about the possibility of retaliatory attacks, including discussion among young people in computer chat rooms. The material lacks cogency. It does not appear to be current, and it is hearsay upon hearsay. Informants told the police that they understood that others were planning some retaliation.
Information of this kind is deposed to by the applicant's mother. It relates to information which she received immediately after the applicant was arrested and charged. She did not know whether to take such information seriously. It sounded to her 'to be childish'. No such threat was made to her, or directly to the applicant's elder brother, and again the material is not current. However, the applicant's mother did report what she had been told to the police. There is no evidence before the court of any development in any investigation of such matters. But she has, nonetheless, moved the family home to a location which she now keeps generally secret and which, relative to these proceedings, has been supplied confidentially to the court and to the police officer in charge of the investigation.
Having regard to the nature of the information before the court, I am not prepared to conclude that the applicant needs to be held in custody for his own protection, nor that, to the extent that there is any risk, it may not be alleviated by appropriately conditioning the grant of bail.
Bail is granted
Having regard to the matters discussed above and, importantly, not overlooking the general admonition in the Young Offenders Act 1994 (WA), s 7(h), that it is a general principle in performing functions under that Act that:
Detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as is necessary;
I concluded, after hearing argument, that bail should be granted in this case, on the undertaking of the applicant, until the date of his next appearance in the Children's Court on 22 December 2008.
In compliance with cl 2(3)(c), I required a written undertaken in the statutory form from the applicant's mother who, I was satisfied, was a 'responsible person' as defined in cl 2(1). In addition, having regard to what I perceived to be the extent of the flight risk, the extent of such risk as there was of further offending, and the extent of the risk that the applicant might interfere with witnesses, I imposed a series of protective conditions.
The applicant is to reside at the residential address notified confidentially to the court and to the police, he is to give 24 hours notice of any proposed change of address, he is to report to the officer in charge of a confidentially nominated police station between the hours of 10 am and 4 pm on Tuesdays and Fridays. He is not to go to the airport. He is to abide by a curfew that he be at home between the hours of 7 pm and 7 am. Finally, he is not to contact or interfere, directly or indirectly, with any person identified as a person who is to be, or who may be, called by the prosecution as a witness at the trial.
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