R v JE & XZ[2016] QCHC 1

CHILDREN’S COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the Crown pursuant to s 110 of the Youth Justice Act 1992.  The application is that the children JE and XZ be tried jointly before a Judge and jury with an adult defendant, Isaiah Edmonds. 

2. [2]
   Each defendant is charged with assault occasioning bodily harm on Wayne Scholes in company, which offence is alleged to have taken place on 24 January 2015 at Gold Coast. Isaiah Edmonds is to be tried before a Judge and jury as an adult.

3. [3]
   JE wishes to have a Judge only trial before the Children’s Court pursuant to the provisions of the Youth Justice Act. 

The facts

4. [4]
   JE was born on 11 May 2000 and was 14 years of age at the time of the alleged offence. XZ was born on 2 October 1998 and was 16 at the time of the alleged offence. Isaiah Edmonds was born on 6 November 1997 and was 17.

5. [5]
   It is alleged that on 24 January 2015, XZ was invited to a party at Broadbeach Waters. The party was held by the 16 year old son of the residents. Ten people were originally invited who were aged around 16. All of the guests were drinking alcohol. The residents also had other adults over who were also drinking. The son of the residents alleges that around 10pm a number of uninvited guests turned up to the party. They were mainly from Miami High School. He alleges he did not know some of the uninvited guests but knew JE and Isaiah Edmonds.

6. [6]
   The residents tried closing the party but some of the uninvited guests remained. The complainant alleges he was able to get most of them out onto the street at the front of the house but two males argued with him wanting to return to the house to get a friend but he would not permit them to do so. He then alleges that a small Maori child came forward and pushed him in the chest and a tall Maori took a fighting stance. The complainant pushed the smaller boy away and then took a defensive stance towards the taller Maori but alleges he was kicked to the head from behind and went to the ground to protect himself and was then repeatedly kicked. Shortly after the Police were called, although they did not arrive.

7. [7]
   The Crown case is that all three defendants participated in an attack on the complainant. When the Police spoke to JE he alleged he had been pushed into a wall by the complainant and sustained an injury which required suturing.

Submissions by the defendants

8. [8]
   XZ does not oppose an order being made that he be tried on indictment with Isaiah Edmonds before a Judge and jury. JE opposes the order.

9. [9]
   JE, in submissions, submits that the discretion should not be exercised here. It is submitted, having regard to the principles of the Youth Justice Act, that it provides a code for the administration of juvenile justice.  Part of the code is to have juveniles tried by appointed Childrens Court Judges who are experienced in dealing with juveniles and to have trials without juries.  Such a provision promotes proceedings which are less intimidating for juveniles who may have to give evidence to twelve unknown people.  JE was only 14 years at the time of the alleged offence and will be 15 at the time of trial.  Self-defence is clearly raised and he will be required to give evidence.  It was pointed out that he has no criminal history with limited experience of the courts.  He is still in school. 

Crown submissions

10. [10]
    The prosecution submits that there should be a joint trial here. It is alleged that the case against each defendant will be brought on the basis of ss 7(1)(a) and 7(1)(c) of the Criminal Code 1899.  It is anticipated the trial will involve issues of identification and causation.  It might be expected that each accused could seek to blame the other.  It is submitted that the overriding principle is the policy consideration in having co-accused tried together. 

11. [11]
    In oral submissions the prosecutor pointed out also that it was not desirable to have two separate trials. It was submitted that a number of the witnesses to be called by the prosecution are also juveniles. Additionally, a doctor’s report (Exhibit 4) shows that the complainant who was born on 29 October 1968 has suffered post-traumatic stress disorder and depression as a result of the assault and requires ongoing psychological treatment. It would not be desirable for him to give evidence twice.

Disposition

12. [12]
    Section 110 of the Youth Justice Act provides:

“110  Removal to another jurisdiction for joint trial with another person

3. (1)
   The prosecution may apply to a Childrens Court judge for the removal of a committed proceeding to a court of competent jurisdiction other than a Childrens Court judge for the purpose of having the child tried on indictment with another person.

3. (2)
   If the judge is satisfied that—

1. (a)
   the child may lawfully be charged in an indictment in which the other person will also be charged; and

2. (b)
   if the child were so charged it is unlikely an application would be granted resulting in the child’s trial being had separately from the other person; and

3. (c)
   in all the circumstances, including the relevant principles of this Act, the proceedings should be removed as requested;

the judge may grant the request and remove the proceeding as requested.

3. (3)
   In removing the proceeding, the judge may exercise power as if the proceeding had been brought before the wrong court.”

13. [13]
    In this case there is no dispute that the child JE could lawfully be charged in an indictment with Isaiah Edmonds; and it is unlikely a separate trial would be ordered. The question is whether “in all the circumstances, including the relevant principles of this Act, the proceedings should be removed as requested”.

14. [14]
    It seems to me that the section reposes a wide discretion in the Court on the given facts of the case, although, of course, the relevant principles of the Act must be considered^[1].

15. [15]
    It must be observed that s 2 of the Youth Justice Act provides inter alia that the Act establishes the basis for the administration of juvenile justice and a code for the dealing with children who have or are alleged to have committed offences.^[2] 

16. [16]
    Also, s 3 provides:

“3  Youth justice principles

 (1)  Schedule 1 sets out a charter of youth justice principles.

 (2)  The principles underlie the operation of this Act.”

17. [17]
    Schedule 1, i.e. the charter of youth justice principles inter alia provides:

“2.   The youth justice system should uphold the rights of children, keep them safe and promote their physical and mental wellbeing.

3 A child being dealt with under this Act should be–

1. (a)
   Treated with respect and dignity, including while the child is in custody; and

2. (b)
   encouraged to treat others with respect and dignity, including courts, persons administering this Act and other children being dealt with under this Act.

4  Because a child tends to be vulnerable in dealings with a person in authority, a child should be given the special protection allowed by this Act during an investigation or proceeding in relation to an offence committed, or allegedly committed, by the child.

5  If a child commits an offence, the child should be treated in a way that diverts the child from the courts’ criminal justice system, unless the nature of the offence and the child’s criminal history indicate that a proceeding for the offence should be started.

6  A child being dealt with under this Act should have procedures and other matters explained to the child in a way the child understands.

7  If a proceeding is started against a child for an offence—

1. (a)
   the proceeding should be conducted in a fair, just and timely way; and

2. (b)
   the child should be given the opportunity to participate in and understand the proceeding.

8  A child who commits an offence should be—

1. (a)
   held accountable and encouraged to accept responsibility for the offending behaviour; and

2. (b)
   dealt with in a way that will give the child the opportunity to develop in responsible, beneficial and socially acceptable ways; and

3. (c)
   dealt with in a way that strengthens the child’s family.

9  A victim of an offence committed by a child should be given the opportunity to participate in the process of dealing with the child for the offence in a way allowed by the law.

10   A parent of a child should be encouraged to fulfil the parent’s responsibility for the care and supervision of the child, and supported in the parent’s efforts to fulfil this responsibility.

11   A decision affecting a child should, if practicable, be made and implemented within a timeframe appropriate to the child’s sense of time.

12   A person making a decision relating to a child under this Act should consider the child’s age, maturity and, where appropriate, cultural and religious beliefs and practices.”

18. [18]
    The High Court has held that when interpreting a statute^[3] the starting point is the statute itself but it must be considered in context including legislative history and extrinsic materials.

19. [19]
    In this regard I note that in the Second Reading Speeches by the then Minister the following was noted:

1. (a)
   The Juvenile Justice Bill was a code establishing a new basis for the administration of justice.

2. (b)
   A principle underlying the Bill was that children were considered vulnerable.

3. (c)
   A key feature of the Bill was the establishment of the jurisdiction of the Children’s Court Judge.

4. (d)
   A Children’s Court Judge is to have expertise in that jurisdiction.

20. [20]
    I also note that the Explanatory Memorandum concerning the Juvenile Justice Bill 1992 (Q) noted that for Clause 73 that removal “may be necessary if the child is conjointly charged with an adult”, as is the case here.

21. [21]
    I think it is fair to say that trial by a Childrens Court Judge only is often a desirable outcome for a child as Childrens Court Judges are experienced in dealing with children in the courts and having a trial before a Judge alone as compared to having a trial before Judge and jury may be less intimidating.

22. [22]
    On the other hand, there are “strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other.”^[4]

23. [23]
    In this case the following factors favour a joint trial:

1. (a)
   There will be issues of identification and causation;

2. (b)
   There may well be a dispute as to who exactly kicked the complainant whilst he was on the ground and whether the others were party;

3. (c)
   Were each defendant tried separately, it may be expected they could seek to place the blame on the other;

4. (d)
   It is undesirable that there be two separate trials where the same witnesses are called on each;

5. (e)
   It is undesirable there be the risk of inconsistent verdicts.

6. (f)
   The complainant has significant psychological problems which would potentially exacerbated by having to give evidence twice.

24. [24]
    Having considered all matters and applying the principles mentioned in the Youth Justice Act, in the exercise of my discretion, despite the age of the defendant and the fact he has no previous convictions, I consider it more desirable for there to be a joint trial, particularly in light of the matters discussed in [19] to [20] above.

25. [25]
    I consider that a Judge of the District Court on the joint trial can ensure that the child understands the proceedings and is not disadvantaged by them.

26. [26]
    I am satisfied that in all the circumstances, including the relevant principles of the Act, the proceedings against JE and XZ should be removed to the District Court to be tried with Isaiah Edmonds as requested.

27. [27]
    I therefore, grant the request by the prosecution and remove the proceeding as requested for the purpose of them being tried on indictment with Isaiah Edmonds.