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R v ASM[2019] QCHC 7



R v ASM [2019] QChC 7









Children’s Court




Children’s Court at Cairns


2 April 2019 (delivered ex tempore)




2 April 2019


Fantin DCJ


Application dismissed.


CRIMINAL LAW –  JURISDICTION, PRACTICE AND PROCEDURE – Information, Indictment or Presentment - whether child should be tried jointly on indictment with adult in the District Court


Youth Justice Act 1992 (Qld) s 110 and Schedule 1


R v JE & XZ [2016] QChC 1

Webb v R [1994] 181 CLR 41


E Coker for the Applicant

R Logan for the Respondent


Cairns Office of the Director of Public Prosecutions for the Applicant

Richardson Eckersley Lawyers for the Respondent 

  1. [1]
    This is an application by the Crown pursuant to section 110 of the Youth Justice Act 1992 that the child, ASM, be tried jointly on indictment with an adult, Emily Mitchell, in the District Court.
  1. [2]
    The child, ASM, is currently committed to the Children’s Court on one count of robbery in company, with actual violence. At the time of the alleged offence, ASM was 16 years old. Mitchell was 22 years old and was committed to the District Court of Queensland. The Crown applies to have both co-offenders joined on one indictment and the charge relating to the child, ASM, removed from the Children’s Court to the District Court, so both can be tried together before a jury. The child, ASM, wishes to have a judge only trial in the Children’s Court, pursuant to the provisions of the Youth Justice Act
  1. [3]
    The alleged circumstances of the offending were these.
  1. [4]
    The complainant is a 39 year old woman who worked in a takeaway at a night market food court. On 9 July 2018, at about 8.20 pm, the child, Mitchell and a male walked past the takeaway shop that the complainant was working at. The male is alleged to have grabbed some food from a bain-marie and kept walking. The complainant followed the group to warn them not to steal food from the shop. She followed the two females into the female toilets. They entered a single cubicle. The complainant waited for them outside the cubicle. Mitchell exited the cubicle. The complainant took a photograph of her on a mobile phone. Mitchell went back into the cubicle and closed the door. The complainant told the child and Mitchell not to steal from her shop again and that she had photographic evidence. The alleged offenders opened the cubicle door. The complainant took another photo. At that point, it is alleged that one of the offenders snatched the phone from the complainant’s hand. Mitchell then threw it into the toilet. The child tried to flush it down the toilet before the complainant retrieved it from the water.
  1. [5]
    The Crown further alleges that the child then put her hand around the complainant’s neck and punched her in the head numerous times. Mitchell also punched and pushed the complainant. The child is alleged to have grabbed the phone from the complainant again. Both offenders then left the bathroom. The complainant followed them down the corridor leading out to the food court, where they ultimately ran off. The mobile phone has not been located. There is closed-circuit television footage and evidence from attending police officers, relevant to the charge. Mitchell provided a recorded interview in which she asserted that the child inflicted the violence upon the complainant but that neither of them stole the phone.
  1. [6]
    The application is made by the Crown pursuant to section 110 of the Youth Justice Act.  That section provides that the prosecution may apply to a Children’s Court judge for the removal of a committed proceeding to a court of competent jurisdiction, other than a Children’s Court judge, for the purpose of having the child tried on indictment with another person.  Section 110(2) sets out three pre-conditions to the exercise of the court’s discretion.  First, that the child may lawfully be charged on an indictment in which the other person will also be charged.  Second, that if the child were so charged, it is unlikely an application would be granted, resulting in the child’s trial being heard separately from the other person.  Third, in all the circumstances, including the relevant principles of the Youth Justice Act 1992, the proceedings should be removed, as requested. 
  1. [7]
    If all of those pre-conditions are satisfied, the judge may grant the request and remove the proceeding, as requested.
  1. [8]
    In this case, subsections 110(2)(a) and (b) are not in issue. That is, the child accepts that this is a matter in which the child may lawfully be charged on an indictment with Mitchell and that if the child were so charged, it is unlikely an application would be granted, resulting in the child’s trial being heard separately from Mitchell’s.
  1. [9]
    The only question, therefore, is whether, in all the circumstances, including the relevant principles of the Act, the proceedings should be removed as requested.
  1. [10]
    The consequence of an order under section 110 is that the provisions of Division 7 of the Youth Justice Act, authorising a trial before a judge sitting without a jury, do not apply to a proceeding removed to another court under the subsection.  Therefore, the effect of making the order sought by the Crown would be (absent some future application) to deprive the child of the opportunity for the matter to be dealt with as a judge alone trial. 
  1. [11]
    In this case, the child has elected under section 98(2)(a) of the Youth Justice Act 1992 to be committed for trial before a judge sitting without a jury and has not withdrawn the election under section 103(3) of that Act.  Therefore, if not for the Crown application being successful, the charge against the child would be heard by a Children’s Court judge sitting without a jury under section 102. 
  1. [12]
    Before turning to the parties’ submissions, I record for completeness that I have considered and taken into account the Youth Justice principles set out in Schedule 1 of the Youth Justice Act 1992.  The principles that seem to me to be particularly relevant in this contested application are these.  Principle 2 requires that the Youth Justice system should uphold the rights of children and keep them safe and promote their physical and mental wellbeing.  Principle 3 requires that a child being dealt with under this Act should be treated with respect and dignity.  Principle 4 provides that 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 a proceeding in relation to an offence allegedly committed by the child.  I pause to observe that one of the protections allowed by the Youth Justice Act is the protection of a judge alone trial for children.  Principle 7 provides that the proceeding should be conducted in a fair, just and timely way and a child should be given the opportunity to participate in and understand the proceeding.  Principle 11 is that a decision affecting a child should, if practicable, be made and implemented within a timeframe appropriate to the child’s sense of time.  That principle is particularly relevant to the fact that I have elected to deliver ex tempore reasons on this application.  Principle 12 is that a person making a decision relating to a child under this Act should consider the child’s age and maturity. 
  1. [13]
    I turn now to summarise the relevant submissions of the parties. The Crown argues that the overriding principle in this case is the policy consideration in having co-offenders tried together, especially if at trial each co-offender could seek to blame the other.[1]  It further submits that it is undesirable to have the complainant or other Crown witnesses give evidence twice.  It submits that if the matter proceeded by way of a joint trial of both co-accused before a jury, a judge of the District Court could ensure that the child understands the proceedings and would not be disadvantaged by them.  In those circumstances, the Crown submits that, despite the age of the child and the fact that she has no previous convictions, it is desirable for there to be a joint trial.  
  1. [14]
    Neither of the parties was able to identify any decisions which have considered section 110 of the Youth Justice Act (Qld), save for the decision of this Court in R v JE and XZ.[2]  The Crown relies upon that decision here. 
  1. [15]
    I respectfully agree with the statement of Smith DCJA at paragraph 14 in that case, that the section reposes a wide discretion in the court on the given facts of the case, although the relevant Youth Justice principles of the Act must be considered together with all of the other relevant circumstances.
  1. [16]
    I also agree with his comments at paragraph 21, that a judge only trial by a Children’s Court judge is often a desirable outcome for a child. Children’s 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 a judge and jury, may be less intimidating. I would add to that, that the Act goes further and gives children special protections during investigations and proceedings because of their vulnerability in dealing with persons in authority. One of those, of course, is the election to have a judge alone trial.
  1. [17]
    Turning to the respondent’s submissions, the respondent points out that the child was 16 years old at the time of the offending and is now 17. She has no criminal history of any kind. The respondent seeks to distinguish the factors which favoured a joint trial in the decision of JE and XZ.  I have taken into account those submissions. 
  1. [18]
    The respondent further submits that there is no direct evidence here to suggest that the child or her co-accused, Mitchell, permanently deprived the complainant of the phone. That is the real issue at trial that the Crown must prove.
  1. [19]
    The respondent notes that this is the child’s first time before any court, and that she has no experience in the justice or court system. There is a real probability that her evidence will be called. The respondent emphasises the Youth Justice principle that a child tends to be vulnerable and should be given the special protection allowed by the Act. It further emphasises principle 2, that the Youth Justice system should keep children safe and promote their physical and mental wellbeing. That particular principle is said to be highly relevant here because this child is particularly vulnerable.
  1. [20]
    There is affidavit evidence from the child’s solicitor, on information and belief, to the effect that the child has a real fear about giving evidence in front of a jury. In support of that, the affidavit exhibits the child’s medical records. These medical records state that on 24 January 2018, that is some five months before the alleged offence, the child saw a medical practitioner. The medical records state that the child had been suffering anxiety for six years and was seeking a new referral to a psychologist for continued counselling. They record that at that point the child had been having counselling with a psychologist for some 18 months. A mental health care plan was entered into on that date to permit the child to continue to obtain counselling. There are also medical records from almost one year later, on 26 February 2019, in which the child saw another medical practitioner. That medical practitioner recorded that the child presented with a history of depression and anxiety, with suicidal thoughts and attempts and that she was depressed and anxious. The child was described an anti-depressant but did not tolerate that and ceased taking that medication.
  1. [21]
    On the basis of that evidence, the respondent submits that the child is particularly vulnerable, that she is fearful of giving evidence before a jury and that there is a real risk that her mental wellbeing may be adversely affected or compromised should she have to give evidence before a jury.
  1. [22]
    I am satisfied that there are a number of factual bases upon which the court’s decision in JE and XZ may be distinguished from the case before me. 
  1. [23]
    First of all, that case concerned issues of identification and causation, whereas here those matters are not in issue at all. The principal issue is whether the Crown can prove that the mobile phone was taken by the child. The evidence is that every party left the cubicle. The child accepts that violence was inflicted but denies taking the mobile phone. That is consistent with the record of interview of her co-accused, Mitchell. Therefore, it is very likely that the child will have to give evidence. This is not, in that sense, a case where each defendant, if tried separately, would seek to place the blame on each other for the theft of the phone.
  1. [24]
    I have already referred to the affidavit evidence about the child’s medical history, including of depression, anxiety and suicidal thoughts. Those matters are not present in JE and XZ
  1. [25]
    In addition, in JE and XZ, the complainant had significant psychological problems, which would potentially be exacerbated by having to give evidence twice.  That is not the case here.  There is no suggestion of vulnerability on the part of the complainant, although I do take into account the undesirability of her having to give evidence twice. 
  1. [26]
    In addition, this is not a case where there are multiple witnesses and there would be cost and efficiency considerations militating against two trials. In this case, the evidence is very straight forward. The principal Crown witness is the complainant. Otherwise, the Crown proposes to call some minor witnesses, none of whom are eyewitnesses, and there is CCTV footage.
  1. [27]
    Taking all of the relevant matters into account and, in particular, the child’s age, her lack of criminal history, the medical evidence of her mental health problems and vulnerability and the principles in the Youth Justice Act, in the exercise of my discretion, it is appropriate that the child be tried in the Children’s Court in a judge alone trial. 
  1. [28]
    I decline to exercise my discretion to order that the child be tried on the indictment with Mitchell, an adult. Therefore, I dismiss the application.


[1] Webb v R [1994] 181 CLR 41, 88 - 89.

[2] [2016] QChC 1.


Editorial Notes

  • Published Case Name:

    R v ASM

  • Shortened Case Name:

    R v ASM

  • MNC:

    [2019] QCHC 7

  • Court:


  • Judge(s):

    Fantin DCJ

  • Date:

    02 Apr 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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