CHILDREN'S COURT OF WESTERN AUSTRALIA ACT 1988 - SECT 19B
CHILDREN'S COURT OF WESTERN AUSTRALIA ACT 1988 - SECT 19B
19B . Jurisdiction and procedure for charges of indictable offences
(1) If a child is
charged with an indictable offence and —
(a) the
offence is such that, if an adult were charged with it, it must be tried on
indictment; or
(b) the
circumstances of the alleged offence are such that —
(i)
if an adult were charged with it, it could, by virtue of
section 5 of The Criminal Code , or another written law, be tried either on
indictment or summarily; and
(ii)
the Court, having complied with section 40(2) of the
Criminal Procedure Act 2004 , decides that it is to be tried on indictment,
the child may elect to
be tried on indictment by the Supreme Court or the District Court (as the case
requires), and the Court shall so inform the child.
(2) If a child is
charged with an indictable offence and the circumstances of the alleged
offence are such that the child is not entitled to make an election under
subsection (1), the Court shall, subject to the provisions referred to in
section 19(1), hear and determine the charge summarily.
(3) If the child makes
an election under subsection (1) the Court shall proceed under Part 3 Division
4 of the Criminal Procedure Act 2004 as if the charge were one that must be
tried on indictment.
(4) If a child does
not make an election under subsection (1) —
(a) the
Court, on its own motion or on the application of the child, may direct the
prosecutor —
(i)
to serve or cause to be served on the child (or the
child’s solicitor or counsel) and to lodge with the Court, within such
time as is specified, any document that is required to be disclosed under
section 95 of the Criminal Procedure Act 2004 ; and
(ii)
to afford the child (or the child’s solicitor or
counsel) reasonable opportunity to inspect any material exhibits that the
prosecution proposes to tender at the hearing of the charge;
and
(b) on
the making of a direction under paragraph (a), the State acting by the
Attorney General or some other duly appointed person shall assume the conduct
of the prosecution and shall be taken to be the prosecutor; and
(c) the
Court shall, subject to the provisions referred to in section 19(1), hear and
determine the charge, and may exercise any power in Part 4 or 5 of the
Criminal Procedure Act 2004 , as if the prosecution notice were an indictment,
and the hearing were a trial on indictment and the Criminal Procedure Act 2004
shall apply with such modifications as circumstances require; but the child is
not thereby entitled to have any issue tried by a jury; and
(d)
subject to Part 5, the child, if convicted, shall, for the purposes of
punishment and orders, procedures, and proceedings consequential on
conviction, be taken to have been convicted on indictment, notwithstanding
that the child may have been convicted by the Court when constituted other
than by a judge.
(5) If a copy of a
statement of a person is served in accordance with a direction made under
subsection (4)(a)(i), the original of the statement may be produced and given
in evidence at the trial of the child —
(a) if
it is proved to the satisfaction of the Court that the person is dead, or out
of Western Australia, or so ill as not to be able to travel, although there
may be a prospect of the person’s recovery; or
(b) if
the person is kept out of the way by the child.
(6) If there is a
prospect of the recovery of a person proved to be too ill to travel, the Court
shall not be obliged to receive the statement, but may postpone the trial.
[Section 19B inserted: No. 15 of 1991 s. 11;
amended: No. 71 of 2000 s. 40; No. 65 of 2003 s. 122(2); No. 4 of 2004 s. 58;
No. 59 of 2004 s. 69 and 73; No. 84 of 2004 s. 13, 18 and 80.]