• Specific Year
    Any

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.]