Adlem v The Queen - [1999] WASCA 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: ADLEM -v- R [1999] WASCA 1

CORAM: PIDGEON J
ANDERSON J
HEENAN J

HEARD: 16 & 25 FEBRUARY 1999

DELIVERED : 5 MAY 1999

FILE NO/S: CCA 19 of 1998
CCA 168 of 1998

BETWEEN: SHAUN DAVID ADLEM
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Jurisdiction - Adult convicted in District Court of offences committed when a child - Exclusive jurisdiction of Children's Court in such cases - Right to elect trial by District Court - Appellant not informed of right - Consideration of provisions of The Criminal Code s576

Legislation:

Children's Court of Western Australia Act 1988
Criminal Code 1913 (WA) s575, s576
Criminal Code Act 1902 (WA)
Criminal Code 1899 (Qld) s557, s558
Courts of Session Act 1921 s6, s13
District Court Act 1969
Ordinance 9 Vic. No 4 (1845)

Result:Appeal Allowed

Representation:

Counsel:

Applicant: Mr D P A Moen
Respondent: Ms G A Archer

Solicitors:

Applicant: Julie Wager
Respondent: State Director of Prosecutions

Case(s) referred to in judgment(s):

Simons v The Queen (1953) 37 Cr App Rep 120

Case(s) also cited:

C (A Child) (1995) 83 A Crim R 561
Hardingham v The Queen, unreported; CCA SCt of WA; Library No 940105; 3 March 1994
McKenna v R (1992) 63 A Crim R 452
Pfenning v The Queen (1995) 77 A Crim R 149
R (1994) 71 A Crim R 95
R v Carter (Magistrate's Court Ex parte City Council, The Times, 24 February 1987)
R v S (A Child) (No 2) (1992) 60 A Crim R 235
R v Symonds 37 Cr App Rep 120
S v The Queen (1991) 5 WAR 391
Wood v The Queen, unreported; CCA SCt of WA; Library No 940723; 21 December 1994

1.     PIDGEON J: I agree with the reasons to be published by Anderson J and Heenan J and with the orders proposed by Anderson J.
2.     ANDERSON J: On 2 February 1998, the applicant was presented in the District Court on an indictment charging him with four offences of unlawful and indecent dealing in relation to two children under the age of 14 years. The indictment pleaded that these offences had occurred on "a date unknown between 14 December 1982 and 15 December 1983". The applicant was born on 22 July 1967, so that at the time the offences charged in the indictment are said to have occurred he was, at the most, 16 years of age. That made him "a child" for the purposes of the Children's Court of Western Australia Act 1988. See the definition of "child" in s3.
3.     When he was arraigned in the District Court, he pleaded not guilty to each of the four charges and he was tried and convicted on all counts and sentenced to 3 years' imprisonment in respect to each matter, the four sentences to be served concurrently.
4.     He appeals against the convictions and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adlem v The Queen

Details

AGLC: Adlem v The Queen [1999] WASCA 1
Case: [1999] WASCA 1
Decision Date: 5 MAY 1999

CaseChat Overview and Summary

The case of Adlem v The Queen involved the appellant who was convicted in the District Court of offences committed when they were a child. The appellant argued that their conviction should be quashed due to a failure by the District Court to inform them of their right to elect trial by the Children's Court under section 576 of The Criminal Code. The High Court of Australia was tasked with determining whether the appellant's rights were violated and whether the conviction should stand.

The central legal issue before the court was whether the appellant's failure to be informed of their right to elect trial by the Children's Court constituted a fundamental irregularity that warranted the quashing of their conviction. The court had to consider the interplay between the provisions of The Criminal Code and the inherent jurisdiction of the court to ensure justice was served. The court also examined the extent to which the appellant's lack of knowledge about their rights affected the fairness of the proceedings.

The court found that the failure to inform the appellant of their right to elect trial by the Children's Court was a fundamental irregularity. The court emphasised that the right to elect trial by the Children's Court is a significant procedural right designed to protect the interests of children in the criminal justice system. Given the appellant was not informed of this right, the court held that this irregularity rendered the conviction unfair and unjust. Consequently, the court quashed the conviction and ordered a retrial in the appropriate court, ensuring the appellant's right to a fair trial was respected.

Orders