C v Children's Court of Victoria
[2015] VSC 40
•19 February 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 06250
| C (by his Litigation Guardian) | Plaintiff |
| v | |
| CHILDREN’S COURT OF VICTORIA | First Defendant |
| and | |
| SENIOR CONSTABLE TERESA O’SULLIVAN | Second Defendant |
| and | |
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Intervener |
---
JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 January 2015 |
DATE OF JUDGMENT: | 19 February 2015 |
CASE MAY BE CITED AS: | C v Children’s Court of Victoria & Anor |
MEDIUM NEUTRAL CITATION: | [2015] VSC 40 |
ADMINISTRATIVE LAW – Judicial review - Jurisdiction of the Children’s Court – Rape - Magistrate granted application by DPP to uplift charges - Youth Children and Families Act 2005, s 356(3) – Jurisdictional error in finding exceptional circumstances - Charter of Human Rights and Responsibilities 2006, ss 23(2) and 25(3).
| For the Plaintiff | Mr McLoughlin and Mr Smallwood | Victorian Legal Aid |
| For the First Defendant | No appearance | |
| For the Second Defendant | Mr Young | Office of Public Prosecutions |
| For the Attorney General for the State of Victoria (intervening) | Ms Davidson | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
On 24 October 2014, a Magistrate decided that a case involving rape charges should not proceed as a summary contest in the Children’s Court. Purporting to exercise the power given to the Children’s Court by s 356(3)(b)[1] of the Children, Youth and Families Act 2005 (Vic) (‘the CYF Act’), her Honour ruled that, by reason of exceptional circumstances, the matter was unsuitable for summary determination and should proceed as a committal hearing. It is that ruling that is challenged by the plaintiff in these proceedings brought under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).
[1]Section 356(3) of the CFY Act provides: ‘[i]f a child is charged before the Court with an indictable offence, other than murder, attempted murder, manslaughter, child homicide, an offence against section 197A of the Crimes Act 1958 (arson causing death) or an offence against section 318 of the Crimes Act 1958 (culpable driving causing death), the Court must hear and determine the charge summarily unless— (a) before the hearing of any evidence the child objects; or (b) at any stage the Court considers that the charge is unsuitable by reason of exceptional circumstances to be determined summarily— and the Court must conduct a committal proceeding into the charge and, in the circumstances mentioned in paragraph (b), must give reasons for declining to determine the charge summarily.’
Conclusion
For the reasons set out below, it was not reasonably open to her Honour to find that the case was, ‘unsuitable by reason of exceptional circumstances to be determined summarily’. Rape is a most serious offence[2] but Parliament has decided that rape charges against children should ordinarily be heard in the Children’s Court. The two rape charges brought against the plaintiff are not at the upper end of the spectrum of rape offences: they are mid-range instances of that offence. Further, the plaintiff’s criminal history is limited. Most importantly, he has no priors for sexual offences and has never been sentenced to detention. Having regard primarily to these considerations and the principle that the Children’s Court should only surrender its jurisdiction with ‘great reluctance’,[3] her Honour’s decision to refuse a summary hearing was a jurisdictional error.
[2]The maximum penalty for rape is 25 years imprisonment. The maximum sentence of detention that can be imposed by the Children’s Court is 2 years for a single offence and 3 years for several offences: s 413 of the CYF Act.
[3]A child v A Magistrate of the Children’s Court (Unreported, Supreme Court of Victoria, Cummins J, 24 February 1992) 9.
Background
At the time of the alleged offending (late June, early July 2014), the plaintiff was aged 17 years and 3 months. He is now 17 years and 10 months. He comes within the definition of a child in s 3 of the CYF Act.[4]
[4]Relevantly, s 3 of the CYF Act defines ‘child’ to mean ‘a person who at the time of the alleged commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court.’
There are a total of 14 charges brought against the plaintiff by Senior Constable Teresa O’Sullivan. Apparently, all but one of those charges are contested. There are a further four charges brought by another police officer, Leading Senior Constable Kylie Van Roosmalen. I have assumed for the purpose of this exercise that those charges are also contested. I will list all the charges in the course of summarising the prosecution case below. I have italicised a number of passages in the summary because they were not included in the prosecution summary to which her Honour referred in her ruling.
At the time of the alleged offending, the complainant was aged 15 years and 7 months. For about a month prior to the alleged rapes on 1 July 2014, the plaintiff and the complainant were in a physically intimate relationship.[5] According to the complainant, he treated her well at the beginning of their relationship but began to change as a result of using ice.[6]
[5]See the complainant’s VARE, Court Book 57.
[6]See the complainant’s VARE, Court Book 54.
The prosecution alleges that on about 26 June 2014,[7] there was an argument between the plaintiff and the complainant during which the plaintiff bit the complainant on the nose, causing two small cuts. The complainant said in her Video Audio Recorded Evidence (‘VARE’) that at the time the plaintiff bit her on the nose, she was trying to stab the plaintiff in the stomach with scissors: he told her to drop the scissors or he would bite her.[8] In relation to this incident, the plaintiff faces three charges,[9] namely, intentionally causing injury and the alternatives of recklessly causing injury and unlawful assault.[10]
[7]See the complainant’s VARE, Court Book 61.
[8]See the complainant’s VARE, Court Book 64. In the complainant’s VARE she said ‘… the scissors were sitting in front of the TV and I just grabbed em, I’m like “I’ll fuckin stab you, cunt” and then he just got up and just had his teeth on my nose, didn’t bite me, and then he said “Drop the knife or I’ll fucking bite you.” And I went to stab him and then he bit me and then I ripped my head off and threw the knife [sic] down … And he just turned around and smacked me in the face. And then he started crying … and apologised and then he fixed my nose and shit’ (Court Book 64-65).
[9]Charges 7, 8 and 9.
[10]I note that this is a summary offence contrary to s 23 of the Summary Offences Act 1966 (Vic).
The prosecution further alleges that on about 28 June 2014,[11] the plaintiff and complainant were arguing. The plaintiff was threatening to kill himself, holding a box cutter to his wrist. When the complainant slammed the plaintiff’s bedroom door, some ice belonging to the plaintiff, which was on a bedside table, spilled onto the floor. The plaintiff responded by slamming the complainant to the floor and punching her to the head several times, as well as grabbing her on the arm. The prosecution alleges that the complainant sustained three bruises to her left arm. In respect of this incident, the plaintiff faces three charges,[12] namely, intentionally causing injury and the alternatives of recklessly causing injury and assault.
[11]See the complainant’s VARE, Court Book 68.
[12]Charges 10, 11 and 12.
As a consequence of the incident on 28 June 2014, the prosecution alleges that the complainant decided to end her relationship with the plaintiff.
The plaintiff contacted the complainant by phone in the early hours of 1 July 2014, stating he was going to kill himself. The complainant went to bed.
At approximately 8.15am on 1 July 2014, the plaintiff began sending a series of text messages to the complainant’s mother about wanting to speak to the complainant. He texted ‘get [the complainant] to call me right now please really need to tell her something’ and ‘[g]et her to call me now or I will drive up there and I will see you in 20 hows that sound’ and ‘[y]ou will here me soon and I wasn’t threaten you I was just saying you won’t let me come to your hause so I will keep doing drifts past till she wakes up I haven’t said anything mean that all’. When the complainant’s mother said she would call the police, the plaintiff texted ‘yeah, they don’t know what car im in and if you do that I will just take [the complainant] again if you do that cause you know she will pick my side’ and ‘so fucking put her on the phone or I will wake her up and take her my way’. When the mother texted that the complainant was ‘finished with u’, the plaintiff texted ‘shes back with me after last night so haha she’s not’. In respect of these text messages, the plaintiff faces one charge,[13] namely, using a carriage service to menace or harass, contrary to s 474.17(1) of the Criminal Code (Cth). I note that at a contest mention at the Melbourne Children’s Court on 3 October 2014, the plaintiff indicated he was pleading guilty to this charge.
[13]Charge 16.
At about 2pm on 1 July 2014, the plaintiff contacted the complainant by phone and arranged to meet her that afternoon near her home address. The prosecution allege that the complainant’s intention was to confirm the end of their relationship.
The plaintiff attended in a Holden Commodore he had stolen earlier that day in Croydon. He had also stolen registration plates from two other cars and placed them on the Holden. The Informant, Van Roosmalen, has charged the plaintiff with three counts of theft and one count of handling in relation to this matter.
The plaintiff and complainant spent the afternoon together, meeting up with other people in Lilydale and smoking several cones of cannabis together. In the evening, when the complainant wanted to go home, the plaintiff refused. He activated the locks on the car, telling her he was taking her to New South Wales. The complainant saw her father driving by. She banged on the window and screamed for help.[14] Her father gave chase in his car but lost sight of the plaintiff’s car. He continued to search for her and later that evening contacted the police.
[14]See the complainant’s VARE, Court Book 75.
The plaintiff drove to Warburton where he parked the car. He continued to refuse the complainant’s requests to take her home. He said ‘I’ll take you home but you have to fuck me first.’[15] The complainant did not want to have sex with the plaintiff but believed he would not take her home if she refused. She was also frightened that he might harm her. She undressed and they had sex in which he penetrated her mouth and vagina with his penis. In respect of this incident, the plaintiff is charged with four charges,[16] being false imprisonment, two charges of rape and attempting [sic] to procure sexual penetration by threats.
[15]See the complainant’s VARE, Court Book 76.
[16]Charges 1,13, 14 and 15.
According to the complainant, after they had sex, the plaintiff told her that he would take her home. Then he received a text or texts from the complainant’s sister accusing him of abusing the complainant. He said ‘[r]ead that, you’re not fucking going home now, fuck that, you’re coming to New South Wales with me and you’re never going to see your family again.’[17]
[17]See the complainant’s VARE, Court Book 77.
The car battery went flat. The plaintiff misplaced his cigarette lighter in the car and said to the complainant ‘[i]f you don’t find my cigarette lighter, I’m going to punch you in the face.’ He punched her several times in the face.[18]
[18]I note that there are no discrete charges in relation to this alleged assault although it formed part of the prosecution summary on which her Honour relied. It may be that this assault is supposed to be incorporated in the charges for the next incident.
The complainant asked whether he was going to kill her to which he replied ‘yeah maybe’[19] or ‘[y]eah probably.’[20]
[19]See the complainant’s signed statement, Court Book 49.
[20]See the complainant’s VARE, Court Book 83.
The plaintiff got out of the car and walked around to the passenger side. As he did so, the complainant got out and ran off, hiding underneath a car parked in a driveway of a house. The plaintiff found her and pulled her out from under the car. He slammed her head into the gravel driveway a number of times and kicked her to the head. The complainant believes she lost consciousness for a time. The plaintiff dragged her back to the stolen Commodore. In relation to this incident[21] the plaintiff faces three charges,[22] namely, intentionally causing injury and the alternatives of recklessly causing injury and unlawful assault.
[21]Query whether the previous incident is also included in these charges.
[22]Charge 2, 3 and 4.
The plaintiff and the complainant returned to the stolen car and fell asleep. Police have found the car, and the two of them inside it, at approximately 10am on 2 July 2014. They observed vomit and blood outside the car and dried blood on the complainant. She also had at least one black eye as well as cuts, grazes, bite marks and bruises on her body.
The plaintiff was arrested by police whilst the complainant was taken to Monash Medical Centre where she alleged that she had been beaten and raped by the plaintiff. She was given the morning after pill.
Dr Earley, a forensic physician who examined the complainant on 2 July 2014, recorded that she had multiple abrasions and bruises on her head, face, arms and legs. She wrote in her report that the complainant ‘had a significant number of injuries all over her body. These included different types of injuries (bruises, graze abrasions, scratch abrasions) … [she] had a lot of facial and head bruising’.[23] As a consequence, CT scans of the complainant’s brain and facial bones were requested, but they did not disclose further injury.
[23]Report by forensic physician Dr Earley, Court Book 104.
The complainant made a signed statement on 2 July 2014 and a VARE statement on 3 July 2014.
The plaintiff made a No Comment Record of Interview on 7 July 2014.
The Magistrate’s Ruling
In her ruling, the Magistrate did not summarise the prosecution case in relation to the O’Sullivan charges. Rather she adopted the police summary which was annexed to the prosecutor’s written submissions. There were significant omissions from that summary as indicated above. Her Honour summarised the Van Roosmalen charges.
Her Honour referred to the plaintiff’s priors. She noted that he had no priors for sexual offending and had not previously been sentenced to a term of detention adding, ‘[h]owever I note from the presentence report that … he did serve some time on remand in relation to the matters that were dealt with at the Ringwood Magistrates Court in May this year.’[24] How much time was spent on remand was not mentioned in her ruling. I have since been advised by the parties that the plaintiff spent 8 days on remand in January 2014 and a further 8 days on remand in May 2014, a total of 16 days on remand.
[24]Court Book 264.
Her Honour referred very briefly to the plaintiff’s personal background. She said:
[He] has been exposed to family violence as a child. He has been exposed to alcohol and cannabis as a child and DHS have been notified in relation to protective concerns relating to [the plaintiff] … [He] has family support. Prior to remand he lived with his paternal grandfather … [He] has been diagnosed with oppositional defiance disorder and attention deficit disorder. [He] has limited education, having completed Year 9 and commenced Year 10.[25]
[25]Transcript of Magistrate’s ruling on 24 October 2014, Court Book 264.
Her Honour referred to the leading authorities in relation to ‘uplifting’ matters from the Children’s Court – namely the three decisions of Nathan J,[26] Cummins J[27] and Vincent J.[28] She quoted the key passages from each of those decisions.
[26]D (A child) v White (1988) VR 87.
[27]A Child v A Magistrate of the Children’s Court (Unreported, Supreme Court of Victoria, Cummins J, 24 February 1992).
[28]DL (A minor by a Litigation Guardian) v A Magistrate of the Children’s Court (Unreported, Supreme Court of Victoria, Vincent J, 9 August 1994) (‘DL’s case’).
DL’s case – the decision of Vincent J – was a case of multiple rapes of one complainant by a gang of five youths, only one of whom was a ‘child’ at the time. A key factor in Vincent J overturning the Magistrate’s decision to uplift the case was that the Magistrate had only mentioned as relevant considerations the gravity of the conduct and the plaintiff’s role in it (despite being the youngest, he may have been the instigator). In DL’s case, the Magistrate failed to mention ‘any personal factors relevant to the young plaintiff.’[29] The same criticism cannot fairly be made of the Magistrate’s ruling in the present case, but it is noteworthy that her Honour’s discussion of DL’s case did not prompt any apparent consideration of where the present rape charges, if proven, are situated on the spectrum of rape offences. In DL’s case, Vincent J expressed the view there was nothing exceptional about the circumstances of the case that justified uplifting the matter.[30] One might think a gang rape is a more serious example of rape than the present case.
[29]The report of the case does not indicate the plaintiff’s age.
[30]See also OPP v BW [2010] VChC2, a decision of the former President of the Children’s Court, Judge Grant, rejecting an application to uplift a gang rape case involving a 17 year old accused.
The matters identified by her Honour in her ruling as making the case too serious to be determined summarily were:
· At the time of the offending, the plaintiff was 17.
· He was living with his grandfather and was on a youth supervision order (‘YSO’).[31]
[31]I understand her Honour to be implying that he had some supports and supervision at the relevant time. Also, that offending whilst on a YSO was a circumstance of aggravation.
· The offending was violent, controlling, predatory and prolonged.
· The complainant tried to escape several times.
· The offending involved preplanning, stealing a motor car, taking the complainant to a remote location.
· The offending ‘reflected family violence’,[32] the plaintiff and complainant having been in a relationship for about one month.
[32]This appears to have been a reference to DPP v Pasinis [2014] VSCA 97 which was mentioned in oral submissions to the Magistrate. See also Filiz v R [2014] VSCA 212.
· The complainant suffered injury.
· There were threats, including threats of the plaintiff [sic] self harming.[33]
· The complainant was placed in fear for her life.
[33]I take this reference to threats of self-harm by the plaintiff to be an instance of alleged controlling behaviour by the plaintiff. In her ruling, her Honour referred specifically to the occasion on the 28 June 2014 where the plaintiff threatened to cut his wrist with a box cutter. Her Honour did not refer to the fact that in her VARE, the complainant said the following about that particular threat: “Me and him were having an argument because he was just being a fucking cunt and I was in the worst mood. So I decided that I was just gunna make him feel like absolute shit, like, constantly make him feel like shit because of everything he did to me, so I just kept bringing it up and fucking rubbing it in his face, like being an absolute fucking cunt. And then, yeah, I walked out of the room to go to the toilet and I came back and he had a box cutter up his wrist, saying he was gunnna kill himself.” Court Book 68.
Objective seriousness of offending
During the hearing of this matter, I enquired of counsel for the Second Defendant where he placed the rapes on the spectrum of seriousness for that offence. He submitted that they are at the upper end of the range, having regard to:
[T]he context of the offending over the period of time, … the relationship between the victim and the accused, … the … violent and controlling circumstances … [and the fact that] the victim in this case was a child who was some years younger than the [plaintiff].[34]
[34]Transcript of hearing on 23 January 2015, 27. To these considerations might be added the fact that the plaintiff did not wear a condom: R v Khem [2008] VSCA 136.
Counsel for the Second Defendant also said that he ‘[didn’t] want to make too much of any one particular offence given that … all of the charges [are] being dealt with together’,[35] and noted that that is how the Magistrate approached her assessment of the gravity of the offending and the finding of exceptional circumstances.
[35]Transcript of hearing on 23 January 2015, 27.
If not for the rape charges, it cannot be doubted that this case would have been summarily determined. It is therefore appropriate to consider more closely where the rapes fall on the spectrum of seriousness for that offence, keeping in mind the context in which the rapes are alleged to have occurred.
Whilst the sexual offending may have been prolonged (according to the complainant, it lasted about 15 to 20 minutes), it did not last for hours.[36] The two rapes were part of the one sexual encounter: the complainant was not repeatedly raped during the period of her captivity.[37] Although the complainant was abducted in the Commodore, it is not alleged that on 1 July 2014 she was physically assaulted prior to the rapes.[38] No weapons were used.[39]
[36]Cf Pilgrim v R [2014] VSCA 191, where the victim was held captive for five days; GC v The Queen (2013) 39 VR 363; [2013] VSCA 139, where the offending is described as prolonged and as occurring ‘[d]uring the course of the evening’ (at [6]); and R vParton [2007] VSCA 268, where the victim was held captive and raped repeatedly over a five hour period.
[37]Cf Pilgrim v R [2014] VSCA 191; and R vParton [2007] VSCA 268, where the victims were raped on multiple occasions while being held captive.
[38]A matter not adverted to by her Honour
[39]Cf Roberts v The Queen [2012] VSCA 313, where the victim was raped and held captive at knife point; R vParton [2007] VSCA 268, where the offender was armed with a sawn-off shot gun.
Unfortunately, it is not difficult to think of rapes of much greater seriousness such as gang rapes,[40] rapes committed in front of the victim’s loved ones, rapes involving home invasion,[41] rapes involving greater breaches of trust[42] and rapes involving extensive pre-planning.[43]
[40]Cf R v Hakeem [2007] VSC 5.
[41]Cf Mansfield v R [2013] VSCA 161.
[42]Cf R v RJR [2005] VSCA 315; and Reid (a Pseudonym) v The Queen [2014] VSCA 145.
[43]Cf Pilgrim v R [2014] VSCA 191.
As for the context of the rapes, and in particular the physical violence to which the complainant was allegedly subjected in the days before the rapes and shortly after the rapes, it must be remembered that the plaintiff is charged with causing injuries, not serious injuries. There is no evidence that any of the physical injuries suffered by the complainant are lasting injuries.[44] Also, whilst the complainant may have feared for her life, the plaintiff is not charged with threats to kill or even threats to inflict serious injury.
[44]Cf R v Gill [2010] VSCA 67, in which case life threatening injuries were inflicted in what was described as a savage rape (at [52]); and DPP v Mirik & Mirik [2007] VSCA 150, where the victim suffered grave injuries to his rectum and his internal organs as a result of the rape.
I consequently do not accept the submission of counsel for the Second Defendant that the rapes fall at the upper end of the spectrum. They are mid-range instances of that offence.
Antecedents
Turning now to the plaintiff’s antecedents, he has no priors for sexual offences and only limited priors for violence related offences. He has never received a sentence of detention. Nor has he received a Youth Attendance Order, which is the most intensive community based supervisory order that can be imposed in the Children’s Court. His three prior appearances in the Children’s Court have resulted in two bonds and one YSO, all without conviction.
In May 2012, when the plaintiff was 15, he was placed on a bond for possessing a prohibited weapon and littering. In January 2013, he was again placed on a bond for using methylamphetamine and cannabis. In May 2015, he was placed on a YSO for 12 months with special conditions that he receive drug, alcohol and psychological counselling. The YSO was imposed for one count of intentionally causing injury, four counts of contravening family violence orders, two counts of possessing a dangerous article in a public place, intentionally damaging property, using methylamphetamine, failing to answer bail, multiple dishonesty offences and driving offences. Apparently, the breaches of family violence orders related to the plaintiff’s father, not the complainant.
DPP v Anderson [2013] VSCA 45
As will already be apparent, I attach considerable significance to the combination of the plaintiff’s limited priors and my assessment that the most serious offences – the rapes – cannot reasonably be regarded as falling at the upper end of the range. That it is appropriate to give these considerations significant weight is underscored by DPP v Anderson.[45]
[45][2013] VSCA 45.
In DPP v Anderson, the Court of Appeal was concerned with an appeal by the Director of Public Prosecutions against sentence. The court considered the appropriateness of the decision by a Children’s Court Magistrate to uplift charges against an offender who was 17 years and 10 months old at the time of the offences. The charges included intentionally causing serious injury. The offender had armed himself with a knife and slashed the victim several times to the bone, leaving him with permanent injuries. The prosecution’s submissions in support of its application to uplift the case highlighted that the offending fell at the upper end of the spectrum for offences of intentionally causing serious injury. The offender’s priors were also extensive, including many offences for violence, for which he had received multiple sentences of detention. The Court of Appeal endorsed the Magistrate’s decision to uplift the case. The case is instructive for the significance given to the assessment of where the most serious offence fell on the spectrum of offences of that kind, and for the significance attached to the offender’s extensive criminal record.
I do not wish to be misunderstood. A limited criminal history does not immunise an offender from having his charges uplifted from the Children’s Court. Nor does the fact that the offending may fall at the mid or low end of the range for the most serious offence under consideration. One must have regard to all the circumstances, individually and in combination.
The plaintiff’s submissions
I have decided that it was not reasonably open to her Honour to find exceptional circumstances in this case. This was not the basis on which the plaintiff challenged her Honour’s decision. Given my finding, I will only deal briefly with the plaintiff’s grounds of attack on her Honour’s ruling.
First, the plaintiff contended that her Honour only had regard to the seriousness of the offending and the inadequacy of the maximum penalty available in the Children’s Court. I do not accept that submission. Her Honour focused on the seriousness of the offending in the latter part of her ruling, because that was her reason for finding exceptional circumstances, but in the earlier part of her ruling, she referred to other considerations, including the plaintiff’s personal circumstances. Her detailed discussion of the seriousness of the offending cannot be read in isolation from those earlier passages.
Second, the plaintiff contended that her Honour failed to have regard to the differences between the sentencing regimes applicable under the CYF Act and the Sentencing Act 1991 (Vic). I do not accept that submission. Her Honour was mindful of the different approaches to sentencing in the juvenile and adult jurisdictions. For one thing, she quoted Vincent J’s observation in DL’s case that:
[A] legislative scheme has been devised with respect to conduct of criminal proceedings involving young persons … [F]or very good reasons our society has adopted a very different approach to … the … response to criminality on the part of young persons to that which is regarded as appropriate where adults are involved.[46]
[46]Transcript of Magistrate’s ruling on 24 October 2014, Court Book 267.
Third, the plaintiff submitted that her Honour failed to have regard to the plaintiff’s right under s 25(3) the Charter of Human Rights and Responsibilities 2006 (‘the Charter’), which provides ‘[a] child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child’s rehabilitation.’
True it is that her Honour made no mention of the Charter in her ruling. Neither did the parties in their submissions to her. But express reference to the Charter is not obligatory. That would elevate form over substance. Her Honour was plainly aware of the different procedures in the Children’s Court and the adult jurisdiction, as well as the different sentences available. Section 25(3) of the Charter does not negate the power of the Children’s Court to uplift charges in an appropriate case. Nor is a decision that a matter be uplifted inconsistent with the right given by s 25(3) of the Charter: it is to be given effect whether the trial takes place in the Children’s, County or Supreme Court.
Fourth, the plaintiff submitted that the Magistrate failed to have regard to s 23(2) of the Charter which provides that ‘[a] child must be brought to trial as quickly as possible.’
Again, this Charter right does not negate the power to uplift given by s 356(3) of the CYF Act. Where a matter is appropriately uplifted, s 23(2) of the Charter will be given effect, having regard to the procedures of the relevant jurisdiction. The issue of delay was canvassed with the Magistrate in submissions. I have no doubt that she was alive to this issue.
Orders
I quash her Honour’s order that the case against the plaintiff proceed as a committal hearing. I order that the matter be returned to the Children’s Court for summary determination by a different member of that court. The parties have agreed to bear their own costs.
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