CL (a minor) v Lee - [2010] VSC 517

29 VR 570

CL (A Minor) v LEESUPREME COURT OF VICTORIALasry J8, 9 December 2009, 16 November 2010[2010] VSC 517Courts and judges — Children’s Court — Jurisdiction — Criminal Division — Indictable offences triable summarily — Unsuitability test — Exceptional circumstances — Prosecutor raising issue of accused’s fitness to plead — Magistrate ruling that court lacked jurisdiction to determine fitness question — Magistrate deciding that hearing of charges proceed as committal — Children, Youth and Families Act 2005 (No 96)ss 356, 516, 522 — Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (No 65)ss 1, 3, 4, 5, 8, 25(1), 47..Human rights — Charter of Human Rights and Responsibilities — Fair trial — Children — No Charter question presented — Children, Youth and Families Act 2005 (No 96)s 356 — Charter of Human Rights and Responsibilities Act 2006 (No 43)ss 7(2), 32..

Under s 356(3)(b) of the Children, Youth and Families Act 2005 (“the CYF Act”), if a child was charged with an indictable offence (other than a homicide-related and other specific offences not relevant to this case), the court was to hear and determine the charge summarily, unless it considered that the charge was unsuitable by reason of “exceptional circumstances” to be determined summarily.

When the accused, a minor, appeared before the Criminal Division of the Children’s Court to answer a large number of serious offences, the prosecutor informed the magistrate that the accused’s fitness to plead to the charges was an issue, and submitted that, as the Children’s Court did not have jurisdiction to determine the accused’s fitness to plead, the proceeding should proceed as a committal. The magistrate determined that there were “exceptional circumstances” under s 356(3)(b) of the CYF Act and ordered that the charges be determined by committal proceedings. The accused applied pursuant to r 56 of the Supreme Court (General Civil Procedure) Rules 2005 for judicial review and sought an order in the nature of mandamus, requiring the Children’s Court to hear and determine each charge summarily.

Held, confirming the magistrate’s order: (1) Section 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 could not be interpreted to imply any more than it expressly mandated, namely, the availability of the defence of mental impairment in Magistrates’ Court proceedings. Moreover, s 7 of the Act was an express limitation demonstrating clearly that the court was excluded from deciding issues of fitness to plead. [25]–[32].

(2) Sections 516 and 522 of the CYF Act did not impliedly confer jurisdiction on the Children’s Court to decide issues of fitness to plead. [50].

Thompson v Goold & Co[1910] AC 409; Marshall v Watson(1972) 124 CLR 640 referred to.

(3) The Children’s Court did not have inherent jurisdiction to determine the issue of fitness to plead once it was raised, assuming the issue was genuinely raised.…

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.

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Details

AGLC: Cl (A Minor) v Lee [2010] VSC 517
Case: [2010] VSC 517
Decision Date: 16/11/2010

CaseChat Overview and Summary

The plaintiff, a minor, sought judicial review of the decision of a magistrate in the Criminal Division of the Children's Court of Victoria to determine serious indictable charges against him by way of committal proceedings. The minor argued that the magistrate erred in concluding that there were "exceptional circumstances" under s 356(3)(b) of the Children, Youth and Families Act 2005 and in directing that the charges be heard by way of committal proceedings. The minor submitted that the magistrate should have determined the charges summarily and that the magistrate's decision was a jurisdictional error. The magistrate was also said to have failed to consider the Charter of Human Rights and Responsibilities Act 2006 in interpreting the relevant statutory provisions. The magistrate had ruled that there were "exceptional circumstances" because there was a doubt as to whether the Children's Court had jurisdiction to deal with the issue of the plaintiff's fitness to plead. The Court of Appeal (Warren CJ and Sifris AJA) dismissed the plaintiff's appeal from the trial judge's decision confirming the magistrate's order for committal proceedings. Lasry J held that the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 could not be interpreted to imply any more than it expressly mandated, namely, the availability of the defence of mental impairment in Magistrates' Court proceedings. Lasry J also held that sections 516 and 522 of the Children, Youth and Families Act 2005 did not impliedly confer jurisdiction on the Children's Court to decide issues of fitness to plead. The magistrate's decision did not raise a question of interpretation which required a consideration of the Charter. The trial judge's decision was not wrong or attended with sufficient doubt and leave to appeal was refused.

Orders