CL (a minor) v Lee

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. [67].

R v Judge Martin; Ex parte Attorney-General[1973] VR 339; Pioch v Lauder(1976) 13 ALR 266, 27 FLR 79; Ebatarinja v Deland(1998) 194 CLR 444 applied.

(4) The magistrate’s decision that by reason of the “exceptional circumstances” test in s 356(3)(b) of the CYF Act the charges should be heard summarily did not raise any Charter issue because there was an absence of jurisdiction to deal with the issue of fitness to plead. [79].

29 VR 571

Discussion of the desirability of amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and the Children, Youth and Families Act 2005 to provide the Children’s Court with jurisdiction to deal with issues of fitness to plead without the need for a defendant to be directed to stand trial and the matter investigated by a jury empanelled for the purpose. [80]–[86].

Applications

These were four applications by an accused minor pursuant to r 56 of the Supreme Court (General Civil Procedure) Rules 2005 for judicial review of the decisions of a magistrate sitting in the Criminal Division of the Children’s Court that, by reason of exceptional circumstances within the meaning of s 356(3)(b) of the Children, Youth and Families Act 2005, serious indictable charges be determined by committal proceedings. The facts are stated in the judgment.

H R Carmichael for the plaintiff.D A Trapnell SC for the defendants.C Geiringer for the Attorney-General.Cur adv vult.Lasry J.1The plaintiff, a minor, seeks judicial review pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005 by his litigation guardian who is his mother. Four originating motions have been filed on behalf of the plaintiff and in each case the first defendant is a member of the Victoria Police and is the person who is the informant against the plaintiff in relation to criminal charges laid against him in the Children’s Court of Victoria. The second defendant in each originating motion is the Children’s Court of Victoria at Broadmeadows.2The issue for determination primarily concerns whether the Children’s Court has jurisdiction to deal with the plaintiff’s fitness to plead which was raised by the prosecutor during a hearing before the magistrate to which I will return. The particulars of the criminal conduct alleged against the plaintiff are as follows:

Date of charges	Charges	Informant
14 December 2007	Criminal damage; unlawfully on premises on 12 February 2007.	Constable Jason Boyd
1–15 August 2007	Committing an indecent act; make child pornography.	Detective Senior Constable Mark Crevatin.
11 June 2008	Attempted armed robbery; intentionally cause serious injury; unlawful assault; assault in company.	Detective Senior Constable Tim Lee.
20 August 2008	Indecent assault; attempted rape; rape; sexual penetration; unlawful imprisonment.	Detective Senior Constable Mark Crevatin.

29 VR 572 3These charges were consolidated for the purpose of the cases being presented in the Children’s Court. On 7 October 2008, the matter was adjourned to enable a neuropsychological assessment of the plaintiff to be obtained. That report was to deal with the plaintiff’s ability to give proper instructions to his lawyers and his fitness to plead. On 21 November 2008, Dr Allan Tucker, a clinical neuropsychologist, prepared a report on the plaintiff which concluded that he may not be fit to plead. Dr Stephen Mihailides, psychologist from the Children’s Court Clinic, came to a different view after seeing the plaintiff on 7 January 2009.4On 18 June 2009, the plaintiff appeared before the Criminal Division of the Children’s Court sitting at Broadmeadows. This was the fourth time the matter had been before the court, after proceedings were postponed in earlier hearings to obtain reports on the plaintiff’s mental state or were adjourned for the contested hearing that day. Further charges of using cannabis and criminal damage were sought to be incorporated into the hearing. During submissions, the magistrate was informed by the prosecutor that there was an issue of fitness to plead and that the prosecutor did not propose to deal with the matter at that stage but rather have it proceed by way of committal proceeding. The committal was to occur because, in the submission of the prosecutor, the court did not have jurisdiction to deal with the fitness to plead question.5After hearing the submissions from the prosecutor and from counsel for the plaintiff, the magistrate concluded that in his view “there is some doubt as to whether the Children’s Court does have power to determine the matter”.1 After referring to s 356(3)(b) of the Children, Youth and Families Act 2005, the magistrate also determined there were “exceptional circumstances” of the kind referred to in that section which would preclude the matter being dealt with summarily. Those, he said, were “encapsulated” in the written submissions on behalf of the Office of Public Prosecutions. He concluded that the matter should proceed to a committal proceeding.6In the originating motions, the plaintiff asserts jurisdictional error on the part of the magistrate in making that decision and in particular his conclusion that “exceptional circumstances” were raised by a “doubt” over the jurisdiction of the court rather than a proper application of the considerations raised in s 356(3) of the Children, Youth and Families Act. It is also asserted that the magistrate failed to interpret the relevant statutory provisions in a way compatible with the Charter of Human Rights and Responsibilities Act 2006 (“the Charter”). The magistrate is also said to have had regard to irrelevant considerations and the exercise of the power by the magistrate was said to be improper. The magistrate’s ruling is also criticised because he failed to deal with whether there is a separate source of power to deal with fitness to plead based on the common law. Each of these matters was in contention before me and I will deal with them separately.7The relief sought is that orders of the Children’s Court at Broadmeadows directing that charges against the plaintiff proceed by way of committal proceedings be quashed and an order is sought in the nature of mandamus that the Children’s Court hear and determine each charge summarily unless this court is of the view that the charge is unsuitable by reason of exceptional circumstances. 1

Transcript of proceedings, 18 June 2009, p 19.

29 VR 573 8In turn, the primary issue in this matter is whether or not a magistrate in the Children’s Court has jurisdiction to deal with fitness to plead if it is raised in criminal proceedings such as these. Given that I have come to the conclusion that there is no jurisdiction in the Children’s Court to deal with that issue, nor would there be in the Magistrates’ Court generally although the submissions I heard on the matter sought to make a distinction between the two, the matter will not be required to be remitted to the Children’s Court for further consideration. For reasons which I will outline, the only course to be followed is for there to be a committal proceeding.The primary issues9As I have said, the main issue is whether there is any basis to conclude that the Criminal Division of the Children’s Court of Victoria has jurisdiction, express or implied, to hear and determine a question of a plaintiff’s fitness to plead. It was argued on behalf of the plaintiff that such a basis existed under the Children, Youth and Families Act, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and/or at common law or perhaps some combination of those bases. If I conclude that there is no statutory basis for a magistrate in the Children’s Court to exercise jurisdiction over such an issue, then there arises a question of whether there is some inherent common law power in a magistrate to deal with it.10A further issue raised concerns the application of the Charter. The plaintiff contends that the magistrate failed to consider s 32 of the Charter and therefore failed to interpret the relevant statutory provisions in a way that was compatible with the plaintiff’s human rights so far as it was possible to do so consistently with their purpose. Particular attention was paid to the manner in which s 356(3)(b) of the Children, Youth and Families Act should be interpreted. I will return to this later in these reasons.The Children’s Court procedure11When the matter was heard in the Children’s Court on 18 June 2009, the magistrate was told that a fitness to plead issue had arisen but that it was not proposed to deal with that matter and that the prosecutor’s application was to “effectively uplift” the matter. The prosecutor submitted that the intention of Parliament as demonstrated in the words of the Crimes (Mental Impairment and Unfitness to be Tried) Act was that exclusive jurisdiction in relation to fitness to plead be conferred on the County Court, and that the Children’s Court did not have jurisdiction to deal with the issue. The prosecutor drew the attention of the magistrate to the ruling of Magistrate Levine in Victoria Police v NL,2 submitting that his Honour’s conclusion that the Children’s Court had inherent power to determine the issue of fitness to plead was not “sound at law”. He also submitted that the Crimes (Mental Impairment and Unfitness to be Tried) Act was a code and that therefore, under that Act, exclusive jurisdiction in such issues is vested in the County Court.12Alternatively, the prosecutor submitted that even if there were jurisdiction, exceptional circumstances exist pursuant to s 356(3) of the Children, Youth and Families Act and that the matter should therefore proceed as a committal proceeding rather than being heard summarily. That section is in the following terms: 2

[2009] VChC 5.

29 VR 574

If a child is charged before the Court with an indictable offence, other than murder, attempted murder, manslaughter, child homicide, defensive 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.

13On behalf of the plaintiff it was submitted that the fitness to plead issue was really a device to avoid hearing the matters summarily. An elaborate submission was made as to why a hearing before the Children’s Court was in the interests of the plaintiff and was consistent with his rights under the Charter.14It is complained on behalf of the plaintiff that the magistrate was required to decide the issue of jurisdiction and that a doubt as to whether he had jurisdiction was not a proper resolution of the issue he was presented with and not a proper reason to conclude there were exceptional circumstances.15In this court oral argument was conducted in December 2009 but on 17 March 2010, the Court of Appeal delivered its judgment in R v Momcilovic.3 In that case, the court made a “declaration of inconsistent interpretation” under the Charter as it may do pursuant to s 36(2) if it considers that a statutory provision cannot be interpreted consistently with a given human right. Following that judgment, the parties in this case filed further submissions on the effect of the Charter on the issue that I have to determine in this case. The last of those further submissions was provided on 28 May 2010. I will return to that issue.16As I understand the manner in which the case for the plaintiff is put, even if there are limitations imposed by the Crimes (Mental Impairment and Unfitness to be Tried) Act on the jurisdiction of the Children’s Court to deal with fitness to plead issues, those limitations are subject to the “broad powers” of the Children, Youth and Families Act. I will examine the provisions of both Acts. There are clearly limitations arising from the Crimes (Mental Impairment and Unfitness to be Tried) Act and I will examine the effect of the Children, Youth and Families Act.17An important first step in examining the issues was raised by senior counsel for the defendant by way of introduction to his submissions in this court. When any person is charged with an indictable offence which could be tried summarily, it is first necessary for that person to consent to the procedure which is the procedure of hearing the charges summarily. While the realities are that such decisions are almost always made on the basis of advice, they require a conscious decision and if there is an obstacle to the fitness of such a person to plead, that decision may not be able to be properly or consciously made. It is also relevant to consider sections of the Crimes (Mental Impairment and Unfitness to be Tried) Act to which I will shortly refer. 3

(2010) 25 VR 436.

29 VR 575 The Crimes (Mental Impairment and Unfitness to be Tried) Act 199718In my opinion, an important step in resolving the main issue in this case is to understand this Act and its consequences. It is necessary to consider whether the magistrate could or should have concluded that the Children’s Court has jurisdiction to deal with an issue of fitness to plead as a result of any provision contained in the Crimes (Mental Impairment and Unfitness to be Tried) Act. In his submissions in this court, Mr Carmichael of counsel for the plaintiff asserted that the provisions of the Act are a reason for concluding that “some part” of the jurisdiction in the Children’s Court, which he argues exists to deal with an issue of fitness to plead, can be said to have arisen from particular provisions of this Act.19However, in examining the Act, an immediate problem with the effect of the plaintiff’s submission becomes apparent. In s 3, “court”:

means Supreme Court or County Court and in section 47 includes Magistrates’ Court;

Section 47 refers to a requirement on a court to request the Secretary to the Department of Human Services to provide certificates of available services if the court is considering imposing certain orders. It was not contended that the latter reference bore relevance to the issues in this case.

20To consider other relevant provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act, the Act expresses its purposes in s 1 as:

(a)
to define the criteria for determining if a person is unfit to stand trial;
(b)
to replace the common law defence of insanity with a statutory defence of mental impairment;
(c)
to provide new procedures for dealing with people who are unfit to stand trial or who are found not guilty because of mental impairment.

21Further, in s 4(1) the following appears:

(1) Except as provided by sections 5 and 25(1) and Parts 7A and 7B, this Act applies only in relation to trials of indictable offences in the Supreme Court or the County Court and proceedings ancillary or incidental to, or connected with or arising out of, those trials, including committal proceedings.

22Section 25(1) abrogates the common law defence of insanity. Parts 7A and 7B concern interstate transfer of persons subject to supervision orders and persons absconding to Victoria from interstate.23Section 5 makes it clear beyond argument that the defence of mental impairment is available as a defence in summary trials of indictable matters in the Magistrates’ Court and that if a magistrate finds a person not guilty of a summary offence by reason of mental impairment the court must discharge that person. Section 5 is in the following terms:

(1) The defence of mental impairment as provided for in section 20(1) and the presumption in section 21(1) apply to summary offences and to indictable offences heard and determined summarily.

(2) If the Magistrates’ Court finds a person not guilty because of mental impairment of a summary offence or an indictable offence heard and determined summarily, the Magistrates’ Court must discharge the person.

24To the extent that this Act provides any basis for the argument that the Children’s Court has jurisdiction in such matters, Mr Carmichael for the plaintiff submitted that the effect of s 5 is that, in a limited way, the Act can be said to 29 VR 576 apply to the Children’s Court in a manner that he described as “bridging”. That is, it can be inferred that in addition to the defence of mental impairment being available in the Magistrates’ Court, that court will also have jurisdiction to decide all matters ancillary or necessary to allow for the proper dispensation of the defence. That, it was submitted, would include deciding whether a defendant is fit to be tried. Thus, it was submitted that the Children’s Court, having all the powers and authority of the Magistrates’ Court, likewise has that jurisdiction. That flows from the effect of s 528 of the Children, Youth and Families Act which provides that the Children’s Court has and may exercise in relation to all matters over which it has jurisdiction all the powers and authorities that the Magistrates’ Court has in relation to the matters over which it has jurisdiction.

25I would agree that the effect of that section in conjunction with s 528 of the Children, Youth and Families Act is to enable defendants before the Magistrates’ Court to avail themselves of the defence of mental impairment in appropriate cases, but I do not agree that it follows that because such a defence is open it therefore means that by implication the Magistrates’ Court or Children’s Court has jurisdiction to deal with fitness to plead questions. I do not accept that s 5 can be interpreted to imply any more than it expressly mandates which is the availability of the defence of mental impairment in Magistrates’ Court proceedings. As I put to Mr Carmichael in the course of argument, if the intention of the Parliament was to provide magistrates with a power to determine fitness to plead issues, there is no reason why such an intention would not have been the subject of clear statutory language.26The particular provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act which concern fitness to stand trial are in s 6 of the Act and provide that:

(1) A person is unfit to stand trial for an offence if, because the person’s mental processes are disordered or impaired, the person is or, at some time during the trial, will be—

(a)
unable to understand the nature of the charge; or
(b)
unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or
(c)
unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or
(d)
unable to follow the course of the trial; or
(e)
unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or
(f)
unable to give instructions to his or her legal practitioner.

(2) A person is not unfit to stand trial only because he or she is suffering from memory loss.

27On behalf of the plaintiff Mr Carmichael submitted that, inevitably, young children before the Children’s Court might regularly fall into any of the categories identified in s 6(1)(a)–(f). That may well be so but the important question for the purpose of this Act is whether the various inabilities identified in these parts of the section have occurred, not because of the age of the defendant, but because their mental processes are disordered or impaired.28Importantly, s 7 of the Act provides that the issue of a person’s fitness to be tried is a question of fact and the question “… is to be determined on the balance of probabilities by a jury empanelled for that purpose” (emphasis added). Clearly then, that procedure cannot apply to the Magistrates’ Court or the Children’s 29 VR 577 Court. As I followed the submission on behalf of the plaintiff, while that provision demonstrates that the Crimes (Mental Impairment and Unfitness to be Tried) Act is confined to the issue of fitness to plead in trials before the County and Supreme Courts, it does not follow that the Children’s Court is deprived of its own jurisdiction to deal with such issues.4 Mr Carmichael submitted that the scheme of the Act says nothing of the processes that apply in courts, such as the Children’s Court, which do not come within its express provisions. He placed heavy reliance, however, on the provisions of s 5 of the Act to which I have already referred which make it clear that the defence of mental impairment is available in criminal proceedings in the Magistrates’ Court. On the other hand, the broad effect of the submissions by Mr Trapnell SC, counsel for the defendants, was to draw the obvious comparison between the statutory provisions contained in the Act which enable the County Court and Supreme Court to deal with the issue of fitness to plead and the absence of similar provisions authorising the Magistrates’ Court to do so.29In my opinion, the availability of the defence of mental impairment in the Magistrates’ Court, and therefore the Children’s Court, does not have as a necessary consequence the jurisdiction of the court to deal with an issue of fitness to plead. The question of fitness to plead is quite a different question from whether, at the time of committing the offence, a defendant was mentally impaired. That defence goes to whether the prosecution can establish the elements of a given criminal offence, particularly mens rea. It involves an analysis of the mental state of the accused or defendant at the time the offence or offences were alleged to have been committed. Fitness to plead is quite a separate question and, as s 7 of the Act provides, concerns the capacity of an accused or defendant to participate in the curial process by understanding the significance of a plea and the ability to give proper instructions.30Finally, and importantly, in the second reading speech in the Parliament on 18 September 1997 for the Crimes (Mental Impairment and Unfitness to be Tried) Bill,5 the Attorney-General, the Hon Jan Wade, described the bill as being one to:

… establish new procedures to deal with persons who are presented for trial before the County Court or the Supreme Court charged with an indictable offence and who are found to be unfit to be tried or not guilty on the ground of mental impairment.

In her outline of the bill, the Attorney noted, in relation to the Magistrates’ Court, that “… the new procedures for investigation into fitness and a special hearing will not apply to the Magistrates’ Court jurisdiction”.

31By way of contrast, and for example, in the Australian Capital Territory, specific provision is made by s 335 of the Crimes Act 1900 for the issue of fitness to plead to be dealt with in the Magistrates’ Court in relation to indictable offences triable summarily.6 In South Australia and Tasmania, it is clear that judicial officers including magistrates are statutorily authorised to inquire into the fitness of a defendant to plead and make orders accordingly. I will refer to this in more detail subsequently. 4

Transcript of submissions, p 9.

Interpretation of Legislation Act 1984 s 35(b)(2).

See App 1, following.

29 VR 578 32In my opinion, however, in Victoria it is not open to conclude that s 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act carries with its consequences jurisdiction to deal with the issue of fitness to plead before a magistrate or Children’s Court magistrate and there is no specific provision which has that effect. Section 5 does no more than provide that the defence of mental impairment applies to the determination of summary offences and to indictable offences heard and determined summarily in the Magistrates’ Court. The plaintiff has submitted that there is no express limitation in the Act which would prevent jurisdiction being exercised by the Magistrates’ Court or by the Children’s Court but, in my opinion, s 7 is such a limitation and a reading of the Act demonstrates that the Magistrates’ Court is excluded from deciding issues of fitness to plead.The Children, Youth and Families Act 200533To the extent that counsel for the plaintiff has submitted that there is a further statutory basis establishing the jurisdiction of a Children’s Court magistrate to deal with the issue of fitness to plead, it is on this legislation and, in particular, the breadth of it that he most heavily relies. It seemed to be submitted by counsel that jurisdiction to deal with such an issue arose under this Act independently of the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act. That was put on the basis that the latter is not a code for dealing with issues of fitness to plead and that even if it was, it only applies in the County and Supreme Courts, therefore the Children’s Court has a separate and perhaps “parallel” jurisdiction to deal with the issue under the Children, Youth and Families Act. That is a difficult proposition to accept and in my opinion if the intention of the Parliament was to create a separate and “parallel” jurisdiction for the Children’s Court to deal with fitness to plead issues, bearing in mind the clear exclusion under the Crimes (Mental Impairment and Unfitness to be Tried) Act, it could be expected that clear and express statutory language would have been used to achieve that result. That has not occurred.34It is under the Children, Youth and Families Act that the Children’s Court is continued and in the second reading speech of the minister, the court is described as remaining central “… to the statutory system of child protection”. There is no reference in that speech or, for that matter, in the Act itself, to fitness to plead or mental impairment.35The relevant provisions are contained in Ch 7. The Children’s Court is comprised of four divisions being the Family Division, the Criminal Division, the Koori Court (Criminal Division) and the Neighbourhood Justice Division.7 The jurisdiction of the Criminal Division is identified in s 516. Under that section, the Criminal Division has jurisdiction to hear and determine all charges against children for summary offences and, subject to s 356, to hear and determine summarily all charges against children for indictable offences other than certain nominated homicide offences. The Criminal Division also has jurisdiction to conduct criminal proceedings, grant or refuse bail and deal with breaches or variations of sentencing orders.36Mr Carmichael submitted that as to the question of fitness to be tried there is no express limitation on the Children’s Court jurisdiction in the Children, Youth and Families Act and the opposite is indicated by the breadth of the language of 7

Section 504.

29 VR 579 this Act. But as Mr Trapnell argued, there is no express provision in the Children, Youth and Families Act which confers jurisdiction on the Children’s Court to determine these issues, nor is such power to be implied. He submitted that if there was such an intent, it would have been made clear and, as I have already stated, in my opinion there is considerable force in that argument.37Mr Carmichael’s particular focus was on ss 516 and 522 of the Children, Youth and Families Act which were said to form a statutory basis for the magistrate to decide the question of fitness to plead, when read in conjunction with the procedure for indictable offences triable summarily in s 356.838Particular attention was paid to s 516(2) and (3) which provide:

(2) The Criminal Division has the jurisdiction referred to in subsection (1) despite anything to the contrary in any other Act.

(3) The jurisdiction given by subsection (1) is additional to any other jurisdiction given to the Criminal Division by or under this or any other Act.

39Mr Carmichael submitted that the effect of s 516(2) is to run counter to the submission made on behalf of the defendants that the procedures described in the Crimes (Mental Impairment and Unfitness to be Tried) Act to deal with fitness to plead are limited to the jurisdictions exercised by the County Court and Supreme Court. Again, I am not sure, as a matter of interpretation, that follows because in s 516(1) there is no reference to fitness to plead. This submission again proceeds on the logic that, if a defence of mental impairment is available in the Magistrates’ Court, then pursuant to s 528 of the Children, Youth and Families Act it is available in the Children’s Court and, thus, all the incidental aspects of such a defence such as determining fitness to plead is also within the court’s jurisdiction. In a sense that depends on an acceptance of the suggestion that the defence of mental impairment and the issue of fitness to plead are inextricably connected. I am not at all sure the logic of that submission is correct.40Section 522 provides:

(1) As far as practicable the Court must in any proceeding—

(a)
take steps to ensure that the proceeding is comprehensible to—
- (i)
  the child; and
- (ii)
  the child’s parents; and
- (iii)
  all other parties who have a direct interest in the proceeding; and
(b)
seek to satisfy itself that the child understands the nature and implications of the proceeding and of any order made in the proceeding; and
(c)
allow—
- (i)
  the child; and
- (ii)
  in the case of a proceeding in the Family Division, the child’s parents and all other parties who have a direct interest in the proceeding—

to participate fully in the proceeding; and

(d)
consider any wishes expressed by the child; and
(e)
respect the cultural identity and needs of—
- (i)
  the child; and
- (ii)
  the child’s parents and other members of the child’s family; and
(f)
minimise the stigma to the child and his or her family.

(2) If at any time there are proceedings in more than one Division of the Court relating to the same child, the Court must, unless it otherwise orders, hear and determine the proceeding in the Family Division first.

Outline of submission of the plaintiff, [92].

29 VR 580

(3) If the Court makes an order under subsection (2), it must state orally the reasons for the order.

(4) An order made by the Court in a proceeding is not invalidated by, nor liable to be challenged, appealed against, reviewed, set aside, quashed or called in question in any court on account of the failure of the Court to comply with subsection (3) in the proceeding.

41This section is mandatory and Mr Carmichael submitted that two important things flow from the language of s 522. First, he submitted, this section highlights the creation of a specialist jurisdiction. There cannot be any dispute about that since one of the main purposes of the Act identified in s 1 is making provision “in relation to children who have been charged with, or who have been found guilty of, offences” and “to continue The Children’s Court of Victoria as a specialist court dealing with matters relating to children”.42Mr Carmichael further submitted that this section is concerned with the issues of competence of a person charged participating in the court’s process. Section 522 applies in a “proceeding” which means “any matter in the Court, including a committal proceeding” and requires, he submitted, that the court accord procedural fairness and natural justice in the exercise of judicial power. He submitted that failing to comply with s 522 of the Act renders the proceeding a nullity. He further submitted that a provision such as s 522 is not found in the Magistrates’ Court Act 1989 and this indicates that there are some things that might be specific to the Children’s Court jurisdiction.43Mr Carmichael effectively submitted that since s 522(1) concerns ensuring that a proceeding is comprehensible to a child and that the child understands the nature and implications of it, that an issue concerning fitness to plead would be within that requirement and the jurisdiction for determining such an issue can be found in that section. While accepting that s 522 represents a statutory recognition of the reality that, depending on the age of the child, the procedures and processes of the court might be difficult to comprehend, Mr Carmichael contended that the effect of the section was broader than that.44Mr Carmichael’s submission about this section relies on the functions of the Children’s Court being a specialist court and he refers particularly to s 522(1)(a)–(d). Mr Carmichael seemed to be submitting that in relation to the issue of whether the Children’s Court has jurisdiction to determine a question of fitness to plead, s 522 is a source of jurisdiction for dealing with that question. With respect, I find it difficult to accept that those provisions, which are clearly aimed at ensuring that the Children’s Court functions in a way which is comprehensible to those over whom its powers will be exercised and on whom sanctions and supervision will be imposed and who are young or very young people, could be interpreted to that effect. Those provisions do not require the court to make any determination and do not seem to contemplate the inclusion of a separately specialised and specific issue of fitness to plead.45Mr Trapnell for the first defendant submitted that the requirement that the court satisfy itself that the child understands the nature and implications of the proceeding and any order made in that proceeding, and that the court allows the child to participate fully in the proceeding and considers any wishes expressed by the child, cannot apply to a child who is unfit to be tried. He also submitted that if a question of fitness to plead arose, it would be impossible for the court to comply with s 522 of the Children, Youth and Families Act. 29 VR 581 46Mr Trapnell further submitted that s 356 of the Act is a clear indication that the Children’s Court does not have jurisdiction to deal with fitness to plead in circumstances such as those which prevailed in this case. First, that is because s 356(1) provides that the child must be given the opportunity of exercising his or her right to a trial by jury; a child who is unfit to plead cannot exercise this right. Second, a child who is unfit to plead cannot object to the continuation of proceedings summarily as envisaged by s 356(3)(a). Mr Trapnell submitted, and with respect I agree, that the only way to resolve this impasse is by conducting a committal proceeding into the charge, an outcome envisaged by s 8 of the Crimes (Mental Impairment and Unfitness to be Tried) Act as applied to the Children’s Court by s 528(1) of the Children, Youth and Families Act.9 In my opinion, the reason why a committal must be conducted is not to do with the suitability of the charge as provided for in s 356(3)(b) but because it is not open to the magistrate to deal with the fitness to plead issue once it is raised.47A committal proceeding cannot ordinarily be conducted in circumstances where a person is unable to comprehend and participate in the proceedings.10 However, the Victorian legislation, specifically s 8 of the Crimes (Mental Impairment and Unfitness to be Tried) Act, envisages a situation where a committal proceeding can be conducted despite the defendant’s inability to participate in the proceedings provided the fitness of the person to stand trial is reserved for the consideration of the trial judge, activating the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act.1148In response, Mr Carmichael for the plaintiff submitted that the defendant’s argument forecloses even exercising the open jurisdiction and the application of s 522, which cannot be correct in the context of s 516(2) and (3).12 Mr Carmichael also submitted that the current proceedings do not involve a child who is unfit, but a child who, at the highest, is a person in respect of whom there was a question of fitness where the evidence was not all one way.1349Mr Carmichael further submitted that s 8 of the Crimes (Mental Impairment and Unfitness to be Tried) Act makes it clear that it applies in the context of a committal where the question of fitness is to be determined in the trial itself. Under s 8, there has been a proper engagement of the committal power but there is no reference in that section to summary jurisdiction. It is clear that is so because the Act does not contemplate that a magistrate has any jurisdiction to deal with an issue of fitness to plead.50In my opinion, the plain meaning of ss 516 and 522 of the Children, Youth and Families Act does not enable the submissions on behalf of the plaintiff. The obligation on the Children’s Court under s 522 is a continuing one which requires the court, given the youth of those before it, to ensure that the proceedings are comprehended by them. Such requirements apply in every case and cannot be a matter of debate. They do not depend for their application on an issue being raised although that may occur. Clearly, resolving an issue of the fitness of a person charged with criminal offences to plead to those offences and to comprehend the proceedings requires the issue to be raised, expert evidence to be 9

First defendant’s outline of argument, [9].

See Ebatarinja v Deland(1998) 194 CLR 444, at 455, [29].

First defendant’s outline of argument, [10].

T154–5.

T155.

29 VR 582 presented and a legal result to be reached which in turn has particular consequences. Under s 7 of the Crimes (Mental Impairment and Unfitness to be Tried) Act, a person is presumed to be fit to stand trial and the party raising the issue then bears the onus of rebutting that presumption. It is not logically possible to infer or to imply into the wording of s 522 the jurisdiction to deal with fitness to plead when such a power is not referred to anywhere in that Act.51I agree with the submission that if it be assumed a child before the court may be unfit to be tried within the criteria set out in s 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act, because that person may be unable to enter a plea, or to understand the nature of the trial, or follow the course of the trial or understand the effect of the evidence that may be given or unable to give instructions to a legal practitioner, then that person would not be in a position to exercise the entitlement to object pursuant to s 356(3)(a) of the Children, Youth and Families Act. In such circumstances, the court could not proceed to hear the matter summarily and the only option would be to proceed to committal.52Pursuant to s 8 of the Crimes (Mental Impairment and Unfitness to be Tried) Act, if the question of a defendant’s fitness to stand trial arises at a committal, the hearing must be completed and the defendant cannot be discharged on the basis of that issue having arisen. Assuming the defendant is committed for trial, the question of fitness to stand trial is reserved for the consideration of the trial judge. If the judge considers there is a real and substantial question, then an investigation must be held within three months after the committal.53In my opinion, there is no basis to conclude that the Children, Youth and Families Act, either by implication or expressly, invests the Children’s Court with the jurisdiction to deal with the specific issue of fitness to plead. Given what I regard as the clear intent of the Crimes (Mental Impairment and Unfitness to be Tried) Act, I am not willing to read into the Children, Youth and Families Act words which are not there. If the intention of the Parliament was to provide the Children’s Court with the power to determine the issue of fitness to plead then they would have “done well” to include specific words which had that effect. It is not part of the judicial function to “fill gaps”.14The common law54In the submission of Mr Carmichael for the plaintiff, even if, as I have concluded, there is not a legislative basis for concluding that the Children’s Court has jurisdiction to determine fitness to plead, he argued that none the less the common law gives the Children’s Court jurisdiction to determine the question of the fitness of a person to participate in a trial.15 His argument is that the Children’s Court possesses jurisdiction by necessary implication from their statutory and judicial office to take certain steps such as to stay criminal proceedings in order to prevent an abuse of process.55It is, of course, the case that the Magistrates’ Court and the Children’s Court exist under statute as does the establishment of the basis on which fitness to plead is to be determined. It is difficult to see that there can be residual power over and above that. 14

Thompson v Goold & Co[1910] AC 409; Marshall v Watson(1972) 124 CLR 640, at 649 per Stephen J.

Outline of submission of the plaintiff, [36].

29 VR 583 56Mr Trapnell put three main arguments against the plaintiff’s contentions. First, he argued that at common law, a court of summary jurisdiction does not have jurisdiction to determine whether a person is fit to stand trial or enter a plea to a charge. He relied, in particular, on Pioch v Lauder16 where Forster J held that in the absence of a statutory power, a magistrate exercising summary jurisdiction under the Justices Ordinance 1928–1976 (NT) had no authority to determine whether the accused was unfit to plead.1757In Pioch v Lauder, the Supreme Court of the Northern Territory was concerned with a special case stated from a magistrate raising the question of whether to proceed with charges of aggravated assault against a defendant who he had found understood nothing of the proceedings would be contrary to law and, if it was, whether a court of summary jurisdiction had any other powers it could exercise. His Honour concluded that to proceed in the circumstances would be contrary to law. He noted that if the matter were an indictable offence then a committal could be conducted because, notwithstanding the disabilities of the defendant, no plea from him is required in such proceedings. Upon the defendant being indicted before the Supreme Court of the Northern Territory, “a special jury should be empanelled to try the questions of the defendant’s fitness to plead”. His Honour then observed:

In the case of simple offence, however, there appears to be neither authority nor statutory provision to deal with the matter of a defendant who is insane, whether properly so called as being a person suffering from a sufficient defect of reason, or disease of the mind, or a person like the defendant here.

58Forster J considered that it was clear the defendant was not fit to plead and that there was no authority for the magistrate to order the detention of the defendant at the Governor-General’s pleasure. It was not proper, he concluded, to proceed with the summary trial.59In Ebatarinja v Deland,18 the appellant had been charged with murder and two other offences. He was an indigenous deaf mute and without a proper interpreter for his language, who had not been found, he was not capable of understanding committal proceedings. The court concluded that the Northern Territory Justices Act required that a defendant be capable of understanding what has been put against him as a condition precedent to being committed for trial. The committal proceeding could not proceed. In the course of the judgment, the court19 said:

The issue in the present case is not, as the submissions of the prosecution assumed, whether or not the appellant is fit to plead. In Pioch v Lauder, Forster J held that, in the absence of a statutory power, a magistrate exercising summary jurisdiction under the Justices Act had no authority to determine whether the accused was unfit to plead. There is no reason to doubt the correctness of the decision on this point.

60Mr Carmichael for the plaintiff however refers to a distinction in that case between, on the one hand, dealing with a summary offence and, on the other, dealing with an indictable offence. Mr Carmichael submitted that there are distinguishing features in Pioch v Lauder20 which the defendant’s submissions did not deal with. 16

(1976) 13 ALR 266, 27 FLR 79.

T66.

(1998) 194 CLR 444.

Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 455, [31].

See T54–6.

29 VR 584 61Mr Trapnell’s second submission was that the Crimes (Mental Impairment and Unfitness to be Tried) Act is intended to cover the field for the question of fitness to be tried in the Children’s Court (and Magistrates’ Court). He submits that the Act codifies the common law and that codification has conferred exclusive jurisdiction on the County Court to determine the issue. Mr Trapnell argued that the Children’s Court is a creature of statute and the existing law in relation to fitness to be tried, and fitness to plead, is a creature of statute.2162Third, Mr Trapnell submitted that fitness to be tried has historically always been a question for a jury, and the way to conduct a jury trial is for the accused to be presented before a court on indictment. He argued that the Children’s Court cannot have common law power for this reason. He first referred to the history of the resolution of issue of fitness to plead and in particular to that set out in the judgment of the Full Court in R v Judge Martin; Ex parte Attorney-General.22 This was a case where the accused had been found unfit to plead by a jury empanelled for the purpose. Despite that verdict the trial judge remanded him for trial. An order nisi for mandamus was applied for by the Attorney-General on the grounds that the trial judge was required to record the finding of unfitness to plead and to direct that the accused be kept in custody pending the Governor’s pleasure being known and that the trial judge had no authority to remand him for trial. The Full Court of this court agreed and an order absolute for certiorari was made. In the judgment of the court, the history of criminal lunatics legislation was reviewed. The submission which was put based on that history included the argument that it is “totally foreign” to the common law and indeed to the present legislation for fitness to be tried to be determined other than by a jury and that can only be done on indictment. There is thus no common law power for a judicial officer to determine the issue.63Mr Carmichael submitted that it is the daily practice of magistrates to stand in the position historically occupied by juries and that is so but only in circumstances where there is a clear statutory basis for them to do so, particularly in indictable offences which are triable summarily.64Mr Carmichael also made a brief submission on the Children’s Court’s power to determine doli incapax arguments, an issue that has similar characteristics to a question of fitness to stand trial. Counsel for the defendant says that doli incapax arguments had been dealt with in s 344 of the Children, Youth and Families Act.23 In response, Mr Carmichael submitted that the provision that Mr Trapnell refers to is a presumption of no capacity up to the age of 10, which leaves the doli incapax question open for inquiry between the ages of 10–14, under the common law.24 He argues that this is an indication that the Children’s Court does have jurisdiction to consider matters such as a question of fitness to stand trial.65As part of illustrating his submission, Mr Carmichael also referred to a decision of Magistrate Levine in the Children’s Court in Victoria Police v NL.25 In that ruling, his Honour concluded that the Children’s Court has an inherent power to determine the issue of fitness to plead, particularly where abuse of 21

T68.

[1973] VR 339.

T159–60.

T160.

[2009] VChC 5.

29 VR 585 process might be an issue. It is appropriate to deal with that submission in the context of the conclusions I have so far indicated. In that case, three of 14 charges brought against the defendant were indictable. An issue was raised as to the fitness of the defendant to plead and the jurisdiction of the Children’s Court to decide the issue. His Honour referred with emphasis to s 356(3) of the Children, Youth and Families Act and then referred to judgments of this court confirming the importance of the Children’s Court retaining jurisdiction rather than refusing to deal with indictable offences triable summarily. In each of the cases referred to, this court emphasised the importance of the Children’s Court maintaining its jurisdiction and “relinquish[ing it] reluctantly”.66With all due respect to his Honour in each of those cases, there was no dispute that the Children’s Court had jurisdiction and what was being discussed was whether, in particular circumstances, it should not be exercised. I would take no issue with the contention that when legislation invests the Children’s Court with “embracive jurisdiction in respect of children it should only be relinquished reluctantly”.26 Those sentiments were repeated in A Child v A Magistrate of the Children’s Court27 and DL (a minor by his litigation guardian) v A Magistrate of the Children’s Court.28 As Magistrate Levine then noted, it is not clear whether each of the judges deciding those cases contemplated the issue of fitness to stand trial in the consideration of the circumstances of the defendant in each case. It was not a factor in any of them. His Honour then pointed to the unsatisfactory consequence that, if the issue of fitness to plead were resolved in the affirmative in the County Court, then a child would be required to stand trial for offences which, though indictable, were at the low end of the range of seriousness. He concluded that Parliament could not have intended that outcome. He thus concluded that the court has an inherent power to determine the issue of fitness to plead and relied on the conclusions of Kaye J in Mokbel v Director of Public Prosecutions (Vic)29 in connection with the inherent power of the court to prevent abuse of its judicial process. It is sufficient to say that in that case, the plaintiff asserted an abuse of process was occurring by the prosecution of charges here while an application to the European Court of Human Rights was still on foot. The plaintiff’s claim failed.67In my opinion, his Honour’s conclusion was not open and did not include an analysis of the legislation to which I have referred. That analysis demonstrates a parliamentary intention not to invest a magistrate with the power to determine fitness to plead and a clear absence of authority for a Children’s Court magistrate to do so in the Children, Youth and Families Act which is the Act under which the Children’s Court now functions and exercise its powers. There is no basis for a conclusion that the conduct of a trial of a child in the County Court because an issue of fitness to plead had arisen, albeit on charges which are at the lower end of the scale of seriousness, could amount to an abuse of process in circumstances where there is no statutory mandate for fitness to plead to be dealt with by a magistrate. 26

D (a Child) v White[1988] VR 87. This was not a case where there was any issue about the jurisdiction of the court but rather about the exercise of the power to decline to hear indictable offences summarily under the Children’s Court Act 1973.

Unreported 24 February 1992.

Unreported 9 August 1994.

(2006) 26 VR 1.

29 VR 586 68The solution is to make representations to government to amend the legislation rather than to judicially fill what I regard as substantial gaps. I will later outline some of the recommendations which might be raised with government.69I am unable to identify any basis on which it can be concluded that a magistrate in the Children’s Court who is without statutory authority to deal with an issue of fitness to plead either based on the Crimes (Mental Impairment and Unfitness to be Tried) Act or the Children, Youth and Families Act can derive that jurisdiction from the common law. As far as I can tell, no judicial officer has ever exercised such power apart from under the more recent statutory authority in other Australian jurisdictions to which I will later refer.The Charter70There were a number of submissions made about the Charter. I will summarise the arguments and then deal with their application given the conclusions I have come to on the question of the effect of the relevant legislation. The submissions about the Charter were in two stages — those arguments put before the judgment of the Court of Appeal in R v Momcilovic30 and those supplementary submissions made after it was delivered. It is only necessary for me to deal with the arguments which are put subsequent to Momcilovic. The court in that case concluded that s 32(1) of the Charter does not create a “special” rule of interpretation, but rather forms part of the body of interpretative rules to be applied from the outset in ascertaining the meaning of a particular provision or provisions. In relation to the application of this section of the Charter31 the court said:

Compliance with the s 32(1) obligation means exploring all “possible” interpretations of the provision(s) in question, and adopting that interpretation which least infringes Charter rights. What is “possible” is determined by the existing framework of interpretive rules, including of course the presumption against interference with rights.

71The court also went on to conclude that the interpretation to be adopted must be one that is consistent with the intention of the enacting Parliament and if it is not it must be rejected.72Section 7(2) of the Charter provides:

(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—

(a)
the nature of the right; and
(b)
the importance of the purpose of the limitation; and
(c)
the nature and extent of the limitation; and
(d)
the relationship between the limitation and its purpose; and
(e)
any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

73Section 32(1) of the Charter provides:

So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

74As I followed the arguments in this case as to the Charter, they were to the following effect. First, on behalf of the plaintiff, it was assumed that the Children’s Court magistrate did have jurisdiction to deal with the issue of fitness 30

(2010) 25 VR 436.

At 464, [103].

29 VR 587 to plead in this case. That is an assumption I have not accepted. The submissions were primarily concerned with the application of s 356(3) of the Children, Youth and Families Act and the decision by the magistrate to direct that a committal be held because of the existence of “exceptional circumstances”. The argument of the plaintiff was that the magistrate failed to properly interpret s 356(3) of the Children, Youth and Families Act to avoid the removal of the jurisdiction of the Children’s Court in these indictable matters triable summarily and by so doing infringed the plaintiff’s human rights in circumstances where a reasonably available interpretation consistent with the plaintiff’s rights should have been adopted. However, the argument also proceeds on the basis that the Children’s Court has “express and implied power and jurisdiction to hear and determine a question of fitness to plead pursuant to s 522 of the Children, Youth and Families Act” and, alternatively, a common law power to do so. These are arguments with which I respectfully disagree.75On the other hand in the submissions of the Attorney-General, which were adopted by counsel for the defendants, it was submitted that as a result of the judgment of the court in Momcilovic, s 7(2) of the Charter has no role to play in the interpretative task. It was then submitted that the magistrate’s interpretation of the “exceptional circumstances” test in s 356(3) of the Children, Youth and Families Act did not result in even a prima facie limit being placed on a right protected by the Charter. In essence in those submissions, it was argued that the effect of the plaintiff being directed to stand trial in the County Court did not infringe any fair trial rights of the plaintiff because not all trials of children are required to be held in a specialist Children’s Court and with appropriate modifications in procedure in the County Court a fair trial of the plaintiff can be conducted. Procedures can be modified to protect the rights of children in that court and the court is, of course, bound by the fair trial rights set out in the Charter. The Attorney-General also referred to the regime for determining fitness to plead in that jurisdiction and to the assertion that it would be neither in the plaintiff’s interests nor that of the community for his fitness to stand trial for these matters to be determined by a magistrate outside the framework of the Crime (Mental Impairment and Unfitness to be Tried) Act.76However, for the purpose of deciding whether the magistrate was in error in the conclusion he came to, it is first necessary for me to decide whether he had jurisdiction to deal with the issue of fitness to plead in the case against the plaintiff. If he did and failed to exercise it, the next question is whether, in acting under s 356(3) of the Children, Youth and Families Act, that is, deciding that by reason of exceptional circumstances that matters should not be determined summarily, he has failed to consider the effect of the Charter in the interpretation of that section as submitted on behalf of the plaintiff.

77However, as has been seen, I have concluded that a magistrate sitting in the Children’s Court or Magistrates’ Court has no jurisdiction to deal with the issue of fitness to plead once it is raised, assuming the issue is genuinely raised. In my view, neither the Crimes (Mental Impairment and Unfitness to be Tried) Act, the Children, Youth and Families Act or the common law provide any basis to invest jurisdiction on a Children’s Court magistrate to deal with fitness to plead issues.78In turn that means, as I have said earlier, that in considering the procedure for dealing with indictable offences triable summarily under s 356 of the Children, Youth and Families Act in the these circumstances, a magistrate is without 29 VR 588 jurisdiction and there is no occasion to interpret the meaning of s 356(3)(b). As previously discussed, that section requires a magistrate to hear and determine charges summarily unless there is an objection from the child before the court before the evidence commences or if at any stage the court considers “the charge is unsuitable by reason of exceptional circumstances to be determined summarily …”. Clearly if there is an issue of fitness to plead, the matter cannot proceed because there is a question over the first step in the process — the defendant pleading guilty or not guilty. Given the conclusions I have come to about the jurisdiction of a Children’s Court to deal with the fitness to plead issue, the magistrate has no choice but to direct that a committal be held. This is unsatisfactory but it is the effect of the law as it presently stands.79In turn, it also is my view that there is no issue raised by the Charter because there is an absence of jurisdiction to deal with the issue of fitness to plead. The requirement to conduct a committal does not arise from an interpretation of s 356(3)(b) of the Children, Youth and Families Act because it is not to do with the suitability of the charge brought against the defendant.Recommendations80The conclusions I have reached in this case lead to an unsatisfactory result because the important purpose of the Children, Youth and Families Act so far as the Children’s Court is concerned cannot be effected. Although that Act contemplates that there will be cases where some offences other than homicide offences will need to be tried in the County Court, the clear intention of that Act is that, wherever possible, children should be dealt with in the specialist jurisdiction of the Children’s Court. At present, even in the most minor of indictable offences, the only way that an issue of fitness to plead can be resolved is by the matter being dealt with by committal and trial in the County Court.81I would therefore recommend that the Crimes (Mental Impairment and Unfitness to be Tried) Act and the Children, Youth and Families Act be appropriately amended to provide the Children’s Court with the specific jurisdiction to deal with issues of fitness to plead without the need for the defendant to be directed to stand trial and the matter investigated by a jury empanelled for the purpose. The Parliament may wish to consider whether provisions similar to s 335 of the Crimes Act 1900 (ACT) should be enacted in Victoria to give magistrates specific statutory authority to deal with the issue of fitness to plead and to enable them to make appropriate orders following a finding of unfitness.82As I have earlier briefly referred to, with the exception of Victoria, Queensland and the Northern Territory, other States have given Magistrates’ Courts the power to determine the issue of fitness to plead, or more generally, provided for the summary disposition of persons suffering from mental illness and intellectual disability. Section 20BQ of the Crimes Act 1914 (Cth) has a specific provision which allows for the summary disposition of persons suffering from mental illness and intellectual disability. Section 310 of the Crimes Act 1900 (ACT) says that the division on unfitness to plead, Div 13.2, applies to Supreme Court and Magistrates Court proceedings. The Mental Health (Forensic Provisions) Act 1990 (NSW) contains a specific provision, s 32, which enables magistrates to determine fitness to plead. The Criminal Law Consolidation Act 1935 (SA) empowers a judge and/or a court to investigate a person’s mental fitness to stand trial by defining “judge” to include a magistrate and “court” to include a court of 29 VR 589 summary jurisdiction. In Tasmania, s 4(1) of the Criminal Justice (Mental Impairment) Act 1999 (Tas) simply provides that the Act applies to all courts where Pt 2 of the Act sets out a procedure to investigate a defendant’s fitness to stand trial. Like Tasmania, s 4 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) provides that the Act applies in respect of any accused before any court exercising criminal jurisdiction where s 12 is a section on “Deciding the question of mental fitness”.83As a separate matter from those considerations, as to this case Ms Geiringer, counsel for the Attorney-General before me, has submitted that I should give what she described as limited guidance to the conduct of the remaining proceedings. The first and most obvious recommendation to make is that, in any case before the County Court where the accused is a child, the requirements of s 522 of the Children Youth and Families Act should be adhered to wherever possible. In particular I refer to s 522(1)(a), (b), (c)(i), (e) and (f).84At a more practical level, I would suggest that wigs not be worn in such a case and that a member of the child’s family be permitted to be seated in the dock with the child during the proceedings. If security does not require the child to be seated in the dock, then he or she should be seated behind his or her counsel.85I have been referred to the Practice Direction of the Lord Chief Justice of England and Wales of 16 February 2000 in relation to the trial of children and young persons in the Crown Court. The Practice Direction highlights the importance of not exposing such a person to avoidable intimidation, humiliation or distress and consistent with some of the provisions in s 522 of the Children, Youth and Families Act to which I have just referred it directs that all possible steps should be taken to assist such a young person to understand and participate in the proceedings with the need for trial processes to be adapted to meet those needs. Prior to the trial the child should be given the opportunity to familiarise himself or herself with the court and the court should give directions which have the effect of altering the procedures of the trial to achieve these aims. The Practice Direction then, in so far as it is relevant in this case, continues:

9.
The trial should, if practicable, be held in a courtroom in which all the participants are on the same or almost the same level.
10.
A young defendant should normally, if he wishes, be free to sit with members of his family or others in a like relationship and in a place which permits easy, informal communication with his legal representatives and others with whom he wants or needs to communicate.
11.
The court should explain the course of proceedings to a young defendant in terms he can understand, should remind those representing a young defendant of their continuing duty to explain each step of the trial to him and should ensure, so far as practicable, that the trial is conducted in language which the young defendant can understand.
12.
The trial should be conducted according to a timetable which takes full account of a young defendant’s inability to concentrate for long periods. Frequent and regular breaks will often be appropriate.
13.
Robes and wigs should not be worn unless the young defendant asks that they should or the court for good reason orders that they should. Any person responsible for the security of a young defendant who is in custody should not be in uniform. There should be no recognisable police presence in the courtroom save for good reason.

29 VR 590

14.
The court should be prepared to restrict attendance at the trial to a small number, perhaps limited to some of those with an immediate and direct interest in the outcome of the trial. The court should rule on any challenged claim to attend.
15.
Facilities for reporting the trial (subject to any direction given under section 39 of the 1933 Act or section 45 of the 1999 Act) must be provided. But the court may restrict the number of those attending in the courtroom to report the trial to such number as is judged practicable and desirable. In ruling on any challenged claim to attend the courtroom for the purpose of reporting the trial the court should be mindful of the public’s general right to be informed about the administration of justice in the Crown Court. Where access to the courtroom by reporters is restricted, arrangements should be made for the proceedings to be relayed, audibly and if possible visually, to another room in the same court complex to which the media have free access if it appears that there will be a need for such additional facilities.
16.
Where the court is called upon to exercise its discretion in relation to any procedural matter falling within the scope of this Practice Direction but not the subject of specific reference, such discretion should be exercised having regard to the principles in paragraph 3 above.

86With respect, these are very sensible directions and should be followed in this case and in any case where a child is to be dealt with on indictment.Conclusion87In my opinion, the magistrate was in error in concluding that there was a doubt over his jurisdiction to deal with the issue of fitness to plead and ought to have concluded that he did not have jurisdiction. In those circumstances, had he done so he would have been required, in any event, to conclude that a committal proceeding should be conducted because there was no other means of dealing with the matter given the absence of jurisdiction to deal with the issue of fitness to plead. Such a finding does not depend on the meaning of “exceptional circumstances” pursuant to s 356(3)(b) of the Children, Youth and Families Act and therefore would not raise a question of interpretation which required a consideration of the Charter.88Given that the statement of relief or remedy sought seeks orders the effect of which would be to require the Children’s Court to determine the charges against the plaintiff summarily, although I have found that the magistrate’s conclusion that there was doubt over the jurisdiction to be in error, each originating motion should be dismissed. The order made by the magistrate for the holding of a committal proceeding is confirmed. 29 VR 591 Appendix 1

Australian Capital Territory

CRIMES ACT 1900 — SECT 335

Fitness to plead — Magistrates Court

(1) This section applies to an indictable offence that can be heard and determined summarily if the Magistrates Court is of the opinion that the case can properly be disposed of summarily having regard to—

(a)
any relevant representations made by the accused; and
(b)
any relevant representations made by the prosecutor in the presence of the accused; and
(c)
the circumstances and, in particular, the degree of seriousness of the case; and
(d)
any other circumstances that appear to the Magistrates Court to make it more appropriate for the case to be dealt with on indictment rather than summarily.

(2) If this section applies and—

(a)
the Magistrates Court decides as mentioned in section 315C or section 315D(9) that the accused charged with a serious offence is unfit to plead; and
(b)
after hearing the charge, the Magistrates Court is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged;

the Magistrates Court shall order that the accused be detained in custody until the ACAT orders otherwise unless, in consideration of the criteria for detention in section 308, it is satisfied that it is more appropriate to order that the accused submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order.

(3) If, under subsection (2), the Magistrates Court is satisfied that it is more appropriate to order that the accused submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order, it shall make an order to that effect.

(4) If this section applies and—

(a)
the Magistrates Court decides as mentioned in section 315C or section 315D(9) that the accused charged with an offence other than a serious offence is unfit to plead; and
(b)
after hearing the charge, the Magistrates Court is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged;

the Magistrates Court may make any orders it considers appropriate, including the following:

(c)
that the accused be detained in custody until the ACAT orders otherwise;
(d)
that the accused submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order.

(5) The Magistrates Court shall conduct a hearing under this section as nearly as possible as if it were a normal criminal proceeding.

(6) In a hearing under this section—

(a)
if legal representation is available to the accused — the accused shall have legal representation unless the Magistrates Court otherwise orders; and
(b)
the accused is to be taken to have pleaded not guilty in respect of the offence charged.

(7) If the Magistrates Court is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged, the finding—

(a)
is not a basis in law for recording a conviction for the offence charged; and
(b)
except as provided in section 335A, bars further prosecution of the accused for any offence in relation to the conduct.

29 VR 592

(8) In this section:

“serious offence” means—

(a)
an offence involving actual or threatened violence; or
(b)
an offence against section 27(3) or (4).

Applications dismissed.Solicitors for the plaintiff: Gorman & Hannan.Solicitor for the defendants: Craig Hyland, Solicitor for Public Prosecutions.Solicitor for the Attorney-General: John Cain, Victorian Government Solicitor.

[The plaintiff purported to commence an appeal in each of the four proceedings. By reason of the plaintiff’s non-compliance with an order for the filing and service of an agreed revised appeal book index, the purported appeals were taken to have been abandoned pursuant to r 64.16(1)(a). The plaintiff sought reinstatement of the purported appeals and the respondents contended that leave to appeal was required pursuant to s 17A(4)(b) of the Supreme Court Act 1986. On 5 August 2011, the Court of Appeal (Warren CJ and Sifris AJA) held, relying in particular on Kassionis v Magistrates’ Court of Victoria[2002] VSCA 73, that the order made by the trial judge in each case was an interlocutory order and granted an extension of time to apply for leave to appeal in each case. The court also held that the trial judge’s decision was not wrong or attended with sufficient doubt and refused leave to appeal: [2011] VSCA 227 — Ed, VR.]

K M EVANSBARRISTER-AT-LAW

[2010] VSC 517

16/11/2010