Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :KEEN DCJ
File No :IND 1039 of 2010
Catchwords:
Criminal law - Jurisdiction - Whether the appellant was aged under 18 years at the time of allegedly committing an offence - Whether the District Court or the Children's Court had jurisdiction to hear and determine the charge of the offence
Criminal law - Jurisdiction - Appellant pleaded pursuant to s 126(1)(a) of the Criminal Procedure Act 2004 (WA) that the District Court did not have jurisdiction to deal with him - Onus of proof - Primary judge determined after a trial of issues that at the material time the appellant was of the age of 18 years - Primary judge rejected the appellant's plea under s 126(1)(a) and required the appellant pursuant to s 127(4) of the Criminal Procedure Act to enter a different plea to the charge - Whether the primary judge's conclusion that the appellant was of the age of 18 years was unsafe or not reasonably open
Criminal law - Federal offence - Appellant convicted in the District Court on his plea of guilty of an offence against s 232A of the Migration Act 1958 (Cth) - Appellant sentenced to the mandatory minimum penalty, for an adult, of 5 years' imprisonment with a minimum nonparole period of 3 years - The circumstances in which a conviction entered after a plea of guilty may be set aside on appeal
Royal Prerogative of Mercy - Petition in relation to the appellant referred by the Attorney General of the Commonwealth to the Court of Appeal pursuant to s 140 of the Sentencing Act 1995 (WA) - Additional evidence - Whether a miscarriage of justice
Criminal law - Federal offence - Whether s 68(2) of the Judiciary Act 1903 (Cth) operates by analogy upon s 140 of the Sentencing Act to confer on the Commonwealth Attorney General the power to refer to the Court of Appeal a petition for the exercise of the Royal Prerogative of Mercy in relation to an offender who has been convicted on indictment of a federal offence and to confer on the Court of Appeal jurisdiction to entertain the reference
Criminal law - Where the appellant was convicted on indictment following his plea of guilty - Whether the Attorney General is entitled to refer to the Court of Appeal pursuant to s 140 of the Sentencing Act a petition in relation to an offender who has been convicted on indictment following his or her plea of guilty and not after a trial
Criminal law - Where the appellant did not exercise the right of appeal against conviction conferred by…
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
Jasmin v The Queen [2017] WASCA 122
Case
[2017] WASCA 122
Decision Date
CaseChat Overview and Summary
The appeal concerns the appellant, who was convicted in the District Court of a federal offence under section 232A of the Migration Act 1958. The central issue was whether the District Court had jurisdiction to hear the case, given the appellant's plea that he was under 18 years of age at the time of the alleged offence. The appellant argued that the Children's Court should have jurisdiction instead, but the primary judge ruled that the appellant was 18 years old, and thus the District Court was the proper forum. The appellant's appeal challenged this jurisdictional determination and the subsequent conviction and sentence.
The court had to decide several legal questions, including whether the primary judge's finding that the appellant was 18 years old was safe and reasonably open. Additionally, the court needed to determine the scope of the Attorney General's power to refer a petition for the exercise of the Royal Prerogative of Mercy to the Court of Appeal, specifically whether this power applied to cases where the offender had pleaded guilty rather than being convicted after a trial. The court also considered whether the deeming provision in the Criminal Procedure Act affected the Court of Appeal's jurisdiction over such references.
The court found that the primary judge's determination that the appellant was 18 years old was indeed safe and reasonably open. Regarding the Attorney General's referral power, the court held that it extended to cases of offenders convicted on indictment, including those who pleaded guilty. The court also concluded that the deeming provision did not limit the Court of Appeal's jurisdiction over such references. As a result, the appeal against the conviction was dismissed, and the Attorney General's referral to the Court of Appeal was upheld.
The final orders of the court were that the appeal against the conviction was dismissed, and the appeal against the sentence was allowed. The court directed that the appellant's sentence be re-imposed by the District Court.