LM v Children's Court of Victoria

[2018] VSC 140

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 05299

LM	Plaintiff
v
THE CHILDREN'S COURT OF VICTORIA	First Defendant
and
SENIOR CONSTABLE LEAH GLADSTONE	Second Defendant

S CI 2018 00034

PQ	Plaintiff
v
THE CHILDREN'S COURT OF VICTORIA	First Defendant
and
DETECTIVE SENIOR CONSTABLE LEAH GLADSTONE	Second Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	Decided on the papers
DATE OF JUDGMENT:	29 March 2018
CASE MAY BE CITED AS:	LM v Children’s Court of Victoria
MEDIUM NEUTRAL CITATION:	[2018] VSC 140

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JUDICIAL REVIEW — Children’s Court — Whether charges should be heard summarily or as indictable offences — Whether exceptional circumstances — Whether security risk or possible disruption in courtroom by one accused were exceptional circumstances — No exceptional circumstances — Jurisdictional error — Error of law on the face of the record — Charges remitted for rehearing — Parties’ consent orders — Children, Youth and Families Act 2005 s 356(3)(b)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff LM	Ms C Windisch	Christina Windisch Barrister & Solicitor
For the Plaintiff PQ	Ms E Contini	Victoria Legal Aid
For the Second Defendant	Mr L O’Hanlon	Office of Public Prosecutions

HIS HONOUR:

1. The parties in two judicial review proceedings have filed consent orders and have filed a joint memorandum explaining the legal justification for the proposed orders in accordance with the requirements of the Judicial Review and Appeals List Practice Note.[1]

   [1]Because the two judicial review proceedings arise out of a proceeding in the Children’s Court, the restriction of publication of proceedings provisions contained in s 534 of the Children, Youth and Families Act 2005 applied.

1. The two plaintiffs were charged with breaches of the Crimes Act 1958 involving theft and other offences.

1. Having considered the memorandum, I am of the view that the orders proposed as subsequently amended are appropriate.

1. The orders proposed set aside orders of the Children’s Court at Frankston of 26 October 2017 finding that the charges in two proceedings numbered H11926209 and H12091593 were unsuitable for summary hearing by reason of exceptional circumstances pursuant to s 356(3)(b) of the Children, Youth and Families Act 2005 and ordering that both accused be remanded to the Children’s Court.

1. Section 356(3)(b) states:

Procedure for indictable offences that may be heard and determined summarily

(3) If 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.

1. The exceptional circumstances that the Magistrate identified were that one of the two accused would be likely to present a security risk to people present in the courtroom or cause disruption as evidenced by his previous behaviour.

1. The security issue and potential disruption identified by the Magistrate were obviously of great importance, but they were not to be dealt with by relying on the exceptional circumstances provisions in s 356(3)(b) and thereby deciding that the charges were not suitable for summary hearing. Other administrative and security steps needed to be taken to deal with the behavioural issues that the particular plaintiff was understood to present.

1. The exceptional circumstances provision refers to the nature of the charges and the circumstances of the accused relevant to the charges rather than extraneous matters.

1. A number of authorities have considered the proper application of s 356. Justice T Forrest summarised them as follows:

(a) the Children’s Court should relinquish its embracive jurisdiction only with great reluctance;

(b) the gravity of the conduct and the role ascribed to the accused are important matters but are not the only factors to be considered;

(c) other factors for consideration may include the maturity of the offender, the degree of planning or its complexity, and the antecedents of the alleged offender or particular features peculiar to him or her;

(d) the most important criterion is the overall administration of justice – that is, justice as it affects the community as well as the individual;

(e) the nature of the evidence to be called may render a matter unsuitable for summary determination – evidence about political motivation, or forensic or scientific evidence, may fall within this class;

(f) ‘exceptional’, in this statutory context means more than special, it means very unusual.[2]

[2]K v Children’s Court of Victoria [2015] VSC 645, [26] (citations omitted).

1. In taking into account Court security issues and disruption which might be caused by the conduct of one of the children, with respect, the Magistrate took into account a legally irrelevant matter not permitted by the statute. The orders made must be quashed for jurisdictional error and error of law on the face of the record and the charges be remitted for rehearing before a different Magistrate. That Magistrate can consider any issue that properly arises under s 356 about whether the charges should be heard summarily. At the hearing on 26 October 2017 the prosecution did not apply to have the charges heard as indictable matters.

1. The parties raised other grounds in support of their judicial review applications but as they have submitted consent orders it is unnecessary to determine them.

Conclusion

1. I would therefore make orders to the following effect in the first proceeding – S CI 2017 05299:

(a)   That an order in the nature of certiorari issue quashing the orders made by His Honour Magistrate Crisp in the Children’s Court at Frankston on 26 October 2017 in proceeding number H11926209 that had the effect that his Honour would not to hear the charges against LM summarily;

(b)   The charges in proceeding number H11926209 are remitted to the Children’s Court at Frankston to be dealt with according to law by a different Magistrate;

(c)    The Chief Commissioner of Police pay the costs of the Plaintiff in this proceeding, in an amount to be agreed between the parties; and

(d)  The parties have liberty to apply.

1. In the second proceeding S CI 2018 00034 I will make similar orders save that the Children’s Court proceeding number referred to will be H12091593 and the plaintiff referred to will be PQ.