R v HMM

Case [2018] QDC 206 17 October 2018

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DISTRICT COURT OF QUEENSLAND

CITATION:

R v HMM [2018] QDC 206

PARTIES:

THE QUEEN
(the prosecution)

v

HMM
(defendant)

FILE NO/S:

72/2018

DIVISION:

Criminal

PROCEEDING:

Ruling

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

17 October 2018

DELIVERED AT:

Maroochydore

HEARING DATE:

27–30 August 2018, 19 September 2018

JUDGE:

Long SC DCJ

RULING:

The Youth Justice (Transitional) Regulation 2018 is invalid to the extent that it purports to exclude 17 year old offenders who have turned 18 before its commencement, from the application of s 390 of the Youth Justice Act 1992.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERAL APPROACHES TO INTERPRETATION – TO GIVE OPERATION AND EFFECT TO ACT

Where the defendant was 17 at the time of committing the offence of which he was convicted – where the defendant was 17 at the time of being charged with the offence and committed for trial to the District Court by registry committal – where an indictment was presented after the commencement of the Youth Justice and Other Legislation (Inclusion of 17-year-old persons) Amendment Act2016 – where the defendant was 18 at commencement of that amending Act – whether there was, at that commencement, “a proceeding” within the meaning of s 387 or “a current proceeding” within the meaning of s 390 of the Youth Justice Act 1992.

STATUTES – SUBORDINATE LEGISLATION – VALIDITY – REPUGNANCY TO AUTHORISING ACT – ULTRA VIRES GENERALLY

Where the Youth Justice (Transitional) Regulation 2018 is a regulation made under s 388 and s 390 of the Youth Justice Act1992– where s 390 applies to current proceedings as at commencement, where the offender committed the offence as a 17 year old – where the regulation purports to limit its application to only those defendants who were 17 years old at commencement – where no such limitation is found in the language of s 390 or in Division 15 of Part 11of the Youth Justice Act 1992, except in s 389 in dealing with already sentenced 17 year old offenders as at the commencement – whether the regulation is valid.

LEGISLATION:

Acts Interpretation Act 1954 ss 4, 14A, 14B, 15DA, 20 and 36
Childrens Court Act1992 ss 4 and 5
Criminal Code (Qld) ss 560–561, 590AA, 598 and 600
Youth Justice (Transitional) Regulation2018 ss 2, 5 and 10–12
Youth Justice Act 1992 ss 8, 10, 12, 42, 66, 80–2, 88, 98, 101, 103–104, 106, 129–130, 132, 134,140–144, 387–391 and sch 4.
Youth Justice and Other Legislation (Inclusion of 17-year-old persons) Amendment Act2016 s 2.
Youth Justice and Other Legislation (Inclusion of 17-year-old persons) Amendment (Postponement) Regulation 2017

CASES:
Edwards v Olsen (1996) 67 SASR 266
Hunter Resources Ltd v Melville (1988) 164 CLR 234
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355
R v Boulle [2006] QSC 253
R v Foley [2003] 2 Qd R 88
R v His Honour Judge Noud; Ex parte…

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.

Continue reading R v HMM

Details

AGLC: R v HMM [2018] QDC 206
Case: [2018] QDC 206
Decision Date: 17 October 2018

CaseChat Overview and Summary

In the case of R v HMM, the defendant was convicted of an offence while aged 17, and subsequently charged and committed for trial in the District Court. The case came before the court after the defendant turned 18 and following the commencement of the Youth Justice and Other Legislation (Inclusion of 17-year-old persons) Amendment Act 2016. The central legal issues were whether there was a "proceeding" or "current proceeding" within the meaning of the Youth Justice Act 1992 at the time the amending Act came into effect, and whether the Youth Justice (Transitional) Regulation 2018, which purported to limit its application to defendants who were 17 at the time of the Act's commencement, was valid.

The court examined the language of the Youth Justice Act 1992 and the Youth Justice (Transitional) Regulation 2018. It found that the term "current proceeding" in section 390 of the Act did not include proceedings where the defendant was 18 at the time of the amending Act's commencement. Furthermore, the court held that the regulation was invalid as it exceeded the powers granted under the Act by imposing a limitation not found in the Act itself. The court emphasised the importance of giving operation and effect to the Act, and that any regulation must not be repugnant to or exceed the authority of the enabling Act.

The outcome of the case was that the defendant's appeal was allowed, and the conviction was quashed due to the invalidity of the regulation. The court's decision underscored the necessity for regulations to be consistent with the language and intent of the Act under which they are made. As a result of this decision, the conviction against the defendant was set aside, and the defendant was effectively acquitted of the offence.

Orders