R v Rennie

[1913] HCA 52

17 CLR 47

RENNIE AND OTHERS.

Ex PARTE KNIGHT. Children's Courts-Jurisdiction-Defence-Ofences by cadets under 17 years of age

-Defence Act 1903-1912 (No. 20 of 1903-No. 5 of 1912), secs. 110, 135 (10)- Children's Court Act 1906 (Vict.) (No. 2058), secs. 2, 4, 12, 13, 14 - Acts Inter- pretation Act 1901 (No. 2 of 1901), sec. 26.

By the Children's Court Act 1906 (Vict.) jurisdiction is given to Children's Courts in respect of offences by children under the age of 17 years.

Held, that offences against sec. 135 of the Defence Act 1903-1912, committed by cadets over the age of 16 years and under the age of 17 years, may be pro- secuted in Children's Courts in Victoria, notwithstanding the provisions of sec. 135 (10) of the Defence Act. MANDAMUS.

At a Children's Court held at Malvern in the State of Victoria, an information came on for hearing, whereby Ernest Knox Knight charged that Sydney Arthur Wallace, a cadet, who was over 16 years and under 17 years of age, committed a certain offence against the Defence Act 1903-1912. The special magistrates, James Rennie and Laurence Doyle, having held that they had no jurisdie- tion to hear the case by reason of the defendant being over the age of 16 years, the informant obtained an order nisi for a man- damus to the magistrates to hear and determine the information.

J. R. Macfarlan moved the order absolute. Under the Children's Court Act 1906 a Children's Court has jurisdiction in

17 CLR 48

respect of children under the age of 17 years: See secs. 2, 12 (1), (3), 13, 14. The fact that by sec. 135 (10) of the Defence Act 1903-1912 offences committed by cadets under the age of 16 years are, where practicable, to be prosecuted in Children's Courts, does not prevent the prosecution in Victoria of cadets who are over that age in those Courts; for by sec. 110 offences may be prosecuted in any Court of summary jurisdiction, and in Victoria Children's Courts are such Courts in respect of boys under the age of 17 years.

Mann, for the magistrates, showed cause. No meaning can be given to sec. 135 (10) unless it is to be implied that offences by cadets over the age of 16 years are not to be prosecuted in Children's Courts. The jurisdiction of Children's Courts as to children under 17 years of age is not exclusive, but there is an option as to whether prosecutions shall be instituted in those Courts or in Courts of Petty Sessions: See secs. 12 and 14 of the Children's Court Act 1906.

The judgment of the Court was delivered by

ISAACS J. The question raised in this case is remarkably simple. An offence under the Defence Act 1903-1912 was charged against a lad over the age of 16 years and under the age of 17 years for failing without lawful excuse to attend compul- sory drill. The proceeding was taken in the Children's Court at Malvern, and the magistrates thought that they had no jurisdic- tion, by reason of the construction which they placed upon sec. 135 (10) of that Act, which provides that" In places where Children's Courts exist, offences against this section committed by cadets under the age of 16 years shall be prosecuted in such Courts as far as is reasonably practicable." The offence charged was an offence against that section. The Act by sec. 110 provides that "A prosecution for an offence against this Act or the Regulations may be brought in any Court of summary jurisdiction." Those words would include the Children's Court for this reason, that by sec. 26 of the Acts Interpretation Act 1901 "Court of summary jurisdiction," in any Act, unless the contrary intention appears, means any justice or justices of the peace or other magistrate of

17 CLR 49

the Commonwealth or part of the Commonwealth, or of a State H. C. OF or part of a State, sitting as a Court for the making of summary orders or the summary punishment of offences under the law of the Commonwealth or of a State or by virtue of his or their commission or commissions or any Imperial Act."

The Children's Court Act 1906 of Victoria, which establishes and regulates Children's Courts, by sec. 4 provides that " The Governor in Council may appoint for any city town or place any person or any police magistrate and may also appoint any one or more justices of the peace of the bailiwick in which such city town or place is situate to be a special magistrate or special magistrates and to exercise the jurisdiction of a Children's Court under this Act." Therefore, unless some words are found in the Commonwealth Defence Act giving a different meaning to the words Court of summary jurisdiction" as used in that Act, the Malvern Children's Court would answer the description. Now, that reduces the question to this: Does sec. 135 (10) declare in effect that where the alleged offender is over the age of 16 years Children's Courts have no jurisdiction ? In our opinion it does not SO declare. The general provision in sec. 110 is clear, and sec. 135 (10) is a mere direction for an obvious purpose- for the sake of the offender-to proceed in that particular Court where it is reasonably practicable, and there are no words either in that phrase or in any other part of the section which limit the general jurisdiction given by sec. 110, under the general words of which the Court would have jurisdiction. That seems to be the position and the order nisi for a mandamus will, there- fore, be made absolute. As it is a case of public officers there will be no costs.

Order nisi for mandamus absolute. Solicitor, for the applicant, Gordon H. Castle, Crown Solicitor for the Commonwealth.

Solicitor, for the defendants, Guinness, Crown Solicitor for Victoria.