Stoykovski v "M" [A Child]
[2002] WASCA 193
•18 JUNE 2002
STOYKOVSKI -v- "M" [A CHILD] [2002] WASCA 193
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 193 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:38/2002 | 18 JUNE 2002 | |
| Coram: | WALLWORK J MURRAY J TEMPLEMAN J | 18/06/02 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | VICTOR STOYKOVSKI "M" [A CHILD] |
Catchwords: | Practice and procedure Appeal against decision of a Judge of the Children's Court Jurisdiction of Children's Court Determination of age of accused |
Legislation: | Migration Act 1958 (Cth), s 232A |
Case References: | Warren v Coombes (1979) 142 CLR 531 Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227 Briginshaw v Briginshaw (1938) 60 CLR 336 Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180 Devries v Australian National Railways Commission (1993) 177 CLR 472 R v Alexander [1975] VR 741 R v Dunne [2001] WASC 263 R v The Inhabitants of Erith (1807) 103 ER 450 Sweeney v Denness (1954) WALR Vol LVI 52 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : STOYKOVSKI -v- "M" [A CHILD] [2002] WASCA 193 CORAM : WALLWORK J
- MURRAY J
TEMPLEMAN J
- Appellant
AND
"M" [A CHILD]
Respondent
Catchwords:
Practice and procedure - Appeal against decision of a Judge of the Children's Court - Jurisdiction of Children's Court - Determination of age of accused
Legislation:
Migration Act 1958 (Cth), s 232A
Result:
Appeal dismissed
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Category: B
Representation:
Counsel:
Appellant : Mr P N Bevilacqua
Respondent : Ms G A Archer
Solicitors:
Appellant : Commonwealth Director of Public Prosecutions
Respondent : Legal Aid of Western Australia
Case(s) referred to in judgment(s):
Warren v Coombes (1979) 142 CLR 531
Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227
Case(s) also cited:
Briginshaw v Briginshaw (1938) 60 CLR 336
Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180
Devries v Australian National Railways Commission (1993) 177 CLR 472
R v Alexander [1975] VR 741
R v Dunne [2001] WASC 263
R v The Inhabitants of Erith (1807) 103 ER 450
Sweeney v Denness (1954) WALR Vol LVI 52
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1 TEMPLEMAN J: This is an appeal from a decision of Judge O'Brien sitting as the President of the Children's Court of Western Australia. The appeal arises out of a decision given by Judge O'Brien in relation to "M" who is the respondent.
2 "M" was charged with an offence under the Migration Act 1958 (Cth). The complaint was issued out of the Children's Court on the basis that "M's" date of birth was 23 October 1984. The alleged offence was committed on 6 October 2001 when, if "M" was correct in his evidence and if "M's" birth date was 23 October 1984, he would have been under the age of 18 years so that the Children's Court had jurisdiction.
3 The learned Judge was asked to find that at the material time "M" was in fact over the age of 18 years. The learned Judge came to the conclusion that she should accept "M's" evidence and gave a judgment to that effect. I will not read the whole of her Honour's judgment but there are various passages to which I must refer. First of all, her Honour pointed out that the Children's Court only had jurisdiction to deal with a young person under the age of 18 years who was under that age at the time of the commission of the offence.
4 In considering the age of "M", the learned Judge referred to the standard of proof. Her Honour said, and it is not in dispute, that the standard of proof is on the balance of probabilities and that had been agreed and applied by other courts determining similar issues. Her Honour then referred to the fact that both parties had submitted that the onus was not borne by one particular party and she went on to say that she would apply the standard of proof as - and I think that means "on" - the balance of probabilities.
5 There is a point which has been raised in the grounds of appeal and I deal with that at this point. There is a ground of appeal in which it is said that the learned Judge erred by finding that any doubt as to the age of the respondent at the time of the alleged offence should be resolved in his favour. That is not something which her Honour said in the course of the judgment. The point arises, it is submitted, from something which was said by her Honour in the course of argument. I should say that the judgment was given on 12 February this year and the argument took place a week earlier on 5 February.
6 Her Honour considered a decision of Jackson DCJ in which his Honour had said (at 62 of the transcript), and I quote:
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- "I should say that in my view when considering evidence in relation to the matter, given the consequences for the accused person of ruling one way or the other, if there is doubt the court should err towards the more favourable construction of the evidence from the accused's point of view, following the usual principles that apply in criminal trials and adopt some generosity of view, if I may put it that way, in favour of the position adopted by the accused."
7 Her Honour said in relation to that, and I quote:
"I think what his Honour Judge Jackson was getting at was the standard of proof is the balance of probabilities, but in looking at the evidence one way or another, where there is any doubt it should be resolved in favour of the defendant. I think that's what he was getting at."
8 Then her Honour went on to say that that did not affect the standard of proof. There was then a submission by counsel:
"Yes, that's exactly right."
9 Then a little later:
"I mean, really it says that given the consequences for the accused person of a ruling one way or the other."
10 Then her Honour interjected and said:
"Well, that's why you resolve any doubt in favour of the defendant."
11 and then a little later -
"according to Judge Jackson."
12 So it is not clear in my view from that passage that her Honour did accept what Jackson DCJ had apparently said in the case which had been cited to her. In her reasons for judgment a week later on 12 February, her Honour made no reference to that principle, if it be a principle, that Jackson DCJ had referred to, suggesting to my mind that although her Honour had undoubtedly considered it, as she did in the course of argument, she had not given effect to it, concluding as she did that the standard of proof was simply on the balance of probabilities. That disposes of that ground of appeal in my view.
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13 Returning to her Honour's judgment, she referred to the evidence which "M" had given. First there was evidence about his schooling. Her Honour summarised that evidence and said that if "M" was right about it, then he would have been 15, turning 16 in the calendar year 2001. Her Honour then referred to some further evidence which "M" had given as to his age. That was evidence that he had seen a birth certificate on two occasions. The first was when he had just finished primary school. His evidence was that his school had requested that he bring the certificate to school. His mother had given it to him for that purpose. Under cross-examination "M" had said that the birth certificate looked like a diploma, about the size of an A4 document. This had happened - that is, taking the certificate to school - when he was in year 6. He said the document had his name on it and that the date of birth was given as 23 October 1984. He said that after he had shown the birth certificate at school, he gave it back to his mother straightaway.
14 "M" then said that he had seen his birth certificate again when he was in year 3 of high school. Her Honour said that must have been between June 99 and May or June 2000. He had then given the certificate back to his mother and had not seen it since.
15 Her Honour then referred to the fact that both the Legal Aid Commission and the DPP had asked the authorities to track down "M's" birth certificate but that attempt had been unsuccessful. Her Honour then referred to "M's" evidence that he had had other identification, namely a student pass, with his photograph on it but that had been lost at sea.
16 Her Honour said the evidence about the date on the birth certificate was hearsay but there was no objection taken to its admissibility and that was the position taken in an earlier case to which her Honour referred.
17 Then her Honour referred to the fact that in the record of interview in late October 2001, within 3 weeks of the alleged offence, "M" had given his birth date as 23 October 1984, the same date. There was no evidence, her Honour said, to indicate whether he was questioned about the knowledge of his date of birth. Her Honour drew the inference that that was the first time that "M" had been asked about his date of birth by Australian authorities.
18 Her Honour then went on to say that there was no detailed evidence of the efforts made by the authorities to locate the birth certificate. Her Honour inferred that the investigating authorities would have
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- knowledge of the appropriate authority in Indonesia to ask about the birth certificate and the means to obtain it or a certified copy.
19 The only evidence before her Honour was from Mr Stoykovski, a Federal Police officer, to the effect that at the request of the DPP and Legal Aid on 3 December 2001 he had tasked the Federal Police liaison officer in Jakarta to locate any birth records for "M" and he testified that he had not received any documentation.
20 Mr Stoykovski had questioned "M" after his arrival on Christmas Island when "M" had given his birth date as 23 October 1984. Her Honour said there was no evidence to the effect that this aroused suspicion. When "M" was charged, a complaint was taken out in the Children's Court and if there was no other evidence as to "M's" age on the basis of his sworn evidence her Honour said she would have no hesitation at all in finding that he was under 18 years as at 6 October 2001. That, her Honour said, was because his evidence was not challenged in cross-examination. He gave a consistent and detailed account of when he started and finished school and of his movements since then and he testified in a straightforward manner.
21 Her Honour then went on to say that the prosecution did not allege that "M" was falsifying his age deliberately. The prosecution position, her Honour said, is that "M" does not know his age. On the basis that there was no challenge to his credibility, the challenge must be to the reliability of "M's" memory, her Honour said, or at least his understanding as to his age because it had not been suggested that he did not sight - and the transcript reads s-i-t-e but that is obviously intended to be s-i-g-h-t - a document which purported to be his birth certificate.
22 Her Honour went on to say that if "M" was an uneducated person who had been brought up in poor circumstances and who had worked for some years, as some young Indonesian men who had come before the court had done, there may have been scope to doubt his reliability. However, her Honour said:
"'M' is reasonably well educated. He attended school for 9 years without repeating a grade. He can read and write and count and, most importantly, his evidence was unchallenged in cross-examination."
23 Accordingly, her Honour said, there is no evidence apart from the evidence of Dr Low which can possibly throw any doubt on "M's" account of his age. Her Honour then turned to the evidence given by
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- Dr Low who is the head of the radiology department at Sir Charles Gairdner Hospital and who is a specialist radiologist. As her Honour said, Dr Low's expertise is not in dispute.
24 Dr Low had become involved because he had been requested by the authorities to x-ray "M's" hands and wrists for the purposes of determining his age. That had been done on 1 November 2001 which was some 3 weeks after the alleged offence had been committed.
25 The significance of Dr Low's evidence was that there is a scientific basis for the view that a person's age may be determined by studying an x-ray of his or her hand and wrist because the development of the hand and wrist is completed by the age of about 19 years so that if a person is below the age of 19 years, it is possible by comparing an x-ray of that person's hand and wrist with a number of standards to ascertain the age of the subject within certain constraints as to the accuracy of that conclusion. Dr Low had produced a report in which he stated, and I quote:
"All the epiphyses of the hands and wrists have now fused with their shafts. This includes the fusion of the radial epiphysis with its shaft. This observation indicates completion of skeletal maturation of the hands and wrists. According to the standard reference, Radiographic Atlas of Skeletal Development of the Hand and Wrist by Greulich and Pyle, second edition, this event occurs in the male at skeletal age 19 years."
26 Dr Low went on to say in his report that the maximum standard deviation of this estimation at this age is 15.4 months. The conclusion was that "M" had an estimated skeletal age of 19 years.
27 Her Honour went on to refer to other aspects of Dr Low's evidence. Her Honour said that she had been told that there was no other scientific method for measuring age and she then referred to a further change which Dr Low had noticed in "M's" case in the bones of his wrist in which he identified a white line to which her Honour referred earlier as a black line, but in any event it is a line on an x-ray which shows radiologically in the place which was formerly a gap between two bones. The gap fades as the person gets older and the fading varies from individual to individual. According to her Honour, if the white line has faded, the according to Dr Low the person is more likely to be older than 19 years.
28 The x-ray of "M's" right hand, her Honour said, showed that the white line had faded away. Dr Low had described it as fuzzy or smudged. The x-ray of the left hand showed that the white line was present.
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- Her Honour said that Dr Low frankly acknowledged that the presence or absence of the white line was not an accurate determination of age due to individual variations but on the x-ray of "M's" hands, the black line or the growth plate was not present radiologically.
29 Her Honour then referred to statistics which Dr Low had presented to show the likelihood of a person younger than 19 years having the skeletal development of an 19-year-old. Statistically if the defendant were 17 years of age at the relevant time, there would be a 5.96 per cent chance that he could have had the hand of a 19-year-old and so on.
30 Her Honour then referred to the Atlas which was the work on which Dr Low had based his conclusions. Her Honour referred to the fact that Dr Low had said that the method of determining age in the way which I have described is not an exact science. Dr Low had conceded there was a possibility of error in conducting comparisons between x-rays of a person with a disputed age and the x-ray plates in the Atlas. That is because it seems the sample used by the authors of the Atlas was of young people who were well nourished Caucasians drawn from the United States and the United Kingdom in the 1950s. The Atlas did not contain any Asian samples at all.
31 He conceded in cross-examination that it was possible that Asians had accelerated development. The authors of the Atlas themselves had given several warnings. They said that the results should be viewed with, and I quote, "judicious scepticism until they are able to consistently duplicate or closely to approximate them by subsequent independent reassessment". The authors warned that the method was intended merely to provide useful estimates of skeletal status and that there was a tendency to attribute to and to expect from the method a greater degree of precision than was intended by those who devised it or indeed than is permitted by the nature of the changes which it is designed to measure.
32 Her Honour referred to these cautionary observations and warnings and said that they might carry less weight in this case had not "M" given evidence as to his age. However, her Honour said, there was no reason to doubt his evidence as to his age for the reasons that she had already expressed. Her Honour concluded, and I quote:
"Bearing in mind the inexactness of the method, the sample from which the comparison is drawn, including the time the sample was taken and the make-up of it, together with the unchallenged evidence of 'M' as to his age, I am satisfied on the
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- balance of probabilities that he was under the age of 18 at the time of the alleged commission of the offence and accordingly the Children's Court has jurisdiction to hear and determine this matter."
33 Against that finding, Mr Stoykovski, the federal officer to whom I have referred, appeals. I have already dealt with the ground which is based on the decision of Jackson DCJ, which as I have already said I am not persuaded her Honour adopted or followed in this case.
34 The second ground of appeal asserts an error on the part of the learned Judge in giving undue weight to the respondent's evidence as to his age. The appellant submits that hearsay testimony as to a person's own age and date of birth should be accorded little weight and that such testimony is usually excluded because it is inherently unreliable, and authority is referred to.
35 I am not clear in my own mind that this is hearsay evidence strictly so-called. I rather think it is not hearsay evidence. The evidence I think is better classified as secondary evidence as to the contents of a documents. I note that in Cross on Evidence 6th ed, under the heading "Lost Document" at par 39060 the authors say, and I quote:
"When the origin of a document cannot be found after due search, its contents may be proved by secondary evidence."
36 Then there's a reference to the requirement of a due search being satisfied. That is not included in Cross under the hearsay section but under the heading of "Documentary Evidence". I can see that there may be an important distinction because here we had a witness who the learned Judge regarded as a credible witness who gave secondary evidence of a document which he had seen on two occasions, the most recent occasion having been not that long in the past, and evidence on which he had not been challenged.
37 It seems to me therefore that the considerations which often apply to hearsay evidence of this kind did not apply in the present case and indeed, as the appellant points out, testimony of that kind is usually excluded because it is inherently unreliable. In the present case the evidence was not only not excluded; it was not challenged.
38 Given that her Honour formed a favourable view of "M's" credibility, a view which she was perfectly entitled to form and a view
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- which this court in my opinion should accept, it seems to me that her Honour was perfectly entitled to accept "M's" evidence about the date he had seen on his birth certificate. I am therefore not persuaded there is any merit in the second ground of the appeal.
39 The third ground asserts a failure to give appropriate weight to Dr Low's evidence. In my view again, her Honour was entitled to give such weight to Dr Low's evidence as she considered appropriate, having regard to the totality of the evidence, including of course her view that "M" was a credible witness.
40 Although it may have been the case that the statistical chance of "M" being 17 years of age at the relevant time was only 6 per cent, that of course has to be read subject to the cautionary warnings or the cautions and warnings to which I have referred contained in the Atlas on which the evidence was based and must be read subject also to the qualification which Dr Low gave about his own evidence.
41 In those circumstances it seems to me that the finding which her Honour made as to "M's" age was open. I am not persuaded that she failed to give appropriate weight to the evidence of Dr Low. In my view, her Honour gave that evidence the weight which she considered appropriate which was not such as to result in her disbelieving "M's" evidence as to his birth date.
42 In my view, her Honour's finding on the balance of probabilities was fully open. It is not a finding with which I would interfere. For those reasons in my view the appeal should be dismissed.
43 WALLWORK J: I agree that the appeal should be dismissed for the reasons given by Templeman J.
44 MURRAY J: I also agree with the reasons given by Templeman J. I would wish to add only this. The jurisdictional question, as I understand it, was whether, as at the date of the alleged offence on 6 October 2001, the respondent was under or of the age of 18 years. That was a question to be decided by inference from the primary facts as they were found to be by the learned Judge.
45 Her Honour is shown by her reasons to have carefully assessed that evidence of primary fact. She made appropriate and careful observations about the weight to be attached to and the reliability of the evidence of the respondent, including a reference to such matters as the secondary
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- evidence of the birth certificate and the familial understanding of his age in connection with the process of his schooling and the like.
46 Her Honour then went on to give appropriate weight and consideration to the evidence of opinion given by the radiologist Dr Low. She omitted nothing so far as I can see which was relevant to that assessment. Those were the primary facts. In other words, the evidence of Dr Low was accepted, as was the evidence of the respondent, subject to the limitations which were inherent in that evidence.
47 The question then was; what inference was to be drawn? Her Honour drew the inference that the respondent was at the relevant time under the age of 18 years. For this appeal to succeed, in my opinion, the appellant needs to establish that the Judge's decision was wrong. He cannot do that and does not attempt to do that by seeking to establish that her Honour overlooked any material facts and in my opinion, he cannot do so by seeking to establish that too little weight was attached to the evidence of Dr Low or that too much weight was attached to the evidence of the respondent.
48 The question then for this Court is whether it is open to this Court to conclude that the inference to the contrary of that drawn by the trial Judge was so compelling that error is established in the inference drawn by her Honour. In that sense in my opinion, there is no capacity to establish error in this case. The leading authority on the process for this Court is Warren v Coombes (1979) 142 CLR 531 at 542 - 543 and more recently, and also usefully, reference may be made to the High Court's decision in Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227 at 229 - 230.
49 In my opinion also this appeal should be dismissed.
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