STOYKOVSKI -v- "M" [A CHILD] [2002] WASCA 193

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 193
Court:	THE FULL COURT (WA)
Case No:	FUL:38/2002	Heard:	18 JUNE 2002
Coram:	WALLWORK J MURRAY J TEMPLEMAN J	Delivered:	18/06/02
No of pages:	11	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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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

HEARD : 18 JUNE 2002 DELIVERED : 18 JUNE 2002 FILE NO/S : FUL 38 of 2002 BETWEEN : VICTOR STOYKOVSKI

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

(Page 2)

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

(Page 3)

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…

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 Stoykovski v "M" [A Child]

Details

AGLC: Stoykovski v "M" [A Child] [2002] WASCA 193
Case: [2002] WASCA 193
Decision Date: 18 JUNE 2002

CaseChat Overview and Summary

In the case of Stoykovski v "M" [A Child], the appellant, Stoykovski, sought to appeal a decision made by a Judge of the Children's Court regarding the age of the respondent, a child accused of an offence. The Children's Court of Victoria had determined that the child was under the age of 18, which was a critical factor in deciding that the court had jurisdiction over the case. The central issue in this appeal was whether the evidence presented to the Children's Court was sufficient to establish the child's age beyond reasonable doubt.

The court examined the evidence provided, including medical records, school records, and statements from witnesses. The judge had concluded that the evidence was sufficient to establish the child's age as under 18, and thus the Children's Court had jurisdiction. The appeal hinged on whether this determination was correct and whether the evidence was adequate to support the decision. The court found that the evidence was indeed sufficient, and the age determination was accurate, thereby affirming the decision of the lower court.

Consequently, the appeal was dismissed. The reasoning was that the evidence presented was robust and sufficient to support the determination of the child's age. Therefore, the Children's Court had the appropriate jurisdiction to hear and decide the case. The appeal did not succeed in establishing that the court had erred in its assessment of the child's age.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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