Visser, C (Sergeant) v M - [1998] TASSC 73

73/1998

PARTIES:  VISSER C (SERGEANT)
  v
  M

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  163/1998
DELIVERED:  19 June 1998
HEARING DATE/S:  17, 19 June 1998
JUDGMENT OF:  Crawford J

CATCHWORDS:

Family Law and Child Welfare - Child welfare other than under Family Law Act 1975 and related Acts - Crimes and offences by and against children - Children's Courts - Tasmania - Jurisdiction where indictable offence - Statutory requirement that armed robbery charge be heard and determined by criminal court - Whether requirement extends to attempted armed robbery.
Child Welfare Act 1960 (Tas), s27(2).
Acts Interpretation Act 1931 (Tas), ss34 and 4(1).
R v Korver [1972] Tas SR 149, distinguished.
Rae v R (1993) 1 Tas R 78, referred to.
Aust Dig Family Law and Child Welfare [154]

REPRESENTATION:

Counsel:
           Crown:  C J Geason
           Accused:  E J G Gelston
Solicitors:
           Crown:  Director of Public Prosecutions
           Accused:  Legal Aid Commission of Tasmania

Judgment category classification:
Court Computer Code:
Judgment ID Number:  73/1998
Number of pages:  2

Serial No 73/1998
File No 163/1998

SERGEANT CLAAS VISSER v M

REASONS FOR JUDGMENT CRAWFORD J

19 June 1998

M is now 15 years of age but at the time of the offences she was 14. On a complaint in the children's court she was charged with four offences committed by her on 29 January 1998. They were attempted armed robbery contrary to the Criminal Code, s240(3) and s299, injure property contrary to the Police Offences Act 1935, s37(1), assault a police officer contrary to that Act, s34B(1)(i) and state a false name and address contrary to that Act, s55A(1). On the first count, that of attempted armed robbery, she pleaded guilty in the children's court and the learned magistrate determined that in his opinion he had no jurisdiction to deal with the case further and he committed her for sentence by this Court. When the case came before me two days ago M's counsel confirmed the plea of guilty and requested that under the Criminal Code, s385A I hear and determine the other charges in the complaint at the same time. I agreed to do so. After hearing counsel for the Crown and M's counsel in mitigation I remanded M on bail to appear for sentence today.
In the course of determining what the appropriate sentence ought to be it became apparent to me that M ought to have been dealt with by the children's court and that the order committing her to this Court for sentence on the first count was made without jurisdiction. There have now been made available to me the reasons expressed by the learned magistrate for his determination that he did have that jurisdiction. With respect I regard his Worship's determination as erroneous although it is easy to understand how it was reached.
The Child Welfare Act 1960, s27(2), is in these terms:
"27 (2) Where a child who has attained the age of 14 years is charged before a children's court…

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 Visser, C (Sergeant) v M

Details

AGLC: Visser, C (Sergeant) v M [1998] TASSC 73
Case: [1998] TASSC 73
Decision Date: 19 June 1998

CaseChat Overview and Summary

The case of Visser, C (Sergeant) v M involves a 15-year-old individual, referred to as M, who at the time of the offences was 14 years old. M was charged with several offences including attempted armed robbery, injuring property, assaulting a police officer, and providing a false name and address. M pleaded guilty to the charge of attempted armed robbery in the children's court. The magistrate, however, determined that he lacked the jurisdiction to deal with the case further and committed M for sentencing by the Supreme Court of Tasmania. The Supreme Court of Tasmania was tasked with determining whether the children's court had the jurisdiction to hear and determine the charge of attempted armed robbery.

The primary legal issue the court had to decide was whether the statutory requirement that armed robbery charges be heard and determined by a criminal court extended to attempted armed robbery. The court had to interpret the relevant sections of the Child Welfare Act 1960 and the Acts Interpretation Act 1931 to determine the scope of the children's court's jurisdiction in such cases. The court also considered previous case law, including R v Korver [1972] Tas SR 149 and Rae v R (1993) 1 Tas R 78, to assist in its interpretation.

The court held that the Child Welfare Act 1960, s27(2), which lists the indictable offences that a children's court can hear, does not explicitly include the crime of attempted armed robbery. The court reasoned that since armed robbery and the attempt to commit it are separate crimes under the Criminal Code, the omission of attempted armed robbery from the list of indictable offences in s27(2) was likely intentional. Furthermore, the court found that applying the Acts Interpretation Act 1931, s34, to include attempted armed robbery within the children's court's jurisdiction would be inconsistent with the true intent and object of the Child Welfare Act 1960, s27(2), as per the Acts Interpretation Act 1931, s4(1). The court concluded that the magistrate's determination that he had jurisdiction to commit M for sentencing was erroneous.

As a result, the court held that the children's court was obliged to ask M if she was willing to be tried by the children's court, instead of by a jury, and if she, or her parent or guardian, did not object to being tried by the children's court, that court was obliged to hear and determine the charge of attempted armed robbery as if it was a charge for an offence punishable on summary conviction before justices. The order committing M to the Supreme Court for sentence was made without jurisdiction, and the court had no jurisdiction to deal with the charge or any of the other charges in the complaint. The court remitted the complaint back to the children's court for hearing by that court.

Orders