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 with an indictable offence, other than murder, attempt to murder, manslaughter, rape, wounding with intent to do grievous bodily harm, robbery, aggravated robbery, armed robbery or aggravated armed robbery, the court shall ask him if he is willing to be tried by the court, instead of by a jury, and if he, or his parent or guardian, does not object to his being tried by the court, the court shall hear and determine the charge as if it were a charge for an offence punishable on summary conviction before justices."

The sub-section refers to the crime of armed robbery but does not refer to the crime of attempted armed robbery.  In my opinion it ought to be regarded as not referring to attempted armed robbery.  It expressly refers to the crime of murder and the crime of attempt to murder but only to armed robbery and the other crimes and not to attempts to commit them.  It is a reasonable inference to conclude that it was not intended to include the crime of attempting to commit armed robbery.  I note that under the Criminal Code a specific crime is a separate crime from that of attempting to commit the same crime. Armed robbery is a crime under the Code, s240(3). Attempting to commit armed robbery is constituted by the Code, s299, as a completely separate crime. It therefore follows, it seems to me, that where a child who has attained the age of 14 years is charged before a children's court with attempting to commit a crime in breach of the Code, s299, other than the crime of attempting to commit murder, the children's court is obliged to ask the child whether he or she is willing to be tried by that children's court and if he or she, or the parent or guardian, does not object to that, the children's court is obliged by s27(2) to hear and determine the charge as if it is in an offence punishable on summary conviction before justices.

The learned magistrate referred to the Acts Interpretation Act 1931, s34, which is in these terms:

"34 ¾ Where by any Act an offence is constituted, any attempt to commit such offence shall be an offence and be punishable in the same manner as the offence constituted by such Act."

I do not regard s34 as applying to this case because of the way in which the Child Welfare Act 1960, s27(2), has been expressed.  By virtue of the Acts Interpretation Act 1931, s4(1), the latter Act's provisions do not apply in the interpretation of another Act if they are inconsistent with or repugnant to the true intent and object of the Act being interpreted and in my opinion to apply s34 to s27(2), in the way done by the learned magistrate, would be contrary to s4(1). The learned magistrate also referred to the judgment of Chambers J in R v Korver [1972] Tas SR 149. That case concerned the Justices Act 1959, s71(1) as it stood in 1972 and the affect upon it of the Acts Interpretation Act 1931, s34. In that case a different statutory provision was interpreted than is the case here and I am not persuaded that the principle of R v Korver ought to be applied.  What I have said is plainly in accordance with the views of the Court of Criminal Appeal, of which I was a member, in Rae v R (1993) 1 Tas R 78.

I have therefore concluded that under the Child Welfare Act 1960, s27(2), the children's court was obliged to ask M if she was willing to be tried by that 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.  I hold that the order committing M to this Court for sentence was made without jurisdiction and I have no jurisdiction to deal with the charge nor to deal with any of the other charges in the complaint.

I will therefore remit the complaint back to the children's court for hearing by that court.  I understand that M and her mother originally wanted that court to hear and determine the charges.