Jm v Brown [2005] ACTSC 105 (10 October 2005)

Last Updated: 28 October 2005

JM v PAUL STEPHEN BROWN [2005] ACTSC 105 (10 October 2005)

EX TEMPORE JUDGMENT

No SCA 45 of 2005

Judge: Crispin J

Supreme Court of the ACT

Date: 10 October 2005

IN THE SUPREME COURT OF THE )

) No SCA 45 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JM

Appellant

AND: PAUL STEPHEN BROWN

Respondent

ORDER

Judge: Crispin J

Date: 10 October 2005

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be upheld;

2. the charge be dismissed and the appellant released;

3. the appellant have leave to make an application for costs in writing within seven days and with the Crown to have seven days to reply.

1. Regrettably, it appears that this matter was dealt with by the learned Magistrate at a time when neither he, nor the solicitor for the appellant, was aware of the fact that the young person had previously been found unfit to plead. Nonetheless, it was inappropriate for the matter proceed, and I am satisfied that the decision to do so involved appealable error, though of course not an error of which the magistrate was aware. The appeal must be upheld, and the only question is whether the matter should be remitted to the Magistrates Court or dismissed.

2. Mr Gill, who appears on behalf of the appellant, has submitted that I should dismiss the proceedings pursuant to section 315(4) of the Crimes Act 1900 (ACT), which provides as follows:

If the court considers that, because of the trivial nature of the charge or the nature of the defendant's disability, it would be inappropriate to inflict any punishment on the defendant in relation to the offence, the court may decide not to carry out or continue the investigation and may dismiss the charge and order that the person be released.

3. The present charge which is the subject of this appeal relates to damaging property other than by the use of firearms or explosives, and carries a maximum sentence of 6 months' imprisonment. It appears that a window was cracked by a stick or stone thrown by the appellant at a time when he was clearly in a state of some agitation. It seems to me that having regard to the circumstances in which this particular offence occurred and the nature of the damage caused, it would be appropriate to regard it as being of a trivial nature for the purposes of this section which is, of course, concerned with defendants suffering from psychological disabilities. It also seems to me that having regard to the nature of the offence, and to the nature of the appellant's disability, that it would be inappropriate to inflict any punishment on him in relation to the offence. Accordingly, I have decided not to continue any investigation into the charge, but to dismiss the charge and order his release.

4. I make those orders.

5. I will grant the appellant leave to make an application for costs in writing within seven days and give the Crown seven days to reply.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 25 October 2005

Counsel for the appellant: Mr S Gill

Solicitor for the appellant: The South Eastern Aboriginal Legal Service

Counsel for the respondent: Mr J Lundy

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 10 October 2005

Date of judgment: 10 October 2005