Rasmussen v Lalor & Fitzpatrick [2005] ACTSC 28 (31 March 2005)

Last Updated: 11 May 2005

MARC RASMUSSEN v GRANT LALOR and RAY FITZPATRICK

[2005] ACTSC 28 (31 March 2005)

EX TEMPORE JUDGMENT

No SC 29 of 2005

Judge: Crispin J

Supreme Court of the ACT

Date: 31 March 2005

IN THE SUPREME COURT OF THE )

) No SC 29 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MARC RASMUSSEN

Applicant

AND: GRANT LALOR

First Respondent

AND: RAY FITZPATRICK

Second Respondent

ORDER

Judge: Crispin J

Date: 31 March 2005

Place: Canberra

THE COURT ORDERS THAT:

1. the application be dismissed;

2. no order as to costs.

1. In this matter the applicant seeks an order that the respondents be ordered to show cause why a writ of prohibition should not be issued against the first respondent on the ground that by entertaining an information made on 27 October 2004 the first respondent exceeded his jurisdiction as a magistrate of the Childrens Court. The information alleges that on 24 September 2004 the applicant drove a motor vehicle on a public street in the Australian Capital Territory with level one alcohol in his blood.

2. The evidence reveals that the applicant was born on 22 October 1986. Consequently it is clear that at the time of the alleged offence he was under the age of 18, though the information was laid subsequent to his 18th birthday. He first appeared before the Childrens Court on 10 January 2005 and, as of that date, he was between the ages of 18 years and 18 years and 6 months.

3. Mr Colquhoun, who appeared for the applicant on that occasion, submitted to the first respondent that the Childrens Court did not have jurisdiction to hear and determine the information because by the time the information was laid the applicant was no longer a "young person" as defined in the Children and Young People Act 1999 (ACT). The first respondent dismissed that contention and found that he did have jurisdiction. The present application seeks to challenge that ruling.

4. The general jurisdiction of the Childrens Court is conferred by s 54, the relevant portion of which is in the following terms:

(1)The Childrens Court has jurisdiction-

(a) to hear and decide informations against children and young people; and

(b) to hear and decide applications and other proceedings under this Act in relation to children and young people.

5. Mr Colquhoun, who appears before me as before the first respondent on behalf of the applicant, submits that this is a clear and unambiguous provision that confers jurisdiction only in relation to informations that have been laid in relation to children and young people.

6. At the time the information was laid against the applicant, he was neither a child nor a young person. Hence Mr Colquhoun argues, there had been no information against him while he fell within either category and the Childrens Court lacked jurisdiction to entertain an information laid against him at a time when he had become an adult.

7. It should be noted that s 55 offers some guidance to the application of s 54. The latter section provides:

1. In deciding whether section 54 applies to a proceeding in relation to a person, regard must be had to the person's age when the proceeding is begun.

2. This section does not apply to a proceeding to which section 69 (Decisions about criminal jurisdiction by reference to age) applies.

8. Section 69 is in the following terms:

1. In deciding whether an information alleging an offence by a person should be heard and decided by the Childrens Court regard should be had to the age of the person at the time of the alleged offence.

2. If a person was under the age of 18 at the time of an alleged offence and between the ages of 18 years and 18 years 6 months, at the time of the person's first appearance in the Childrens Court after having been charged with the alleged offence-

(a) the person must be dealt with in accordance with this part until the time (if any) that the court finds the offence proved: and

(b) in dealing with the person this part applies to and in relation to the person as if the person were a young person; and

(c) if the court finds the offence proved, the person must be dealt with as an adult.

3. If a person was under the age of 18 years at the time of an alleged offence and over the age of 18 years 6 months at the time of the person's first appearance in the Childrens Court after having been charged with the alleged offence, the person must be dealt with as an adult unless, in the circumstances, the court considers it appropriate for the person to be dealt with as a young person.

9. Ms Jones, who appears for the second respondent, submitted that it was clear from these provisions that the jurisdiction apparently conferred by s 54 is effectively enlarged by the provisions of s 69 and that it extends to a situation such as the present in which a person who is under 18 at the time of the offence is subsequently charged by an information laid after his or her 18th birthday.

10. On the other hand, Mr Colquhoun submitted that the section should be taken to apply only when an information has been laid before the person's 18th birthday. He argued that subs (2) is concerned with a situation where a person, who was under the age of 18 at the time of the offence, is between 18 and 18 years and 6 months of age at the time of the first appearance in the Childrens Court and that the section does not address any question that may arise because the person was an adult when the information was laid.

11. Whilst that may be true, the submission does not give due recognition to the provision in subs (1) which, as I have mentioned, provides that in deciding whether an information alleging an offence should be heard and decided by the Children's Court, regard should be had to the age of the person at the time of the offence. It does not seem that that provision is qualified by the succeeding subsections.

12. It is true that the precise meaning of the section could have been more clearly expressed. There is nothing in the section to directly indicate that it is intended to qualify or enlarge the jurisdiction conferred by s 54 but the terms of subs (1) seem to presuppose the existence of some discretion in relation to the question of jurisdiction, though there appears to be no other provision in the Act to confer such a discretion. Furthermore, s 69 is not contained in Pt 5 of the Act which is concerned with the Childrens Court but in Pt 6 which is concerned more generally with young offenders. However, it is, in my view, significant that the provision in s 55 that regard be had to the person's age when the proceeding is begun, does not apply to a proceeding to which s 69 applies. That seems to reflect a legislative intention that the touchstone for jurisdiction under s 54 will not be a person's age at the commencement of criminal proceedings. Such an approach is also consistent with the terms of s 69(1) which, as I have mentioned, provides that, in deciding whether an information alleging an offence should be "heard and decided" by the Childrens Court, regard should be had to the person's age at the time of the alleged offence.

13. Whilst it is true that this subsection does not refer explicitly to the "jurisdiction" of the court, the combination of these provisions demonstrate, in my opinion, that s 54(1)(a) should be construed to confer jurisdiction upon the Childrens Court to hear and decide informations against people who were children and young people at the time of the relevant offence even if their 18^th birthday has occurred by the time the information is laid.

14. This construction may give rise to some apparent incongruity because it involves the implication that the Childrens Court would have jurisdiction to entertain proceedings against a person who is 30 or 40 years of age when the information is laid if charged with an offence committed many years earlier when under the age of 18. Such a person would almost certainly be treated as an adult by reason of s 69(3) but the proceedings would, nonetheless, be determined in the Childrens Court. However, the possibility of such incongruity does not seem to me to be sufficient to outweigh the considerations to which I have referred.

15. I am not satisfied that there was any excess of jurisdiction by the first respondent. The application must be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 18 April 2005

Counsel for the applicant: Mr J Colquhoun

Solicitor for the applicant: CCLAW

Counsel for the first respondent: No appearance

Counsel for the second respondent: Ms M Jones

Solicitor for the second respondent: ACT Director of Public Prosecutions

Date of hearing 31 March 2005

Date of judgment 31 March 2005