Marlow, J.A. v The Queen [1987] FCA 669

* JUDGMENT No. Ob9./.21 sosseus . , CATCHWORDS _- . - - ~

CRIMINAL LAW - ACT -° whether power in Children's Court to commit .

for sentence as distinct from- committing for trial -. Child'. _

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JOHN ALEXANDER MARLOW v. THE QUEEN No. ACT G49 of 1987

CORAM: Fox, Lockhart and Kelly dd.

Canberra

18 September 1987

"2 DEC 1987

FEDERAL Cou AUSTRALIA. OF

PRINGIP,

REGISTAY

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"IN THE FEDERAL COURT OF AUSTRALI

AUSTRALIAN CAPITAL TERRITORY - ~

) ) : - i ~. ) .No. ACT G-49 of 1987 .-._

. DISTRICT REGISTRY _ | .- GENERAL DIVISION - )

ON -APPEAL from the Supreme. Court of the Australian Capital Territory oe . BETWEEN :

JOHN ALEXANDER MARLOW

Appellant AND: : THE QUEEN Respondent

MINUTE OF ORDER JUDGES MAKING ORDER: FOX, LOCKHART AND KELLY JJ. DATE OF ORDER: 18 SEPTEMBER 1987 WHERE MADE: CANBERRA

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. Conviction and sentence be set aside.

3. The matter be remitted to the Children's Court to be dealt with in accordance with law.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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IN THE FEDERAL COURT OF AUSTRALIA ) -

_ . 7 y . - . . ) . No. ACT G 49 of 1987 ) - : - - ) } )

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

GENERAL DIVISION

oo ON APPEAL from the Supreme - Court of the Australian Capital Territory

BETWEEN :

JOHN ALEXANDER MARLOW

Appellant

THE QUEEN

Respondent

CORAM: FOX, LOCKHART AND KELLY JJ.

DATE: 18 SEPTEMBER 1987

REASONS FOR JUDGMENT

EX TEMPORE

THE COURT:

The court will deliver iudament in this matter now.

This case came before us as an appeal from a sentence imposed by Gallop dg. in the Supreme Court of the Australian Capital Territory. The appellant is a younq person who was committed for sentence before the Supreme Court bv the Children's

Court of the Territorv.

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A preliminary- matter has been raised by counsel for the Crown. It was not a point that was taken-before Gallop J. Put shortly, it is that there was no power in the Children's Court to

commit for sentence as distinct from committing for trial.

Counsel for the young person has concurred in this submission: Having heard argument on the matter, we are of the view that the

point taken is correct in law.

The result is more than a minor procedural defect. The Child Welfare Ordinance 1957 provides ina special wav for the disposal of cases before it with the obvious intention of making those proceedings less formal and less formidable than proceedings taken against older persons before the Magistrates Court. There is, for example, no provision in the Ordinance for the taking of pleas of quilty. Many indictable offences can be dealt with completely by the magistrate. The present was such an offence but the magistrate thought that the circumstances were

such that the case should be dealt with in the Supreme Court.

At an early stage the leqal representative of the yound person said that the latter had admitted the offence. Details were then qiven to the magistrate and it doubtless seemed incongruous that having decided that the only matter was sentencing and that it should be by the Supreme Court. the younq person should. in the terms of the Ordinance. be committed for trial. This means that despite what has gone on before, an

information must be presented to the Supreme Court and on

arraianment the plea of quiltv taken.

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- 'This is, however. the result of the legislation and the

Child Welfare Ordinance 1957 is not ameliorated in this respect

bv any- provision of the Magistrates Court Ordinance 1930. We are-

therefore of the view that the_appeal should be allowed, the

conviction and sentence set aside and the matter remitted to the

Children's Court to be dealt with-in accordance with law.

Counsel for the Appellant:

Solicitors for the Appellant:

Counsel for the Crown:

Solicitors for the Crown:

Date of hearina:

Date judgment delivered:

I certify that this and the two (2) preceding pages are a true copy of the Reasons for Judgment herein of the

Court. S Associate: A

Date: 18 September 1987

Mr S. Pilkinton Porter Pilkinton

Mr G. Lalor

Director of Public Prosecutions

Canberra: 18 September 1987 Canberra: 18 September 1987