"RP" v Ellis & Anor [2011] NSWSC 442

"RP" v Ellis & Anor [2011] NSWSC 442

The Magistrate constructively failed to exercise jurisdiction by misunderstanding doli incapax as an evidentiary exclusion issue and declining to consider it, rather than treating the prosecution's rebuttal of doli incapax as an element relevant to the committal tests in sections 62-64 of the Criminal Procedure Act (1986) (NSW). Because the plaintiff was 13 at the time of the alleged offences, the prosecution had to prove that she knew the acts were seriously wrong, and the failure to consider that issue required the committal order to be quashed and the matter remitted.

Jurisdiction
Australia
Judgment Date
19 May 2011
Procedural Posture
Application for Prerogative Relief Pursuant to Section 69 of the Supreme Court Act 1970 or Leave to Appeal Pursuant to Section 53(3)(a) Crimes (appeal and Review) Act 2001 in Relation to Committal Proceedings / Supreme Court Determination of Amended Summons Challenging Children's Court Committal for Trial
Outcome
Application for prerogative relief granted; committal order quashed and matter remitted to the Children's Court; no order as to costs.
Legal Topics
['prerogative Relief' 'mandamus' 'committal Proceedings' 'doli Incapax' 'failure to Exercise Jurisdiction' 'error of Law']
['criminal Law' 'administrative Law' "children's Criminal Proceedings"] ['prerogative Relief' 'mandamus' 'committal Proceedings' 'doli Incapax' 'failure to Exercise Jurisdiction' 'error of Law']

Case Brief

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Procedural Posture

Application for Prerogative Relief Pursuant to Section 69 of the Supreme Court Act 1970 or Leave to Appeal Pursuant to Section 53(3)(a) Crimes (appeal and Review) Act 2001 in Relation to Committal Proceedings / Supreme Court Determination of Amended Summons Challenging Children's Court Committal for Trial

Legal Issues

  1. 1 ['Whether the Magistrate failed to exercise jurisdiction in committal proceedings by failing to apply the proper test under sections 62-64 of the Criminal Procedure Act (1986) (NSW).' 'Whether doli incapax was an element which had to be considered in deciding whether the plaintiff should be committed for trial.' "Whether the order for committal should be quashed and the matter remitted to the Children's Court."]

Ratio Decidendi

The Magistrate constructively failed to exercise jurisdiction by misunderstanding doli incapax as an evidentiary exclusion issue and declining to consider it, rather than treating the prosecution's rebuttal of doli incapax as an element relevant to the committal tests in sections 62-64 of the Criminal Procedure Act (1986) (NSW). Because the plaintiff was 13 at the time of the alleged offences, the prosecution had to prove that she knew the acts were seriously wrong, and the failure to consider that issue required the committal order to be quashed and the matter remitted.

Court Disposition

Application for prerogative relief granted; committal order quashed and matter remitted to the Children's Court; no order as to costs.

Orders

  • ["I make an order pursuant to section 69 of the Supreme Court Act 1970 in the nature of mandamus quashing the whole of the order for the committal for trial of the plaintiff and remitting the matter to the Children's Court to be determined according to law." 'There should be no order as to costs of these proceedings.']