Adriaansen v Covill [1992] QCA 65 [1993] 2 Qd R 1

IN THE COURT OF APPEAL [1992] QCA 065 SUPREME COURT OF QUEENSLAND C.A. No. 315 of 1991 H.J.C.J. ADRIAANSEN v. C (Appellant) The President Mr Justice Pincus Mr Justice Shepherdson Judgement of the Court delivered on the 10th day of April, 1992 APPEAL ALLOWED. CONVICTION QUASHED. NO NEW TRIAL MINUTE OF ORDER: APPEAL ALLOWED. CONVICTION QUASHED. NO NEW TRIAL CATCHWORDS: Counsel: Mr S. Keim for the Appellant Mr M. Bryne for the Respondent Solicitors: Legal Aid Office (Queensland) for the Appellant Director of Prosecutions for the Respondent Hearing Date: 24 March, 1992 -- 1 of 4 -- 2 JUDGMENT OF THE COURT Delivered the 10th day of April, 1992 On 31st October 1991, the appellant was found guilty in the Children's Court of unlawfully using a motor cycle without the consent of the person in lawful possession thereof. In accordance with sub-section 62(1) of the Children's Services Act 1965 as amended, the Magistrate did not formally convict the appellant but, pursuant to paragraph (h) of that sub- section, ordered that the Director exercise supervision over and in relation to the appellant for a period of nine months. The appellant has given notice of appeal that the Magistrate erred in finding him guilty. Shortly stated, the appellant then aged 16 years was observed by police officers astride a motorcycle attempting to turn a key in the ignition at approximately 8.30 p.m. on 6 September 1991. The owner of the motorcycle had not consented to the actions of the appellant, who was under the influence of alcohol at the time. The appellant stated that he believed that the motorcycle belonged to another person and that it was in the lawful possession of a friend whom he had been visiting. He said that he intended to push the motorcycle to his friend's home. The Magistrate found that the appellant's belief concerning the ownership and possession of the vehicle was not reasonable and that, therefore, S.24 of the Criminal Code did not apply. As was fairly conceded by Mr Byrne who appeared by the respondent, the Magistrate plainly did not consider the possible application of ss.22(2) of the Code. At one point in the reasons for his decision, he seems to have assumed that it was possible that the appellant had an honest belief that matters were as he stated and, at another point, there is a statement which appears to indicate that he made no finding upon that issue. As the respondent accepted, unless the Magistrate rejected the evidence of the appellant, he could not be satisfied beyond reasonable doubt that the actions of the appellant with respect to the motorcycle were not done "in the exercise of an honest claim of right and without intention to defraud", as required by ss.22(2) of the Code. -- 2 of 4 -- 3 Accordingly, the appellant should not have been found guilty of the offence. It necessarily follows that there was no power in the Children's Court to place him under supervision. It remains to consider what course should be followed in the circumstance that, although the appellant has given notice of appeal against his "conviction", he was not formally convicted. A somewhat similar problem is specifically dealt with by section 252 of the Corrective Services Act, 1988 which preserves the right to appeal in certain circumstances in which there is deemed not to be a conviction: see R. v Aberhart (C.A. No. 338 of 1991; judgment delivered ...). However, no such provision is contained in the Children's Services Act. Since R. v. Hopkins [1979] Qd.R. 149, it seems to have been accepted that a child found guilty of an indictable offence without a formal conviction in accordance with the Children's Services Act is entitled to appeal. In that case, the child, who had been found guilty by a jury, had not been formally convicted but admonished and discharged. D.M. Campbell J., with whom Kneipp J. agreed, said at p.150: "The return of a verdict of guilty usually amounts to a conviction: see Griffiths v. The Queen (1977) 51 ALJR 749. But the effect of s.62(1)(k) of the Children's Services Act, in my opinion, is to provide that, where a child is convicted by the verdict of a jury, and when the Court admonishes and discharges the child, a conviction is not to be recorded against him. Therefore, I think that a right of appeal is conferred on the present appellant, which is the first question to be decided." Demack J. said: "I agree and would add only: it would seem to me whatever is achieved by provisions in the Children's Services Act there is left still sufficient record of a conviction for the purposes of founding a right to appeal and to claim the protection of s.17 of The Criminal Code." For present purposes, there is no apparent reason to differentiate between a verdict of guilt by a jury (as in Hopkins) and a guilty verdict reached by a Magistrate (as in the present case). Whatever technical distinctions may be material in other contexts, the plain intent of sub-section 29(7)(c) of the Children's Services Act is to assimilate a conviction of an indictable offence before a Children's Court to a conviction on indictment for the purposes of appeal. Sub-section 29(7)(c) provides: "(c) A person convicted of an indictable offence before a Children's Court ... shall have the same rights of appeal against conviction ... as if the convicted person had been convicted on indictment. -- 3 of 4 -- 4 A person who desires to appeal against his conviction of an indictable offence before a Children's Court ... shall appeal or apply to the court and in the manner provided for in Chapter LXVII of `The Criminal Code' and `The Criminal Practice Rules of 1900' as amended from time to time, The provisions of such Chapter and such Rules, with all necessary adaptations and modifications, shall apply in respect of every such appeal or application for leave to appeal". The respondent did not accept that view of subsection 29(7)(c) but, in any event, questioned the correctness of Hopkins. However, irrespective of whether a verdict of guilty "usually amounts to a conviction "within the usual meaning of the word or within its general meaning in s.668D of the Criminal Code, Hopkins has stood for a substantial period as authority for the proposition that a child who has been found guilty of an indictable offence without a formal conviction being recorded has a right of appeal pursuant to s.668D. During the period since Hopkins was decided, there have been a number of amendments to the Children's Services Act which presumably have not clarified the position because the decision in Hopkins was regarded as satisfactory. Further, the practical outcome produced by Hopkins avoids the necessity for other, more cumbersome proceedings, such as a writ of certiorari, to achieve the same result. In the circumstances, Hopkins should be followed as authority for the proposition that a child found guilty of an indictable offence by a jury or by a Children's Court without a conviction being recorded in accordance with the Children's Services Act has a right of appeal against "conviction" under section 668D of the Criminal Code. The appeal will be allowed and the conviction quashed. For reasons which were not explained, the appeal was not heard until almost 6 months after the Children's Court decision. The appellant has been under the supervision of the Director for that period, with a further period of three months supervision the only remaining consequence of the Magistrate's erroneous decision. In the circumstances there is no sufficient purpose in directing a rehearing. -- 4 of 4 --