There are so many themes to choose from for this post! I could go with The Pirates of Penzance because the prosecutor in the case thought it would be a good idea to quote it(!?). Or I could go with The Sound of Music for the song “16 going on 17” and involving a young lady facing peril? But ultimately I think I have to stick with my heart. It’s a tale of the passage of time and how different people interpret it…therefore, as a Nolan-head, I have to run with Inception.
The Associate Justice recently had to deal with a case where the Magistrate and Prosecution, at first instance, agreed that someone who was 17, on the eve of their 18th birthday, was actually 18.
In September 2018, Associate Justice McWilliam handed down a decision on appeal from the ACT Childrens Court (sic).
The Defendant appearing before Chief Magistrate Walker in the Childrens Court (sic) charged with certain criminal offences. The twist on this common tale is that the Defendant was born on 29 February 2000 and that she committed her alleged offences on 28 February 2018, being a common year (non-leap year).
The key question before the Court was therefore whether she had obtained the age of 18 by the time of the offences or not. If she was a child she would remain in the Childrens Court (sic) and if not she would be tried as an adult in the Magistrates Court facing significantly harsher repercussions.
At first instance, Chief Magistrate Walker determined that the Defendant had obtained the age of 18 and therefore should be tried as an adult. An appeal was brought. Finding that someone is 18 when they haven’t had their 18th birthday may seem like conflated legal conjecture but it does at least have some legs at least.
Mathematics is a field usually eschewed by lawyers, but usually more from ignorance rather than relevance. Before the Associate Justice, both parties contended that the matter was a simple one of mathematics and that the exercise would be guided by section 149 of the Legislation Act 2001 (ACT):
Section 149 – Age in years
For an Act or statutory instrument, a person is an age in years at the beginning of the person’s birthday for the age.
Referring to the Magistrate’s decision and quoting the Associate Justice:
17. The magistrate determined that the plaintiff was an adult by applying The Attorney-General v Smith (1985) 39 SASR 311 (Smith), which in turn relied on the earlier authority of Prowse v McIntyre (1961) 111 CLR 264.
The date upon which the offence is alleged to have occurred is the day before the respondent’s eighteenth birthday. The question is whether the respondent had “attained the age of eighteen years” within the meaning of the definition of “child” in s 4 of the Act on that day. …
It is clear law that a person attains his majority at the first moment of the day preceding his twenty-first, or under the present law his eighteenth, birthday: Prowse v McIntyre (1961) 111 CLR 264. The rule is so lacking in rational foundation and is so out of touch with ordinary usage, that I would be most willing, if it were possible, to restrict it to the determination of the date upon which a person attains full legal capacity. I am satisfied, however, that the rule cannot be so restricted. It is true that the statements of the rule and of the authorities, for the most part, refer to the attainment of the age of majority. It has been understood, however, as applying to the attainment of any age. In In re Shurey: Savory v Shurey  1 Ch 263 it was applied to determine the age at death of a beneficiary under a will who died on the day before his twenty-fifth birthday, the gift in the will being to such of the testator’s three sons “as shall attain the age of twenty-five years”. Sargant J. formulated the point to be decided in the case as follows: “Does a person attain a specified age in law on the anniversary of his or her birthday, or on the day preceding that anniversary?” That case was cited with apparent approval by Dixon CJ in Prowse v McIntyre (1961) 111 CLR 264 at 271. In the same case, moreover, Windeyer J, although discussing the rule in the context of the attainment of full age, said: “The rule, is, moreover, not consistent with the law’s method of computing lapse of time for any purpose unrelated to reach an age.” (Italics mine) (1961) 111 CLR 264 at 281. I have reluctantly reached the conclusion that there is no escape from applying the rule to the attainment of any age and for any purpose unless the context in which the expression as to age is used indicates an intention to the contrary.
22. Sections 11 and 12 of the CYP Act respectively define “child” and “young person” as follows:
Adult means an individual who is at least 18 years old.
The prosecution also relied upon other definitions in the Legislation Act including the definitions of a “calendar month” (being one month), a “year” (being 12 months) and a “month” being a period beginning at the start of any day of one of the calendar months and ending (a) immediately before the start of the corresponding day of the next calendar month; or (b) if there is no such corresponding day—at the end of the next calendar month.
35. The plaintiff relied on simple maths. Putting to one side 29 February, the anniversary of any other date occurs either 365 or 366 days after the date in question. To find that the anniversary of 29 February was 28 February would cause the anomaly that the anniversary occurs after only 364 days, which the plaintiff submitted would be an absurd outcome.
The Associate Justice further relied on a friend of the blawg, the Macquarie Dictionary, which defines birthdays as:
1. The day of a person’s birth
2. The time of origin or beginning of a thing
3. The anniversary of someone’s birth or the origin of something.
The prosecution then took flight with the dramatic and ridiculed the defence (appellant) argument as simplistic whilst quoting the deception of the character Frederic from The Pirates of Penzance who was free to leave the pirates once obtaining 21 years old but couldn’t because he only had a birthday every 4 years.
Though counting in the usual way, years twenty-one I’ve been alive,
Yet, reckoning by my natal day, I am a little boy of five!
(W S Gilbert and Arthur Sullivan, The Pirates of Penzance (1879), Act II),
The Associate Justice determined that the legislature, by creating section 149, clearly intended to cure the mischief whereby someone could be 18 without reaching their 18th birthday.
AsJ’s decision was consistent with s 37A of the Acts Interpretation Act 1901 (Cth) which provides:
Attainment of particular age
For the purposes of any Act, the time at which a person attains a particular age expressed in years is the commencement of the relevant anniversary of the date of the birth of that person.
Using AsJ’s words: “it follows that on the proper construction of s 149 of the Legislation Act, on 28 February 2018, the plaintiff was not yet an adult, being someone who was ‘at least 18 years old’, because she had not yet reached the beginning of the anniversary of her birth. It was only on 1 March 2018 that she became someone who was ‘at least’ 18 years old.”
This is all likely a concept that Billy Biceps at Moose would instinctively understand when someone presents their ID but one that only lawyers would consider a point worthy of multiple proceedings and lengthy arguments (and costs!). Good luck to everyone that tries to get admitted to a bar on the eve of their birthday based on an application of the common law.
Fun Fact Round-Up
- Koreans count someone as one year old from their birth, not their first birthday.
- The Northern Territory has broken with the rest of Australia by confirming the common law test instead of clarifying that you only turn the age on your birthday. On ya NT.
- There is no Federal act displacing the common law test, meaning that in recent age, Brennan CJ, Gleeson CJ and, Callinan and Heydon JJ each handed down decisions on the eve of their second last day prior to their 70th birthdays, or as the common law would have it, just barely within their jurisdictional competence.