Category Archives: The Rule In

Party Like It’s (Almost) Your Birthday!

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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.

inception cafe

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.

16 going on 17

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.

giphy (1)

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.

inception van

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 [1918] 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.
Inception ellen.gif
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

  1. Koreans count someone as one year old from their birth, not their first birthday.
  2. 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.
  3. 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. 

When Remote Evidence May Be Given

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With the modern nature of the law it’s common for lawyers or their witnesses/clients to be unable to actually appear in person. Usually the courts or tribunals are pretty accomodating about the use of AV equipment, but not always.

Whether you’re called out of town, sitting on a beach or appearing in another state there are numerous reasons that you are unable to appear in person. In the instances of criminal trials it’s often more important that the jury is able to examine the witness in person. Each matter and each particular witness and their evidence will determine whether the court will allow people to present their evidence or make their appearance remotely.

Power of Court to Allow Remote Evidence 

The general power of the court to allow for remote evidence is a purely discretionary one. However there are general principles that have been set out which guide the exercise of this discretion. These could broadly be characterised as:

  • the Court will allow evidence to be given remotely when the facilities are available;
  • when it is more convenient; and
  • when there is no prejudice or that it would not be unfair.

The core power of the court stems from its inherent jurisdiction to determine the manner and means under which it considers appropriate to receive evidence. Inherent jurisdiction is of course subject to legislation. The Evidence (Miscellaneous Provisions) Act 1991 (ACT) sets out the same three factors as above at section 20(2).

The Evidence (Miscellaneous Provisions) Act was essentially designed to plug procedural holes in the Evidence Act, especially those that may evolve over time with the advancement of technology without needing to mess with the loftier goals of the Evidence Act. This includes remote audio visual provision of evidence, the ability to swear an oath without a bible, and pre-recorded evidence.

Further to the Act, the Court Procedures Rules 2006 (ACT) provides for these allowances with rules 6700-6704, including rule 6703 which governs when evidence can be given by telephone and states that:

(1)     The court may receive evidence or submissions by telephone, video link or another form of communication in a proceeding.

Further, at subs(2) the rules allow for the court to impose any conditions on this that the court considers appropriate.

Considerations

Leading judgment in the ACT contains considerations that fell from Higgins CJ in Brodie v Streeter [2003] ACTSC 88:

9. The appellant, opposing the application, pointed out that the court itself had facilities to aid the hearing impaired. As to the second ground, …”more convenient” related to the adducing of the evidence not the convenience of the witness. For example, it may be “more convenient” to give evidence remotely by video link if the witness could not, without undue difficulty and expense, be brought to the courtroom. A prisoner at a remand centre, or a medical witness in a different city were examples given.

10. That interpretation is consistent with the objectives stated by the then Attorney-General, Mr Humphries, on 18 February 1999, introducing a Bill (inter alia) to enact s 30 (supra).

This decision has been re-affirmed several times including recently in R v BNS [2016] ACTSC 51 where the court held that:

12. The Respondent submitted that the witness’s evidence could not be given “more conveniently” from a remote location by video link. His Honour rejected the argument, saying at 179: [14]-[17]:

    1. Her Worship adopted a wide interpretation of ‘more convenient’. Clearly, the witness in this case was not more conveniently located in a remote witness room as opposed to being located in the courtroom. She could equally conveniently access either.
    2. The dictionary definition, adopted by her Worship, is in terms of suitability – being ‘not troublesome’ to a person. It seems to me that ‘more convenient’ is an expression used in a wide sense to include the convenience of the court, the parties and the witness in question.
    3. In the present case, it was, in my view, open to her Worship, on the evidence, to find that the witness’ stated aversion to the appellant, whether reasonably based or not, made it ‘more convenient’ for her to give the evidence remotely.
    4. It was also more convenient for the court to have the evidence given free from the stated inhibitions troubling the witness. Indeed, to an extent, it would favour the appellant that, if the witness’ evidence was nevertheless unsatisfactory, that could not be attributed to the inhibiting presence of the appellant.

The right to appear remotely will more likely be granted when the nature of the evidence to be given does not require the witness to analysed on their personality. Most cases that reject the provision of evidence remotely are related to criminal trials where it may be unfair for the jury to not have the opportunity to examine the demeanour of the person. In Brodie this was rejected because it was at the interlocutory stage but I note that this consideration led to this application of the test being rejected in several cases including in In the matter of an application by the Director of Public Prosecutions [2010] ACTSC 138:

4. On the other hand, as Mr Kukulies-Smith has pointed out, he is one of the major Crown witnesses, indeed the primary witness in relation to the case against HK. His demeanour will be central to the acceptance of his evidence by the jury and there is every likelihood that he will be asked to demonstrate particular features of the activities of the night in question, during the course of his evidence. This can create significant difficulties over the audio/visual link, and certainly lacks immediacy for the jury.

Conclusion

To reiterate the original 3 points the evidence must be able to be given by the facilities available, be convenient to the giving of the evidence and that there will be no prejudice to the party not relying on the evidence. If these conditions can be satisfied there should be no reason, if given that the excuse is genuine, that a lawyer or witness should not be able to appear remotely.

When Are Your Pleadings Embarrassing?

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If a Judge or practitioner ever refers to your pleadings as embarrassing don’t necessarily take it personally. Embarrassing pleadings is a defined term and refers more to the intention of the pleading instead of the skill of the person drafting it.

Embarrassing Pleadings

A pleading is embarrassing where it is “unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him” Meckiff v Simpson [1968] VR 62 at 70.

In Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 at [18], Tamberlin J explained the concept of “embarrassment” with respect to pleadings:

“Embarrassment in this context refers to a pleading that is susceptible to various meanings, or contains inconsistent allegations, or in which alternatives are confusingly intermixed, or in which irrelevant allegations are made that tend to increase expense. This is not an exhaustive list of situations in which a pleading may be embarrassing: see Bartlett v Swan Television & Radio Broadcasters Pty Ltd (1995) ATPR 41-434.”

Pleadings can be embarrassing even when they do contains an adequate cause of action if the facts they rely upon are expressed in such a way as to leave difficulties or doubts about figuring out what they are exactly referring to. This can be through generalities, vagueness or any other framing of the proceedings that prevents the defendant from knowing in advance the case it is required to meet.

Remedy

If the court considers pleadings to be embarrassing then the appropriate remedy is to strike out the pleading rather than to order the provision of particulars. This may seem harsh, but the reality is that it is not the function of particulars to replace the necessary components of a pleading, simply to augment them.

Pleadings are everything. Actions are often commenced with insufficient pleadings with too many lawyers thinking that they can simply amend at a later date if the pleadings are found to be insufficient. Unfortunately, for the client, this will normally be accompanied with a big costs order if the court allows it at all.