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Monday, 15 August 2011

Fit to plead — part 2

In February I discussed the case of CL v Lee & Ors [2010] VSC 517, where Lasry J held that the Children's Court doesn't have jurisdiction to hear fitness to plead arguments — for indictable offences at any rate, and perhaps for summary offences.

(That case was a judicial review under O56 of the Supreme Court (Civil Procedure) Rules 2005, rather than an appeal under s 430P of the Children, Youth and Families Act 2005, because appeals are only available from a final order of the Children's Court. A final order is any order that finally determines the rights of the parties. In most criminal proceedings, that will usually be the finding of guilty or not guilty, and any other decision along the way is interlocutory.)

In CL v DPP & ors [20110] VSCA 227, the child CL asked to appeal Lasry J's decision to the Court of Appeal. (That is an appeal, but under O64 of the Supreme Court Rules.)

That requires complying with strict time limits, and also requires leave under s 17A of the Supreme Court Act. The appellant missed a time limit for filing the electronic appeal book, which mean the Court presumed the appeal was abandoned. So, the appellant had to then ask the Court to declare the appeal was not abandoned, and then also for permission to appeal.

Ultimately, the Court of Appeal held it wouldn't hold the time limit against the appellant, but refused leave to appeal because it considered there wasn't any doubt about Lasry J's decision.

I've mentioned previously that the strict precedent value of a refusal of leave to appeal is roughly zip, so this refusal of leave doesn't change the legal position. However, just for good measure, Sifris AJA endorsed Lasry J's recommendations for legislative amendment: touch wood we might see some changes in the near future.

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