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Magalu, Regina v [1974] PGSC 21; [1974] PNGLR 188 (23 August 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 188 - Regina v Magalu

[1974] PNGLR 188

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

HOBART MAGALU

Port Moresby

Frost ACJ

12-16 August 1974

23 August 1974

CRIMINAL LAW AND PROCEDURE - Evidence - Handwriting - Comparison of handwriting - Expert evidence not essential - Judge sitting alone without jury - Evidence and Discovery (Papua) Act 1913-1964, s. 66[cclv]1.

CRIMINAL LAW AND PROCEDURE - Particular offences - Forging and uttering - Intent to defraud not element of offence - Criminal intention only that expressly required by Criminal Code (Queensland adopted) ss. 486[cclvi]2, 489[cclvii]3.

CRIMINAL LAW AND PROCEDURE - Criminal liability - Mistake of fact or law - Honest claim of right - Forgery and uttering - Hope that forgeries made would not be discovered - Knowledge of implications of discovery - No honest claim of right - Criminal Code (Queensland adopted) s. 22[cclviii]4.

Upon charges of forging and uttering cheques, the forgery was denied and the only evidence available to the Crown that the accused had forged the relevant signatures rested on a comparison of handwritings made by a non expert: the accused admitted dealing with the cheques but raised as defences that intention to defraud had not been proved and an honest claim of right under s. 22 of the Criminal Code (Queensland adopted).

Held

N1>(1)����� In dealing with evidence of disputed handwriting, the Court is not precluded by s. 66 of the Evidence and Discovery (Papua) Act 1913-1964, from reaching its own conclusions as to the genuineness or otherwise of writing in dispute by reason of the absence of any expert witness called to make a comparison of the writings.

Reg. v. Smith (1909), 3 Cr. App. R. 87 and Wendt v. Lind; Ex parte Lind, [1913] Q.S.R. 240 referred to.

Per Frost A.C.J., however, a judge sitting alone in a criminal trial should bear in mind the dangers of reaching a conclusion upon a comparison of the handwriting when unassisted by expert evidence.

N1>(2)����� To establish the offences of forgery and uttering under s. 486 and s. 489 of the Criminal Code (Queensland adopted), proof of any element of criminal intention, except that expressly required in s. 486 and s. 489 is not necessary.

Reg. v. Stewart [1908] NZGazLawRp 144; (1908), 27 N.Z.L.R. 682 referred to.

N1>(3)����� The offences of forgery and uttering a document in Part VI of the Criminal Code (Queensland adopted) relating as they do to �property� as defined in s. 1 of the Code are offences relating to property within the meaning of s. 22 of the Code and accordingly the act of forging a cheque is an act done with respect to any property within s. 22 of the Code.

N1>(4)����� A claim of right sufficient to relieve a person of criminal responsibility under s. 22 of the Criminal Code (Queensland adopted) need only be honest and need not be reasonable.

Reg. v. Pollard, [1962] Q.W.N. 13 per Gibbs J., at p. 29, and Tiden v. Tokavanamur-Topaparik, [1967-68] P. & N.G.L.R. 231 followed.

But the section does not excuse an offender whose act was done in the mistaken belief that it was not unlawful, which is a mistake of law and no defence to any criminal prosecution.

Olsen v. The Grain Sorghum Marketing Board; Ex parte Olsen & Another, [1962] Qd.R. 580, at pp. 588-589 referred to.

N1>(5)����� Where the state of mind of the accused was one of hope that forgeries made would not be detected, and if they were that no action would be taken, and when the accused admitted knowing that forging signatures was wrong and that he could get into serious trouble if found out, he could not be excused under s. 22 of the Criminal Code (Queensland adopted) on charges of forgery and uttering.

Trial

Hobart Magalu was charged upon five counts each of forging and uttering cheques drawn on the Canteen of the Students� Union at the University of Papua and New Guinea and also on one count of obtaining property by false pretences. On four of the counts of forging and uttering the accused admitted dealing with the cheques and raised as defences that intention to defraud had not been proved and an honest claim of right under s. 22 of the Criminal Code (Queensland adopted).

Counsel

A. Webb, for the Crown.

A. Cavit, for the accused.

Cur. adv. vult.

23 August 1974

FROST ACJ: The accused, a young man of 21 years of age who was the manager of the Students� Union Canteen at the University of Papua New Guinea, is charged upon five counts each of forging and uttering cheques drawn on the Canteen�s account with the Bank of New South Wales, and also one count of obtaining property by false pretences.

From 1st September, 1973 the Students� Union Canteen has been conducted on behalf of the student body by the Students� Representative Council. Prior to his appointment as Manager on that date the accused�s only experience had been in the catering department but he had also passed in bookkeeping subjects which he was studying by correspondence. Part of his duties consisted of keeping books of account and attending to the banking. In fact his qualifications for this portion of his duties were not sufficient and he proved unable to cope with it.

Turning to the cheques alleged to have been forged, so far as cheques drawn on the bank account are concerned, two signatures were required. Although there were seven authorized signatories, in practice the only two persons who countersigned the accused�s signature were Mr. Bart Ulufa�alu, the President of the Students� Representative Council, whom I shall refer to as Bart, and Mr. B. C. Mayhew, the Assistant Accountant of the University. In fact neither Bart nor the accused were aware that any other persons were authorized to sign. Thus on 12th November, 1973 when Bart left upon vacation to return to his home in the British Solomon Islands Protectorate the only signing officer present at the University, as the accused believed, was Mr. Mayhew.

As Bart had no reason to believe that Mr. Mayhew would be unavailable, he gave no direction to the accused upon this matter. Thus when it happened that at the end of November, 1973 Mr. Mayhew left Papua New Guinea the accused became, to his own belief, the only signing officer during Bart�s absence which continued until 28th January, 1974.

The charges against the accused are made in relation to five cheques, the first dated 13th November, 1973, when Mr. Mayhew was in Papua New Guinea, two others dated 13th December, 1973 and 21st December, 1973, drawn in the absence of both Bart and Mr. Mayhew, and also two cheques dated 14th March, 1974 and 21st February, 1974 after Bart�s return.

It is convenient to turn now to the charges in relation to the cheque for $650.00 dated 21st February 1974, which the Crown alleges the accused forged and uttered. It is not disputed that it was used for the purpose of purchasing a Ford Falcon motor car from one William Shepherd Carven. Although the only discussion that had taken place concerning the use of a car for the canteen was during 1973 when the accused said he got the impression from Bart that the Students� Representative Council might buy a car in the following year, the accused on his own evidence went ahead and bought the car without reference to either Bart or the Students� Representative Council. He said that he considered that he had the necessary authority so long as the car was to be used for canteen purposes. He did not disclose the purchase to the Students� Representative Council, apparently awaiting some more propitious occasion.

The forgery is denied. The accused said that the cheque was signed by Bart as one of a batch of several blank cheques which he asked Bart to sign to enable payments to be made for goods supplied to the canteen. His evidence was that it was two days later when he saw the car advertised that he thought of buying a car. Following a telephone call by the accused Mr. Carven drove the car to the University and the accused gave it a test drive. I accept Mr. Carven�s evidence that the accused said that he would like to take the car but he could not do so at that stage because he had to get a countersigned cheque. It was later in the morning when the accused, after again telephoning Mr. Carven, called at the latter�s place of employment and handed him the cheque in question. Mr. Carven had some doubts about the cheque but following the accused�s suggestion, telephoned the bank and on the bank�s assurance that the cheque would be met if paid in promptly, delivered the car and the registration papers to the accused.

It will be seen that Mr. Carven�s account is difficult to reconcile with the accused�s statement that he had two days before received the cheque countersigned in blank by Bart, but when this matter was put to the accused in cross examination, his account in effect, was that he had not adverted to the fact that there might have been a countersigned blank cheque in the chequebook.

A conclusion on this aspect of the case�if it were possible to come to one�could not determine the question whether the Crown has proved beyond reasonable doubt that the accused forged the cheque.

There was, of course, no direct evidence available to the Crown that the accused had forged Bart�s signature. This part of the Crown case rests on a comparison of some specimens of the accused�s handwriting with the signature on the cheque. No expert evidence was called.

In common law countries it is usual to call handwriting experts to depose to their opinion that the writing is that of a particular person. In England the law is that a jury should never deliberately be invited to look at disputed handwriting without the help of an expert, and should be warned of the dangers implicit in making such comparisons without such help. Reg. v. Tilley[cclix]⁵�and Reg. v. O�Sullivan[cclx]⁶. Thus a conviction after the jury, unassisted by expert evidence, had examined two specimens of the handwriting was quashed. Reg. v. Tilley[cclxi]⁷.

The relevant statutory provision is the Evidence and Discovery (Papua) Act 1913-1964, s. 66 which was apparently taken from the Criminal Procedure Act 1865 of England, s. 8. Although this section was not referred to in argument, I do not consider that it is reasonably capable of the construction that the court is precluded from reaching its own conclusions as to the genuineness or otherwise of the writing in dispute by reason of the absence of any witness called to make a comparison of the writings. This conclusion is supported by the cases of R. v. Smith[cclxii]⁸�and Wendt v. Lind; Ex parte Lind [cclxiii]⁹. In the latter case, which was an appeal against a maintenance order, although no reference was made to the Queensland Evidence Act 1851, s. 24 which is in the same terms as the English section, the Court held that a �Magistrate, sitting as a jury, was entitled to look at (the writings), and to come to a conclusion whether they were written by the same person who was proved to have written the genuine exhibits ...� per Chubb J. at p. 245.

However a judge sitting alone in a criminal trial would naturally bear in mind the dangers of reaching a conclusion upon a comparison of the handwriting when unassisted by expert evidence.

The only specimens of the handwriting of the accused submitted to the Court were the admitted forgeries upon the cheques referred to. These were accepted by counsel as genuine handwriting of the accused. There were also three further specimens of Bart�s signature made by the accused out of court.

These latter signatures which were obviously written for a particular purpose cannot be regarded without suspicion. R. v. Smith[cclxiv]¹⁰�at p. 89. I have some doubt whether this meagre material is sufficient to make a comparison but, in the accused�s favour, it does demonstrate that his handwriting which is round and regular, is very different from Bart�s signature which has marked characteristics.

Bart denied in evidence that the cheque had been signed by him and referred to the way in which the capital �B� and also the �f�, all showing a lower hook turned backwards, had been formed in his genuine signatures. On the disputed cheque the �f� shows the lower hook completed by a loop forward of the downstroke of the �f�. The accused�s counsel strongly relied upon the way in which the �f� was formed in both the four admitted forgeries made by the accused, and the specimens of writing submitted by him. These show the �f� fully formed and with the loop also to the back, which is very different from the disputed signature. I must say, looking at the signature on the disputed cheque as a whole, it does bear a resemblance to Bart�s normal signature and is certainly different from the admitted forgeries. Thus upon a comparison of the handwriting, I could not be satisfied that the signature on the cheque for $650 was forged by the accused.

But I can go further because an examination of Bart�s specimen signature supplied to the bank satisfies me that it would be quite unsafe to conclude that the disputed cheque was signed by the accused. That specimen signature, as it happens, has this striking feature that the bottom loop of the �f� is carried forward of the downstroke of the �f� in a way which is similar to the �f� in the disputed cheque. Thus of all the cheques before the Court the only one which has a similarity so far as the �f� is concerned with the disputed cheque is Bart�s specimen signature supplied to the bank. This feature of the evidence is the more significant because it is unlikely that the specimen signature could have been seen by the accused.

It follows that the accused is entitled to be acquitted on the counts of forging and uttering the cheque for $650. So far as the count of obtaining the car by false pretences is concerned, as the false pretence alleged in the indictment is that the cheque had been signed by Bart, and this charge has not been proved, upon this count also the accused is entitled to be acquitted. On the accused�s own account that he had filled in the body of the cheque after it had been signed in blank by Bart, it is possible that an alternative case might have been made that this had been done by him without authority, and so constituted a forgery, (Russell on Crime 12th ed. Vol. 2 p. 1231), but no such alternative count was laid.

The remaining counts of forgery and uttering relate to the three cheques drawn in Bart�s absence and also the cheque dated 14th March, 1974 on which the accused also admitted that he had forged Bart�s signature. In respect of each of these cheques the accused admitted that he had dealt with them by cashing them at the bank. Thus subject to the question whether the Crown has proved the necessary intent the other elements of the offences of both forgery and uttering have been made out.

The accused�s defences on these charges are first that, although there is no such express element in the definition of forgery contained in s. 486 of the Code, the intention to defraud which, it was submitted, was necessary at common law at least so far as private documents, as distinct from public documents, are concerned is to be imported into that section, and as it was not alleged by the Crown that the accused either used or intended to use the proceeds of the cheques for other than canteen purposes such intention to defraud had not been proved; and secondly that of honest claim of right under s. 22 of the Code. The first defence raises an issue which Clarkson J. found it unnecessary to decide in R. v. McEachern[cclxv]¹¹.

I should say at the outset that the first submission is founded on a misconception because it has been decided by the House of Lords that the words �intent to defraud� in the Forgery Act of England 1913 s. 4 (1) must be understood, as it is stated in the headnote, �in the light of any established legal interpretation that prevailed at the date of the passing of the Act, and that, on the authorities, there was no warrant for confining those words to the idea of depriving a person by deceit of some economic advantage or inflicting upon him some economic loss�. Welham v. D.P.P.[cclxvi]¹². In the law of England the intent to defraud required in cases of forgery is intent to deceive another to his detriment or prejudice, ibid per Lord Radcliffe at p. 124. This must include an intent to expose another to the risk of detriment or prejudice. It is not necessary that any person should be actually injured, provided that he may be prejudiced by the forgery (ibid). Now if one turns to s. 486 it will be seen that this is also the effect of the intent prescribed by the words �with the intent that it may in any way be used or acted upon as genuine, ... to the prejudice of any person,�. Mr. Cavit then sought to base a submission on the argument that those words are superfluous because there could be no case which fell within them which could not be brought under the alternative intent, which is prescribed in the following words �with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act ...�. I agree that it is difficult to imagine a case of intent that a document may be used or acted upon as genuine to the prejudice of a person, which does not involve an intent that such person may, in the belief that the document is genuine, be induced to do or refrain from doing any act, but I am not prepared to go so far as to hold that there could be no such case or that the first defined intent is entirely otiose.

Mr. Cavit next argued that the alternative intent contained in s. 486 provides so dangerously wide a definition, so wide as to include cases merely of dishonesty rather than of a criminal intent, that the legislature, at least in the case of private documents must have intended not to impose criminal responsibility in the absence of the common law intent to defraud. He instanced the case of a wife signing upon a cheque the signature of her husband who was suddenly called away. Such a case might raise the question of implied authority. However, a similar argument based upon the case of the writing of a faked letter to another giving him a fictitious appointment, which it was said would constitute the crime of forgery, was put to the House of Lords in Welham v. D.P.P.[cclxvii]¹³�in an endeavour to limit the intent to defraud required in forgery cases to the idea of causing economic loss. The words used by Lord Radcliffe rejecting the argument are equally applicable in this case. Lord Radcliffe said:

�I do not know that I should regard this as so startling a result as to lead me to reconsider what seems to be the long-accepted definition of defrauding: after all, the crime in question only exists if there is the making of a false document in order that it may be used as genuine, which is itself dishonest and a cheat. Words, not being capable of infinite division for purposes of precise measurement, can only convey ideas that are to some extent general, and I think it may be that the imposition suggested does technically constitute the crime of forgery, unless the rule that lex con curat de minimis puts it out of court, or a jury concludes that, in any event, these theoretical arguments have to be tried by a certain standard of common sense, and I cannot say that in practice I should expect to see a crop of criminal prosecutions based on tricks or deceptions of this kind.�

But the statutory intent has clear limits. A case of intent to deceive which would apparently fall outside the common law intent to defraud and which it seems also could not be brought under s. 486 is the case of Reg. v. Hodgson[cclxviii]¹⁴�referred to by Lord Radcliffe at pp. 128-129. The facts as stated by Lord Radcliffe are as follows: �There a diploma of the College of Surgeons had been altered by substituting Hodgson�s for the genuine name; on the other hand Hodgson had made no use of the document, so altered, except to hang it on the wall of his room and show it to two friends who enquired as to his qualifications� ibid.

For these reasons I find no instance of �doubtful import� under s. 486, and no reason to look beyond the words of that provision of the Code, or to have resort �to the previous state of the law for the purpose of aid in the construction of the provisions of the Code�. Bank of England v. Vagliano Bros.[cclxix]¹⁵�per Lord Herschell. I would therefore hold that any criminal intention, except as expressly required in ss. 486 and 489 of the Code is not an element of the offences of forgery and uttering. This conclusion is supported by the case Reg. v. Stewart[cclxx]¹⁶�which was a decision of the New Zealand Court of Appeal, upon the construction of a provision of the New Zealand Criminal Code similar to s. 486, except that the words �to the prejudice of any person� were omitted.

I should add that Mr. Cavit also referred to the use of the word �fraudulently� in s. 489 of the Code but the argument based upon the description of the intent therein required for uttering�which is in the same terms as in s. 486�as �fraudulent�, and so supporting any different construction of s. 486, is untenable.

Thus in my opinion it is irrelevant for the purposes of the accused�s criminal responsibility in respect of the forged cheques (although it would be relevant to punishment) that the accused had no intention to use and did not use the proceeds of the cheques otherwise than for the purposes of the canteen. It was not disputed that the accused�s intention in relation to each of these cheques fell within the words of s. 486, and the conclusion I have reached is that certainly under the alternative intent thereby prescribed the accused did intend in relation to each of these cheques that the Bank would, in the belief that it was genuine, be induced to do an act, viz., cashing the cheques, and I am so satisfied beyond reasonable doubt. Thus in my opinion the Crown has established to the necessary degree of proof each of the elements of forgery and uttering.

I turn now to the accused�s defence under s. 22 of the Code.

I accept the statement of the law by Hanger J. (as he then was) in Olsen v. The Grain Sorghum Marketing Board; Ex parte Olsen & Anor.[cclxxi]¹⁷. �In order that this second paragraph should be applicable to any set of facts, it is necessary (a) that the offence under consideration must be one relating to property, (b) that the act done or omitted to be done must be done or omitted to be done with respect to property and (c) that it must be done or omitted to be done in the exercise of an honest claim of right without intention to defraud�.

The first question is whether the offences of forging and uttering a document are offences relating to property. They are found within Pt. VI of the Criminal Code. A document falls within the definition of property contained in s. 1 of the Code as including �every thing, animate or inanimate, capable of being the subject of ownership;�. The expression, �offence relating to property�, was considered by the Full Court of Queensland in Olsen v. The Grain Sorghum Marketing Board[cclxxii]¹⁸�and also in Pearce v. Paskov[cclxxiii]¹⁹. In the latter case Virtue J. had to consider offences of being in possession of undersized crayfish and crayfish tails under the Fisheries Act 1905-1965, ss. 24 and 24a. It was held that the expression under s. 22 of the Code should be construed as applying exclusively to offences of the character of those defined in Pt. VI of the Criminal Code which is headed �Offences Relating to Property and Contracts�, which can be classified under various headings but all involve the wrongful interference with the property or possessory rights of others. His Honour held that the offences he had to consider did not involve any such element and they came within the prohibition of the Code of acts injurious to the public in general. Accordingly the defendants were denied immunity.

Whether this is the correct test to be applied to offences created outside the Code is, however, not necessary for me to decide, for the problem of the application of s. 22 of offences prescribed by the Code seems to me a more narrow one. (The case of Olsen v. The Grain Sorghum Marketing Board[cclxxiv]²⁰�also did not raise this problem). In relation to these offences I can see no reason why the expression should be restricted to offences involving the wrongful interference with the property of others. This view is supported by the use of the term �any property� which is found in the definition of the act to be excused. Although the conclusion in any particular case would depend on an examination of the relevant section of Pt. VI of the Code prescribing the offence, the second paragraph of s. 22 in my opinion is prima facie applicable to all offences prescribed under Pt. VI and relating to property rather than contracts.

It is sufficient for me in this case to say that in my opinion the offences of forging and uttering a document set out in Pt. VI and also relating as they do to property as defined in the Code are offences relating to property within the meaning of s. 22 of the Code. It follows also that the act of forging the cheque was an act done with respect to �any property�.

The next question is whether the Crown has excluded beyond reasonable doubt that the accused acted in the exercise of an honest claim of right and without intention to defraud. Upon the interpretation of the expression �honest claim of right� I was referred to the New Zealand cases of Reg. v. Fetzer[cclxxv]²¹�and Reg. v. Hakwai[cclxxvi]²². However, these cases relate to a legislative provision differently worded and I do not find them of assistance.

It is clear that a claim of right sufficient to relieve a person of criminal responsibility need only be honest and need not be reasonable. Reg. v. Pollard[cclxxvii]²³�per Gibbs J. and Tiden v. Tokavanamur-Topaparik[cclxxviii]²⁴. In the former case it was held that, �an accused person acts in the exercise of an honest claim of right, if he honestly believes himself to be entitled to do what he is doing. A belief that he may acquire a right in the future is not in itself enough�, at p. 29. But the section does not excuse an offender whose act was done in the mistaken belief that it was not unlawful which is a mistake of law and no defence to any criminal prosecution. Olsen v. The Grain Sorghum Marketing Board; Ex parte Olsen & Anor.[cclxxix]²⁵.

Turning to the facts, the account given by the accused was that the reason for him writing Bart�s signature on the cheques was because he found it hard to get Bart to sign plus the fact that he thought it was for the canteen use and not for himself and in order not to have any delay in the running of the canteen. In cross examination when the matter was again put to the accused he said in substance that he understood that as long as it was for the canteen use and not for himself it was all right.

The cross examination then proceeded as follows:

N2>Q.������ Did you think that so long as the money was to be used for canteen use, it did not matter whether you forged the signatures or not?

N2>A.������ Yes.

N2>Q.������ You knew that forging signatures was wrong didn�t you?

N2>A.������ Yes.

N2>Q.������ You knew you could get into serious trouble if it were found out didn�t you?

N2>A.������ Yes.

Having seen and heard the accused in the witness box I am quite unable to accept his explanation given by way of excuse for the forgeries. This conclusion is supported by the significant failure of the accused to inform Bart at any stage of the forgeries. I am satisfied that his state of mind was one of hope that the forgeries would not be detected, and if they were, that no action would be taken, and that the accused disclosed the truth when he admitted knowing that forging signatures was wrong, and that he could get into serious trouble if it were found out. Thus on all the facts the Crown has satisfied me beyond reasonable doubt that the accused did not act in the exercise of an honest claim of right in signing the cheques and that in so doing he had no honest belief that he was entitled to sign those cheques.

It is thus unnecessary for me to consider whether the Crown has excluded an intention to defraud, or the meaning to be attributed to that expression in s. 22. I would therefore convict the accused under the counts of the indictment 7 to 14 inclusive.

Verdict accordingly.

Solicitor for the Crown: P. J. Clay, Crown Solicitor.

Solicitor for the accused: G. R. Keenan, Acting Public Solicitor.

[cclvi]Section 486 of the Criminal Code (Queensland adopted):�

A person who makes a false document or writing, knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Queensland or elsewhere, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in Queensland or elsewhere, is said to forge the document or writing.

It is immaterial that the forger of anything forged may not have intended that any particular person should use or act upon it, or that any particular person should be prejudiced by it, or be induced to do or refrain from doing any act.

[cclvii]Section 489 of the Criminal Code (Queensland adopted):�

Any person who knowingly and fraudulently utters a false document or writing, or a counterfeit seal, is guilty of an offence of the same kind and is liable to the same punishment as if he had forged the thing in question.

The term �fraudulently� means an intention that the thing in question shall be used or acted upon as genuine, whether in Queensland or elsewhere, to the prejudice of some person, whether a particular person or not, or that some person, whether a particular person or not, shall, in the belief that the thing in question is genuine, be induced to do or refrain from doing some act, whether in Queensland or elsewhere.

[cclviii]Section 22 of the Criminal Code (Queensland adopted):�

But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.

[cclix][1961] 1 W.L.R. 1309.

[cclx][1969] 1 W.L.R. 497.

[cclxi][1961] 1 W.L.R. 1309.

[cclxii](1909) 3 Cr. App. R. 87.

[cclxiii][1913] Q.S.R. 240.

[cclxiv](1909) 3 Cr. App. R. 87.

[cclxv]Unreported judgment No. 434 of 1967.

[cclxvi][1961] A.C. 103.

[cclxvii][1961] A.C. 103.

[cclxviii](1856) Dears. & B. 3.

[cclxix][1891] UKLawRpAC 6; [1891] A.C. 107, at pp. 144-145.

[cclxx](1908) 27 N.Z.L.R. 682.

[cclxxi] [1962] Qd.R. 580, at pp. 588-589.

[cclxxii] [1962] Qd.R. 580, at pp. 588-589.

[cclxxiii][1968] W.A.R. 66.

[cclxxiv] [1962] Qd.R. 580, at pp. 588-589.

[cclxxv](1901) 19 N.Z.L.R. 438.

[cclxxvi][1931] N.Z.L.R. 405.

[cclxxvii][1962] Q.W.N. 13.

[cclxxviii][1967-68] P. & N.G.L.R. 231.

[cclxxix] [1962] Qd.R. 580, at pp. 588-589.

[cclxxx]Section 36 of the Child Welfare Act where relevant provides:

Subject to this Ordinance, a Children�s Court�

(a) shall, in respect of all offences committed by children, exercise the powers and authorities possessed by a Court of Summary Jurisdiction;

(b) may, where a child is charged with an indictable offence (other than a homicide, rape or other offence punishable by death or imprisonment for life) hear and determine the charge in a summary manner in accordance with the provisions of this Ordinance; and

(c) shall hear and determine all complaints and applications under this Ordinance.

N2>(2) Where a Children�s Court deals summarily with an offence, other than a homicide, rape or other offence punishable by death or imprisonment for life committed by a child, the Court may�

(a) ...

(b) without proceeding to conviction, proceed in any one or more of the following manners:�

(i) ...

(ii) ...

(iii) adjourn the hearing for such period as the Court thinks fit to enable the child to do such acts or things for the purpose of remedying or diminishing any damage done or injury or loss caused by the child, or to undergo such discipline or instruction for the purpose of reforming or rehabilitating the child, as the Court, on the recommendation of a welfare officer, sees fit to order,

and, upon being satisfied that suitable chastisement has been inflicted, or the security has been given or the acts or things have been performed, or the discipline or instruction has been undergone, as the case may be, dismiss the charge and give a certificate of dismissal accordingly.

N2>(3) ...

N2>(4) Where a court, other than a Children�s Court, deals with an offence, other than a homicide, rape or other offence punishable by death or imprisonment for life committed by a child, that court may exercise the powers of a Children�s Court under subsection (2) of this section, and an order made in the exercise of those powers shall have effect as if it were an order of a Children�s Court.

N2>(5) Where a court, other than a Children�s Court, deals with an offence other than a homicide, rape or other offence punishable by death or imprisonment for life, committed by a person over the age of sixteen years but under the age of twenty-one years, the court may, where it considers it for any reason desirable, treat that person as a child for the purposes of this Ordinance and may exercise the powers of a Children�s Court under sub-section (2) of this section in relation to that person, and an order made in the exercise of those powers shall have effect as if it were an order of the Children�s Court.