R v CDV

A preliminary question of importance arose on this application for leave to appeal: whether the Court of Appeal has jurisdiction to hear an appeal from a sentence order made by a Childrens Court judge following a review under s 118 Youth Justice Act 1992. In a comprehensive judgment, the Court, adopting a construction of the relevant text of the Act which best fit the context of its statutory scheme; and avoided a result which would lead to inconvenience and inconsistency, held that the relevant jurisdiction was not conferred upon it.

Bond JA, Boddice JA and Muir J

5 September 2025

Upon seeking a review of a sentence order which had been made in the Magistrates Court, the applicant’s sentence order was confirmed and his application was otherwise dismissed. [5]. He then sought leave to amend the original notice of application for leave filed under s 118 District Court of Queensland Act 1967 to appeal the order of the judge confirming the sentence [6], contending that the judge who had reviewed the original sentence order had made three errors. [7]. The respondent opposed leave being granted to appeal, on the basis that the Court lacked jurisdiction to hear the appeal and, in any event, the appeal was without merit. [8].

The preliminary jurisdictional issue: did the Court of Appeal have jurisdiction to hear an application for leave to appeal a sentence order made by a Childrens Court judge under the sentence review scheme in the Youth Justice Act 1992?

Whilst the applicant argued that a right of appeal is evident from a plain reading of the text of s 125(2)(b) Youth Justice Act 1992 (“the Act”), with the path to the Court of Appeal being facilitated by Ch 67 Criminal Code, as made applicable by s 116 Youth Justice Act 1992 (“the Act”), the respondent contended that avenue is prevented by the language of s 125(2)(a), since the judge’s decision “takes effect” as the decision of the magistrate, and as s 125(3) expressly precludes the normal path for an appeal against such a decision (that is, via s 222(2)(c) Justices Act 1886) or another sentence review pursuant to s 118 of the Act. The respondent argued that there is no alternative way by which a child can appeal from the Childrens Magistrates Court directly to the Court of Appeal. [12].

In addressing the alternative arguments, the Court noted at the outset that any right to appeal must be conferred in clear words by the applicable statute, and cannot be conferred by implication: see Long v Spivey [2004] QCA 118, [25]. The statutory framework under which the sentence review was conducted is the key to determining whether a right to appeal exists. [15].

Consideration

Specifically, the applicant had sought to argue that a potential avenue for appeal from a Childrens Court magistrate to the Court of Appeal emerges in s 116 of the Act, due to the inclusion of the words “with necessary modifications” in that section, which it submitted “are intended to confer upon this Court jurisdiction to hear appeals from decisions of a Childrens Court judge, including on a sentence review”. [66]. In the Court’s view, that argument was misconceived since it failed to consider that the Childrens Court judge’s decision is expressly stated to “take effect” as the decision of the Childrens Court magistrate who originally made the sentence order which was reviewed (with the result that the subsequent decision becomes the decision of the Childrens Court magistrate). [67]. It does not follow from the words “with necessary modifications” that a direct right of appeal to the Court of Appeal arises. [68]. In the lead judgment, Muir J clarified that:

“Reading s 116 as a whole, it is apparent that the inclusion of the words “necessary modifications” ensures that the same appeal rights available to an adult defendant under chapter 67 are also available to a child defendant”. [75].

In addition, the applicant contended that in the event an avenue of appeal was found “not to exist”, it would follow that the words “[t]he decision of a Childrens Court judge on a sentence review … may be … appealed against” in s 125(2)(b), would be ineffectual and such a reading would be contrary to the accepted principles of statutory interpretation. [78]. In the Court’s view, the applicant had selectively read those words instead of considering them in their entirety. In addition, the applicant’s construction did not take into account the subsequent qualification in the text that the decision may be appealed “in the same way as the decision of the Childrens Court magistrate”, which obviously contemplates that an appeal right may exist. [79]. Furthermore, the submission failed to consider that an existing appeal right from the Childrens Court Magistrates Court on a sentence where an indictable offence is dealt with summarily is available (although in that instance it is brought by the Attorney-General under s 669A Criminal Code). [80]. Accordingly, the Court did not share the view that when read in context, strictly speaking, the words of s 125(2)(b) can be said to have no work to do. [81].

Nor did the Court accept that, when read together with the reference to “necessary modifications” in s 116, the words “in the same way” in s 125(2)(b) refer to the substance of the appeal relief available against a decision of a Childrens Court magistrate, rather than the form of appeal. [82], [83]. In its view, that was a “strained construction” which was inconsistent with both the context and purpose of s 116. [85].

Importantly, the Court noted that if it were accepted, the applicant’s construction would result in the creation in s 668D Criminal Code of a direct path of appeal to the Court of Appeal from the Magistrates Court in relation to not only summary offences, but also indictable offences dealt with summarily, falling under the sentence review regime of Youth Justice Act. In fact, Muir J relevantly observed that:

“It may be that the applicant’s argument is even broader. Indeed, given the express words of s 125(2) of the Youth Justice Act, it is difficult to avoid the perhaps unintended consequence of the applicant’s construction that there is an appeal right directly to the Court of Appeal in all cases where a child is sentenced summarily by a Childrens Court magistrate. Either way, such an interpretation would lead to an unnatural and incoherent body of law because it is contrary to the express words of s 125(2)(b), which states that the appeal is to be “in the same way” that the decision of the Childrens Court magistrate can be appealed. That is, the appeal right contemplated by this section is an existing right, not one to be created”. [87].

Lastly, the Court was not persuaded that it would be inconsistent with the purposes of the Act that an error made by a Childrens Court judge on a sentence review could not be appealed against. [91]. It noted as follows [92]–[94]:

(1)the objective of the sentence review scheme is to provide a means of informal, inexpensive, and fair resolution for a child dissatisfied with the sentence order of a Childrens Court magistrate;

(2)the statutory regime of appeal and review contemplates two distinct processes, being a formal, expensive, and slower rehearing by way of a s 222 Justices Act appeal to a Childrens Court judge, or alternatively an informal, faster, and less expensive rehearing before a Childrens Court judge;

(3)construing s 116 to create an otherwise non-existent appeal right in chapter 67 Criminal Code would result in impractical, untenable and unintended outcomes including creating inconsistency between the appeal rights available to adults and children under chapter 67; partially restoring a right of appeal to the Court of Appeal from the Magistrates Court; and possibly opening the floodgates by extending a right of appeal to the Court of Appeal, comprising indictable offences dealt with summarily and any summary offences dealt with by the Magistrates Court.

The Court held that it did not have jurisdiction to hear an appeal from a decision of a Childrens Court judge following a review under s 118 of the Act.

Disposition

The application for leave to appeal was dismissed.

A Jarro