King v Scott [1950] HCA 34

High Court of Australia Latham C.J. Fullagar and Kitto JJ. King v Scott [1950] HCA 34

ORDER Special leave to appeal granted. Appeal allowed with costs. Order of Supreme Court, except in relation to costs, discharged. Order of special magistrate restored.

Cur. adv. vult.

The following written judgments were delivered:—

Latham C.J.

This is an application for special leave to appeal from an order of the Full Court of the Supreme Court of Western Australia allowing an appeal from a dismissal by a Special Magistrate in the Children's Court of a charge against Freda Maud King for an offence against the Child Welfare Act 1947, s. 137. The charge was that the appellant, who was the mother of a female child aged twelve months, "did by wilful misconduct and habitual neglect contribute to Carol Ann King, aged 12 months, becoming a neglected child." It was proved that the mother was a woman of dissolute habits, that she had not looked after her child properly, and that the child was in a dirty and starved condition. Section 4 of the Child Welfare Act 1947 includes within the definition of "neglected child" "any child who (5) is under the guardianship or in the custody of any person whom the court considers is unfit to have such guardianship or custody." Section 30 provides that a child may be declared to be a neglected child. Such a declaration is not (as was the case under the former Act of 1927, s. 30) based upon a complaint or charge against the child. A child who is only twelve months old is incapable of committing an offence against the law. The question which arises upon this application is whether the magistrate was right in holding that a person cannot be convicted of an offence under s. 137 where it is not shown that the child in question has been guilty of an offence.

Section 137 is in the following terms:—"(1) Any person who has, either by wilful misconduct or habitual neglect, or by any wrongful or immoral act or omission encouraged or contributed to the commission of any offence by any child, or caused or suffered the child to become a neglected child, or contributed to such child becoming a neglected child, shall be guilty of an offence. Minimum penalty irreducible in mitigation: Five pounds. Maximum penalty: Fifty pounds or imprisonment with hard labour for six months. (3) The court before whom any person is convicted of an offence under this section may (if such person is a parent or guardian of the child), in lieu of or in addition to any other punishment, order the person convicted—(a) to pay any fine which may have been imposed on the child for the offence committed by such child; (b) to find good and sufficient security to the satisfaction of the court that the child will be of good behaviour for a period not exceeding twelve months."