PM v Childrens Court of the Australian Capital Territory & Ors [2018] ACTSC 258


The law distinguishes between children and adults. That said, it is interesting to compare reasons for decision in a criminal case with a civil case, say in wills and estate law.

In Queensland, s 29 of the Criminal Code Act 1899 (Qld) states that a child under the age of 14 years cannot be held criminally responsible for their actions unless it can be proven that they had the capacity to understand exactly what they were doing. When it comes to sentencing children, the Youth Justice Act 1992 (Qld) provides that 17-year-olds will be treated as children for the purposes of the Act. Whether a person is considered to be a child or an adult further affects which court has jurisdiction to hear the matter, and the severity of sentencing.

Recently, however, an interesting case arose in the ACT wherein it was questioned whether, for the purposes of hearing and sentencing, a girl whose birthday fell on 29 February was considered to be of adult age when committing certain criminal offences on 28 February during a common year (non-leap year).


The girl, born in a leap year on 29 February 2000, was found committing offences on 28 February during a non-leap year, and was initially deemed an adult to be tried in the Magistrates Court rather than the Children’s Court.

An application for judicial review was heard in the Supreme Court of the Australian Capital Territory: PM v Childrens Court of the Australian Capital Territory & Ors (‘PM’) [2018] ACTSC 258.

The plaintiff argued that the term ‘birthday’ should be afforded its original meaning, that being the anniversary of the date of one’s birth. As the anniversary of any one date occurs either every 365 or 366 days, it was argued that it would be an absurd anomaly to argue she had attained the age of 18 after only 364 days. The Children’s Court would thus have jurisdiction to hear the matter.

The Director of Public Prosecutions, however, argued that as there is no corresponding date for the plaintiff’s birthday every year, it would be reasonable to conclude that the end of February – the 28th – would be the day on which she attained the age of 18. This would confirm the Magistrates Court had the jurisdiction to hear and sentence the girl.


In deciding this matter, Justice McWilliam considered several pieces of legislation, including s 149 of the Legislation Act 2001 (ACT), which provides that ‘a person is an age in years at the beginning of the person’s birthday for the age.’

Her Honour made note of the specificity of the words ‘at the beginning of the person’s birthday’ and concluded that they indicate a deliberate intention by the legislature to avoid the implication that a person could or would attain a specified age the day before their birthday. It was not the intention of the legislation to refer to the number of years or months since the birth date.

Ultimately, Justice McWilliam held that the girl would only have become someone who is ‘at least’ 18-years-old on 1 March. In turn, it was ordered that the proceedings be remitted to the Children’s Court for determination.


This case contrasts that of In re Shurey: Savoy v Shurey [1918] 1 Ch 268 wherein it was established that a beneficiary to a will who died the day before his twenty-fifth birthday was actually held to have attained the age of 25, regardless of the date of his birthday.

On this basis, the girl in PM would have been deemed to have reached 18 and would thus have been sentenced in the Magistrates Court.

It is interesting to ponder the differences between age in matters of trusts and wills, compared to age in matters involving criminal offences. Perhaps the severity in criminal matters of determining a person is 18, as opposed to 17, is the reasoning behind such a distinction.