LEGISLATION PARTICULAR TO CHILDREN
There are a number of New South Wales Acts of Parliament
which provide specifically for children. The most important
are the Children (Care and Protection) Act 1987, which allows
a court to make orders with respect to the care and welfare of
children and the Children (Criminal Proceedings) Act 1987,
which contains the powers and procedures of the Children’s
Court and other courts where necessary to deal with children
for criminal offences.
Generally, persons under the age of 18 are brought before
the Children’s Court in respect of the same offences with
which people are brought before the Local Court.
With some exceptions, the Local Court or District Court
cannot hear and determine criminal proceedings that the
Children’s Court has jurisdiction to hear.
The Children’s Court has jurisdiction to hear and
determine:
The Children’s Court, however, does not have jurisdiction
to hear proceedings in respect of a traffic offence unless the
offence arose out of the same circumstances as another offence
which brings the person before a Children’s Court or the
person was not old enough to obtain a driver's licence.
"A serious indictable offence" means:
- Homicide (i.e. murder or manslaughter);
- An offence punishable by gaol for life or 25 years;
- Certain sexual offences under the Crimes Act;
- An attempt to commit certain sexual offences under the
Crimes Act;
- Any indictable offences prescribed by the regulations as
serious indictable offences.
The Act give the Children’s Court the power to hear and
determine all but the most serious of criminal offences. The
Children’s Court is empowered to conduct committal proceedings
in respect of the most serious offences such as murder, where
after the person would be committed to the Supreme Court,
which is the only court with jurisdiction to hear such
matters, for either trial or sentence.
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AGE OF CRIMINAL RESPONSIBILITY
It is presumed that a child under the age of 10 years
cannot be guilty of a criminal offence. Where a child is aged
between 10 and 14 years there is rebuttable presumption that
the child cannot form an intent to commit a criminal
offence.
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COMMENCEMENT OF PROCEEDINGS BY SUMMONS
Except in the case of serious indictable offences or some
drug offences, or except in circumstances where it is believed
a person is unlikely to comply with the Summons or Attendance
Notice, or is likely to commit further offences, criminal
proceedings should be commenced against the child by Summons
or Attendance Notice. That is, the young person should
ordinarily not be subjected to arrest and charge at a police
station.
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OTHER SPECIFIC PROCEDURAL ISSUES
Closed Court
Children’s Court proceedings are generally closed which
means that the general public is not entitled to be in court
when proceedings are in progress. A young person may have a
member of immediate family with them in court during the
proceedings.
Publication and Broadcasting of Names
The name of a child:
- Who is appears as a witness in criminal proceedings;
- To whom any criminal proceedings relate;
- Is mentioned or otherwise involved in criminal
proceedings;
is not allowed to be published or broadcast whether before
or after the proceedings are disposed of.
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PENALTIES FOR OFFENCES DEALT WITH IN CHILDREN’S
COURT
The court has open to it similar penalties as those which
are available for adult offenders dealt with in Local Courts.
The court, upon finding a person guilty of an offence may do
any of the following:
- Dismiss the charge, or dismiss the charge and administer
a caution;
- Make an order to release the person on condition to
enter a bond for not more than 2 years;
- Order the person to pay a fine, but limited to the
maximum fine for the offence or $1,100.00 which is ever is
lesser;
- Release the person on condition they comply with an
outcome plan determine at a conference under the Young
Offenders Act 1997;
- Release the person on probation for not more than 2
years;
- Impose a community service order;
- Commit the person to a detention centre for a period of
not more than 2 years.
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LEGAL REPRESENTATION
In New South Wales there is Duty Solicitor Scheme in
operation where Legal Aid solicitors represent young persons,
without cost to the young persons in Children’s Courts.
Private lawyers also represent children at Children’s Courts
pursuant to the Legal Aid Duty Solicitor Scheme.
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CHECKLIST OF RIGHTS UNDER INVESTIGATION OR
ARREST
Rights & Police Powers of Search and Seizure
While the Police do not have a general power to stop and
search a person prior to arrest, the Police do have statutory
authority to stop persons and search motor vehicles.
A Police Officer may stop, search and detain a person whom
or a car which the Police Officer reasonably suspects of
having or conveying anything stolen or otherwise unlawfully
obtained or anything used or intended to be used in the
commission of an indictable offence.
The Police may also stop and search a person or car, whom
or which the Police reasonably suspect of having any
prohibited plant or prohibited drug.
The Police also have the power under the Summary Offences
Act to search a person whom the Police suspect on reasonable
grounds has a dangerous implement in his or her custody. A
dangerous implement includes things such as, knives, firearms
or an implement adapted for use for causing injury to a person
or anything intended to be used to injure or menace a person
or damage property.
The search is limited to the following:
- Scanning by a metal detection device.
- Quickly running hands over the person's outer garments.
- An examination of any bag or any other personal effects.
- Search of a school student's locker.
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Young Persons and Custody of Knives, Offensive
Implements
Under the Summary Offences Act it is an offence for a
person to have custody of an offensive implement in a Public
Place or School. The penalty for this offence is maximum fine
of $5,500.00 or imprisonment for up to 2 years.
An offence implement means anything made or adapted for use
for causing injury to a person, or to anything intended, by
the person having custody of the thing to be used to injure or
menace a person or damage property.
It is also an offence to have custody of a knife in a
Public Place or School (without reasonable excuse). A
reasonable excuse may be made out where it is reasonably
necessary in all the circumstances for the person to have the
item for any of the following (some examples):
- Lawful pursuit of the person's occupation.
- Exhibition of knives for retail or other trade purposes.
- Preparation or consumption of food or drink.
- The wearing of an official uniform.
It is also an offence for parents to knowingly authorise or
permit children to commit an offence of having custody of a
knife without reasonable excuse in a Public Place or
School.
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Rights under Arrest
It is only in exceptional circumstances that the police
will arrest you and take you to the police station to
investigate the commission of a criminal offence and/or charge
you.
Ordinarily, proceedings are issued against young persons by
way of Summons or Attendance Notice.
When you are taken to the police station you may be
detained after arrest for investigation for an initial period
of 4 hours and for a period of 8 hours, but only after the
police have applied and been granted a detention warrant.
The 4 hour investigation period does not include a number
of periods or "time outs". These include the time taken for
legal representative or friend, relative or guardian to arrive
at the police station at your request, or while waiting for
Interview facilities to become available.
If you are a juvenile you are also entitled to have a
support person with you while you are in police custody and
the police are required to help you try and get a support
person to attend the police station.
The police cannot ask you to do or say anything while you
are waiting for a legal practitioner, friend, relative or
guardian to attend the police station, but you may be required
by law to answer specific questions, such as provide
particulars in relation to certain motor vehicle
accidents.
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Records of Interview and the Right to Silence
The police may wish to interview you in respect of a
criminal offence. They will usually wish to conduct the
interview by recording it on audio and video cassette
tapes.
If you agree to be interviewed you the Police must allow
you to have a support person or parent or guardian or legal
representative with you during the interview.
You do not have to answer any questions during the
interview and you should seek legal advice before
participating in an interview or making any statements to the
police, if you are the suspect in relation to an
offence.
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Statements, Confessions and Admissions
The Children (Criminal Proceedings) Act, provides that any
statement, confession, admission or information made or given
to a member of the police force by a child who is a party to
criminal proceedings cannot be admitted in evidence unless
there was present at the place where and throughout the period
of time during which the statement, confession, admission or
information was made or given:
- A person responsible for the child.
- An adult (other than a police officer) who was present
with the consent of the person responsible for the child.
- In the case of a child who is of or above 16 years of
age, an adult (other than a police officer) who was present
with the consent of the child.
- A barrister or solicitor of the child's choice.
The statement, confession, admission or information,
however, could still be admitted as evidence in proceedings
where any of the persons stated above are not present when the
statement etc., was made but only where there is proper and
sufficient reason for the absence of an adult.
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RIGHTS UNDER THE YOUNG OFFENDERS ACT
If the police believe you have committed an offence you can
be issued with a warning or a caution by the police without
being required to attend court. In these circumstances, you
are required, however, to make an admission to the
offence.
You should seek legal advice before making any admission to
the police as you may not be guilty of the offence.
The police have the power to issue cautions and warnings in
respect of offences. To receive a warning you do not need to
make an admission to an offence and you will not receive a
criminal record for the offence.
A caution can only be administered if you make an admission
to the offence and agree to be dealt with by way of caution. A
parent or guardian can be present when the caution is given by
the police, or by another member of the community.
You do not receive a criminal conviction for a having a
caution administered, however, there is a record of the
caution being given which can be brought up in court if you
are required to attend court for other matters at a later
time.
