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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
FURTHER INFORMATION
This information is provided by the firm of Ryan & Bosscher Lawyers
who specialize in this area of law. They are located at Level 1, 255
Castlereagh Street Sydney 2000, or call them on (02) 9266 0708.
Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to
providing quality service to clients. There are very few firms practising
exclusively in the area of Criminal Defence, and with a reputation of hard
headedness, dogged determination and fearlessness, Ryan and Bosscher has become
a leading Criminal Defence firm in New South Wales. We are committed to Justice
and the protection of an individual's rights. Our specialisation ensures
provision of the highest standard of representation to any person charged with a
criminal offence. Our familiarity with Criminal Law also ensures that Counsel
briefed for complex advocacy matters are also highly qualified in the Criminal
Defence field.
