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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:
Who was a child when the offence was committed; and
Who was under the age of 21 years when charged before the Children's Court with the offence.
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:
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
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:
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:
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:
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):
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:
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.
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.
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