In recognition of the above, in Queensland a child under 10 years is not criminally responsible at law for anything they do or fail to do. Once a child turns 10, they are subject to the criminal justice system, and they can be charged with virtually any offence an adult can be charged with. There is some variation in the legal process in dealing with child offenders by way of recognition that those under 18 are still young and developing and are vulnerable in a system dominated by adults.
The criminal law relating to children in Queensland is governed by an Act of Parliament called the Juvenile Justice Act 1992. According to the law, a 'child' is a person who has not yet turned 17 years of age. (In certain cases, however, the courts can also treat as children those who have allegedly committed offences when under 17, but who have since turned 17.)
INVESTIGATIONS INVOLVING CHILDREN
Police often investigate crimes where the suspect is a child. Because the law recognises that children are usually at a disadvantage in dealing with people in authority, limitations are placed on police regulating the way they can investigate such crimes.
In the same way as an adult alleged offender, a child has the right to remain silent, whether they have been stopped in the street, have agreed to go to the police station or are under arrest.
However, police have the power to ask you basic questions and you’re breaking the law if you refuse to answer:
your name and address
date and place of your birth (in drug matters)
questions regarding broken traffic laws or whether you’ve seen an accident
other questions that they can ask under special laws.
If you don't want to answer questions and you're not sure whether you must answer, get legal advice.
If the police wish to question a child about a criminal offence, then normally it is a requirement that the child be accompanied by a parent, lawyer, justice of the peace or some other adult nominated by the child.
Unless there are good reasons why this safeguard is not complied with by police, courts have a discretion to exclude any statement given by a child (16 years) so that it cannot be used as evidence against that child in a court proceeding.
Fingerprints and Other Identification
Specific provisions apply to the taking of fingerprints and other identifying particulars from children. Because it is rare for children to be arrested, police do not usually obtain identifying particulars such as fingerprints and photographs from a child suspect. A police officer must apply to a children's court magistrate to obtain such identifying particulars. The magistrate must then decide whether it is fair and reasonable for the child to be required to provide the particulars wanted by the police.
If a children's court magistrate does grant the police officer's request to obtain such identification, then the child is required to appear at a nominated police station and provide the particulars. Failure by the child to comply with the order is an offence. If a child does provide such particulars then the child is generally allowed to have a parent, lawyer, justice of the peace or a nominated adult present at the time.
COMMENCING PROCEEDINGS AGAINST THE CHILD
It is usually the police who investigate criminal offences thought to have been committed by children or adults. If an investigating police officer believes that a child is responsible for a criminal offence, the police officer has two options, namely:
to take action which does not require the child to go through the court system; or
to charge the child with the offence and require the child to appear before a court.
Diverting Children Away From Court
A police officer has the discretion to decide not to charge a child, but rather administer a caution to the child, or seek to have the child take part in a 'community conference' where the child is brought face to face with the victim and the issues concerning the offences are discussed between the victim and offender.
If a caution is issued, the child is not prosecuted for the offence. Cautions are only given for relatively minor offences, although they have been applied in a wide variety of circumstances, such as shoplifting, fighting and traffic offences. Normally before a caution will be issued, the child must admit guilt and consent to being cautioned. The police may require the child to issue an apology to the victim.
Charging Children With Offences
If a child is to be charged with an offence there are a variety of methods by which this can occur. Attendance notices are the most common means of starting proceedings against the child. An attendance notice is a document served on the child requiring his or her appearance in a children's magistrates court at a specified time. Service of the notice avoids the need for an arrest. If a child is served with a notice, the police officer serving it must advise the parents of the child if they can be located.
The child must appear at the court at a specified time and failure to do so allows the court to order the immediate arrest of the child.
The most serious option available for charging a child is by arrest. The child is taken by police and held in custody until he or she is either processed for bail or has appeared in court. The Juvenile Justice Act contains a policy that children should be detained in custody (even if only briefly) as a last resort and only if able to be held at a suitable facility. However, a police officer can arrest a child for certain specified reasons including if the arrest is considered necessary to prevent a repetition or continuation of an offence.
All proceedings against a child begin in the Children's Magistrates Court before a children's court magistrate. The matter may be heard entirely by the children's court magistrate or it may have to be referred to one of the higher courts, namely the Children's Court of Queensland (or a District Court judge but sitting as a children's judge) or the normal District or Supreme Court.
PROGRESSING THROUGH THE COURT SYSTEM
As to how a child will be dealt with for a particular charge depends on the nature and seriousness of the charge involved. Offences committed by children are generally one of two types, either 'simple offences' or an 'indictable offence'.
All children who are charged initially come before a children's magistrate who will either deal with the matter or refer it to a higher court.
Simple offences are charges of a minor nature which can be dealt with by a children's court magistrate. Examples of offences that are dealt with by a children's magistrate include shoplifting, obscene language, and possessing a drug implement such as a bong.
Other matters which may have to proceed to a higher court are called 'indictable offences'.
These are categorised as either 'serious offences' or 'non-serious offences'. ('Serious offences' are those where the maximum jail term available, if the offence were committed by an adult, is fourteen (14) years or more.)
Most indictable offences ('non-serious' ones), which come before a children's magistrate can usually be determined in front of the children's magistrate or at a higher court before a children's court judge, depending on the choice (or 'election') of the child. This election is usually made in consultation with a legal representative who advises the child on the best course of action to take. Examples of offences in this category include most assaults and dishonesty offences, including stealing.
All 'serious offences' such as murder, rape, grievous bodily harm and some drug offences cannot be heard by a children's magistrate and must ultimately be heard by a judge in a higher court - either a children's court judge or a judge of the District Court or Supreme Court.
Parents and Guardians
As a general rule, when a child is appearing before the courts, the child's parent/s or guardian/s are required to attend. The court can actually order their attendance and the parent/guardian commits an offence if not so attending after being served with a copy of the court's order.
In any proceeding where a child is charged before a court, the court has to take steps to ensure, as far as possible, that both the child and any parent or guardian of the child present has a full opportunity to be heard and participate in the proceedings. This usually means that explanations are provided to the child as the matter continues, and the child and parent/guardian will be given an opportunity to speak to the magistrate or judge. Such an opportunity will normally be given even where a child is represented by a lawyer.
As a general rule, the identity of children charged with criminal offences is not allowed to be published. It is illegal to publish any material concerning a proceeding against a child for a criminal offence which could lead to the identification of the child. Such matters would normally include the child's name, address, school, place of employment, photograph or anything else which could lead to the identification of the child.
Contesting the Charges ' Pleading Not Guilty
If the child wishes to plead not guilty to the charge against him or her, then a trial follows. This will normally be some weeks or months after the initial charge is laid against the child.
A trial before a children's magistrate is called a 'hearing'. If the proceeding is conducted before a judge (either a children's court judge or in the District Court or Supreme Court) then it is called a 'trial'. In a hearing/trial the prosecution presents evidence through witnesses and exhibits which it says demonstrate the guilt of the child who has been charged. The child, usually through legal representation, has the opportunity to test the prosecution case by questioning prosecution witnesses and making submissions to the presiding magistrate or judge. The child can then also give evidence on his or her own behalf, and if need be, call evidence from other witnesses on his or her behalf.
At the conclusion of the hearing or trial, the magistrate or judge must decide whether the prosecution has proven its case against the child. As with adult courts, the burden rests on the prosecution to prove the charge against the child. The child is presumed innocent and does not have to prove anything in his or her defence. To be found guilty the court must be satisfied to a high degree of proof - beyond reasonable doubt, that the child is responsible for the offence. In the District and Supreme Court this decision is made by a jury of 12 people. When a child is before a children's court magistrate or children's court judge, the magistrate/judge sits alone and hears the case without a jury and makes all decisions relevant to the case.
If a child pleads guilty to a charge, or after a hearing or trial is found guilty, the child will be sentenced by the court.
SENTENCING CHILD OFFENDERS
If a child is found guilty at the conclusion of a hearing or trial, or if the child pleads guilty to the charge, the court is then required to 'sentence' the child for the offence. Sentencing involves the imposition of a punishment upon the child due to the child's offending behaviour.
The options open in sentencing a child for an offence are found within the Juvenile Justice Act. There are a number of sentences which can be imposed on a child, either individually or in combination. Together with any punishment to be imposed, the court must also consider whether to record a conviction against the offending child. As can be seen below, this will sometimes depend on the punishment imposed.
This type of sentence is generally imposed only for minor matters. No conviction is recorded when a reprimand is administered.
Good Behaviour Order
The effect of such an order is to obtain from a child a written promise that the child will behave and not violate the law for the period of the order. The order can be for a period of up to one year. If the child commits a further offence during the period of the order, then when subsequently sentencing the child, the court can have regard to the fact that an order was in place and was breached by the commission of a new offence. Generally, this will mean a heavier punishment than if the child had not been on a good behaviour order at the time of the new offence. When a good behaviour order is made, no conviction is recorded against the child.
A fine can only be ordered against a child if the court is satisfied the child has the capacity to pay the fine. The court must examine the resources available to the child and determine whether the child can pay. A fine can be paid over a nominated period of time, for example, by instalments. If the child does not pay the fine, then it is possible for the fine order to be cancelled and the child to be ordered to perform unpaid community service.
The court has a discretion whether or not to record a conviction when ordering a fine against a child.
A child can be ordered to perform probation as supervised by the Department of Families, Youth and Community Care. Probation is essentially a period of government monitoring or supervision, usually by way of regular visits. A child must consent to being on probation before it will be imposed. The probation period can be for up to two years for most offences and up to three years for a 'serious offence'.
A probation order normally contains conditions concerning the residence, employment and future behaviour of the child. The order can also contain special conditions such as insisting the child submit to medical or psychological treatment, and drug or alcohol rehabilitation or counselling.
The sentencing magistrate or judge has a discretion whether or not to record a conviction when imposing probation.
If the child is thirteen years or over, he or she can be ordered to perform community service as part of a sentence for an offence. Community service can only be imposed if the child consents. It is simply unpaid work in the community and a variety of types of work are available. The court can order that the child perform unpaid community work of up to 100 hours for a thirteen or fourteen-year-old child, and up to 200 hours for children aged fifteen and over. Generally, the community service has to be completed within a year.
Though a conviction may be imposed with an order of community service, the magistrate or judge has a discretion not to record a conviction.
When children are kept in custody they are said to have been placed in 'detention', rather than 'jail'. As mentioned above, a child will only be detained in custody as a last resort and only if appropriate facilities for detention are available. A court can only detain a child after having ordered and considered a pre-sentence report, usually compiled by the Department of Families, Youth and Community Care. A pre-sentence report includes the circumstances surrounding the physical and mental health of the child, background of the family, education and employment of the child and the family, and the circumstances in which the child was found guilty.
A children's court magistrate can order detention for up to one year, whereas a judge can order detention for a greater period depending on the category of offence committed. Generally, a child will spend 70% of the designated detention period actually in detention. The court can order that the child be released after serving only 50% of the order if there are special considerations. A conviction may be recorded if a child is sentenced to detention, however the magistrate or judge has a discretion not to record a conviction.
Immediate Release Order
The court can also order a child's immediate release from custody and order that the child participate in a program organised by the Department of Families, Youth and Community Care. Such an order will only be made if a pre-sentence report indicates the child is suitable for such an order and if the child agrees to such an order. If the child later breaches an immediate release order, then a period of detention can be imposed. The court retains a discretion whether or not to record a conviction when imposing this sentence.
Restitution and Compensation
The court can also order that a child pay restitution and/or compensation. A child may be ordered to pay restitution when he or she has damaged, broken, or stolen property from a victim. Compensation may be ordered when the child has caused personal injury.
Children have rights, similar to adults, to appeal decisions against them. The appeal rights available to a child will depend on the charge against them and whether the matter was heard by a magistrate or a judge. Decisions made by a children's magistrate can usually be appealed to the District Court. The decision of a children's court magistrate concerning sentence only can also be reviewed by a children's court judge.
Decisions by children's court judges can usually be appealed to the Court of Appeal.
Please note that very strict time frames apply for lodging of appeals after a conviction or sentence - often only a couple of weeks. You are advised to seek urgent advice from a lawyer if you wish to consider lodging an appeal against a decision by a magistrate or judge.