Last updated 7 August 2017
Open and closed courts
A Childrens Court that is presided over by a magistrate is a closed court for youth justice proceedings (s 20 Childrens Court Act 1992 (Qld)). The court must only allow people with a direct interest in the matter before the court in the room such as:
- the child defendant
- the prosecutor
- the victim or their representative
- the defence lawyer
- the parent(s)
- the witness(es)
- a youth justice officer
- the arresting police officer
- a representative of a community justice group where the child identifies as Aboriginal or Torres Straight Islander.
The court can give permission for an academic doing relevant research, the media or for specific people with an interest in the proceedings, but, as with the victim, the court must exclude them if it considers their presence would be prejudicial to the interest of the child.
The Childrens Court of Queensland and the Supreme Court, which are presided over by a judge are open courts, and members of the public and media can sit in the court.
However, no one can publish information that would identify the child in criminal proceedings before a magistrate or a judge (s 301 Youth Justice Act 1992 (Qld) (Youth Justice Act)) (see also Publication of identifying information below for the exception to this rule).
The Childrens Court is closed to the public when hearing child protection matters, and there is also a prohibition on publishing identifying material.
Publication of identifying information
The only circumstances when a court can order the publication of the child’s identifying information in a youth justice matter is if the child is found to have committed an offence and been sentenced under section 176(3)(b) (s 234 Youth Justice Act). This means:
- the offence the child committed was one for which there is a life sentence for an adult (murder, manslaughter, drug trafficking) and
- the court has imposed a sentence of more than 10 years up to the maximum of life because:
- there was violence against a person and
- the court considers the offence to be a particularly heinous offence having regard to all the circumstances.
The judge must consider that it would be in the interests of justice to allow the publication considering issues such as:
- the need to protect the community
- the safety or wellbeing of a person other than the offender
- the impact that this could have on the offender’s rehabilitation.
The details cannot be published before the end of the one-month appeal period. If there is an appeal, the publication is dependent on the outcome of the appeal.
The chief executive of the Department of Justice and Attorney-General (DJAG) may give written authority to publish identifying information if the chief executive is satisfied publication is necessary to ensure a person’s safety (s 301(3) Youth Justice Act).
The maximum penalty for publication without authority is 100 penalty units or two years imprisonment for an individual and 1000 penalty units for a corporation (s 301 Youth Justice Act). A penalty unit was $126.15 as of 31 July 2017 but is subject to increase.
Role of youth justice services
The chief executive of DJAG is not generally a party to the proceedings but is entitled to be heard in relation to adjournments, remand/bail, sentencing orders, publication prohibition orders, the closure of the court to the public and any other matters the court considers to be relevant (s 74 Youth Justice Act).
In practice this means that a youth justice officer from Youth Justice Services (YJ Services) at DJAG attends court. Before a child defendant appears in court, this officer will usually interview them and attempt to establish factors contributing to the child’s offending behaviour. It is the policy of YJ Services not to interview a child regarding the details of an offence prior to the child discussing it with a legal representative.
A youth justice officer can apply for, or support, a remand (dealing with the case on another day) to allow:
- a parent to be in court
- a child to be legally represented
- an interpreter to be in court
- a child’s identity or age to be determined
- a presentence report to be written.
The role of the youth justice officer with respect to submissions about bail will usually be limited to welfare issues such as accommodation. It does not address a child’s general suitability for bail.
Issues concerning the likelihood of re-offending or failing to appear are matters for the prosecution and defence. The court therefore does usually not take submissions from a youth justice officer in relation to possible bail conditions such as curfews, reporting to police, or forbidding contact with a complainant or co-accused.
Conditional bail programs are often prepared by YJ services in circumstances where a child is highly unlikely to comply with bail conditions without substantial intervention.
In general, youth justice officers are not required to argue that a child receives a particular sentence order. It is required, however, that the officer provide the court with a range of alternative orders, together with information about the nature and suitability of each.
Breach of supervised orders
A youth justice officer has to act in a prosecuting role in relation to the following as they are responsible for the administration of community-based sentence orders (probation order, graffiti removal order, community service order, intensive supervision order, conditional release order or restorative justice order) and deal with:
- breaches of orders
- complaints regarding non-compliance with conditional release and supervised release orders
- variation, discharge, revocation or resentence of orders.
These applications are made formally in writing with accompanying affidavits and may be defended by the child.
The Youth Justice Act supports the involvement of parents in any proceedings where their child is a defendant, irrespective of the child’s wishes, and anticipates that a parent will be present in court.
Generally, courts will not deal with a matter of a child under 17 unless the parent is present. A court can adjourn a proceeding to enable a parent to be present, and can recommend the department meet a parent’s travel expenses (s 69 Youth Justice Act). The court can also order a parent to attend, and it is then an offence for the parent not to (the maximum penalty is currently $5890) (s 70 Youth Justice Act).
If a parent cannot attend, it may be useful for the parent to write a letter to the court explaining the difficulties and providing a phone number they can be contacted on.
Parents have the right to be in court, and they are to be given full opportunity to be heard and participate in the proceedings (s 72 Youth Justice Act).
The court must ensure that the parent understands:
- the nature of the offence alleged to have been committed by the child
- the court’s procedures
- the consequences of any order that may be made (s 72(2) Youth Justice Act).
Where a parent is absent and a finding or an order is made against a child, the parent can apply to have the order set aside, and the court can order this if it considers it is in the interests of justice to do so (e.g. where the child’s capacity to make decision relating to the proceeding was adversely affected by the parent’s absence (s 71 Youth Justice Act)). The application must be made within 28 days of the original decision and, if successful, the matter must be heard afresh. There may, therefore, be significant consequences for a child.
If a parent is absent, a court will usually ask a child if their parents know about the proceedings and if they want the matter remanded so that the parents may be present. If the child elects to proceed, the answers to these questions are recorded and could be referred to by a parent in requesting an order be set aside.