Last updated 7 August 2017
If police decide to prosecute a child in relation to an offence, it is expected that they should give the child a ‘notice to appear’ on the spot or issue a ‘complaint and summons’ (s 12 Youth Justice Act 1992 (Qld) (Youth Justice Act)). Police are only to arrest and charge a child where it is necessary to:
- prevent further offending
- protect any evidence relating to an offence
- ensure the child comes to court (s 13 Youth Justice Act).
The child’s parents (or Child Safety Services if the child is in care) and the youth justice services should be provided with the complaint and summons that advises them of the details of the proceedings (s 43(2) Youth Justice Act, s 392 Police Powers and Responsibilities Act 2000 (Qld) (PPR Act)).
If police decide to proceed by arresting and charging the child with an offence (s 48 Youth Justice Act), they also have to decide the question of bail, that is whether or not to release the child pending their appearance in court. The general principle that detention should be a last resort is relevant to bail as well as sentence.
The provisions of the Bail Act 1980 (Qld) apply to children, but the Youth Justice Act makes some specific comment:
- A child arrested and refused watch-house bail must be brought promptly before a Childrens Court (s 49 Youth Justice Act).
- Where a child is arrested and held in custody in a police station or watch-house, and cannot be promptly brought before a Childrens Court, the child must be granted bail or released from custody (s 50(1) Youth Justice Act).
- Children must, where practicable, be held for the intervening period in a detention centre (s 54(2) Youth Justice Act). A child cannot be kept in an adult prison on remand (s 56(7) Youth Justice Act).
In Brisbane, children will normally be brought as soon as possible before the Brisbane Childrens Court which sits every weekday. The Brisbane Magistrates Court will also sit in the Childrens Court jurisdiction on Saturday mornings in relation to urgent matters.
Taking identifying particulars
If a child is arrested, police may take the child’s identifying particulars such as palm prints, fingerprints, handwriting, voice prints, footprints, a photograph of the person’s identifying features (e.g. scars or tattoos) and photographs generally (s 467 PPR Act).
Where a child is given a notice to appear or a complaint and summons (i.e. they are not under arrest) in relation to offences designated as ‘arrest offences’ (i.e. offences for which the police have the power to arrest the child without a warrant), the police can take identifying particulars but have to apply for an order from a magistrate to do so first. Notice of the application must be given to the child and their parents, or the Department of Communities, Child Safety and Disability Services if they are in care (s 25(3) Youth Justice Act). In this situation, a support person must be present during the taking of the identifying particulars if they are to be admissible in court (s 26 Youth Justice Act).
If the child is found not guilty of the charges by the court or is not given a sentence (e.g. the court decides the child should have been cautioned), the identifying particulars must be destroyed (s 27 Youth Justice Act).
Taking a DNA sample with consent
Police may ask a child who is at least 14 years old for consent to a forensic procedure (consent to take a DNA sample). The police must ensure that any consent is fully informed (s 454 PPR Act).
The child must be given the opportunity to speak to a support person in private before making a decision, and a support person must be present when any consent is given (s 450 PPR Act).
If a child is under 14, police may ask a parent of the child to consent to a forensic procedure other than the taking of a sample of the child’s blood (s 451 PPR Act).
Taking a DNA sample by court order
For an indictable offence, police may apply to the Childrens Court for an order authorising a sample be taken from the child for DNA analysis (s 488 PPR Act). The court must be satisfied:
- an indictable offence has been committed
- the child is reasonably suspected of having committed the offence
- a DNA analysis may tend to prove or disprove the child’s involvement in the offence.