Last updated 10 May 2022
Queensland has a specific Childrens Court jurisdiction that deals with youth justice and child protection matters established under the Childrens Court Act 1992 (Qld).
While the Act modifies the Magistrate and District Court jurisdictions and processes when they are dealing with children charged with criminal offences to some extent, overall the court process for a criminal matter involving a child defendant is generally no different to that for an adult. Applications for bail, adjournments, mentions, trials and sentences are dealt with in much the same way. The police prosecute matters at the Magistrates Court level and the Director of Public Prosecutions takes those cases that go to the Childrens Court of Queensland and the Supreme Court.
The court must ensure that a child and parent understand as far as practicable the nature of the alleged offence, including:
- the matters that must be established before the child can be found guilty
- the court’s procedures
- the consequences of any order that may be made (s 72 Youth Justice Act 1992 (Qld) (Youth Justice Act)).
As for all criminal matters, almost all prosecutions against young people aged 10 to 16 years will commence in a Magistrates Court but with the magistrate convening a Childrens Court. If the person is 18 or over and is charged with an offence that it is alleged they committed when they were 17 or under, there are rules about when the matter may still be dealt with in a Childrens Court or the sentence that can be imposed.
Magistrates hear committals for serious (indictable) offences and Supreme Court offences
The magistrate decides whether there is sufficient evidence that:
- a serious offence has been committed
- it may have been committed by the child before the court.
A ‘serious offence’ is an offence for which an adult could be imprisoned for 14 years or more (with a small number of exceptions) and that is not a Supreme Court offence (which is the most serious of criminal offences).
If the magistrate believes there is sufficient evidence, the matter is sent on to be dealt with by the relevant higher court.
As with adult matters, the Crown may proceed by way of ex officio indictment (where there has been no committal or where the magistrate has decided not to commit a matter) (s 101 Youth Justice Act).
Magistrates hear and decide ‘non-serious’ indictable offences
All matters commence as a committal hearing, but the child can decide that they want a magistrate to deal with their case rather than it being sent on to a judge provided that:
- the magistrate is satisfied that the matter can be adequately dealt with by them
- the child has been advised of their right to have their matter dealt with by a Childrens Court judge (sitting with or without a jury if the child is pleading ‘not guilty’).
A child defendant has the sole right of election and where appropriate, a child charged with an indictable offence can be referred to the Mental Health Court (s 61 Youth Justice Act).
Magistrates sentence ‘non-serious’ indictable offences
Where a child pleads guilty to a non-serious indictable offence, the child can decide whether they want the magistrate to sentence them or a judge (s 93(2) Youth Justice Act).
Where there is a plea or finding of guilt after a trial, the magistrate can still refer the sentencing of a child to a Childrens Court judge if the magistrate considers the circumstances of the case call for a sentence beyond what the magistrate can impose under the Youth Justice Act (s 186).
Magistrates hear and decide simple offences
Some criminal matters are considered sufficiently minor that they have to be dealt with by a magistrate. A magistrate can do this in the absence of the child, but if they find the case proved, the only sentence they can impose is a fine and only if the child has provided information in writing about their capacity to pay a fine (s 46 Youth Justice Act).
Magistrates sentence simple offences
Where a child pleads guilty to a simple offence, the magistrate must sentence the child.
Instead of a single legally qualified magistrate, a Magistrates Court may be constituted by two non-legally qualified justices of the peace who can:
- deal with a simple offence where the child pleads guilty
- deal with procedural matters.
Two justices cannot sentence a child to detention or an immediate release order (s 67 Youth Justice Act).
The Childrens Court of Queensland comprises District Court judges who have also been appointed as Childrens Court judges. A Childrens Court judge can deal with all indictable offences that the child has elected to have dealt with by a judge and must deal with serious offences (except Supreme Court offences).
The child can choose whether their case is heard by a Childrens Court judge alone or with a jury (s 98 Youth Justice Act).
Child co-offenders will be tried by judge and jury unless all co-offenders elect judge alone. If a child is not represented, there must be a jury. There must also be a jury if the judge decides that in the particular circumstances it is more appropriate for the child.
Judges can grant bail when a child has either not made a bail application or had bail refused by a magistrate (s 59 Youth Justice Act). This right exists in addition to the right to apply to the Supreme Court.