Last updated 8 January 2018
Under the Queensland Criminal Code Act 1899 (Qld) (Criminal Code), there is an irrebuttable presumption that a child under 10 years of age cannot commit a criminal offence, and therefore no criminal proceedings can be brought against a child under 10 (s 29(1) Criminal Code) (although there could be grounds for the intervention of Child Safety Services).
Where a child has reached the age of 10, but has not yet reached the age of 14 years, there is a rebuttable presumption that the child is not criminally responsible.
As well as establishing the child has broken the criminal law, the prosecution must establish that the child had the capacity to know the conduct was wrong (s 29(2) Criminal Code).
Where a person has turned 18 or 19 either at the time of being charged or sentenced for an offence committed when under 18, the legislation sets out when they will be dealt with in the Childrens Court and when in an adult Magistrates Court (pt 6 div 11 Youth Justice Act 1992 (Qld) (Youth Justice Act)).
However, as a general principle, a court must always have regard to the fact that the offender was a child when the offence was committed, and the sentence cannot be greater than what the offender would have received if punished as a child in relation to:
- compensation and restitution (s 144(2)–(3) Youth Justice Act)
A child appearing in court as a defendant is able to instruct a lawyer to represent them in the same way as an adult. The child is the client and parents cannot override instructions given by the child.
A number of community legal centres, including the Youth Advocacy Centre Inc., South West Brisbane Community Legal Service and YFS Legal, provide free specialist legal advice and representation for young people in the Childrens Court. The Aboriginal & Torres Strait Islander Legal Service specialises in assisting Aboriginal and Torres Strait Islander young people.
Legal Aid is automatically available to children charged with indictable offences (matters which could be dealt with by a higher court). A merit test is applied to applications involving simple offences. It is the policy of Legal Aid Queensland not to take the assets of the parents of the child into account, and therefore children under 18 generally meet the financial test for aid.
Youth justice services and officers
The Minister for Child Safety, Youth and Women has portfolio responsibility for the Youth Justice Act. The Department of Child Safety, Youth and Women includes youth justice services which manage the youth justice system, including the operation of the two youth detention centres at Wacol (Brisbane) and Cleveland (near Townsville).
There are youth justice services centres throughout Queensland which have responsibility for children the court has sentenced to community-based orders (e.g. community service orders, probation orders) and those released from detention centres on conditional release orders. Offenders undertake a range of activities as part of their orders to address education, employment and health, and other issues relevant to the child concerned.
Youth justice officers also play a role in the court process.
As for all criminal matters, police are the gateway to the criminal justice system for young people.
Interaction with police
A child does not have to go with police to a police station unless they are under arrest. The police can arrest a child:
- in relation to an identified offence or offences
- to question the child about certain offences.
It is often an offence for anyone (adult or child) to refuse to provide name, address and date of birth, and it is therefore wise to provide these. Otherwise, a person (including a child) does not have to answer questions by the police or make any statement.
For traffic matters, any person must, if asked by police:
- produce their licence
- identify (if possible) any driver alleged to have committed an offence
- give the police details of an accident.
Except for simple offences, a statement made to police by a child must be made with a support person present at the time for it to be able to be used as evidence in court (s 29 Youth Justice Act). The reason for a support person is to redress the power imbalance between the child and the police.
A statement in this context includes any conversation a child may have with a police officer (beyond providing their name, address and age). The most obvious example is where there is a formal record of an interview given by a child at a police station.
Conversations between a child and a police officer conducted elsewhere are also capable of being statements by the child, and include conversations secretly recorded by way of concealed tape recorder or video camera.
In certain circumstances, the requirement to have a support person present may also apply where a child makes or gives a statement to a person other than a police officer.
A support person for a child is defined in the Youth Justice Act by reference to the Police Powers and Responsibilities Act 2000 (Qld) (sch 6) as including:
- a parent of the child, including a person who has lawful custody of a child or a person with day-to-day control of a child
- a lawyer acting for the child
- a person acting for the child and employed by an agency whose primary purpose is to provide legal services
- an adult relative or friend nominated by the child
- a justice of the peace upon police request if none of the above are available.
It is always open to the child to nominate who they want, and this could be a youth worker or other trusted adult. In practice, the police often select the support person. A common example is the use of justices of the peace who are often unknown to the child.
The Youth Justice Act does not define the role of the support person but it has been noted that the support person should provide general comfort and support to the child, and ensure that the child being interviewed is not placed under undue pressure, which includes:
- ensuring the child knows what is happening and understands their right not to answer questions
- attending to practical matters (e.g. appropriate time and length of the interview, appropriate toilet and meal breaks)
- attending to the need to take medication and any other medical issues
- ensuring the appropriateness of the language used for that child
- ensuring an appropriate questioning process (e.g. not to ask more than one question at a time)
- the support person should not be someone who is intimidating in relation to the child which would mitigate against the child feeling supported. This could include a parent.
However, a court can allow a child’s statement to be used in evidence where a support person was not present if it is satisfied there were proper and sufficient reasons for the absence of a support person and in the circumstances the statement should be admitted (s 29(2) Youth Justice Act).
Commencing court proceedings
Before taking a matter to court, the police must consider:
- taking no action
- diverting the child from court by:
- cautioning the child
- referring the offence to a restorative justice process
- providing an opportunity to attend a drug diversion assessment program for minor drugs offences
- providing an opportunity to attend a graffiti removal program for a graffiti offence (s 11(1) Youth Justice Act).
If police consider that taking one of the above steps is appropriate, then they must take that course of action.
In deciding the above, the police must consider:
- the circumstances of the alleged offence
- the child’s criminal history, any previous cautions the child has received, or any other actions taken in relation to the child for any other criminal matters (s 11(2) Youth Justice Act).