Part 2 Criminal proceedings generally
This Part applies to:(a) any court that exercises criminal jurisdiction, and(b) any criminal proceedings before any such court,notwithstanding any law or practice to the contrary.
5 Age of criminal responsibility
It shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence.
6 Principles relating to exercise of functions under Act
A person or body that has functions under this Act is to exercise those functions having regard to the following principles:(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.
7 Jurisdiction of Children’s Court not to be exercised by certain other courts
(1) Except as provided by this Act, the Local Court may not hear and determine criminal proceedings that the Children’s Court has jurisdiction to hear and determine.(2) The Drug Court may not hear or determine criminal proceedings that a Children’s Court has jurisdiction to hear and determine.
7A Courts may rely on apparent age of defendants
(1) For the purpose of enabling a court to determine whether or not it has jurisdiction to hear and determine criminal proceedings against a person in circumstances in which the court’s jurisdiction depends on the person’s age, the court may, if it is satisfied that no other evidence of the person’s age is readily available, rely on the apparent age of the person.(2) Nothing in this section limits the operation of Part 4.
Division 2 Commencement of proceedings
(1) Criminal proceedings should not be commenced against a child otherwise than by way of court attendance notice.(2) Subsection (1) does not apply:(a) if the offence for which proceedings are being commenced consists of:(i) a serious children’s indictable offence,(ii) an indictable offence under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985, or(iii) an offence (whether indictable or otherwise) prescribed by the regulations for the purposes of this paragraph,(b) if, in the opinion of the person by whom the proceedings are commenced, there are reasonable grounds for believing that:(i) the child is unlikely to comply with a court attendance notice, or(ii) the child is likely to commit further offences,if the proceedings were to be commenced by court attendance notice, or(c) if, in the opinion of the person by whom the proceedings are commenced:(i) the violent behaviour of the child, or(ii) the violent nature of the offence,indicates that the child should not be allowed to remain at liberty.(3) (Repealed)
9 Expedition where child in custody
(1) If criminal proceedings are to be commenced against a child otherwise than by way of court attendance notice, and the child is not released on bail under the Bail Act 1978, the child shall be brought before the Children’s Court as soon as practicable.(2) (Repealed)
10 Exclusion of general public from criminal proceedings
(1) While a court is hearing criminal proceedings to which a child is a party:(a) any person (other than a person referred to in paragraph (b) or (c)) who is not directly interested in the proceedings is to be, unless the court otherwise directs, excluded from the place where the proceedings are being heard, and(b) any person who is engaged in preparing a report on the proceedings for dissemination through a public news medium is, unless the court otherwise directs, entitled to enter or remain in the place where the proceedings are being heard, and(c) any family victim is entitled to enter or remain in the place where the proceedings are being heard.(2) While a court is hearing criminal proceedings to which a child is a party, the court may direct any person (other than the child or any other person who is directly interested in the proceedings or a family victim) to leave the place where the proceedings are being heard during the examination of any witness if the court is of the opinion that it is in the interests of the child that such a direction should be given.(3) A reference in subsection (1) or (2) to criminal proceedings does not include a reference to proceedings held before a court other than the Children’s Court in respect of a traffic offence.(3A) Despite anything to the contrary in this Act, if criminal proceedings to which a child is a party are proceedings for a prescribed sexual offence (within the meaning of the Criminal Procedure Act 1986):(a) sections 291, 291A, 291B, 291C and 294C of that Act apply in respect of the proceedings, and(b) subsections (1) and (2) of this section do not apply in respect of any part of the proceedings held in camera under section 291, 291A or 291B of that Act, and(c) a person or persons whom a complainant is entitled to have present near the complainant when giving evidence (under section 294C of that Act) cannot be excluded from, or directed to leave, the place where the proceedings are heard under this section (whether or not the proceedings are held in camera).Note. Sections 291, 291A and 291B of the Criminal Procedure Act 1986 require certain proceedings, or parts of proceedings, for a prescribed sexual offence to be held in camera. The general rule is that any part of a proceeding in which evidence is given by the complainant must be held in camera (unless the court otherwise directs), and other parts of the proceedings may also be held in camera. The complainant is entitled to have one or more persons chosen by the complainant to be near the complainant when giving evidence under section 294C of that Act.(4) In this section:deceased victim, in relation to an offence, means a person against whom the offence was committed and who has died as a direct result of the offence.
family victim, in relation to a criminal proceeding for an offence, means a person who, at the time the offence was committed, was a member of the immediate family of a deceased victim of the offence (whether or not the person suffered personal harm as a result of the offence).
member of the immediate family of a deceased victim means:
(a) the victim’s spouse, or(b) the victim’s de facto spouse, or partner of the same sex, who has cohabited with the victim for at least 2 years, or(c) a parent or step-parent of the victim, or person having parental responsibility for the victim, or(d) a child or step-child of the victim, or some other child for whom the victim has parental responsibility, or(e) a brother, sister, step-brother or step-sister of the victim.
11 Publication and broadcasting of names
(1) The name of any of the following persons must not be published or broadcast in a way that connects the person with the criminal proceedings concerned:(a) any person who:(i) appears as a witness before a court in any criminal proceedings, or to whom any criminal proceedings relate, and(ii) was a child when the offence to which the proceedings relate was committed,(b) any person who is mentioned in any criminal proceedings in relation to something that occurred when the person was a child,(c) any person who is otherwise involved in any criminal proceedings and was a child when the person was so involved,(d) any person who is a brother or sister of a victim of the offence to which the proceedings relate, where that person and the victim were both children when the offence was committed.(1A) The prohibition in subsection (1) applies to the publication or broadcast of the name of a person:(a) whether the publication or broadcast occurs before or after the proceedings concerned are disposed of, and(b) even if the person is no longer a child, or is deceased, at the time of the publication or broadcast.(2) A reference in subsection (1) to criminal proceedings does not include a reference to proceedings held before a court other than the Children’s Court in respect of a traffic offence.(3) A person who publishes or broadcasts the name of any person the publication or broadcasting of which is prohibited by subsection (1) is guilty of an offence.Maximum penalty: 500 penalty units (in the case of a corporation) or 50 penalty units or imprisonment for 12 months, or both, in any other case.
(4) Subsection (1) does not prohibit:(a) the publication or broadcasting of an official report of the proceedings of a court that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by subsection (1), or(b) the publication or broadcasting of the name of a person:(i) in the case of a person who is a child under the age of 16 years at the time of publication or broadcasting—with the consent of the court concerned, or(ii) in the case of a person who is of or above the age of 16 years at the time of publication or broadcasting—with the consent of the person, or(c) the publication or broadcasting of the name of a person who has been convicted of a serious children’s indictable offence, if the publication or broadcasting is authorised by a court under subsection (4B), or(d) the publication or broadcasting of the name of a deceased child with the consent of a senior available next of kin of the child, but only if it appears to the senior available next of kin, after making such inquiries as are reasonable in the circumstances, that no other senior available next of kin objects to the publication or broadcasting of the name.(4A) The consent of the court referred to in subsection (4) (b) (i) shall not be given except with the concurrence of the child or (if the child is incapable of giving concurrence) where the court is of the opinion that the public interest so requires.(4B) A court that sentences a person on conviction for a serious children’s indictable offence may, by order made at the time of sentencing, authorise the publication or broadcasting of the name of the person (whether or not the person consents or concurs).(4C) A court is not to make an order referred to in subsection (4B) unless it is satisfied:(a) that the making of such an order is in the interests of justice, and(b) that the prejudice to the person arising from the publication or broadcasting of the person’s name in accordance with such an order does not outweigh those interests.(4D) The burden of establishing the matters referred to in subsection (4C) (a) and (b) lies on the prosecuting authority.(4E) A court that makes an order referred to in subsection (4B) must indicate to the person, and make a record of, its reasons for doing so.(4F) A senior available next of kin who is charged with, or is convicted of, an offence to which the criminal proceedings concerned relate cannot give consent, or object, to the publication or broadcasting of the name of a deceased child as referred to in subsection (4) (d).(4G) In considering whether to give consent to the publication or broadcasting of the name of a deceased child as referred to in subsection (4) (d), a senior available next of kin must, if the publication or broadcasting of the name of a brother or sister of the deceased child is prohibited under subsection (1) (d):(a) make such inquiries as are reasonable in the circumstances to obtain the views of that brother or sister regarding the publication or broadcasting of the name of the deceased child, and(b) take into account the impact of such a publication or broadcasting on that brother or sister.(5) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.(6) For the purposes of this section, a reference to a person who appears as a witness before a court in any criminal proceedings includes a reference to a child who gives evidence in the form of a recording in proceedings in accordance with Division 3 of Part 6 of Chapter 6 of the Criminal Procedure Act 1986.(7) In this section, senior available next of kin of a deceased child means:(a) a parent of the child, or(b) if the parents of the child are dead, cannot be found, or for some other reason cannot exercise their parental responsibilities to the child:(i) a person who, immediately before the death of the child, had parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998) for the child, or(ii) in the case of a child who was in the care of the Director-General of the Department of Community Services immediately before his or her death—the Director-General.
12 Proceedings to be explained to children
(1) If criminal proceedings are brought against a child, the court that hears those proceedings must take such measures as are reasonably practicable to ensure that the child understands the proceedings.(2), (2A) (Repealed)(3) The Children’s Court shall, if requested by the child or by some other person on behalf of the child, explain to the child:(a) any aspect of the procedure of the Children’s Court, and(b) any decision or ruling made by the Children’s Court,in or in relation to the proceedings.(4) A court shall give the child the fullest opportunity practicable to be heard, and to participate, in the proceedings.
Sections 10 and 11 apply to a child who appears or is brought before a court in relation to a bail application in the same way as the sections apply to a child appearing or brought before a court in any criminal proceeding.
13 Admissibility of certain statements etc
(1) Any statement, confession, admission or information made or given to a member of the police force by a child who is a party to criminal proceedings shall not be admitted in evidence in those proceedings unless:(a) there was present at the place where, and throughout the period of time during which, it was made or given:(i) a person responsible for the child,(ii) an adult (other than a member of the police force) who was present with the consent of the person responsible for the child,(iii) in the case of a child who is of or above the age of 14 years—an adult (other than a member of the police force) who was present with the consent of the child, or(iv) an Australian legal practitioner of the child’s own choosing, or(b) the person acting judicially in those proceedings:(i) is satisfied that there was proper and sufficient reason for the absence of such an adult from the place where, or throughout the period of time during which, the statement, confession, admission or information was made or given, and(ii) considers that, in the particular circumstances of the case, the statement, confession, admission or information should be admitted in evidence in those proceedings.(2) In this section:(a) a reference to a person acting judicially includes a reference to a person making a determination as to the admissibility of evidence in committal proceedings, and(b) a reference to criminal proceedings is a reference to any criminal proceedings in which a person is alleged to have committed an offence while a child or which arise out of any other criminal proceedings in which a person is alleged to have committed an offence while a child, and(c) a reference to a person responsible for a child does not include a member of the police force (unless he or she has parental responsibility for the child).(3) Nothing in this section limits or affects the admissibility in evidence in any criminal proceedings against a child of any statement or information that the child is required to make or give by virtue of the provisions of any Act or law.
(1) Without limiting any other power of a court to deal with a child who has pleaded guilty to, or has been found guilty of, an offence, a court:(a) shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years, and(b) may, in respect of an offence which is disposed of summarily, refuse to proceed to, or record such a finding as, a conviction in relation to a child who is of or above the age of 16 years.(2) Subsection (1) does not limit any power of a court to proceed to, or record such a finding as, a conviction in respect of a child who is charged with an indictable offence that is not disposed of summarily.
15 Evidence of prior offences and other matters not admissible in certain criminal proceedings
(1) The fact that a person has pleaded guilty to an offence in, or has been found guilty of an offence by, a court (being an offence committed when the person was a child) shall not be admitted in evidence (whether as to guilt or the imposition of any penalty) in any criminal proceedings subsequently taken against the person in respect of any other offence if:(a) a conviction was not recorded against the person in respect of the firstmentioned offence, and(b) the person has not, within the period of 2 years prior to the commencement of proceedings for the other offence, been subject to any judgment, sentence or order of a court whereby the person has been punished for any other offence.(2) Subsection (1) or (3) does not apply to any criminal proceedings before the Children’s Court.(3) The fact that a person has been dealt with by a warning, caution or youth justice conference under the Young Offenders Act 1997 (being in respect of an alleged offence committed when the person was a child) is not to be admitted in evidence (whether as to guilt or the imposition of any penalty) in any criminal proceedings subsequently taken against the person in respect of any other offence.
This Division applies to a person:(a) who has pleaded guilty to an indictable offence in, or has been found guilty or convicted of an indictable offence by, a court other than the Children’s Court,(b) who was a child when the offence was committed, and(c) who was under the age of 21 years when charged before the court with the offence.
17 Serious children’s indictable offences
A person to whom this Division applies shall, in relation to a serious children’s indictable offence, be dealt with according to law.
(1) A person to whom this Division applies shall, in relation to an indictable offence other than a serious children’s indictable offence, be dealt with:(a) according to law, or(b) in accordance with Division 4 of Part 3.(1A) In determining whether a person is to be dealt with according to law or in accordance with Division 4 of Part 3, a court must have regard to the following matters:(a) the seriousness of the indictable offence concerned,(b) the nature of the indictable offence concerned,(c) the age and maturity of the person at the time of the offence and at the time of sentencing,(d) the seriousness, nature and number of any prior offences committed by the person,(e) such other matters as the court considers relevant.(2) For the purpose of dealing with a person in accordance with Division 4 of Part 3, a court shall have and may exercise the functions of the Children’s Court under that Division in the same way as if:(a) the court were the Children’s Court, and(b) the offence were an offence to which that Division applies.(3) If a court, in exercising the functions of the Children’s Court under subsection (2), makes an order under section 33 that provides for a person to enter into a good behaviour bond or that releases a person on probation, the court may, on referral from the Children’s Court under section 40 (1A), deal with the order in the same way as the Children’s Court may deal with it under section 40.
19 Court may direct imprisonment to be served as a juvenile offender
(1) If a court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the court may, subject to this section, make an order directing that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender.Note. The effect of such an order is that the person to whom the order relates will be committed to a detention centre (see subsection (6)). There he or she will be detained as specified in the order. In certain circumstances, he or she may subsequently be transferred to a correctional centre pursuant to an order under section 28 of the Children (Detention Centres) Act 1987.(1A) In the case of a person of or above the age of 18 years who is serving, or has previously served, the whole or any part of a term of imprisonment in a correctional centre, such an order may not be made unless the court decides that there are special circumstances justifying detention of the person as a juvenile offender.(2) A person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 21 years, unless:(a) in the case of a sentence for which a non-parole period has been set—the non-parole period will end within 6 months after the person has attained that age, or(b) in the case of a sentence for which a non-parole period has not been set—the term of the sentence of imprisonment will end within 6 months after the person has attained that age.(3) A person who is sentenced to imprisonment in respect of a serious children’s indictable offence is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years, unless:(a) the sentencing court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age, or(b) in the case of a sentence for which a non-parole period has been set—the non-parole period will end within 6 months after the person has attained that age, or(c) in the case of a sentence for which a non-parole period has not been set—the term of the sentence of imprisonment will end within 6 months after the person has attained that age.This subsection is subject to subsection (2).
(4) A finding of special circumstances for the purposes of subsection (1A) or (3) may be made on one or more of the following grounds, and not otherwise:(a) that the person is vulnerable on account of illness or disability (within the meaning of the Anti-Discrimination Act 1977),(b) that the only available educational, vocational training or therapeutic programs that are suitable to the person’s needs are those available in detention centres,(c) that, if the person were committed to a correctional centre, there would be an unacceptable risk of the person suffering physical or psychological harm, whether due to the nature of the person’s offence, any assistance given by the person in the prosecution of other persons or otherwise.(4A) In particular, a finding of special circumstances may not be made simply because of the person’s youth or simply because the non-parole period of the person’s sentence will expire while the person is still eligible to serve the sentence as a juvenile offender.(4B) A court that makes a finding of special circumstances must make a record of its reasons for making that finding in the particular case.(5) A person who is subject to an order under this section that ceases or ceased to apply on the person attaining the age of 18 years may apply to the sentencing court for a further order under this section. Any such application requires the leave of the court.(6) The warrant of commitment that is issued under section 62 of the Crimes (Sentencing Procedure) Act 1999 in relation to a sentence of imprisonment the subject of an order under this section:(a) must indicate that the sentence is the subject of such an order, and(b) must specify how much of the sentence is to be served as a juvenile offender, and(c) must, despite the provisions of that section, commit the person to whom it relates to a detention centre.(7) Nothing in this section, or in any order under this section, limits the operation of section 28 of the Children (Detention Centres) Act 1987.(8) In this section:correctional centre has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999.
20 Remission of persons to the Children’s Court for punishment
(1) A court may remit a person to whom this Division applies to the Children’s Court, in respect of any indictable offence other than a serious children’s indictable offence, so as to enable the Children’s Court to impose a penalty on the person with respect to the offence, but may do so only in respect of a person who is under the age of 21 years.(2) A court that remits a person under this section:(a) may, subject to the Bail Act 1978, commit the person to custody until the person can appear or be brought before the Children’s Court, and(b) shall cause to be sent to the Registrar of the Children’s Court a certificate that:(i) sets out the nature of the offence, and(ii) states that the person has been found guilty of the offence and is being remitted to the Children’s Court under this section.(3) The Children’s Court may deal with a person who has been remitted to it in respect of an offence in any way in which it could have dealt with the person had the person been tried and found guilty of the offence by the Children’s Court.
21 Rights of appeal where person remitted for sentence
(1) There is no right of appeal against an order of remittal under section 20.(2) Section 20 does not affect any right of appeal that a person may have against any finding of guilt or conviction pursuant to which an order of remittal under that section has been made.(3) A person who is dissatisfied with the order of the Children’s Court in respect of an offence for which the person has been remitted to the Children’s Court under section 20 may appeal against the order, under Part 3 of the Crimes (Local Courts Appeal and Review) Act 2001, in the same way as if the person had been tried and found guilty of the offence by the Children’s Court.
A court shall have regard to the child’s means and income (if any), and the child’s ability to comply with any requirement relating to the payment of compensation, when deciding:(a) whether or not to require a child to pay any compensation, or(b) the amount of any compensation required to be paid by a child.
(1) This section applies to a person:(a) who has pleaded guilty to an offence (other than contempt of court) in, or has been found guilty or convicted of an offence (other than contempt of court) by, a court,(b) who was a child when the offence was committed, and(c) who was under the age of 21 years when charged before the court with the offence.(2) A court shall not sentence a person to whom this section applies to a term of imprisonment, or make an order under section 33 (1) (g) in respect of the person, in connection with an offence unless:(a) a background report, prepared in accordance with the regulations, has been tendered in evidence with respect to the circumstances surrounding the commission of the offence, and(b) copies of the report have been given to the child and any other person appearing in the proceedings, and(c) the court has, subject to the rules of evidence, taken into account the matters contained in the report and any submissions made in relation to those matters by the persons referred to in paragraph (b).