Children (Criminal Proceedings) Act 1987

This Act may be cited as the Children (Criminal Proceedings) Act 1987.

Sections 1 and 2 shall commence on the date of assent to this Act.

Section 9 commences on the date that section 9 (2) is repealed by the Children (Criminal Proceedings) Amendment Act 2008.

Except as provided by subsection (1), this Act shall commence on such day or days as may be appointed by the Governor and notified by proclamation published in the Gazette.

In this Act, except in so far as the context or subject-matter otherwise indicates or requires—

adult means a person who is of or above the age of 18 years.

authorised justice means—

a Judge of the Local Court, or

an authorised officer within the meaning of the Criminal Procedure Act 1986.

child means a person who is under the age of 18 years.

court attendance notice means a court attendance notice issued under Division 1 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986.

detention centre has the same meaning as it has in the Children (Detention Centres) Act 1987.

juvenile justice officer means a juvenile justice officer employed in the Department of Juvenile Justice.

parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.

person responsible, in relation to a child, means—

a person having parental responsibility for the child, or

a person who has the care of the child (whether or not the person has parental responsibility for the child).

person subject to control has the same meaning as it has in the Children (Detention Centres) Act 1987.

regulation means a regulation made under this Act.

road transport legislation has the same meaning as it has in the Road Transport Act 2013.

serious children’s indictable offence means—

homicide,

an offence punishable by imprisonment for life or for 25 years,

an offence under the following sections of the Crimes Act 1900—

section 48,

section 61J, other than in circumstances referred to in section 61J(2)(d),

section 61K, or section 61B before the commencement of the Crimes (Amendment) Act 1989,

section 93G(1A),

section 93GA,

section 196(1)(b) and (2)(b),

an offence under the Firearms Act 1996 relating to the manufacture or sale of firearms that is punishable by imprisonment for 20 years,

the offence of attempting to commit an offence arising under section 61J (otherwise than in circumstances referred to in subsection (2) (d) of that section) or 61K of the Crimes Act 1900 (or under section 61B of that Act before the commencement of Schedule 1 (2) to the Crimes (Amendment) Act 1989), or

an indictable offence prescribed by the regulations as a serious children’s indictable offence for the purposes of this Act.

traffic offence means an offence arising under a provision of—

the road transport legislation,

the Roads Act 1993,

the Motor Accidents Compensation Act 1999, or

the Motor Vehicles (Third Party Insurance) Act 1942, or

the Recreation Vehicles Act 1983,

in respect of the use, standing or parking of a motor vehicle within the meaning of that provision.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

(Repealed)

In this Act—

a reference to a function includes a reference to a power, authority and duty, and

a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

Notes included in this Act do not form part of this Act.

This Part applies to—

any court that exercises criminal jurisdiction, and

any criminal proceedings before any such court,

notwithstanding any law or practice to the contrary.

It is conclusively presumed that a child who, at the time of the alleged commission of an offence, is under 10 years of age cannot be guilty of the offence.

It is presumed that a child who, at the time of the alleged commission of an offence, is 10, 11, 12 or 13 years of age cannot be guilty of the offence.

The presumption in subsection (2) is rebutted only if the prosecution proves beyond reasonable doubt that the child knew at the time of the alleged commission of the offence that the child’s conduct was seriously wrong.

Whether a child knew that the child’s conduct was seriously wrong—

is a question of fact, and

must not be inferred merely from the fact that the child engaged in the act or acts which constituted the alleged offence, and

refers to the child’s knowledge that it was seriously wrong in a moral sense to engage in the act or acts which constituted the alleged offence.

In determining whether the presumption has been rebutted, a court must have regard to the following matters, if known to the court—

the conduct that constitutes the alleged offence,

the circumstances surrounding the commission of the alleged offence,

Example of circumstances surrounding commission of alleged offence—

the child taking steps to plan the conduct, including equipping themself for the conduct or to avoid detection

the child’s intellectual and moral development and education,

the environment in which the child was raised.

Subsection (5) does not limit other matters to which a court may have regard.

To avoid doubt—

a court may determine that the presumption has been rebutted based on evidence of the conduct that constitutes the alleged offence and the circumstances surrounding the commission of the alleged offence, and

the determination may be made without or despite other evidence of the child’s intellectual and moral development if the court is satisfied that evidence of the conduct that constitutes the alleged offence and the circumstances surrounding the commission of the alleged offence is sufficient to satisfy the requirement set out in subsection (3).

Despite subsections (5) and (6), a court must not have regard to the following occurring under the Young Offenders Act 1997—

the child being given a caution or being a participant in a youth justice conference,

an admission or non-denial statement made by the child in order to be eligible for a caution or youth justice conference, other than a formal guilty plea referred to in the Young Offenders Act 1997, section 10(5),

an admission, statement, confession made, or information given, by the child during the giving of a caution or a youth justice conference.

A person or body that has functions under this Act is to exercise those functions having regard to the following principles—

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,

that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

that it is desirable, wherever possible, to allow a child to reside in his or her own home,

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,

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,

that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

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.

The Drug Court may not hear or determine criminal proceedings that a Children’s Court has jurisdiction to hear and determine.

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.

Nothing in this section limits the operation of Part 4.

Criminal proceedings should not be commenced against a child otherwise than by way of court attendance notice.

Subsection (1) does not apply—

if the offence for which proceedings are being commenced consists of—

a serious children’s indictable offence,

an indictable offence under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985, or

an offence (whether indictable or otherwise) prescribed by the regulations for the purposes of this paragraph,

if, in the opinion of the person by whom the proceedings are commenced, there are reasonable grounds for believing that—

the child is unlikely to comply with a court attendance notice, or

the child is likely to commit further offences,

if the proceedings were to be commenced by court attendance notice, or

if, in the opinion of the person by whom the proceedings are commenced—

the violent behaviour of the child, or

the violent nature of the offence,

indicates that the child should not be allowed to remain at liberty.

(Repealed)

If criminal proceedings are to be commenced against a child otherwise than by way of court attendance notice, and the child is not released (with or without bail under the Bail Act 2013), the child shall be brought before the Children’s Court as soon as practicable.

(Repealed)

While a court is hearing criminal proceedings to which a child is a party—

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

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

any family victim is entitled to enter or remain in the place where the proceedings are being heard.

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.

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.

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)—

sections 291, 291A, 291B, 291C and 294C of that Act apply in respect of the proceedings, and

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

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.

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—

the victim’s spouse, or

the victim’s de facto partner, or

a parent or step-parent of the victim, or person having parental responsibility for the victim, or

a child or step-child of the victim, or some other child for whom the victim has parental responsibility, or

a brother, sister, step-brother or step-sister of the victim.

Note.

“De facto partner” is defined in section 21C of the Interpretation Act 1987.