Children (Criminal Proceedings) Act 1987 (NSW)

Children (Criminal Proceedings) Act 1987 No 55 An Act with respect to the conduct of criminal proceedings against children and other young persons. Part 1 Preliminary 1 Name of Act This Act may be cited as the Children (Criminal Proceedings) Act 1987. 2 Commencement (1) Sections 1 and 2 shall commence on the date of assent to this Act. (1A) Section 9 commences on the date that section 9 (2) is repealed by the Children (Criminal Proceedings) Amendment Act 2008. (2) 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. 3 Definitions (1) 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) a Magistrate, or (b) an authorised officer within the meaning of the Criminal Procedure Act 1986. child means a person who is under the age of 18 years. Children's Court means the Children's Court of New South Wales constituted by the Children's Court Act 1987. 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) a person having parental responsibility for the child, or (b) 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— (a) homicide, (b) an offence punishable by imprisonment for life or for 25 years, (c) 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), (c1) an offence under the Firearms Act 1996 relating to the manufacture or sale of firearms that is punishable by imprisonment for 20 years, (d) 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 (e) 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— (a) the road transport legislation, (b) the Roads Act 1993, (c) the Motor Accidents Compensation Act 1999, or (d) the Motor Vehicles (Third Party Insurance) Act 1942, or (e) 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. (2) (Repealed) (3) In this Act— (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (4) Notes included in this Act do not form part of this Act. Part 2 Criminal proceedings generally Division 1 Preliminary 4 Application 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 8 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 (with or without bail under the Bail Act 2013), the child shall be brought before the Children's Court as soon as practicable. (2) (Repealed) 9A (Repealed) Division 3 Hearings 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 partner, 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. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. 11 (Repealed) 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. 12A Bail applications The provisions of section 10 and Division 3A apply to a child who appears or is brought before a court in relation to a bail application in the same way as those provisions 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. 14 Recording of conviction (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. Division 3A Publication and broadcasting of names 15A Publishing and broadcasting of names prohibited (1) The name of a person must not be published or broadcast in a way that connects the person with criminal proceedings if— (a) the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed, or (b) the person appears as a witness in the proceedings and was a child when the offence to which the proceedings relate was committed (whether or not the person was a child when appearing as a witness), or (c) the person is mentioned in the proceedings in relation to something that occurred when the person was a child, or (d) the person is otherwise involved in the proceedings and was a child when so involved, or (e) the person is a brother or sister of a victim of the offence to which the proceedings relate, and that person and the victim were both children when the offence was committed. (2) This section applies only to the publication or broadcast of a person's name to the public, or a section of the public, by publication in a newspaper or periodical publication, by radio or television broadcast or other electronic broadcast, by the Internet, or by any other means of dissemination. (3) The publication of information to an Internet website that provides the opportunity for, or facilitates or enables, dissemination of information to the public or a section of the public (whether or not the particular publication results in the dissemination of information to the public or a section of the public) constitutes the publication of information to the public or a section of the public for the purposes of this section. (4) This section 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. (5) A reference in this Division 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) A reference in this Division 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. (6A) A reference in this Division to criminal proceedings includes a reference to a hearing under Part 4C of the Children (Detention Centres) Act 1987. (7) A person who publishes or broadcasts the name of any person the publication or broadcasting of which is prohibited by this section 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). (8) Proceedings for an offence against this section that are brought before the Local Court must be commenced within 2 years of the date of the alleged offence. 15B Exception for official report of proceedings This Division does not prohibit 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 this Division. 15C Exception for person convicted of serious children's indictable offence (1) This Division does not prohibit 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 this section. (2) 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). (3) In determining whether to make such an order, a court is to have regard to the following matters— (a) the level of seriousness of the offence concerned, (b) the effect of the offence on any victim of the offence and (in the case of an offence that resulted in the death of the victim) the effect of the offence on the victim's family, (c) the weight to be given to general deterrence, (d) the subjective features of the offender, (e) the offender's prospects of rehabilitation, (f) such other matters as the court considers relevant having regard to the interests of justice. (4) A court that makes an order under this section must indicate to the person, and make a record of, its reasons for doing so. 15D Exception for publication or broadcasting with consent (1) This Division does not prohibit the publication or broadcasting of the name of a person— (a) in the case of a person who is under the age of 16 years at the time of publication or broadcasting—with the consent of the court concerned, or (b) 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. (2) A court is not to give consent under this section except with the concurrence of the child or (if the child is incapable of giving concurrence) unless the court is of the opinion that it is in the public interest that consent be given. (3) A child who is of or above the age of 16 years cannot give consent for the purposes of this section unless the consent is given in the presence of an Australian legal practitioner of the child's own choosing. 15E Exception where child deceased (1) This Division does not prohibit the publication or broadcasting of the name of a deceased child with the consent of a senior available next of kin of the child. (2) A person must not, as a senior available next of kin, give consent to the publication or broadcasting of the name of a deceased child unless it appears to the person, 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. (3) In addition, in considering whether to give consent to the publication or broadcasting of the name of a deceased child when the publication or broadcasting of the name of a brother or sister of the deceased child is prohibited under section 15A (1) (e), a senior available next of kin must— (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. (4) 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 this section. (5) If there is no senior available next of kin who can give consent to the publication or broadcasting of a deceased child's name (whether or not as a result of subsection (4)), the court concerned can give that consent if satisfied that the public interest so requires. (6) 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 Human Services immediately before his or her death—the Director-General. 15F Exception for traffic offences not dealt with by Children's Court This Division does not apply to criminal proceedings in respect of a traffic offence if the proceedings are held before a court other than the Children's Court. 15G Functions of court officials not affected This Division does not apply to anything done by a person in the proper exercise of official functions as a member of staff of a registry or other office of a court in connection with the conduct and determination of criminal proceedings. Division 4 Penalties 16 Application 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. 18 Other indictable offences (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 1— 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. Note 2— Section 9A of the Children (Detention Centres) Act 1987 provides that persons who are 18 years of age or older are not to be detained in a detention centre in certain circumstances. (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 stil